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Federal Courts
Rutgers University, Newark School of Law
Chen, Ronald K.

Federal Courts Outline
Fall 2007
Dean Chen
I.                    Background Reading
a.       Organization and Development of the Federal Judiciary System
                                                               i.      Art. III of the Constitution mandates the existence of the Supreme court where as Congress has the discretion to create federal courts.
1.       Congress established lower federal courts in its first judiciary act.
2.       Art. III judges are granted life tenure and their pay can’t be reduced during their time in office. 
a.       This is a crucial difference between state court judges and federal court judges – state court judges can be subject to some form of electoral review. 
                                                                                                                                       i.      Insulates judges from political pressure.
3.       Art. III defines the federal judicial power in terms of nine categories of cases and controversies
a.       One type of case: the power of the federal courts to vindicate and enforce the powers of the federal government.
                                                                                                                                       i.      Cases arising under the Constitution, treaties, and laws of the United States.
                                                                                                                                      ii.      Cases where the United States is a Party.
                                                                                                                                    iii.      The federal government’s powers in the area of foreign policy are protected by according the federal courts the authority to hear all cases affecting ambassadors, other public ministers and consuls, to hear all cases of admiralty and maritime jurisdiction, and to hear cases between a state or its citizens and a foreign country or its citizens.
b.       The second type of cases authorizes the federal courts to resolve disputes between states and their citizens.
                                                                                                                                       i.      Controversies between tow or more states, between a state and citizens of another state, between citizens of different states, and between citizens of the same state claiming land in other states.
4.       Art. III allocates power between the Supreme Court and the lower federal courts.
a.       The Supreme Court has original jurisdiction over cases affecting ambassadors, other public ministers, and consuls, and those in which a state shall be a party. 
b.       In all other cases the Supreme Court is granted appellate jurisdiction, both as to law and fact, subject to such exceptions and regulations as Congress shall make.
                                                                                                                                       i.      Congress can give the lower federal courts concurrent jurisdiction even over those matters where the Constitution specifies that the Supreme Court has original jurisdiction.
                                                              ii.      The federal court system currently includes the Supreme Court, thirteen courts of appeals, ninety-federal district courts, and several specialized federal courts and many administrative agencies that have the authority to decided matters included within Art. III’s enumeration of cases or controversies.
Marbury v. Madison
Facts: Marbury was appointed to be a justice of the peace for D.C. Shortly after Marbury’s appointment Adam’s presidency ended and Jefferson took over. After Marbury was nominated the senate had to confirm and the paper with his confirmation was prepared and sealed by the secretary of state and then it is sent to the president to be signed and the final step was to deliver – signed – sealed – delivered. In this case the document was signed and sealed but not delivered. It was not delivered because Jefferson ordered the secretary of state Madison not to deliver the document. Adams was trying to fill the courts as much as he could – this took a while back in these days – at midnight Adams was thrown out Jefferson came in and everything that needed to delivered had not been – so some of the judges had not been confirmed. This case went directly to the Supreme Court – he wants his commission asking for a writ of mandamous – writ is the vehicle that the common law revised over centuries to formalize.
Five things established by this case:
The power of the federal courts to review the actions of the executive branch of government.
The court could compel the executive branch to do something (later case – US v. Nixon: the court held the president had to comply with a subpoena to provide tapes of conversations for use in a criminal trial – led to Nixon’s resignation.
There is a category of cases termed political questions that are not reviewable by the federal courts because these matters are committed to the other branches of government.
Article III creates a ceiling on the Supreme Court’s original jurisdiction and Congress cannot authorize original jurisdiction greater than that provided for within Article III.
The part of the Judiciary Act that expanded original jurisdiction to include a request for mandamus is unconstitutional because Art. III is the ceiling on the Supreme Court’s original jurisdiction.
Established Judicial review, the power of the federal courts to declare federal statutes unconstitutional.
Art. III does not provide for this power expressly.
Establishes the Court as the authoritative interpreter of the Constitution. 
II.                  Policy considerations underlying the Jurisdictional issues of the federal courts
a.       Separation of Powers
b.       Federalism
                                                               i.      Parity: Whether, overall state courts are equal to federal courts in their ability and willingness to protect federal rights (Esp. Constitutional rights).
1.       Warren Court expanded federal court jurisdiction based on its explicit premise that federal courts often are necessary to ensure Constitutional rights.
a.       Increased availability of federal habeas corpus for state prisoners, expanded the scope of relief under § 1983, limited the circumstances where federal courts must abstain, and minimized the preclusive effects of state court judgments in federal court.
