Click Back button to return to Text Assist
Click for list of Flowcharts
You can use it, but you can't sell it

The Justiciability Doctrines

Case or Controversy 
Article III states that the judicial power of the federal courts extends only to cases and controversies which arise under the Constitution, federal laws of the United States and its treaties. This remains the overlying principle by which the courts determine whether or not an issue is justiciable, and has led to the establishment of the justiciability doctrines. These doctrines are used to determine whether a case or controversy actually exists, and if one does then the issues are considered justiciable.


Advisory Opinions
Since Article III mandates that the judiciary only has power over cases and controversies, the Supreme Court has held that where a case or controversy does not exist, the judiciary is not to issue any advisory opinion regarding the matter. This prohibition against advisory opinions helps to serve separation of powers: by not issuing advisory opinions, the federal judiciary is keeping the courts out of the political process, and leaving that process solely to the discretion of the legislative and executive branches. Additionally, by not issuing advisory opinions, the judiciary is conserving its resources for cases that actually need adjudication.

Three basic requirements must be met so that the judiciary may hear a case and issue an opinion that would not be advisory. First, the case needs to present an actual dispute, not a hypothetical legal question. By requiring an actual dispute, the judiciary is ensuring that any decision issued in the case is the final one because it was based upon concrete facts and not upon some fanciful situation which may not have presented a complete picture of the controversy. The second requirement is that the dispute is between adverse litigants. Adversariness is required to ensure that the case brought before the courts truly involves a controversy that is in need of a resolution; if the opponents are not true adversaries, then any issued opinion would be advisory. The last requirement is that if a decision is issued in favor of the claimant, there is a substantial likelihood that it would have some effect. In any situation where the opposing party could ignore the ruling, then the opinion lacks finality and is in effect advisory. Declaratory judgments are justiciable as long as they present a real controversy. Declaratory judgments that meet these criteria are themselves justiciable.  Aetna Life Insurance Co. v. Haworth, 300 U.S. 227 (1937).

Mootness and Ripeness
Mootness and Ripeness both deal with the existence of an actual controversy; mootness with whether the controversy has terminated, and ripeness with whether it is ready for adjudication. A case will be declared moot if the defendant dies during a criminal trial, if the plaintiff dies during a civil action and the action does not survive the death (usually by statute), and if the parties settle between themselves before a final judgement is entered. In these situations the issues are no longer redressable. Exceptions do exist to the mootness doctrine which allow a case to be heard: where secondary injuries exist that may be addressed by the court; cases which involve a wrong that is capable of repetition and likely to evade review; where an illegal practice has been terminated but it could be resumed at any time; and in a properly certified class action suit.

Cases are declared not ripe because the injuries are either too speculative or they may never occur. The rationale behind the ripeness doctrine is that a court should not issue premature judgements based on abstract disagreements.  Abbott Laboratories v. Gardner, 387 u.s. 136 (1967). Ripeness typically arises when preenforcement review of a statute is sought, at which point to considerations are examined, and both must be present in order for an issue to be ripe. First, the plaintiff must show that a hardship is likely to be suffered in the absence of a judgement. This hardship could be caused by the law as it will eventually be applied, by collateral injuries, or because compliance with the law causes the hardship, and the only other choice is to break the law with the resulting consequences of being prosecuted. The second consideration is whether the issues are fit for a judicial decision. An issue that specific facts would assist in the judicail consideration will be found not ripe, while an issue is ripe when it is mostly a question of law, one which does not depend on context.

A determination that a person lacks standing means that person is not the proper party to bring the issue before the court for adjudication. The Standing Doctrine is viewed as a tool that promotes both the Separation of Power and judicial efficiency. Separation of Power is achieved through limiting the issues the judiciary hears, thus limiting review of the other branches of government. The limiting of cases before the courts promotes judicial efficiency, and this limiting also improves the decision-making ability of the judiciary through ensuring a specific controversy and that an advocate with a stake in the outcome is present to pursue the matter.

Four requirements must be met before a party will be granted standing in the federal judiciary, all of which must be met. The first three requirements are based upon Article III as Constitutional barriers to standing, and the last is an exercise of judicial restraint which may be overridden by Congressional statute.

The first requirement is that the parties must be adversaries. This is shown through the plaintiff having suffered or imminently likely to suffer a distinct and palpable injury. A mere interest in the problem is insufficient to establish standing. Therefore, the complaint must specifically allege that the plaintiff has suffered or is likely to suffer a distinct injury. The injury may even be one of aesthetic concerns, so long as it is personally suffered and is legally cognizable.  U.S. v. SCRAP, 412 U.S. 669 (1973). Additionally, a plaintiff seeking declaratory or injunctive relief must show a likelihood of injury in the future.  City of Los Angeles v. Lyons, 461 U.S. 95 (1983). Injuries which are sufficient to satisfy this requirement have generally been found to be any injury based on the common law and injuries based on a violation of the Constitution. Congress may create adversariness through statute, but it cannot create standing so that the public in general satisfies the statutory requirement.  Lujan v. Defenders of Wildlife, 112 S. Ct. 2130 (1992). Along this same line of reasoning, the Court will not permit an individual to sue the government on the basis of being a taxpayer or forcing the government to comply with the law.

The second and third requirements are that the named defendant(s) be the causation of the injuries and that the injury is redressable through the court. The Supreme Court has declared that these are separate inquiries, but they are very often examined at the same time. The plaintiff must show that the injury is fairly traceable to the defendant through a causal nexus linking the action of the defendant with the injury. The link must usually be a direct one, without the intervention of a third party. Where there is the intervention of a third party, the court may find that there was no causation, or that the injury is not redressable. In examining redressability, the court looks to the remedies sought in the pleadings and examines those for the likely affect they would have on the injury. When the injury depends on the actions of a third party, a court order will not affect that party, and the injury cannot be redressed. However, an injury caused by the defendant can be directly compensated for by the court.

See below for a detailed description of the judicial restraint requirement the courts use to find an issue non-justiciable.

Political Question
An issue, even a Constitutional one, which the Court feels is best resolved by one of the other branches of government may denied judicial review under the Political Question Doctrine. These issues are generally political in nature, and the court feels that the political system of accountability is the best mechanism to resolve the issues, as opposed to a mandate from the courts. Often, these issues are either given wholly to another branch of government in the Constitution, or there is a lack of judicially manageable standards for resolving it, or for a number of other reasons.  See Baker v. Carr, 396 U.S. 186, 217 (1962). These principals have been applied in such areas as the republican form of government clause in Article IV, §4, foreign relations, and Congress' control of its own internal processes.

Judicial Restraint
Judicial restraint has two aspects to its nature. The first is the use of discretion in granting certiorari, and the second is a set of prudential rules used to deny a party standing in a particular case. Currently, the Supreme Court has the power to deny certiorari in any case. Congress, however, has the power under Article III to require Supreme Court review for any issue.

The prudential restraint rules focus on whether the plaintiff's own rights are being asserted, or whether someone else's rights are being asserted. There is no general third party standing, except in cases of the 1st Amendment and where a special relationship exists between the injured party and the party asserting the right. The special relationships which are permitted to exert third party standing are very limited. A close relationship is required between the third party and the right being asserted, such as an association which is closely tied to the claimed right or a party which has a zone of interest encompassing the right. Congress may also change any of these rules since they are not based within the Constitution.

End of Text Assist