A theory of justiciability

Texas Law Review

Volumn 86, Issue 1, 2007, Pages 75-139

  Siegel, Jonathan R ^a,b  

^a GEORGE WASHINGTON UNIVERSITY   (United States)

^b YALE UNIVERSITY   (United States)

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EID: 36849049189     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (365)

1. See, e.g., H.R. Res. 459, 107th Cong. (2002) (enacted) (condemning the Ninth Circuit's decision as "constitutionally infirm and historically incorrect" on the same day as the decision was issued, by a vote of 416 to 3); S. Res. 292, 107th Cong. (2002) (enacted) (resolving that "the Senate strongly disapproves of the Ninth Circuit Decision" on the same day as the decision was issued, by a vote of 99 to 0).
2. 328 F.3d 466 (9th Cir. 2003), rev'd on other grounds sub nom. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004).
3. E.g., Stephen Dinan, Nation Rallies Around Pledge: Court Puts Ruling on Hold in Face of Justice Appeal, Bipartisan Anger, WASH. TIMES, June 28, 2002, at A1.
4. See John Nichols, Karl Rove's Legal Tricks: Packing the Judiciary with Right-Wingers, NATION, July 22, 2002, at 11, 13 (suggesting that Republican spinning of Newdow made the Supreme Court's possible affirmance of the decision a potentially significant campaign issue). Affirmance was a real possibility. Even Justice Thomas agreed that the Ninth Circuit's decision, wildly unpopular though it was, represented a "persuasive reading" of Supreme Court precedent. Newdow, 542 U.S. at 45 (Thomas, J., concurring).
5. The words "under God" in the Pledge of Allegiance would have joined other Supreme Court-approved chips in the wall, such as public displays of creche scenes in the context of Christmas celebrations, see Lynch v. Donnelly, 465 U.S. 668 (1984), and the opening of legislative sessions with a prayer, see Marsh v. Chambers, 463 U.S. 783 (1983).
6. Newdow, 542 U.S. at 17-18.
7. Editorial, Never Mind the Pledge, WASH. POST, June 15, 2004, at A22.
8. Id.
9. See infra Part II.
10. See infra subpart III(A).
11. See infra subpart III(B).
12. See infra subpart III(C).
13. See infra subpart III(D).
14. See infra subpart III(G).
15. See infra subpart IV(B).
16. Warth v. Seldin, 422 U.S. 490, 498 (1975).
17. See infra section IV(A)(3).
18. U.S. CONST. art. III, § 1.
19. Id. § 2.
20. E.g., Franks v. Bowman Transp. Co., 424 U.S. 747, 754 (1976); Flast v. Cohen, 392 U.S. 83, 95 (1968).
21. The prohibition on advisory opinions was first recognized in correspondence between the Justices and President Washington. See David P. Currie, The Constitution in the Supreme Court: 1789-1801, 48 U. CHI. L. REV. 819, 828-29 (1981) (describing the request for an advisory opinion and including excerpts of the response).
22. See, e.g., S. Spring Hill Gold Mining Co. v. Amador Medean Gold Mining Co., 145 U.S. 300, 301 (1892) (dismissing a case between corporations that subsequent to the commencement of the case came under common control); Cleveland v. Chamberlain, 66 U.S. (1 Black) 419, 425-26 (1862) (dismissing a case where, by purchasing a debt, a single party came to be both appellant and appellee).
23. See, e.g., Hayburn's Case, 2 U.S. (2 Dall.) 409, 411, 411-12 (1792) (noting the circuit court's suggestion that revision and control of judicial judgments by the legislature is "radically inconsistent with the independence of that judicial power which is vested in the courts").
24. E.g., United States v. Johnson, 319 U.S. 302, 305 (1943). But see, e.g., Pennington v. Coxe, 6 U.S. (2 Cranch) 33, 33-34 (1804) (resolving "a feigned issue" designed to try a legal question).
25. E.g., Liverpool, N.Y. & Phila. S.S. Co. v. Comm'rs of Emigration, 113 U.S. 33, 39 (1885).
26. E.g., Nixon v. United States, 506 U.S. 224, 228-29 (1993); Luther v. Borden, 48 U.S. (7 How.) 1, 46-47 (1849).
27. E.g., United Pub. Workers v. Mitchell, 330 U.S. 75, 89-90 (1947).
28. E.g., DeFunis v. Odegaard, 416 U.S. 312, 316 (1974).
29. E.g., Sierra Club v. Morton, 405 U.S. 727, 731-32 (1972); Frothingham v. Mellon, 262 U.S. 447, 488-89 (1923).
30. RICHARD H. FALLON, JR. ET AL., HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 67 (5th ed. 2003);
31. Richard H. Fallon, Jr., Marbury and the Constitutional Mind: A Bicentennial Essay on the Wages of Doctrinal Tension, 91 CAL. L. REV. 1, 12-13 (2003);
32. Henry P. Monaghan, Constitutional Adjudication: The Who and When, 82 YALE L.J. 1363, 1365 (1973).
33. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 577 (1992) (citing Stark v. Wickard, 321 U.S. 288, 309-10 (1944)); Boomer v. Atl. Cement Co., 257 N.E.2d 870, 871 (N.Y. 1970); Martin H. Redish, The Passive Virtues, the Counter-Majoritarian Principle, and the "Judicial- Political" Model of Constitutional Adjudication, 22 CONN. L. REV. 647, 648 (1990);
34. Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 SUFFOLK U. L. REV. 881, 884 (1983);
35. Herbert Wechsler, The Courts and the Constitution, 65 COLUM. L. REV. 1001, 1006 (1965).
36. FALLON ET AL., supra note 30, at 68-69.
37. Monaghan, supra note 30, at 1368-71.
38. Id.; Susan Bandes, The Idea of a Case, 42 STAN. L. REV. 227, 283-85 (1990).
39. See, e.g., Bandes, supra note 34, at 230, 281-84; Monaghan, supra note 30, at 1369-71; Redish, supra note 31, at 648, 650, 656, 669; see also AHARON BARAK, THE JUDGE IN A DEMOCRACY 193 (2006) (stating that the role of a judge is "to bridge the gap between law and society and to protect democracy," and that expanded rules of standing follow from this view).
40. Two additional words may be relevant: sometimes it is suggested that the justiciability constraints are inherent in the nature of "judicial Power." E.g., Honig v. Doe, 484 U.S. 305, 340 (1988) (Scalia, J., dissenting). Still, the constraints are also a lot for four words to mean.
41. Flast v. Cohen, 392 U.S. 83, 94 (1968).
42. U.S. CONST. amends. I, V, XIV.
43. See infra subpart II(A).
44. See infra Part III.
45. U.S. CONST. pmbl.
46. Id. amend. II.
47. See id. art. I, § 10 (requiring states not to coin money, emit bills of credit, make anything but gold or silver coin legal tender for payment of debts, or impair the obligations of contracts). In the preconstitutional period, states had engaged in debt-relief measures to such excess as to threaten the existence of credit. Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 427-28 (1934); Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 354-55 (1827); see CHARLES A. BEARD, AN ECONOMIC INTERPRETATION OF THE CONSTITUTION OF THE UNITED STATES 179-81 (1935) (discussing the public sentiment and economic history of the preratification years).
48. See U.S. CONST. art. I, § 3. This rule has the distinction of being the only provision in the Constitution that cannot be amended by the Article V amendment process, id. art. V, which further favors small states by entrenching their favored position.
49. See id. art. IV, § 2, cl. 3 (Fugitive Slave Clause); id. art. I, § 9, cl. 1 (prohibiting interference with the slave trade prior to 1808).
50. Id. art. I, § 9, cl. 3; id. art. I, § 10, cl. 1.
51. Id. art. I, § 9, cl. 2.
52. Id. art. III, § 2, cl. 3.
53. Id.
54. See id. amends. I, IV, V, VI.
55. Id. art. I, § 2, cl. 1; id. amend. XVII.
56. Id. art. I, § 2, cl. 3; id. amend. XIV, § 2.
57. Id. art. I, § 2, cl. 3.
58. Id. art. I, § 2, cl. 2; id. art. I, § 3, cl. 3.
59. See THE FEDERALIST No. 62, at 376 (James Madison) (Clinton Rossiter ed., 1961) (discussing the value of these qualifications).
