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Constitutional Law II
Elon University School of Law
Gaylord, Scott W.

Scot Gaylord

Constitutional Law II

Spring 2011

Class 1

New Trenton sued for race discrimination bc of firefighter exam. We cover other issues of speech and religion, separation of church and state.

Political Restraints on Supreme Court

1. Consider the power of the Supreme Court post-Marbury…. How can other branches impact the SC?

2. How can the legislature or executive influence and/or limit the judiciary? Amend the constitution. Impeach judges (Art 2, Sec 4), Increase # of justices to change votes, Cut funding, Nomination process, Judicial selection, Copntrol over Jurisdiction, Executive enforcement, Executive pardon.


Way court system regulates what it does with its power and authority

1. Justiciability requirement focus on the proper role of the judiciary within our federalist system.

a. Art III.2.1: “The judicial Power” extends only to “Cases” and “Controversies.”

b. Separation of powers (if court decides not to hear, it is left to other branches or the states).

c. Prudent judicial administration.

2. Three general considerations underscore the Court’s justiciability doctrine:

a. Who?

b. When?

c. What?

3. “Not you, not us, too late, too soon.”

4. Why have justiciability requirements?

a. Ensure that controversies are based on concrete facts.

b. Ensure vigorous advocacy.

c. Promote judicial restraint.

d. Limit the quantity of litigation (efficiency).

e. Restrain officious intermeddlers.

Advisory Opinions

1. Central to Article III is the principle that federal courts cannot issue advisory opinions.

a. Several States permit state courts to issue such opinions. Why not federal courts?

b. “Congress on majority vote of both Houses of Congress may request and shall receive a Court determination as to the constitutionality of legislation pending before and being considered by Congress.”

c. Thomas Jefferson, 1793: “The President therefore would be much relieved if he found himself free to refer questions of this description to the opinions of the judges of the (Court), whose knowledge of the subject would secure us against errors dangerous to the peace of the U.S., and their authority to insure the respect of all parties.”

2. Two factors must be met to avoid having suit dismissed as an advisory opinion:

a. There must be an actual dispute between adverse parties.

i. George Washington’s inquiry about neutrality

ii. This requirement helps to explain the need for an injury for standing and why a case should be dismissed if moot.

b. There must be a substantial likelihood that a decision in favor of a claimant will have some effect.

3. Did the Court issue an impermissible advisory opinion in Bush v. Gore?

a. Yes – when issuing its decision, Court could not know whether the counting would be unequal (because it had not happened yet) or whether a decision would be necessary (because Bush may have won under the recount).

b. No – Court’s opinion decided the election by resolving an actual dispute between adverse litigants.

4. What about declaratory judgment actions? (asking court to declare rights and responsibilities of parties before you have any problems, when you anticipate a problem).


1. Standing reflects the Court’s determination that a particular person is the proper party to present a particular issue to the Court for resolution.

2. Two general types of criteria

a. Constitutional requirements

i. Predicated on Article III.

ii. Congress cannot override these and create standing in contravention of a constitutional requirement.

b. Prudential requirements

i. Predicated on prudential concerns about judicial administration

ii. Congress can override prudential requirements by statute

Constitutional Requirements for Standing

1. The court has identified three constitutional requirements for standing

a. “An injury in fact” (actual injury) that is

b. “Fairly traceable” to defendant’s action and

c. “Redressable” by judicial decision.

2. Injury in fact.

a. The injury must be “actual or imminent,” not merely “conjectural or hypothetical.” You can have aesthetic injury as well.

i. Common law right

ii. Constitutional right

iii. Statutory right

b. Litigation must have a “personal stake” in the alleged dispute such that the injury is “concrete and particularized.”

c. Consider Lujan v. Defenders of Wildlife.

d. Two points to remember regarding the plaintiff’s personal stake:

i. Plaintiff must have personally experienced the harm.

ii. If the plaintiff seeks injunctive or declaratory relief, the plaintiff must show that he is likely to be injured again in the future.

e. If filing a complaint in federal court, make sure to allege explicitly how your client has suffered an injury as a result of the defendant’s actions.

