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Federal Courts
Rutgers University, Newark School of Law
Sclar, Diana

Federal Courts – Spring 2012
One: The Nature of the Federal Judicial Function: Cases and Controversies
I.                    2011-12 Supreme Court Docket
a.       FCC v. Fox Television Stations
                                                              i.      Obscenity used on public television.  The arguments: the high court ruled two years ago in favor of the FCC over “fleeting expletives,” but the justices refused at the time to decide whether the policy violated the First Amendment guarantee of free speech, ruling only on the agency’s enforcement power.  The justices will now here the larger constitutional issue after the Justice Department, in its new appeal, lumped both the expletives and nudity cases together.
b.      U.S. v. Jones [electronic surveillance]                                                               i.      At issue: whether the government violated a drug suspect’s Fourth Amendment rights by installing a GPS tracking device on his motor vehicle without a valid search warrant and without his consent.  Is movement in a private vehicle on city streets “public” in nature?
                                                            ii.      The Arguments: Jones calls his surveillance “Big Brother” intrusion, going far beyond traditional stakeouts and tailing of cars by police.  The Justice Department cites a 1983 high court ruling allowing police to place an electronic beeper on a car without a warrant.  That device, however could be tracked only from a short distance.  The justices ruled in 2001 that police needed a warrant before using thermal imaging technology to see whether anyone was inside a home.
                                                          iii.      The impact: this is perhaps the most important search and seizure case at the high court in a decade.  Growing sophistication of electronic devises to monitor the movements of suspects makes this issue ripe for review, since lower courts have disagreed on when such surveillance is permissible.  While this case deals with public areas like roads, sophisticated electronic surveillance in the home may again be the next legal frontier for the Supreme Court.
c.       Florence v. Board of Chose Freeholders of the County of Burlington, NY [prison strip searches]                                                               i.      At issue: a challenge to a New Jersey country’s prison rules allowing suspicionless strip searches of everyone arrested for any minor offense, regardless of the circumstances.
                                                            ii.      The argument: Florence’s lawyers say it is unreasonable under the Constitution for jail officials to engage in the “deep intrusion into personal dignity” of a strip search for every single individual, whatever the alleged crime.  The state counters that such initial “intake” searches are justified, when applied consistently to every inmate and for proper reasons, including “both health threats and the increasing need to identify gang members upon their entry into the institution.”
                                                          iii.      The impact: lower federal courts have been at odds in the past decade over the limits of these kinds of custody searches.
d.      Maples v. Thomas [death row mistake]                                                               i.      At issue: whether a missed deadline to file a key appeal is justification to grant a death row inmate a second chance when the error was not the prisoner’s fault and the result would mean a punishment as serious as lethal injection.
                                                            ii.      The argument: Maples’ current attorney says the criminal justice system has been turned on its head by allowing prisoners to suffer the consequences of their lawyers’ mistakes or incompetence.  But state attorneys argue that long-established rules on filing often complex paperwork must be strictly enforced to ensure that all parties – including the courts – get a proper chance to hear the claims in an orderly fashion.
                                                          iii.      The impact: among the 34 states with the death penalty, Alabama alone does not automatically give all its 200-plus current capital inmates taxpayer-funded legal assistance to file papers challenging their convictions, sentences and lethal punishment.  Big law firms often step in and tackle the long and expensive appeals process.  This is another case in which the high court will examine the procedural aspects of capital punishment and whether death row inmates are being given a full and fair chance to press their post-conviction claims.
II.                Introduction and Historical Context
a.       Justiciability – a cluster of related issues that define the scope of federal  judicial power through categories such as standing, ripeness, mootness and the political question doctrine.
b.      Article III – vests in the federal courts “the judicial Power” and grants jurisdiction to exercise it in various “cases” or “controversies”.
c.       Advisory Opinions – the Supreme Court has used the term to embrace “any judgment subject to review by a co-equal branch of government”, “advice to a coequal branch of government prior to the other branch’s contemplated action”, “Supreme Court review of any state judgment for which there is or may be an adequate and independent state ground”, “any opinion or portion thereof, not truly necessary to the disposition of the case at bar (that is dicta)”, “and “any decision on the merits of a case that is moot or unripe or in which one of the parties lacks standing.”