60. U.S. CONST. art. I, § 5, cl. 3; id. art. I, § 9, cl. 7.
61. The Debates in the Convention of the State of New York, on the Adoption of the Federal Constitution (June 27, 1788), in 2 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 345 (Jonathan Elliot ed., 1836) (remarks of Robert Livingston).
62. U.S. CONST. art. I, § 1; id. art. II, § 1; id. art. III, § 1.
63. See id. art. II, § 1, cl. 7 (protecting the salary of the President); id. art. III, § 1 (protecting the salaries of judges).
64. Id. art. I, § 6, cl. 2.
65. Id. art. I, § 9, cl. 8.
66. Id. art. I, § 6, cl. 2.
67. Id. amend. XXVII.
68. Id. art. I, § 4, cl. 2; id. amend. XX, § 2.
69. Id. art. I, § 6, cl. 1.
70. Id. art. I, § 8.
71. Id. art. I, § 7, cls. 2, 3.
72. See, e.g., Wickard v. Filburn, 317 U.S. 111 (1942) (allowing broad regulation through the use of the Commerce Clause).
73. THE FEDERALIST NO. 73 (Alexander Hamilton), supra note 55, at 443.
74. INS v. Chadha, 462 U.S. 919, 959 (1983).
75. See infra subpart IV(B)(3).
76. For example, just as a liberal might be frustrated when standing problems make it difficult to challenge the allegedly religious character of the Pledge of Allegiance, as in Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004), a conservative might be frustrated when mootness scuttles a challenge to racial affirmative action programs, as in DeFunis v. Odegaard, 416 U.S. 312 (1974). Note also that it was mostly the more liberal Justices who voted to dismiss Newdow on standing grounds; the more conservative Justices would have reached the merits of the case. See 542 U.S. at 18 (Rehnquist, C.J., concurring). So the doctrines can cut either way.
77. See Allen v. Wright, 468 U.S. 737, 750 (1984) ("The case-or-controversy doctrines state fundamental limits on federal judicial power in our system of government.").
78. See supra section II(A)(3).
79. U.S. CONST. art. I, § 7, cl. 2.
80. In eighteenth-century Britain the concurrence of the Commons, the Lords, and the Crown was necessary to make a new law. 1 WILLIAM BLACKSTONE, COMMENTARIES *154-55. This remains true today, although the Crown has not withheld the Royal Assent from any bill passed by Parliament since 1707. HOUSE OF COMMONS INFORMATION OFFICE, PARLIAMENTARY STAGES OF A GOVERNMENT BILL 7 (2007). The Framers expressly considered Royal Assent in the ratification debates and compared the President's bill-signing power to it.
81. See, e.g., THE FEDERALIST NO. 69 (Alexander Hamilton), supra note 55, at 416;
82. THE FEDERALIST No. 73 (Alexander Hamilton), supra note 55, at 444.
83. The Royal Assent was given while either the King personally or Commissioners appointed by the King appeared in the House of Lords. See, e.g., 33 H.L. JOUR. 17-18, 30 (1770); 1 BLACKSTONE, supra note 76, at *177-78 (describing these two practices). A painstaking examination of the House of Lords Journals for the years from 1770-1790 reveals that the Royal Assent was never given on Sunday. See generally 33-39 H.L. JOUR. passim (1770-1790). Indeed, it was very rare for the Lords to meet at all on a Sunday. THOMAS ERSKINE MAY, A PRACTICAL TREATISE ON THE LAW, PRIVILEGES, PROCEEDINGS, AND USAGE OF PARLIAMENT 215-16 (London, Butterworths 4th ed. 1859); see 3 BLACKSTONE, supra note 76, at *276 (noting that a law required "the peace of God and of holy church" to be kept from 3 p.m. Saturday until Monday morning).
84. For bills signed every day of the week other than Sunday, see, for example, Act of June 1, 1789, ch. 1, 1 Stat. 23 (current version at 2 U.S.C.S. § 21 (2000)) (signed on a Monday); Act of Sept. 1, 1789, ch. 11, 1 Stat. 55 (repealed 1792) (Tuesday); Act of Aug. 5, 1789, ch. 6, 1 Stat. 49 (amended 1790) (Wednesday); Act of Aug. 20, 1789, ch. 10, 1 Stat. 54 (Thursday); Act of July 31, 1789, ch. 5, 1 Stat. 29 (repealed 1790) (Friday); Act of July 4, 1789, ch. 2, 1 Stat. 24 (repealed 1790) (Saturday). There is, of course, no page to cite for the proposition that Washington did not sign any bill on a Sunday. The reader is referred to 1 Stat. 23-519 and to calendars for the 1790s, a painstaking search of which will confirm this statement.
85. This discussion assumes that in searching for a potential purpose for the putative rule against signing bills on Sundays we limit ourselves to purposes related to the protection of the people against the power of the central government. It is not unimaginable that the Framers would have created a rule against signing bills on Sundays for the purpose of respecting the religious sensibilities of the majority of the nation's people. However, the generally secular nature of the Constitution, and particularly the provision that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States," U.S. CONST. art. VI, cut against such an attribution of purpose.
86. In fairness, one must note that at least one provision of the Constitution imposes an apparently purposeless procedural constraint: namely, the Origination Clause, which requires bills for raising revenue to originate in the House of Representatives. U.S. CONST. art. 1, § 7, cl. 1. Because the Senate's concurrence is as necessary to a revenue bill as to any other, the Senate's practical power over revenue bills should be the same as for any other bill. Empirical research suggests that the house that acts first on a bill, as a practical matter, has more influence in shaping the final result. See Adrian Vermeule, The Constitutional Law of Congressional Procedure, 71 U. CHI. L. REV. 361, 425 & n.205 (2004) (discussing the "first-mover advantage" in the context of Congress). Nevertheless, the Senate can easily avoid even this disadvantage: while the Senate cannot originate revenue bills, nothing can stop it from adopting a resolution suggesting that the House adopt a specified revenue bill. Indeed, it sometimes happens that the Senate originates a bill that the House rejects on the ground that it is a revenue bill; but then the House passes an identical or nearly identical bill. See, e.g., H.R. 1278, 101st Cong. (1989), 135 CONG. REC. 12,165-67 (1989) (declining to act on the Senate-originated Financial Institution Reform, Recovery, and Enforcement Act of 1989 but passing a similar bill); H.R. 8219, 93rd Cong. (1973), 119 CONG. REC. 34,818, 36,006 (1973) (declining to act on a Senate bill (S. 1526) that was regarded as a revenue bill but passing an identical bill); H.R. 3157, H.R. 10,874, 89th Cong. (1965), 111 CONG. REC. 12,631, 22,583-92, 23,630-32, 23,894-904 (1965) (showing that the House passed what it regarded as a nonrevenue bill amending the Railroad Retirement Act; the Senate amended the bill in a way that arguably turned it into a revenue bill; the House objected to the amendment and returned it to the Senate on the ground of unconstitutionality; but the House passed a new bill incorporating much of the substance of the Senate's amendment; and the Senate then passed the new bill). Thus, the Origination Clause accomplishes no real purpose. Still, it seems safe to conclude that the clause is exceptional in this regard. It grew out of special circumstances: in the Constitutional Convention, the large states objected to the principle of equal representation in the Senate, which gave the small states disproportionate power.
87. See David I. Lewittes, Constitutional Separation of War Powers: Protecting Public and Private Liberty, 57 BROOK. L. REV. 1083, 1153-54 (1992) (describing the Origination Clause as a "sweetener" for the benefit of the larger states for agreeing to the Great Compromise). The Origination Clause was a salve that permitted the Great Compromise to take effect. Moreover, the Origination Clause is specific in its requirements. The courts did not create the origination requirement out of a murky and ambiguous constitutional text that did not, on its face, provide for it.
88. See infra subpart III(A).
89. See infra subpart III(B).
90. See infra subpart III(C).
91. See infra subpart III(D).
92. Flast v. Cohen, 392 U.S. 83, 106 (1968).
93. Id. at 99 (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). Cases using this quotation to support the "litigation-enhancing" theory of justiciability are legion. See, e.g., Franchise Tax Bd. of Cal. v. Alcan Aluminum Ltd., 493 U.S. 331, 335 (1990); Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 804 (1985); City of L.A. v. Lyons, 461 U.S. 95, 101 (1983); Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 486 (1982); Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 72 (1978).
