Controversies Flashcards
What is the cases and controversies requirement?
prohibition on advisory opinions & doctrine of standing
At Convention, delegates rejected proposals to give courts power to ____ and for veto power be bested jointly in ___
issue advisory opinions, presidents and justices
during Neutrality Crisis, Secretary of State Jefferson wrote on behalf of Washington to the Supreme Court, with 29 questions (also asking if he can ask for advisory opinions)
The justices answered that they ___ since that would conflict with __,
lacked the power to issue advisory opinions, checks and balances
During the neutrality crisis, the justices declined to answer questions because they thought it would amount to extrajudicially deciding meaning ___
beyond Art. III requirement of an actual dispute between adverse litigants
Why no advisory opinions? (3)
judicial power given doesn’t include this, can prejudice/pre-commit justices if case comes up, advisory as political act and want to prevent judges from accumulating political power
Problem with no advisory opinions
Tocqueville, leaves many unconstitutional laws on the books
____ can risk verging into advisory opinion
Dicta
The cases and controversies requirement is a check on the judge’s power to ___
refuse to recognize unconstitutional rule (immense political power)
Yet today, Tocqueville’s observation that the judiciary was not brought into controversies of its own volition, but had to be drawn in is no longer true because ___
SCOTUS takes cases through the cert system, which is overtly political
[Even when judges hold a law unconstitutional, _____
remains on the books – yet it is devoid of obligation
Narrow version of although it is censured it is not abolished
do what you want but court won’t act on this law
Broad version of although it is censured it is not abolished
executive might not follow a law the courts have held unconstitutional
not everything that’s unconstitutional will be held as such because __ and failure to litigate ___
many things don’t come before the court (standing, people not wanting to sue), actually effectively sets precendent
Hamburger solutions to unconstitutional laws on books
Abandon standing requirements (improbable and probably unintended consequences), Don’t take fact that something hasn’t been challenged as a reason not to challenge it
Standing is about the ____ of litigation
who
“In order to have standing, plaintiffs must show that they have a ___, ____, that will be _____.”
concrete injury, fairly traceable to defendant, be redressed by a successful suit
Why require legally cognizable injury for standing?
courts limited to judicial cases, Article 3, 2
Supreme Court has expanded its understanding of standing to __
include not just law but prudence
If something is prudent the Court may __
take it without other standing requirements
If something is not prudent a Court may refuse it and that means ___
can avoid hearing cases people have a right to have heard in court
Prudence takes into account __
political/societal concerns
It is ____ whether there is congressional standing (__)
not clear, Burwell
There _____ taxpayer standing
no generic
Windsor holding
will take this case even though standing not clear out of prudence, important so important for court to resolve soon
Problems with prudence
allows SCOTUS to accept/reject cases it otherwise wouldn’t, overstepping constitutional requirement of cases/controversies?
A case is moot when the requisite personal injury that gave rise to the case or controversy ___
ceases for some reason to exist
Examples of mootness
death of a party, settlement, repeal or expiration of the challenged gvt. action
Powell v. McCormack facts
member of Congress was not seated. That session had already expired & he had been seated in new session
Powell holding
Case not moot because entitled to backpay for the period when he was allegedly unconstitutionally excluded.”
DeFunis facts
Plaintiff sued law school, alleging discrimination on basis of affirmative action.
Defunis holding
Moot because provisionally admitted and about to graduate, nothing concrete turned on resolution
Exceptions to mootness
collateral consequences to injury remain (Powell), legal injury capable of repetition to that party but likely to evade final judicial review, where a defendant has voluntarily ceased its alleged wrongful conduct but remains free to resume it later
A case is considered ‘unripe’ where the claimed injury ___ and its occurrence is thought ____
has not occurred, too speculative or contingent to constitute a real, present dispute
A case is ripe when it is “____, because the alleged legal injury is ___.
brought too early for judicial decision, remote and speculative
What is two part test for ripeness?
hardship to the parties from withholding court consideration, The fitness of the issues and of the record for judicial review.”
When is first part of test for ripeness usually satisfied
likelihood of prosecution with substantial consequences unless a plaintiff forgoes engaging in allegedly lawful behavior, the enforcement of a statute is certain but enforcement proceedings have not yet begun, substantial hardship from collateral injuries
For fitness of the issues, “The more a question is ____ , the more likely it is that a case will be deemed ripe for review.”
purely legal
Sebelius shows ____. But that approach ____
Roberts Court undertaking a rescue mission of a popular statute, carries risks