3. Causation (fairly traceable (to the particular group), proximate causation, no intervening parties/events that are causing or bringing about the outcome)

a. “there must be a causal connection between the injury and the conduct complained of – the injury has to be “fairly traceable to the challenged action of the defendant.”

i. Proximate causation

ii. Allen v. Wright, 468 US 737 (1984): “It is, first, uncertain how many racially discriminatory private schools are in fact receiving tax exemptions. Moreover, it is entirely speculative [whether] withdrawal of a tax exemption from any particular school would lead the school to change its policies.”

b. “… and not the result of the independent action of some third party not before the court.’”

i. Allen v. Wright: “From the perspective of the IRS, the injury to respondents is highly indirect and ‘results from the independent action of some third party not before the court.’”

4. Redressability (has to have an outcome, an effect on the injury. The relief must cure the problem)

a. “It must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

i. Court looks to see if it can provide relief for the claimed injury.

ii. If there are independent, intervening actors, then it undermines the Court’s ability to give grief.

b. Consider Scalia’s discussion of redressability on behalf of the plurality in Lujan:

i. Agencies still may fund projects.

ii. Even if not, projects likely to go forward with other funding.

Lujan v. Defenders of Wildlife – Relief they want old interpretation in old regulation. Part of that is that there must be an injury. They are tourists bringing this up. You can have aesthetic injury, but here it is not actual or imminent nor concrete. They want to come back and visit the animals again, but there is no actual injury, there is a threat arguably real and imminent, but court says no. If you just hope to be a tourist later, it isn’t sufficient. Maybe if you were a biologist working with specific animals.

Mass v. EPA – Mass says EPA isn’t doing their job.

1. Background.

a. A group of States, local govts, and private groups alleged that the EPA had failed to fulfill its obligations under the Clean Air Act to regulate the emissions of certain greenhouse gases, including carbon dioxide.

b. Congress authorized this type of suit to challenge EPA action such that Mass “can assert that right without meeting all the normal standards for redressability and immediacy.”

2. Does Mass have standing to bring this suit?

a. Injury in fact (actual or imminent and some type of personal stake)

b. Causation

c. Redressability

Injury in fact? Actual con

the case or controversy.

c. Court’s power limited to actual cases and controversies

d. Actual controversy initially existed, but when the court hears the case, there is no live controversy.

2. Basic Rule: a plaintiff must present a live controversy at all stages of the federal court proceeding.

3. Case may be mooted by:

a. Death of a party (unless civil cause of action survives).

b. Change in law.

c. Change in circumstances.

4. Consider two examples

a. Suppose Steve applies to Elon State Law School, is denied admission, and files suit, seeking injunctive relief and alleging that the procedures and criteria employed by the Law School invidiously discriminated against him on account of his race in violation of the Equal Protection Clause of the Fourteenth Amendment. The trial court agrees, and Steve begins his first year of law school. On appeal, the State Supreme Court holds that there was no constitutional violation. By the time the case reaches the Supreme Court, Steve is in his third year of law school. Should the Court hear the case? Is this case moot?

b. Compare Steve’s case with that of a single, pregnant woman challenging the constitutionality of a state abortion law. See, e.g., Roe v. Wade.

5. The Court has recognized several exceptions to mootness:

a. Alleged wrong is “capable of repetition, yet evading review.”

i. The challenged action must be too short in duration to be fully litigated before its cessation or expiration.

ii. “There was reasonable expectation that the same complaining party would be subjected to the same action again.”

b. Collateral injuries – although plaintiff’s primary injury ends, a secondary injury persists.

ii. Criminal convictions – sentence served when appeals heard

iii. Considered an exception but really not

c. Defendant voluntarily stops challenged conduct during litigation, but it remains possible that the defendant will later resume that activity. (ex. stops polluting but could do it again)

i. Courts are concerned with strategic posturing

ii. The “defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear” that the challenged behavior “could not reasonably be expected to recur.”

d. Class actions (as long as someone is still injured, it is okay to proceed).

i. If the class is properly certified and one plaintiff had a live controversy when suit filed, case not moot just because the case becomes moot with respect to some of the plaintiffs.

ii. So long as some of the class members have live claim, then not moot.

Ripeness (timing issue, bringing suit too soon because injury hasn’t come yet)

1. The court invokes ripeness to distinguish those cases that are premature for review from those that are ready to be decided.

a. Separation of powers concern – postpone judicial intervention until it is clear that a dispute exists.

b. Factors to consider:

i. Hardship to the parties of withholding judicial consideration.

ii. Fitness of the issues for judicial determination.