94. Peter L. Strauss, One Hundred Fifty Cases Per Year: Some Implications of the Supreme Court's Limited Resources for Judicial Review of Agency Action, 87 COLUM. L. REV. 1093, 1100 (1987). Today, that number has shrunk to about eighty.
95. See David R. Stras, The Supreme Court's Gatekeepers: The Role of Law Clerks in the Certiorari Process, 85 TEXAS L. REV. 947, 965 (2007) (book review) (noting that since 1993, the Supreme Court docket has oscillated between seventy-four and ninety-two cases).
96. E.g., United States v. Johnson, 319 U.S. 302, 305 (1943); Chi. & Grand Trunk Ry. Co. v. Wellman, 143 U.S. 339, 344-45 (1892).
97. E.g., S. Spring Hill Gold Mining Co. v. Amador Medean Gold Mining Co., 145 U.S. 300, 301 (1892).
98. Ken Davis made this point as early as 1970. See Kenneth Culp Davis, The Liberalized Law of Standing, 37 U. CHI. L. REV. 450, 470 (1970) (noting that standing does not ensure that cases will be presented with specificity, adverseness, or vigor); see also Redish, supra note 31, at 667 (arguing that no empirical evidence supports the assumption that an individual with something to gain will litigate more seriously).
99. See, e.g., Burdine v. Johnson, 262 F.3d 336, 338 (5th Cir. 2001) (affirming a district court holding that the criminal defendant had ineffective assistance of counsel because the attorney slept during the trial); Editorial, Courts of No Appeal, WASH. POST, July 4, 2004, at B6 (describing a case where the defense attorney repeatedly failed to file a timely appeal).
100. Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 486 (1982); Sierra Club v. Morton, 405 U.S. 727, 741 (1972); see Monaghan, supra note 30, at 1385 (noting that standing will not make litigants present cases any more ably than the Sierra Club or ACLU).
101. United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 690 n.14 (1973). SCRAP is not the most robust precedent these days, but this particular aspect of it appears uncontroversial. See, e.g., Belitskus v. Pizzingrilli, 343 F.3d 632, 640 (3d Cir. 2003) (citing SCRAP for the proposition that an identifiable trifle of an injury is sufficient for standing); N.Y. Pub. Interest Research Group v. Whitman, 321 F.3d 316, 326 (2d Cir. 2003) (noting that an identifiable trifle of an injury is sufficient for standing).
102. SCRAP, 412 U.S. at 690 n.14.
103. Kenneth E. Scott, Standing in the Supreme Court - A Functional Analysis, 86 HARV. L. REV. 645, 673-74 (1973); Redish, supra note 31, at 668.
104. Monaghan, supra note 30, at 1384.
105. See Davis, supra note 90, at 470 ("[The notion that] the law of standing can be used to assure the competent presentation of cases . . . deserves a quiet burial.").
106. Scalia, supra note 31, at 891. For a discussion of a related point, see David M. Driesen, Standing for Nothing: The Paradox of Demanding Concrete Context for Formalist Adjudication, 89 CORNELL L. REV. 808 (2004) (arguing that standing doctrine fails to fulfill its purported function of providing concrete context for adjudication of questions of public law).
107. Lea Brilmayer, The Jurisprudence of Article III: Perspectives on the "Case or Controversy" Requirement, 93 HARV. L. REV. 297, 306-10 (1979).
108. Id.
109. Id. at 307-08.
110. Id.
111. Id. at 309.
112. Id. at 310.
113. Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 473 (1982); see also Sierra Club v. Morton, 405 U.S. 727, 740 (1972) (asserting that the doctrine of standing serves "as at least a rough attempt" to restrict decisions to seek review to those with a direct stake in the outcome).
114. Brilmayer, supra note 99, at 314.
115. Id. at 309-10.
116. Dean v. District of Columbia, 653 A.2d 307 (D.C 1995).
117. Elizabeth Kastor, The Marriage Proposal: Two Men and Their Crusade for the Right to a Legal Union, WASH. POST, Jan. 28, 1991, at B1.
118. Id.
119. Dean, 653 A.2d at 308.
120. In addition to the precedent-setting effect the decision had in the District of Columbia itself, courts from other jurisdictions cited the case in support of decisions denying a right of same-sex marriage. E.g., Standhardt v. Superior Court ex rel. County of Maricopa, 77 P.3d 451, 460 n.14 (Ariz. Ct. App. 2003); Morrison v. Sadler, No. 49D13-0211-PL-001946, 2003 WL 23119998, at *6 (Ind. Super. Ct. May 7, 2003); Lewis v. Harris, No. MER-L-15-03, 2003 WL 23191114, at *7 (N.J. Super. Ct. Law Div. Nov. 5, 2003).
121. See Kastor, supra note 109 ("For [the plaintiffs], the fight is almost more important than the result. They claim they expect to win . . . , but if they lose at the highest level the men will still have the satisfaction of having stood up for themselves and their lives.").
122. Professor Tushnet makes a related point in his response to Professor Brilmayer. He observes that because a single, Hohfeldian plaintiff cannot capture all the benefits of establishing a legal rule for the future, individual plaintiffs will tend to underinvest in litigation and may therefore create poor law that binds future litigants. Mark V. Tushnet, The Sociology of Article III: A Response to Professor Brilmayer, 93 HARV. L. REV. 1698, 1711 (1980).
123. Brilmayer, supra note 99, at 310 (emphasis added).
124. Id. at 298.
125. Id.
126. Id. at 298-99.
127. Evers v. Dwyer, 358 U.S. 202, 203-04 (1958).
128. Lujan v. Defenders of Wildlife, 504 U.S. 555, 579 (1992) (Kennedy, J., concurring).
129. See, e.g., sources cited supra note 31.
130. MAXWELL L. STEARNS, CONSTITUTIONAL PROCESS 159 (2000); see also infra section III(F)(2).
131. Of course, one might turn this argument around and say that if the easy avoidability of justiciability requirements shows that they serve little purpose, it equally shows that they do little harm. So why not keep them? Let them be easily avoided in the cases where that is possible, but keep them for the cases in which they are not avoidable. The answer is that the trend of the law for centuries has been to eliminate purposeless procedural encumbrances that permit a goal to be reached, but only clumsily. For example, property law once permitted landowners to entail their estates by leaving their heirs the estate in "fee tail," but in the fifteenth century, courts permitted the owners of entailed estates to engage in a collusive lawsuit known as a "common recovery" that would "bar the entail" and produce a fee simple. A.W.B. SIMPSON, A HISTORY OF THE LAND LAW 129-32 (2d ed. 1986). This clumsy device survived for hundreds of years, partly out of the belief that "it was dangerous or even beyond the wit of man to meddle with . . . [the elaborate] structure, upon which the sacred property rights of the people were based" and that it would not be possible to abolish the device while preserving its effect. Id. at 272 & n.12. Eventually, however, with the procedure being so pointless, the common recovery was abolished and the tenant in tail was permitted to convey a fee simple by deed. Id. at 276-77;
132. Jesse Dukeminier & James E. Krier, The Rise of the Perpetual Trust, 50 UCLA L. REV. 1303, 1320 (2003). Similar remarks would apply to the fictional pleadings once required of plaintiffs in trover and ejectment. See infra note 270. These examples suggest the pointlessness of retaining rules that permit ideological plaintiffs to engage the judicial power, but only clumsily. The rules may seem "sacred," but they must serve a purpose to be worth retaining.
133. 468 U.S. 737 (1984).
134. Id. at 739.
135. Id. at 746.
136. Id. at 750.
137. See supra subpart II(B).
138. See supra subpart III(B).
139. 198 U.S. 45 (1905).
140. Cf. Redish, supra note 31, at 657 (noting that the parties in the economic-due-process cases suffered clear injury in fact).
141. 539 U.S. 558 (2003).
142. Id. at 578.
143. 514 U.S. 549 (1995).
144. Id. at 551.
145. 491 U.S. 397 (1989).
146. Id. at 399.
147. 384 U.S. 436 (1966).
148. Id. at 444.
149. 370 U.S. 421 (1962).
150. See id. at 423-24 (describing the constitutional challenge brought by the parents of ten public-school students).
151. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).
152. Id. at 400.
153. 410 U.S. 113 (1973).
154. See id. at 124-25 (finding pregnancy to be a "capable of repetition, yet evading review" justification for nonmootness).
155. 381 U.S. 479 (1965).
