The Judicial Power

Question 1

What are the 3 elements of justiciability?

Answer 1

(1) The lawsuit must request something within the power of the judiciary to grant (e.g. no advisory opinions)
(2) The case or controversy must be ripe (e.g., whatever harm is alleged must have already occurred), and it must not be moot (e.g., the issue has already been resolved through other means)
(3) Plaintiff must have standing

Question 2

What are the 2 characteristics of an advisory opinion? Are they permissible?

Answer 2

No, advisory opinions are not permissible.

(1) The decision lacks an actual dispute between adverse parties
(2) The decision lacks any legally binding effect on the parties

Question 3

HYPO: Secretary of State Thomas Jefferson asks the Supreme Court for advice on the meaning of federal treaties and laws. Is this request for an advisory opinion?

Answer 3

Yes, because there were no parties and the Court could not bind anyone through its opinion

Question 4

HYPO: Plaintiff sues at the request of defendant, who finances and directs the suit. Is this lawsuit seeking an advisory opinion?

Answer 4

Yes. These are not adverse parties.

Question 5

HYPO: Federal law allows veterans to file pension claims in federal court but gives the Secretary of War the power to ignore court decisions. Is a claim brought under the federal law seeking an advisory opinion?

Answer 5

Yes, because the facts state that the law allows the Secretary to ignore court decisions, so one of the parties cannot be bound by an adverse judgment.

Question 6

HYPO: A firm subject to a tax seeks a declaratory judgment on the tax’s constitutionality. Is this suit seeking an advisory opinion?

Answer 6

No, not necessarily. This raises a question of ripeness or mootness, but a decision here would bind the parties.

Question 7

A plaintiff can establish ripeness before a law or policy is enforced by showing two things:

Answer 7

(1) The issues are fit for a judicial decision

(2) The plaintiff would suffer substantial hardship in the absence of review

Question 8

In the context of ripeness, what does it mean for a case or issue to be “fit for judicial decision”?

Answer 8

An issue is fit for judicial decision if it does not rely on uncertain or contingent future events that might not occur. The more a case involves legal as opposed to factual issues, the more likely the case will be fit for review.

Question 9

In the context of ripeness, what does it mean for a party to suffer “substantial hardship”?

Answer 9

Typically, the plaintiff must be able to show some significant harmful impact on its rights or privileges. The more hardship the plaintiff can show, the more likely the court will find the case to be ripe.

Question 10

HYPO: Plaintiff seeks a declaration on the constitutionality of an anti-contraceptive law that has not been enforced in 80 years. Is this case ripe?

Answer 10

No. The plaintiff can show that the issue here is legal in nature, but they cannot show substantial hardship in the absence of review because the law has not been enforced in 80 years.

Question 11

HYPO: Multiple drug firms seek a declaration that the Food and Drug Administration lacked the authority to require generic names on all drug labels and ads. The cost to comply with this requirement would be substantial, but noncompliance would result in serious criminal and civil penalties. Is this case ripe?

Answer 11

Yes. First, the drug firms can show substantial hardship in the absence of review (e.g., financial consequences). Second, the issue on which they seek review is legal rather than factual.

Question 12

Explain mootness.

Answer 12

The plaintiff must be suffering from an ongoing injury—i.e., a live controversy must exist at all stages of review. If the injury has passed (or the issue has otherwise been resolved), the case will be dismissed as moot.

Question 13

What are the exceptions to mootness?

Answer 13

(1) Controversies capable of repetition but that evade review because of their inherently short duration
(2) Cases where the defendant voluntarily stops the offending practice but is free to resume it
(3) Class actions in which the class representative’s controversy has become moot but the claim of at least one other class member is still viable

Question 14

HYPO: An inmate suing to change prison conditions completes their sentence. Is this case moot?

Answer 14

Yes. The lawsuit is moot because the inmate is no longer subject to the prison policy no longer suffers injury from it.

Question 15

HYPO: A pregnant woman challenging an abortion restriction delivers her baby. Is this case moot?

Answer 15

No. The injury here (restriction from seeking an abortion) is capable of repetition but may evade review because of the inherently limited duration of pregnancy.

Question 16

HYPO: A strip club that the city sought to close closes, and the owner retires. Is this case moot?

Answer 16

No. The owner voluntarily stopped the challenged activity, but could restart at-will.

Question 17

What are the 3 components of standing?

Answer 17

(1) Injury in fact - the plaintiff must have suffered some injury
(2) Causation - the defendant must have caused plaintiff’s injury
(3) Redressability - the court must have authority to grant the relief that plaintiff seeks

Question 18

Name and describe the 2 requirements to show injury in fact.

Answer 18

(1) Particularized injury - an injury that affects the plaintiff in a personal and individual way
(2) Concrete injury - an that actually exists (that is, not hypothetical)

Physical, economic, environmental, and loss of constitutional and statutory rights all count as viable injuries for standing purposes.

Question 19

True or false: People have standing merely as “citizens” or “taxpayers” to claim that government action violates federal law or the Constitution.

Answer 19

False. The injury is too generalized.

Question 20

True or false: A taxpayer has standing to challenge their tax bill.

Answer 20

True.

Question 21

A person may have standing to allege that federal action violates the Tenth Amendment by interfering with powers reserved to the states as long as the person has…

Answer 21

A redressable injury.

For example, deputy sheriffs required to do handgun checks under federal law challenging the law as a violation of the Tenth Amendment.

