Controversies

Question 1

What is the cases and controversies requirement?

Answer 1

prohibition on advisory opinions & doctrine of standing

Question 2

At Convention, delegates rejected proposals to give courts power to ____ and for veto power be bested jointly in ___

Answer 2

issue advisory opinions, presidents and justices

Question 3

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 __,

Answer 3

lacked the power to issue advisory opinions, checks and balances

Question 4

During the neutrality crisis, the justices declined to answer questions because they thought it would amount to extrajudicially deciding meaning ___

Answer 4

beyond Art. III requirement of an actual dispute between adverse litigants

Question 5

Why no advisory opinions? (3)

Answer 5

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

Question 6

Problem with no advisory opinions

Answer 6

Tocqueville, leaves many unconstitutional laws on the books

Question 7

____ can risk verging into advisory opinion

Answer 7

Dicta

Question 8

The cases and controversies requirement is a check on the judge’s power to ___

Answer 8

refuse to recognize unconstitutional rule (immense political power)

Question 9

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 ___

Answer 9

SCOTUS takes cases through the cert system, which is overtly political

Question 10

[Even when judges hold a law unconstitutional, _____

Answer 10

remains on the books – yet it is devoid of obligation

Question 11

Narrow version of although it is censured it is not abolished

Answer 11

do what you want but court won’t act on this law

Question 12

Broad version of although it is censured it is not abolished

Answer 12

executive might not follow a law the courts have held unconstitutional

Question 13

not everything that’s unconstitutional will be held as such because __ and failure to litigate ___

Answer 13

many things don’t come before the court (standing, people not wanting to sue), actually effectively sets precendent

Question 14

Hamburger solutions to unconstitutional laws on books

Answer 14

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

Question 15

Standing is about the ____ of litigation

Answer 15

who

Question 16

“In order to have standing, plaintiffs must show that they have a ___, ____, that will be _____.”

Answer 16

concrete injury, fairly traceable to defendant, be redressed by a successful suit

Question 17

Why require legally cognizable injury for standing?

Answer 17

courts limited to judicial cases, Article 3, 2

Question 18

Supreme Court has expanded its understanding of standing to __

Answer 18

include not just law but prudence

Question 19

If something is prudent the Court may __

Answer 19

take it without other standing requirements

Question 20

If something is not prudent a Court may refuse it and that means ___

Answer 20

can avoid hearing cases people have a right to have heard in court

Question 21

Prudence takes into account __

Answer 21

political/societal concerns

Question 22

It is ____ whether there is congressional standing (__)

Answer 22

not clear, Burwell

Question 23

There _____ taxpayer standing

Answer 23

no generic

Question 24

Windsor holding

Answer 24

will take this case even though standing not clear out of prudence, important so important for court to resolve soon

Question 25

Problems with prudence

Answer 25

allows SCOTUS to accept/reject cases it otherwise wouldn’t, overstepping constitutional requirement of cases/controversies?

Question 26

A case is moot when the requisite personal injury that gave rise to the case or controversy ___

Answer 26

ceases for some reason to exist

Question 27

Examples of mootness

Answer 27

death of a party, settlement, repeal or expiration of the challenged gvt. action

Question 28

Powell v. McCormack facts

Answer 28

member of Congress was not seated. That session had already expired & he had been seated in new session

Question 29

Powell holding

Answer 29

Case not moot because entitled to backpay for the period when he was allegedly unconstitutionally excluded.”

Question 30

DeFunis facts

Answer 30

Plaintiff sued law school, alleging discrimination on basis of affirmative action.

Question 31

Defunis holding

Answer 31

Moot because provisionally admitted and about to graduate, nothing concrete turned on resolution

Question 32

Exceptions to mootness

Answer 32

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

Question 33

A case is considered ‘unripe’ where the claimed injury ___ and its occurrence is thought ____

Answer 33

has not occurred, too speculative or contingent to constitute a real, present dispute

Question 34

A case is ripe when it is “____, because the alleged legal injury is ___.

Answer 34

brought too early for judicial decision, remote and speculative

Question 35

What is two part test for ripeness?

Answer 35

hardship to the parties from withholding court consideration, The fitness of the issues and of the record for judicial review.”

Question 36

When is first part of test for ripeness usually satisfied

Answer 36

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

Question 37

For fitness of the issues, “The more a question is ____ , the more likely it is that a case will be deemed ripe for review.”

Answer 37

purely legal

Question 38

Sebelius shows ____. But that approach ____

Answer 38

Roberts Court undertaking a rescue mission of a popular statute, carries risks