156. See id. at 481 (recognizing standing to assert the rights of third parties "with whom [the appellants] had a professional relationship").
157. 367 U.S. 497 (1961).
158. See DAVID J. GARROW, LIBERTY AND SEXUALITY: THE RIGHT TO PRIVACY AND THE MAKING OF ROE V. WADE 152-54 (1994) (discussing the role of activists in filing cases challenging Connecticut's contraception ban).
159. Griswold was a criminal prosecution, so it was brought by prosecutors, not activists. Griswold, 381 U.S. at 480. Still, the case bears strong hallmarks of being a deliberately contrived test case. The defendants and their activist allies encouraged the state to bring a prosecution, recruited patients to receive family-planning services at their clinic and to go directly from there to the police to furnish information, and even supplied an additional witness at the prosecutor's request. GARROW, supra note 149, at 201-09.
160. Sierra Club v. Morton, 405 U.S. 727 (1972), followed a similar pattern. After the case was dismissed for want of standing, a simple amendment to the complaint permitted the same issues to go forward, see Sierra Club v. Morton, 348 F. Supp. 219, 220 (N.D. Cal. 1972), and the Sierra Club ultimately achieved its goal of blocking the planned development of Mineral King Valley. Robert A. Jones, Controversial Mineral King Resort Plan Dies in Congress, L.A. TIMES, Oct. 15, 1978, at B1.
161. See supra subpart III(B).
162. Scalia, supra note 31.
163. 504 U.S. 555 (1992).
164. E.g., Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 198-215 (2000) (Scalia, J., dissenting); Fed. Election Comm'n v. Akins, 524 U.S. 11, 29-37 (1998) (Scalia, J., dissenting).
165. Scalia, supra note 31, at 894.
166. Id. at 895.
167. Defenders of Wildlife, 504 U.S. at 577 (quoting U.S. CONST. art. II, § 3).
168. Scalia, supra note 31, at 894-96.
169. Id.
170. Id. at 897.
171. E.g., United States v. Richardson, 418 U.S. 166, 174 (1974) (quoting Flast v. Cohen, 392 U.S. 83, 114 (1968) (Stewart, J., concurring)).
172. Scalia, supra note 31, at 896.
173. Cases in which the Judiciary performs this task are too numerous to require citation, but here are just a couple of notable examples: Hamdi v. Rumsfeld, 542 U.S. 507, 509 (2004) (ordering the Secretary of Defense to give an alleged enemy combatant a meaningful opportunity to challenge his detention); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 589 (1952) (ordering the Secretary of Commerce to return steel mills seized in wartime).
174. Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524, 612-13 (1838).
175. See Gene R. Nichol, Jr., Standing for Privilege: The Failure of Injury Analysis, 82 B.U. L. REV. 301, 316-17 (2002) [hereinafter Nichol, Standing for Privilege] (criticizing the Supreme Court's standing analysis);
176. Gene R. Nichol, The Impossibility of Lujan's Project, 11 DUKE ENVTL. L. & POL'Y F. 193, 205 (2001) (disagreeing with the Supreme Court's evaluations of what constitutes an "injury" in standing analyses).
177. Lujan v. Defenders of Wildlife, 504 U.S. 555, 577 (1992).
178. Id. at 579 (Kennedy, J., concurring); see Nichol, Standing for Privilege, supra note 166, at 316-17 (noting how the Defenders of Wildlife premise rests on specific tasks that "individual plaintiffs may or may not choose to take");
179. Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, "Injuries," and Article III, 91 MICH. L. REV. 163, 213 (1992) (questioning the premise of Defenders of Wildlife).
180. Justice Scalia himself may have given up on this argument. Writing for the Court, he recently noted that "standing jurisprudence, . . . though it may sometimes have an impact on Presidential powers, derives from Article III and not Article II." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 102 n.4 (1998).
181. Scalia, supra note 31, at 896.
182. On September 23, 2003, a district court held that the Federal Trade Commission (FTC) lacked statutory authority to promulgate the regulations, U.S. Sec. v. FTC, 282 F. Supp. 2d 1285, 1291 (W.D. Okla. 2003), rev'd sub nom. Mainstream Mktg. Servs., Inc. v. FTC., 358 F.3d 1228 (10th Cir. 2004), and it took Congress less than a week to pass a statute expressly giving the FTC the necessary authority, see Pub. L. No. 108-82, 117 Stat. 1006 (2003).
183. Other scholars have noted this flaw in Justice Scalia's argument. See Evan Caminker, The Constitutionality of Qui Tam Actions, 99 YALE L.J. 341, 386 n.225 (1989) (noting that the difficulties surrounding collective action by majorities show weakness in Scalia's argument);
184. John D. Echeverria, Critiquing Laidlaw: Congressional Power to Confer Standing and the Irrelevance of Mootness Doctrine to Civil Penalties, 11 DUKE ENVTL. L. & POL'Y F. 287, 291 (2001) (noting in opposition to Scalia's argument that "widely shared but diffuse public interests tend to get lost rather than vindicated in the political branches"); Sunstein, supra note 168, at 219, 219-20 (calling Scalia's argument "too simple").
185. See U.S. CONST. art. I, § 9, cl. 4 (prohibiting such taxes unless they are proportioned to the census).
186. See Fed. Election Comm'n v. Akins, 524 U.S. 11, 35 (1998) (Scalia, J., dissenting) (arguing that the majority oversimplified the Court's generalized-grievance jurisdiction by failing to determine whether the respondents' injuries were "particularized" and " undifferentiated").
187. See Redish, supra note 31, at 660-61 (noting that individualized injury may give a party standing to enforce structural provisions of the Constitution).
188. Cf. Louis L. Jaffe, Standing to Secure Judicial Review: Public Actions, 74 HARV. L. REV. 1265, 1284, 1282-84 (1961) (anticipating and accepting Scalia's argument that the central function of courts is to protect individuals, but suggesting that where the legality of official action is in question, there is no correspondence between whether a claim is presented by a specific individual and whether it is likely to be within "the traditional compass of the judicial function").
189. Scalia, supra note 31, at 897.
190. Clarke v. Sec. Indus. Ass'n, 479 U.S. 388, 400 n.16 (1987).
191. E.g., Block v. Cmty. Nutrition Inst., 467 U.S. 340, 352-53 (1984).
192. Scalia, supra note 31, at 896-97.
193. Id. at 897 (quoting Calvert Cliffs' Coordinating Comm. v. Atomic Energy Comm'n, 449 F.2d 1109, 1111 (D.C. Cir. 1971)); see id. at 884 (quoting Calvert Cliffs' at length).
194. See, e.g., 2 U.S.C. § 1571 (2000) (providing, with very limited exceptions, that the failure to comply with the Unfunded Mandates Act shall not be grounds for judicial review); 5 U.S.C. § 805 (2000) (providing that the "Congressional review" provisions of chapter 8 of the Administrative Procedure Act shall not be subject to judicial review).
195. See Heckler v. Chaney, 470 U.S. 821, 833, 832-35 (1985) (holding that the presumption against judicial review of nonenforcement "may be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers"); Dunlop v. Bachowski, 421 U.S. 560, 566-67 (1975) (approving judicial review of an agency's decision not to bring an enforcement action).
196. Lujan v. Defenders of Wildlife, 504 U.S. 555, 577 (1992); Scalia, supra note 31, at 893 n.58.
197. Defenders of Wildlife, 504 U.S. at 578; Havens Realty Corp. v. Coleman, 455 U.S. 363, 373 (1982).
198. 504 U.S. at 572-78.
199. Id. at 580 (Kennedy, J., concurring). Justice Kennedy hinted at some limits on Congress's power, so it is not clear whether this strategy would always work. See id. at 581, 580-81 (noting that Congress could not allow suits to vindicate "interest in the proper administration of the laws").
200. 524 U.S. 11 (1998).
201. Id. at 19.
202. The language used here is the traditional form for a qui tam statute. See, e.g., Act of Mar. 1, 1790, ch. 2, § 3, 1 Stat. 102; Act of July 20, 1790, ch. 29, § 1, 1 Stat. 131.
203. 504 U.S. at 573.
204. 529 U.S. 765 (2000).
205. Id. at 787.
206. Jonathan R. Siegel, Congress's Power to Authorize Suits Against States, 68 GEO. WASH. L. REV. 44 (1999);
207. Jonathan R. Siegel, The Hidden Source of Congress's Power to Abrogate State Sovereign Immunity, 73 TEXAS L. REV. 539 (1995).