Question 22

True or false: People have standing to challenge congressional spending measures on First Amendment Establishment Clause grounds (for example, congressionally approved federal expenditures to aid parochial schools).

Answer 22

True

Question 23

For the following scenarios, why would a person not have standing as a taxpayer to challenge the congressional action?

(1) Federal government grants of surplus property to religious groups
(2) Expenditures of general executive branch funds

Answer 23

(1) Because the property power is at play here, not the spending power.
(2) Because the executive branch is doing the spending, not Congress

Question 24

When must an injury occur for standing purposes? What about for pre-enforcement review?

Answer 24

The injury must have already occurred or imminently will occur.

In a suit for pre-enforcement relief, there must be a likelihood of future harm.

Question 25

Who must suffer the injury for standing purposes?

Answer 25

The plaintiff must be the one who suffered the injury (with some exceptions). Generally, there is no third-party standing.

Question 26

A claimant with standing in their own right may assert the rights of a third party if:

Answer 26

(1) It is difficult for the third party to assert their own rights, or
(2) A close relationship exists between the claimant and the third party.

Question 27

An organization has standing to sue on behalf of its members if:

Answer 27

(1) There is an injury in fact to the members
(2) The members’ injury is related to the organization’s purpose, AND
(3) Individual member participation in the lawsuit is not required (e.g., they’re not seeking individualized damages)

Question 28

A person has standing to bring a free speech claim alleging that the government restricted substantially more speech than necessary even if:

Answer 28

That person’s own speech would not be protected under the First Amendment

Question 29

HYPO: A publisher of an obscene website (which is not constitutionally protected) challenges an internet indecency ban on behalf of those with non-obscene websites. Is there standing? Why?

Answer 29

Yes. For free speech claims, a plaintiff has third party standing to challenge a restriction on behalf of other speakers if they can show that the law is substantially overbroad.

Question 30

HYPO: A publisher of an obscene website challenges a ban on indecent commercial websites on behalf of non-obscene websites. Is there standing?

Answer 30

No. Congress has the power to regulate commercial speech activity, and there is no third party standing for commercial speech claims.

Question 31

What is causation in the context of standing?

Answer 31

Showing that the alleged injury is fairly traceable to the defendant.

Question 32

What is redressability in the context of standing?

Answer 32

A decision in the plaintiff’s favor must be capable of eliminating their harm.

Question 33

True or false: Congress can eliminate the case or controversy requirement and, thus, can grant standing to someone who doesn’t have an injury.

Answer 33

False. However, a federal statute may create new interests, injury to which may be sufficient for standing.

Question 34

True or false: A plaintiff may have standing to enforce a federal statute if they are within the “zone of interests” Congress meant to protect.

Answer 34

True

Question 35

What is sovereign immunity? List any exceptions.

Answer 35

As reflected in the Eleventh Amendment, sovereign immunity bars a private party’s suit against a state in federal and state courts. Similarly, sovereign immunity bars claims against a state in federal and state agencies.

Exceptions:
(1) States can be sued if they consent to it

(2) Sovereign immunity does not extend to actions against local governments, actions by the United States or other states, or proceedings in federal bankruptcy courts.
(3) Congress can remove a state’s immunity as to actions created under the Fourteenth Amendment power to prevent discrimination, but it must be unmistakably clear that Congress intended to remove the immunity.

Question 36

The following actions can be brought against state officers:

Answer 36

(1) Actions to enjoin an officer from future conduct that violates the Constitution or federal law, even if this will require prospective payment from the state
(2) Actions for damages against an officer personally

Question 37

HYPO: You sue your state to enjoin your home from getting bulldozed. Is this action barred?

Answer 37

Yes. You cannot sue the state because of its sovereign immunity, and no exception applies here.

Question 38

HYPO: You sue the state director of transportation to enjoin your home from getting bulldozed. Is this action barred?

Answer 38

No. Private parties may sue state officials.

Question 39

HYPO: Rodney King sues the Los Angeles Police Department for excessive force. Is this action barred?

Answer 39

No. Private parties may sue local governments (and agencies).

Question 40

HYPO: Someone sues their state under a federal anti-discrimination law for being fired on racial grounds. Is this action barred?

Answer 40

No. By creating a cause of action against states for engaging in racial discrimination, Congress has clearly abrogated state sovereign immunity.

Question 41

True or false: A federal court will temporarily abstain from resolving a constitutional claim when the disposition rests on an unsettled question of state law.

Answer 41

True

Question 42

True or false: Federal courts will not enjoin pending state criminal proceedings (and in some cases pending state administrative or civil proceedings involving an important state interest) except in cases of proven harassment or prosecutions taken in bad faith.

Answer 42

True

Question 43

What are the 2 defining characteristics of “political questions” which courts will not decide?

Answer 43

Political questions are issues that are:

(1) Constitutionally committed to another branch of government
(2) Inherently incapable of judicial resolution

Question 44

What is the final judgment rule with regard to Supreme Court jurisdiction?

Answer 44

The Supreme Court will typically only review a case after there has been a final judgment by the highest state or federal court below it that can decide the case.

Question 45

In which kinds of cases does the Supreme Court have original jurisdiction?

Answer 45

(1) All cases affecting ambassadors, public ministers, and consuls
(2) Those in which a state is a party (but Congress has given concurrent jurisdiction to lower federal courts in all cases except those between states)

Question 46

The Supreme Court will not exercise jurisdiction if the state court judgment is based on ____________, even if federal issues are involved.

Answer 46

Adequate and independent state grounds