                                                              i.      Neither the constitutional tenor the discussions at the Constitutional Convention reflected any clear prohibition against advisory opinions.
1.      The President is not empowered to require the federal judiciary to provide an advisory opinion – Professor Castro
                                                            ii.      Teague v. Lane – implicitly equating the purely prospective announcement of a new rule with “rendering advisory opinion”.
1.      When a court first identifies a constitutional violation, then denies relief under the harmless error or analogous doctrines, has it rendered a constitutionally impermissible advisory opinion?
                                                          iii.      Stovall v. Denno – suggesting that “sound policies of decision making, rooted in the command of Article II of the Constitutional that we resolve issues solely in cases or controversies, militate against” pure prospectivity.
                                                          iv.      Steel Co. v. Citizens for a Better Environment – “hypothetical jurisdiction produces nothing more than a hypothetical judgment – which comes to the same thing as an advisory opinion.”
                                                            v.      States may issue advisory opinions.  According to Professor Hershkoff, advisory opinions perform a useful dialogic function within state constitutional regimes by “allowing state courts to articulate constitutional principles, while effectively remanding disputes back to the other branches” for a considered response.
d.      Marbury v. Madison – ultimately holds that the Supreme Court lacked jurisdiction to decide the case before it.  First, Marshall concludes that  section 13 of the 1789 Judiciary Act confers original Supreme Court jurisdiction in actions for mandamus.  He finds that the section paragraph of Article III, § 2 restricts the permissible scope of the Supreme Court’s original jurisdiction to cases “affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party.”
                                                              i.      [Political Question] The Court's definition of political questions in this case was quite narrow.  Included only were matters where the president had unlimited discretion, and there was thus no allegation of a constitutional violation.  In sharp contest, the political question doctrine now includes instances where individuals allege that specific constitutional provisions have been violated and that they have suffered a concrete injury.  The political question doctrine definitely is not limited to instances in which the president is exercising discretion and there is no claim of unconstitutional conduct.  This case long ago established the power of the federal judiciary to rule on the constitutionality of federal statutes.  It establishes that federal courts may not apply an unconstitutional law to decide a case.  The power of the federal courts to review the constitutionality of federal statutes, established in Marbury v. Madison, would be largely meaningless if Congress could enact unconstitutional laws and restrict jurisdiction to prevent federal court review.
                                                            ii.      Marbury is often quoted for the observation that “it is emphatically the province and duty of the judicial department to say what the law is.”
e.       Dispute Resolution Model – under which the Court treats its law declaration power as incidental to its responsibility to resolve concrete disputes.
                                                              i.      The federal judiciary’s function is not to vindicate abstract interests in the government’s compliance with the rule of law [FEC v. Akins; Lujan v. Defenders of Wildlife]                                                             ii.      Justiciable cases should be restricted to disputes in which a defendant’s violation of a legal duty to the plaintiff has caused a distinct and palpable injury to a concrete, legally protected interest [Allen v. Wright; Warth v. Seldin] f.       Law Declaration Model – rather than treating law declaration as an incidental function of resolving concrete claims of individual right, the “law declaration” account of the judicial function presupposes that federal courts (and especially the Supreme Court) have a special function of enforcing the rule of law, independent of the task of resolving concrete disputes over individual rights.  This approach questions the importance of requiring that the plaintiff have a personal state in the outcome of a lawsuit; in its purest form, it would permit any citizen to bring a “public action” to challenge allegedly unlawful government conduct.
                                                              i.      The devices of the class action, as well as other techniques for broadening the scope of litigation frequently reflect efforts to meld the two functional models of the courts, and many of the tensions about the proper role of the courts have been felt in the resulting cases and doctrines.
g.       Cannon of Avoidance – modern avoidance rejects the unconstitutionality approach on the ground that the former practice still required an unnecessary constitutional ruling.  Instead, the Court now holds that “where an otherwise acceptable construction of a statute would raise constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.