208. For other articulations of this point, see Trevor W. Morrison, Private Attorneys General and the First Amendment, 103 MICH. L. REV. 589, 599-602 (2005); Nichol, Standing for Privilege, supra note 166, at 316; and Sunstein, supra note 168, at 232-34.
209. See Stevens, 529 U.S. at 774-78 (tracing the use of qui tam actions from thirteenth-century England to the early American Colonies).
210. Act of Mar. 1, 1790, ch. 2, § 3, 1 Stat. 102.
211. Act of July 31, 1789, ch. 5, § 29, 1 Stat. 45.
212. Stevens, 529 U.S. at 773 n.4.
213. This image is borrowed from Tushnet, supra note 114, at 1705.
214. The qui tam device also provides Congress with a ready means to avoid issues of mootness. The Universal Standing Act, if passed, would create nonmootable lawsuits because even if a violation of federal law abated, the plaintiffs claim for money would remain live.
215. Tushnet, supra note 114, at 1705.
216. Of course, I am placing a lot of weight on qui tam actions here, and one might ask whether such suits are constitutional, despite their pedigree. See generally Caminker, supra note 172 (exploring the constitutionality of qui tam actions vis-à-vis Articles II and III). Some suit forms, though historically allowed, are now regarded as outside the judicial power. See infra subpart III(G). Qui tam actions, however, have such a solid pedigree - extending back not only to the nation's founding but for hundreds of years before that, and continuing in use throughout our history, see, e.g., Stevens, 529 U.S. at 774-78 (tracing the use of qui tam actions from thirteenth-century England to the early American Colonies); United States ex rel. Marcus v. Hess, 317 U.S. 537, 541 n.4 (1943) (listing several early U.S. statutes authorizing qui tam actions); Marvin v. Trout, 199 U.S. 212, 225 (1905) (referring to the history in English law of statutes providing for actions by one without any personal interest in the suit save the recovery of a penalty or forfeiture) - that it is
217. E.g., Hein v. Freedom from Religion Found., Inc., 127 S. Ct. 2553, 2570 (2007) (plurality opinion) (quoting Allen v. Wright, 468 U.S. 737, 760 (1984)). Actually, the quoted opinion disclaims a judicial role in acting as a continuing monitor of "the wisdom and soundness of Executive action." Id. (internal quotation omitted) (emphasis added). Of course, all that is suggested here is that the Judiciary would pass on the lawfulness of executive action.
218. ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH 169 (1962).
219. Id. at 132.
220. Id. at 29-31, 130-31.
221. Cf. Cass R. Sunstein, Leaving Things Undecided, 110 HARV. L. REV. 4, 52, 51-52 (1996) ("It should not be surprising to find some pressure to find otherwise borderline cases 'not ripe' or 'moot' precisely because of the costs associated with deciding the substantive question.").
222. E.g., Allen, 468 U.S. at 751.
223. See Redish, supra note 31, at 663 (noting that "injury-in-fact will be easily and unambiguously established" in many cases that Bickel would prefer not be resolved).
224. The Court went out of its way to note that "[the case] does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Lawrence v. Texas, 539 U.S. 558, 578 (2003).
225. E.g., Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995).
226. Bickel himself recognizes that each justiciability doctrine has some "content" and that no one of them, therefore, is "always available at will." BICKEL, supra note 205, at 170. Still, he contends that "one or another of them will generally be available." Id. This seems an overstatement. Again, it is hard to see how a court could avoid a gay couple's challenge to a municipal clerk's refusal to issue them a marriage license.
227. 350 U.S. 985 (1956).
228. See id.
229. BICKEL, supra note 205, at 174.
230. See, e.g., Gerald Gunther, The Subtle Vices of the "Passive Virtues" - A Comment on Principle and Expediency in Judicial Review, 64 COLUM. L. REV. 1, 12 (1964) (calling Naim "indefensible");
231. Louis H. Pollak, Racial Discrimination and Judicial Integrity: A Reply to Professor Wechsler, 108 U. PA. L. REV. 1, 12 (1959) ("clums[y]");
232. Louis Michael Seidman, The Secret Life of the Political Question Doctrine, 37 J. MARSHALL L. REV. 441, 460 (2004) ("embarrassing");
233. Mark V. Tushnet, The Law, Politics, and Theory of Federal Courts: A Comment, 85 NW. U. L. REV. 454, 461 (1991) ("lawless");
234. Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1, 34 (1959) ("wholly without basis in the law").
235. 422 U.S. 490 (1975).
236. 429 U.S. 252 (1977).
237. See DeFunis v. Odegaard, 416 U.S. 312 (1974) (per curiam) (denying standing because the petitioner would graduate law school regardless of the Court's decision).
238. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).
239. See Sherman v. Cmty. Consol. Sch. Dist. 21, 980 F.2d 437 (7th Cir. 1992).
240. Newdow v. Cong. of U.S., 383 F. Supp. 2d 1229, 1231-32 (E.D. Cal. 2005); Bob Egelko, Atheist Sues Again over Pledge to Flag, S.F. CHRON., Jan. 6, 2005, at B3.
241. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 19 (2004) (Rehnquist, C.J., concurring).
242. Id. at 12-13 (majority opinion) (citing, for example, Ankenbrandt v. Richards, 504 U.S. 689 (1992)).
243. See, e.g., Erwin Chemerinsky, Tiptoeing Around 'Under God,' L.A. TIMES, June 15, 2004, at B13 (rebuking the Court for making "bad law concerning the rights of noncustodial parents to sue on behalf of their children and, even worse, abdicat[ing] its fundamental role in the U.S. system of government");
244. Warren Richey, Pledge Case Puts Chill on Parental Rights, CHRISTIAN SCI. MONITOR, June 17, 2004, at 2 (indicating that the opinion denies noncustodial parents the "fundamental parental right" of protecting their children from unconstitutional government action).
245. U.C.C. § 2-302 cmt. 1 (2005).
246. The Supreme Court, of course, can usually avoid difficult questions by denying certiorari. Lower courts usually lack this discretion, however, and while the Supreme Court's denial of certiorari at least prevents a socially awkward lower court ruling from gaining national status, it leaves the ruling on the books and may leave conflicting rulings on the books. What the Supreme Court would really need is discretionary power to vacate lower court rulings without rendering its own decision. The California Supreme Court achieves something like this result by its "depublishing" practice - sometimes, the California Supreme Court will decline review of a decision by a California court of appeal but will simultaneously order that the lower court's opinion be withdrawn from publication, depriving it of precedential effect. See Stephen R. Barnett, Making Decisions Disappear: Depublication and Stipulated Reversal in the California Supreme Court, 26 LOY. L.A. L. REV. 1033, 1034-35 (1993) (explaining the California Supreme Court's use of depublication to shape the law by stripping the precedential value of appellate opinions with which the court disagrees without addressing the merits of the case or providing reasons for the action).
247. Louis Henkin, Is There a Political Question Doctrine?, 85 YALE L.J. 597, 622 (1976).
248. See, e.g., New Jersey v. United States, 91 F.3d 463, 469-70 (3d Cir. 1996). In this case, the court invoked the political question doctrine to dismiss the plaintiff state's claim that the failure of the United States to enforce the immigration laws imposed unconstitutional costs on the state. The court's holding was, however, based on its determination that the Constitution does not require the federal government to police aliens in a way that avoids such costs.
249. See Jonathan R. Siegel, Political Questions and Political Remedies, in THE POLITICAL QUESTION DOCTRINE AND THE SUPREME COURT OF THE UNITED STATES 243, 246 (Nada Mourtada-Sabbah & Bruce E. Cain eds., 2007).
250. 801 F.2d 445 (D.C. Cir. 1986).
251. Id. at 445-46, 451 (quoting U.S. CONST. art. I, § 5, cl. 1 (alteration in original)).
252. This requirement follows from the constitutional provisions requiring that the House of Representatives "shall be composed of members chosen every second Year by the People of the several states," U.S. CONST. art. I, § 2, and that the Senate "shall be composed of two Senators from each state, elected by the people thereof," id. amend. XVII.
253. See, e.g., United States v. Richardson, 418 U.S. 166, 189-91 (1974) (Powell, J., concurring) (discussing the Founders' arguments against the Council of Revision); Ernest J. Brown, Qui Custodiet Ipsos Custodes? - The School-Prayer Cases, 1963 SUP. CT. REV. 1, 15-16 (arguing against relaxation of standards of standing on the grounds that it too nearly approached the rejected Council of Revision);
254. James Leonard & Joanne C. Brant, The Half-Open Door: Article III, the Injury-in-Fact Rule, and the Framers' Plan for Federal Courts of Limited Jurisdiction, 54 RUTGERS L. REV. 1, 6, 38-39, 86 (2001) ("The Convention specifically rejected proposals, such as a Council of Revision, that would have permitted wholesale review of legislation untied to any actual controversies.");
255. Eric J. Segall, Standing Between the Court and the Commentators: A Necessity Rationale for Public Actions, 54 U. PITT. L. REV. 351, 401, 400-01 (1993) (claiming that a court considering the constitutionality of a statute outside the context of a particular application "would truly be acting as a Council of Revision").
256. See, e.g., Gene R. Nichol, Jr., Rethinking Standing, 72 CAL. L. REV. 68, 93-94 (1984) (contrasting the Council of Revision's role in enacting legislation with the postenactment judicial review of the current Court).
257. 2 THE RECORDS OF THE FEDERAL CONSTITUTION OF 1787, at 73 (Max Farrand ed., 1911).
258. STEARNS, supra note 122, at 97.
259. Id. at 177-80.
260. Id.
261. Id. at 159.
262. Id.
263. Brilmayer, supra note 99, at 310.
264. STEARNS, supra note 122, at 159.
265. Id.
266. See id. at 177-80. Like a good economist, Stearns falls back on the assertion that standing rules can sufficiently have their desired effect even if they do not prevent ideological path manipulation, provided they make it more costly. Id. at 179 cmt. *. But there is a vast difference between saying that standing rules limit litigation to those who are injured "fortuitous[ly]," id. at 159, and saying that standing rules allow ideological litigants to manipulate the judicial process but throw a little sand in the gears when they do so. It seems much harder to believe that the latter is really a constitutional purpose.
267. See, e.g., Poe v. Ullman, 367 U.S. 497, 500 (1961) (considering a challenge to a Connecticut birth control statute, brought by a woman whose life would be endangered if she became pregnant); Steffan v. Aspin, 8 F.3d 57, 59 (D.C. Cir. 1993) (hearing a challenge to the military's exclusion of homosexual persons, brought by "one of the most promising students at the United States Naval Academy").
268. Coleman v. Miller, 307 U.S. 433, 460 (1939) (Frankfurter, J., concurring). Frankfurter believed that the Constitution "presupposed an historic content" for the phrase "the judicial Power." Id.
269. Honig v. Doe, 484 U.S. 305, 340 (1988) (Scalia, J., dissenting).
270. Id. at 339.
271. See, e.g., Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 774 (2000) (quoting Coleman, 307 U.S. at 460) (quoting Fiunkfurter's formulation favorably); see also Fed. Election Comm'n v. Akins, 524 U.S. 11, 24 (1998) (same).
272. See, e.g., CHARLES ALAN WRIGHT & MARY KAY KANE, LAW OF FEDERAL COURTS 65 (6th ed. 2002) ("[T]he business of the courts should be the kind of judicial business with which [the Framers] were familiar in the English courts.");
273. Raoul Berger, Standing to Sue in Public Actions: Is It a Constitutional Requirement?, 78 YALE L.J. 816, 816, 816-18 (1969) ("[I]t is hardly to be doubted that the Framers contemplated resort to English practice . . . ."); Leonard & Brant, supra note 235, at 34 (asserting that the Framers' interpretation of constitutional provisions should be binding).
274. See supra Part II.
275. In addition to the main point developed in the text, see infra note 266 for a brief mention of other judicial innovations. For an extended discussion of a closely related point, see Anthony J. Bellia Jr., Article III and the Cause of Action, 89 IOWA L. REV. 777 (2004). In this excellent article, Professor Bellia explains that much current confusion about justiciability doctrines arises from an attempt to constrain modern courts by rules derived from the eighteenth-century forms of action. Id. at 783. As Bellia explains, modern doctrines such as standing represent attempts to deduce justiciability requirements from requirements generally applicable to judicial proceedings at the time of the Framing, but such attempts must fail because, under the forms of action, there were no "generally applicable" requirements. Id. Rather, each action had its own requirements, modes of proceeding, and substantive law. Id. at 784. Once reforms abolished the forms of action, there was no clear way to apply the different constraints traditionally attached to the different forms to the "civil action" that became the unified mechanism for exercise of judicial power. Id. at 817-18.
276. 10 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2751 (3d ed. 1998);
277. CS. Potts, The Declaratory Judgment, 9 TEXAS L. REV. 172, 172-73 (1931);
278. Edson R. Sunderland, A Modern Evolution in Remedial Rights - The Declaratory Judgment, 16 MICH. L. REV. 69, 72, 76-77 (1917).
279. Willing v. Chi. Auditorium Ass'n, 277 U.S. 274, 290 (1928); see also Cross v. De Valle, 68 U.S. (1 Wall.) 5, 14 (1864) ("A chancellor will not maintain a bill merely to declare future rights." (emphasis omitted)).
280. Cf. Guar. Trust Co. of N.Y. v. Hannay & Co., [1915] 2 K.B. 536, 547 (Buckley, L.J., dissenting) (expressing the opinion that the maintenance of such an action is not possible).
281. For example, if a patentee threatened a manufacturer with a claim of patent infringement, the manufacturer could not seek a judicial determination of its rights. Sunderland, supra note 255, at 81; see Arrowhead Indus. Water, Inc. v. Ecolochem, Inc., 846 F.2d 731, 735 (Fed. Cir. 1988) ("Before the [Declaratory Judgment] Act, competitors victimized by that tactic were rendered helpless and immobile so long as the patent owner refused to grasp the nettle and sue."); Treemond Co. v. Schering Corp., 122 F.2d 702, 703-04 (3d Cir. 1941) ("Before the passage of [the Declaratory Judgment] Act patentees received greater protection . . . . Competitors desiring to introduce an article somewhat similar to one already patented met with much difficulty."); Celluloid Mfg. Co. v. Goodyear Dental Vulcanite Co., 5 F. Cas. 345, 350 (C.C.S.D.N.Y. 1876) (No. 2543) ("Until the plaintiff shall be prepared to assert that the two patents are substantially for the same invention . . . I do not see how the statute respecting interfering patents can be invoked."). A lessee on a long-term ground lease could not learn whether its lease permitted it to knock down its building and build a new one. Willing, 277 U.S. at 290. Owners of land might be unable to determine whether they held the land in fee simple or had only some lesser interest. E.g., Collins v. Collins, 19 Ohio St. 468, 470 (Ohio 1869). Persons who believed that a criminal statute was unconstitutional could not obtain an advance judicial declaration regarding its validity. E.g., Shredded Wheat Co. v. City of Elgin, 120 N.E. 248, 249 (Ill. 1918). But see Ex parte Young, 209 U.S. 123, 146-48 (1908) (allowing anticipatory action where the penalty for violating the statute was severe).
282. EDWIN BORCHARD, DECLARATORY JUDGMENTS 241 (1934); Sunderland, supra note 255, at 73-77.
283. Sunderland, supra note 255, at 77.
284. Willing, 277 U.S. at 289.
285. 28 U.S.C. § 2201 (2000).
286. Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 240 (1937) (internal quotation omitted).
287. Id.
288. See, e.g., WRIGHT & KANE, supra note 252, at 68.
289. Other examples of innovation in judicial procedure include the expansion of standing doctrine, which, although it retains the alleged common law requirement of injury, has expanded the categories of injury far beyond those known to the common law. Compare, e.g., Tenn. Elec. Power Co. v. Tenn. Valley Auth., 306 U.S. 118, 137 (1939) (denying standing unless the defendant violated a "legal right" of the plaintiff), with Ass'n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 152 (1970) (recognizing standing if the plaintiff was injured "in fact"). As Judge Posner puts it, "[n]otions of standing have changed in ways to induce apoplexy in an eighteenth-century lawyer." Freedom from Religion Found., Inc. v. Chao, 433 F.3d 989, 990 (7th Cir. 2006), rev'd sub nom. Hein v. Freedom from Religion Found., Inc., 127 S. Ct. 2553 (2007).