                                                              i.      Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. and Constr. Trades Council
                                                            ii.      The Court has suggested that, in the interest of judicial restraint, the modern cannon seeks “to minimize disagreement between the branches by preserving congressional enactments that might otherwise founder on constitutional objections.
1.      Almendarez-Torres v. United States
                                                          iii.      A second prominent rationale rests on an empirical assumption that the canon also promotes such restraint b

of Wildlife
c.       A party must raise a claim within the zone of interests protected by the statute in question.
b.      The Supreme Court has frequently stated that standing questions relate to parties – to the nature and sufficiency of the litigant’s concern with the subject matter of the litigation – rather than to the fitness for adjudication of the legal issues tendered for decision.
                                                              i.      Flast v. Cohen
c.       Injury in Fact
                                                              i.      The Court has for many years relied on concrete and personalized injury as a test of Article III standing.  The Court’s cases have articulated a range of purposes served by the injury-in-fact requirement”
1.      Ensuring that controversies will be concrete so that both the stakes and the limits on any resulting ruling are well understood
2.      Limiting the judicial process to litigants who will be energetic adversaries
3.      Assigning the right to sue to those most immediately affected by a government policy in order to ensure that their interests will be adequately represented
4.      Protecting democratic prerogatives by ensuring both that the judicial process is invoked only when necessary to resolve a concrete dispute and that generalized grievances widely shared by the public are vindicated through the political process
5.      Preserving the constitutional prerogatives of the executive
                                                            ii.      Sierra Club v. Morton – the court ruled that the plaintiff lacked standing because it had not alleged that it would suffer “injury in fact” from the challenged action.  The injury in fact test requires that the party seeking review be himself among the injured.  The Court termed the requirement of injury a “rough attempt to put the decision as to whether review will be sought in the hands of those who have a direct stake in the outcome.
                                                          iii.      Lujan v. Defenders of Wildlife – The Court has consistently made clear that an abstract interest in the governments “proper application of the Constitution and laws” cannot alone justify Article III standing.
                                                          iv.      Taxpayer Standing
1.      Frothingham v. Mellon – federal financial support for state programs to reduce maternal and infant mortality, as beyond Congress’ Article I powers and an invasion of state prerogatives under the 10th Amendment.  The plaintiff’s “interest in the moneys of the [federal] treasury” was “comparatively minute and indeterminable” and that “the effect upon future taxation of any payment out of” federal funds was “remote, fluctuating and uncertain”.
2.      Flast v. Cohen – a suit by federal taxpayers alleging that a federal statute violated the Establishment Clause by providing financial support for educational programs in religious schools; the court distinguished Frothingham and upheld standing.  Emphasizing that standing turns on whether “the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution”, the Flast Court concluded that Frothingham did not erect “an absolute bar” to federal taxpayer standing.  The court reason that part of its task was “to determine whether there was a logical nexus between the status asserted and the claim sought to be adjudication.”  The Court continued: “The nexus demanded of federal taxpayers has two aspects to it.  First, the taxpayer must establish a lotical link between the status and the type of legislative enactment attached.  Secondly, the taxpayer must establish a nexus between the status and the precise nature of the constitutional infringement alleged.
a.       Flast double-nexus test
3.      Valley Forge Christian College v. Americans United for Separation of Church and State, Inc. – in the years since Flast the Supreme Court has grown increasingly wary of federal citizens and taxpayer standing.  The Court ruled that the taxpayer plaintiffs failed the first prong of Flast’s test – permitting challenges only to “exercises of congressional power under the taxing and spending clause.
4.      Hein v. Freedom From Religion Foundation, Inc. – suing as taxpayers, the respondents challenged a number of executive actions that, they said, violated the Establishment Clause by expending public funds to promote religious community groups over secular ones.   Held Flast distinguishable on the ground that the expenditures at issue in Hein were not made pursuant to any specific Act of Congress, as was the case in Flast, but rather came from general appropriations to the Executive Branch to fund day-to-day activities.