290. See Flast v. Cohen, 392 U.S. 83, 96 (1968) (noting the prohibition on advisory opinions).
291. See, e.g., 3 BLACKSTONE, supra note 76, at *452; Lindsay G. Robertson, "A Mere Feigned Case": Rethinking the Fletcher v. Peck Conspiracy and Early Republican Legal Culture, 2000 UTAH L. REV. 249, 260-63 (tracing the English origins of the practice and describing its application in the United States prior to 1810).
292. For example, a manufacturer of sugar and a federal collector of customs resolved a tax dispute by alleging that they had made a wager over the applicability of the disputed tax. The suit reached, and was resolved by, the Supreme Court. Pennington v. Coxe, 6 U.S. (2 Cranch) 33, 33-34 (1804); see also Charlotte Crane, Pennington v. Coxe: A Glimpse at the Federal Government at the End of the Federalist Era, 23 VA. TAX REV. 417, 455-61 (2003) (explaining how the parties framed the "feigned case" in order to invoke jurisdiction). For more examples, see Robertson, supra note 268, at 262-63 (discussing the use of feigned wagers in Pennington and in Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796)).
293. See generally Harold Chesnin & Geoffrey C. Hazard, Jr., Chancery Procedure and the Seventh Amendment: Jury Trial of Issues in Equity Cases Before 1791, 83 YALE L.J. 999, 1010-18 (1974) (discussing generally "feigned issue" cases and procedures from New Jersey, New York, Virginia, and the federal courts).
294. For example, the action of trover frequently required the plaintiff to fictitiously allege that the defendant had found the plaintiff's goods. 3 BLACKSTONE, supra note 76, at *151-52; Harold J. Berman & Charles J. Reid, Jr., The Transformation of English Legal Science: From Hale to Blackstone, 45 EMORY L.J. 437, 455-56 (1996);
295. L.L. Fuller, Legal Fictions (pt. 1), 25 ILL. L. REV. 363, 367-68 (1930). Actions of ejectment required the often fictitious allegation that the defendant's tenant (who might not have existed) violently drove the plaintiff's tenant (another fictitious person) off the land at issue. The famous case of Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816), in which the defendant's fictitious tenant went by the charming name of "Timothy Trytitle," used this procedure. See Hunter v. Martin, 18 Va. (4 Munf.) 1, 1 (1813) (noting the use of the name in earlier pleadings); Robertson, supra note 268, at 257 n.48 (discussing generally the use of fictional tenants in ejectment actions, and listing some common fictitious names); cf. Pomeroy's Lessee v. State Bank of Ind., 68 U.S. (1 Wall.) 592, 593 (1864) (noting that an ejectment suit was "brought by a nominal plaintiff, as at common law").
296. See, e.g., Newman v. Schiff, 778 F.2d 460 (8th Cir. 1985). Schiff, a tax protester, offered $100,000 to anyone who cited a law that requires an individual to file a tax return. Id. at 462. The plaintiff provided the proper citations (26 U.S.C. §§ 1, 6012, 6151), but Schiff refused to pay. Newman, 778 F.2d at 463 nn.5-6. The court ultimately ruled against the plaintiff, but perceived no justiciability problem with the suit, even though it essentially involved a wager over a point of law. See id. at 464-67 (deciding the merits of the case on contract-law issues of offer, acceptance, and ratification).
297. See, e.g., Alliance to End Repression v. City of Chicago, 820 F.2d 873, 876 (7th Cir. 1987) ("[A] 'pure' wager, in which A bets B $100 that a court will say a particular thing about C's rights vis-à-vis D, is not justiciable.").
298. In addition to the point developed here, there is also considerable debate concerning whether advocates of the originalist argument have done their historical research correctly. Some scholars contend that eighteenth-century rules did not require what we today regard as standing to sue. See, e.g., Berger, supra note 252, at 819-20 (claiming that eighteenth-Century English law allowed "strangers," who had not been personally injured, to attack jurisdictional "excesses"); Jaffe, supra note 176, at 1269-71 (discussing admittedly meager evidence suggesting that eighteenth-century courts might have allowed "public actions" in mandamus proceedings by private individuals who had no personal interests at stake); Sunstein, supra note 168, at 178, 168-79 (arguing, based on English precedents and on early congressional enactments, that Article III was not originally intended to restrict Congress's power to create standing). However, I prefer to put my case on purposive rather than historical grounds.
299. See, e.g., INS v. Chadha, 462 U.S. 919, 958-59 (1983) ("[I]t is crystal clear . . . that the Framers ranked other values higher than efficiency.").
300. See supra section III(C)(1).
301. See supra subsection III(C)(2)(b).
302. STEARNS, supra note 122, at 159.
303. See supra notes 30-35 and accompanying text.
304. See Redish, supra note 31, at 653 (suggesting that John Marshall used the private rights approach to limit the political repercussions of asserting the power of judicial review).
305. For a discussion of the use of and persistence of legal fictions, see generally L.L. Fuller, Legal Fictions (pts. 1-3), 25 ILL. L. REV. 363, 513, 877 (1930-1931).
306. Fuller explains that courts may use fictions to obscure the process of legal change, L.L. Fuller, Legal Fictions (pt. 2), 25 ILL. L. REV. 513, 519-20 (1931), but that the fiction is generally dropped once it is recognized as wasteful or superfluous, Fuller, supra note 270, at 377-80.
307. U.S. CONST. pmbl.
308. For example, Hamilton suggested that the federal courts "were designed to be an intermediate body between the people and the legislature in order, among other things, to keep the latter within the limits assigned to their authority," THE FEDERALIST NO. 78 (Alexander Hamilton), supra note 55, at 467 (emphasis added), and observed that "there ought always to be a constitutional method of giving efficacy to constitutional provisions," THE FEDERALIST NO. 80 (Alexander Hamilton), supra note 55, at 467 (emphasis added). He observed that the Constitution's limitations, such as the prohibitions on bills of attainder and ex post facto laws, "can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void." THE FEDERALIST NO. 78 (Alexander Hamilton), supra note 55, at 466. This Framer, at least, appeared to regard the correction of unconstitutional government behavior as a prime function of federal courts, not as a mere "incident" of some other role. See also Redish, supra note 31, at 653-54 (noting a similar strain of reasoning to Hamilton's in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)); Jaffe, supra note 176, at 1308 (arguing that the requirement of direct and differentiated injury "cannot . . . stand in the face either of tradition or practice").
309. Most notably, the public rights view can be discerned in the rule that courts can consider otherwise moot cases if the issue presented is "capable of repetition, yet evading review," e.g., Roe v. Wade, 410 U.S. 113, 125 (1973) (quoting S. Pac. Terminal Co. v. Interstate Commerce Comm'n, 219 U.S. 498, 515 (1911)), and the rule that a criminal defendant, whose conduct a legislature may validly proscribe, may defend himself on the ground that the statute under which he was convicted could, in some other case, be used to prosecute someone in violation of the First Amendment, e.g., Coates v. City of Cincinnati, 402 U.S. 611, 616 (1971). The courts have justified each of these rules on the ground that without the rule, issues might escape judicial review indefinitely. S. Pac. Terminal Co., 219 U.S. at 515; see also Gooding v. Wilson, 405 U.S. 518, 521 (1972) (noting that "because persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions," those whose expression is not constitutionally protected are allowed to challenge a statute). If judicial review were a mere "incident" to the real judicial function of deciding cases, the prospect that certain issues might never be the subject of judicial decision would not be troubling. These exceptions suggest that even current doctrine places value on the issue-resolving, not merely the case-deciding, function of the courts.
310. Allen v. Wright, 468 U.S. 737, 750 (1984) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)).
311. See 4 KENNETH CULP DAVIS, ADMINISTRATIVE LAW TREATISE § 24:21, at 293 (2d ed. 1983) ("The problem of excessive government by judges is only peripherally affected by determinations of who may litigate; it is directly affected by determinations of what judges may do."); Redish, supra note 31, at 657 ("[T]he appropriate battleground for judicial restraint is in the fashioning of the substantive constitutional decision.").
312. E.g., Youngberg v. Romeo, 457 U.S. 307, 317 (1982); Harris v. McRae, 448 U.S. 297, 317-18 (1980).
313. Schroder v. Bush, 263 F.3d 1169, 1171 (10th Cir. 2001).
314. See, e.g., Morrison v. Olson, 487 U.S. 654, 659-60 (1988) (holding that Congress may create independent counsel within the Department of Justice); Humphrey's Ex'r v. United States, 295 U.S. 602, 631-32 (1935) (holding that Congress may make Federal Trade Commissioners independent of plenary presidential removal power).
315. I say "slight" because, as this Article has suggested, almost all illegal government actions are subject to challenge in a proper case under current law anyway.
316. See supra section III(C)(1).
317. Warth v. Seldin, 422 U.S. 490, 498 (1975).
318. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 573 (1992) (rejecting the view that "congressional conferral upon all persons of an abstract, self-contained, noninstrumental 'right' to have the Executive observe the procedures required by law" met the injury-in-fact requirement for bringing suit).
319. Flast v. Cohen, 392 U.S. 83, 131-32 (1968) (Harlan, J., dissenting) (suggesting that the Court should have adhered to the principle that "individual litigants have standing to represent the public interest, despite their lack of economic or other personal interests, if Congress has appropriately authorized such suits," and that "[a]ny hazards to the proper allocation of authority among the three branches of the Government would be substantially diminished if public actions had been pertinently authorized by Congress and the President").
320. Monaghan, supra note 30, at 1376; Cass R. Sunstein, Standing and the Privatization of Public Law, 88 COLUM. L. REV. 1432, 1461 (1988).
321. See Raines v. Byrd, 521 U.S. 811, 830 (1997) (holding that despite statutory authorization, individual members of Congress did not have Article III standing to challenge the constitutionality of the Line Item Veto Act because they did not have a "personal stake" in the dispute); Defenders of Wildlife, 504 U.S. at 557-58 (holding that despite statutory authorization, plaintiffs did not have standing to challenge a rule promulgated by the Secretary of the Interior interpreting the Endangered Species Act).
322. See supra subsection III(C)(2)(c).
323. See Morrison, supra note 195, at 608-17 (noting many differences between those enforcement schemes in which government officials must bring each enforcement action and those in which members of a broad public may enforce legal rules).
324. See supra note 282 (citing Hamilton's arguments on this point).
325. That is the effective result of the Supreme Court's decision that no one has standing to enforce the Statements and Accounts Clause. See United States v. Richardson, 418 U.S. 166, 179-80 (1974).
326. E.g., Hall v. Beals, 396 U.S. 45, 48 (1969).
327. Sierra Club v. Morton, 405 U.S. 727, 732 n.3 (1972).
328. E.g., MASS. CONST. pt. 2, ch. 3, art. 2 ("Each branch of the legislature, as well as the governor or the council, shall have authority to require the opinions of the justices of the supreme judicial court, upon important questions of law, and upon solemn occasions."); In re Advisory Opinion to the Attorney Gen.: English - The Official Language of Fla., 520 So. 2d 11 (Fla. 1988) (answering a question regarding the validity of an initiative petition); Reference re Same-Sex Marriage, [2004] 3 S.C.R. 698, 2004 SCC 79 (Can.) (determining whether a law permitting same-sex marriage would be within the power of the Canadian Parliament); M'Naghten's Case, (1843) 8 Eng. Rep. 718 (H.L.) (appeal taken from Eng.) (answering questions about the insanity defense); DONALD P. KOMMERS, THE CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY 19 (1989) (noting that German law permits certain advisory opinions).
329. (1843) 8 Eng. Rep. 718 (H.L.) (appeal taken from Eng.). The case arose when the House of Lords, agitated by the acquittal of a murder defendant on an insanity plea, asked the judges to provide more guidance on the limits of the insanity defense. William E. Mikell, McNaghten's Case and Beyond, 50 AM. L. REG. 264, 264-70 (1902).
330. Same-Sex Marriage, 3 S.C.R. 698.
331. Cf. M'Naghten's Case, 8 Eng. Rep. at 722 ("The facts of each particular case must of necessity present themselves with endless variety, and with every shade of difference in each case.").
332. 10 THE WRITINGS OF GEORGE WASHINGTON 542-45 (Jared Sparks ed., Boston, Russell, Shattuck & Williams and Hilliard, Gray & Co. 1836).
333. Professor Sunstein has written an entire book celebrating these benefits. See CASS R. SUNSTEIN, ONE CASE AT A TIME (1999).
334. N. Sec. Co. v. United States, 193 U.S. 197, 400-01 (1904) (Holmes, J., dissenting).
335. Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982).
336. Jo Becker, Colorado Initiative Could Swing Election: Ballot Proposal Would Award State's Electoral Votes Based on Popular Tally, WASH. POST, Sept. 19, 2004, at A6.
337. The federal Constitution provides that each state's electors shall be appointed "in such Manner as the Legislature thereof may direct." U.S. CONST. art. II, § 1 (emphasis added); see Bush v. Gore, 531 U.S. 98, 111-15 (2000) (Rehnquist, C.J., concurring) (noting that this constitutional provision confers powers on a particular branch of the state government).
338. Kirk Johnson, Electoral Vote Redistribution Is Defeated, N.Y. TIMES, Nov. 3, 2004, at P9.
339. See JOHN RAWLS, A THEORY OF JUSTICE 136-37 (1971) (discussing a theory of justice in which special interests are nullified by assuming that "parties are situated behind a veil of ignorance" in which principles can only be evaluated through general considerations because individuals "do not know how the various alternatives will affect their own particular case").
340. 531 U.S. 98 (2000).
341. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821).
342. LEARNED HAND, THE BILL OF RIGHTS 15 (1958).
343. Cf. 28 U.S.C. § 1367(c) (2000) (giving discretionary jurisdiction over supplemental claims).
344. Cf. United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) (approving discretionary pendent jurisdiction prior to the enactment of § 1367). Of course, if the rule against advisory opinions were recognized as nonconstitutional, it would follow that Congress could require courts to issue advisory opinions whether they wished to or not. See, e.g., Bennett v. Spear, 520 U.S. 154, 164 (1997) (holding congressional grant of standing to "any person" overrides prudential standing doctrines). Thus, courts could exercise discretion only if Congress did not take away that discretion.
345. See William M. Landes & Richard A. Posner, The Economics of Anticipatory Adjudication, 23 J. LEGAL STUD. 683, 698-99 (1994) (explaining declaratory judgment actions on this basis).
346. See Jaffe, supra note 176, at 1302.
347. See, e.g., WRIGHT & KANE, supra note 252, at 65 (calling the rule against advisory opinions "the oldest and most consistent thread in the federal law of justiciability").
348. See Landes & Posner, supra note 319, at 684. In addition to declaratory judgment actions, they note that quiet title actions, actions for anticipatory breach of contract actions seeking injunctions against anticipated harm, and actions for judicial review of administrative rules that have not yet been applied are requests for forms of advisory opinions. Id.
349. Id. at 688-98. Being economists, they say it with equations, but I have always been somewhat skeptical of the usefulness of equations involving immeasurable quantities such as the social costs and benefits of entertaining anticipatory litigation.
350. 429 U.S. 190 (1976).
351. Id. at 191-92.
352. Id. at 192.
353. Id.
354. Id.
355. Id.
356. Id. at 194.
357. Landes and Posner suggest that limiting standing to B is necessary to preserve B's property rights in his legal claim. If strangers could sue, they suggest, injured parties could lose their rights if they do not win the race to the courthouse. Landes & Posner, supra note 319, at 718-19. However, they do not consider the possibility that strangers might be allowed to sue but would have to pay any damages collected to the injured party.
358. William A. Fletcher, The Structure of Standing, 98 YALE L.J. 221, 233 (1988).
359. See Monaghan, supra note 30, at 1371 (recommending that courts require that "issues be sharply defined and capable of judicial solution"); Tushnet, supra note 114, at 1706-07 (recommending a similar "barebones" approach to standing doctrine).
360. 11 U.S.C. § 544(a) (2000); LAWRENCE P. KING ET AL., COLLIER ON BANKRUPTCY ¶ 544.02 (15th ed. 2006).
361. KING ET AL., supra note 334, at ¶ 544.02.
362. See supra subsection III(C)(2)(c). Congress's powers extend to common law cases because a legislature can change common law by statute.
363. Franks v. Bowman Transp. Co., 424 U.S. 747, 759-67 (1976).
364. Abbott Labs. v. Gardner, 387 U.S. 136, 141 (1967).
365. See Siegel, supra note 231.