2.       On the other hand Burger and Rehnquist Courts have frequently narrowed federal court jurisdiction based on a belief that the state courts are equally trustworthy when adjudicating Constitutional claims.
                                                              ii.      Comity: The deference federal courts owe to state courts as those of another sovereign.
1.       Many decision s of the Burger Court expressly invoked comity as a justification for restricting federal court jurisdiction. 
III.               Advisory Opinions: Art. III § 2, extends the judicial power of the federal courts to cases and controversies. The federal courts may not issue advice to the other branches of the federal government. 
a.       No federal court can declare a statute unconstitutional until the issue is presented to the court in the context of litigation.
                                                               i.      The judicial power is exercised only to decide actual disputes; their job is to decide cases not to make general decrees about the propriety of government act.
                                                              ii.      No federal court can declare a statute unconstitutional – even if it is plainly so – until the issue is presented to the court in the context of litigation.
b.       The prohibition against advisory opinions promotes separation of powers between the branches.
                                                               i.      By leaving the political branches to act without prior intrusion by the courts, it promotes separation of powers between the branches.
                                                              ii.      The concreteness of a dispute it thought to ensure better decision making.
c.        Constitutional Avoidance
d.       Retroactivity and prospectivity of Judicial Decisions
IV.                Issues of Parties, the Requirement of Finality, and the prohibition against feigned and collusive suits
a.       The Constitution proscribes judicial revision of a legislative or executive act and vice versa.
b.       Note on Hayburn’s Case and the Problem of Revision of Judicial Judgments
                                                               i.      The legislature enacted the Invalid Pensions Act of 1792 which provided financial assistance to injured veterans of the Revolutionary War, charged the federal circuit courts with entertaining petitions from would-be pensioners.
                                                              ii.      Three Circuit courts determined decide this case because the way Congress set it up was not in a justicial matter.
                                                            iii.      Issue with Finality: The secretary of war had the power to open the mail look at the judgment of the Circuit Court and over rule the judgment of the judiciary – once the judical branch is exercised it has to have finality.
1.       Congress could decide not to appropriate the money to compensate the veteran. In this capacity the Secretary of war was acting as a judge of errors in which case he was not – not a judge. 
2.       The court could act as executive commissioners and lay down their robes and act as individuals.
                                                            iv.      The secretary of war was essentially given a judicial power to act as the final reviewer. Just based on the possibility that the executive might exercise the power was enough to make this act unconstitutional.
c.        Plautt v. Spendthrift Farms  
                                                               i.      The Supreme Court Ruled actions brought under the securities laws had to be initiated within one year of discovering the facts giving rise to the violation and three years of the violation. Congress responsibely amended the law to allow cases to go forward that were filed before this decision if they could have been brought under prior law.
                                                              ii.      J. Scalia writing the opinion for the court held the statute unconstitutional. 
1.       The judicial power to one to render dispositive judgments, the federal law effects a clear violation of separation of powers.
2.       The statute was unconstitutional because it overruled a Supreme Court decision and gave relief to a party that the Court had said was entitled to none.
3.       This would lead to a situation where a person thought they were time barred and didn’t bring an action or a court dismissed their case because of the time bar. The result was the person who sat home could bring their case because there was no prior judgment – if the jurisdiction of the Courts was never invoked the person was better off even though less vigorous in pursuing their rights.
4.       J. Scalia says that Congress does not have the power to undo the decision of a lower Court even if it is a lowly district court.         
5.       The argument could be made this is legislative revision of a judicial judgment is never appropriate and there is a separation of powers issue.  
d.       Schindler v. Schiavo (denial of rehearing en banc 11th Cir.)
                                                               i.      The FL Ct. held the feeding tube should be removed, the FL legislature then shot down the decision of the courts – the court held this was unconstitutional because of legislative revision.
                                                              ii.      The S. Ct. then said this case was not reviewable, then the US legislature passed legislation saying Ms. Savio (particularly by name in the statute) would have standing to bring this case in federal judicial court and in adjudicating this case the FL court should give no deference to the FL S. Ct. decisions and the case should be reviewed de novo.  
                                                            iii.      The Congressional act raised issues under Plaut because it was Congress, by statute, attempting to overrule the prior judgment of the Florida Supreme Court.
                                                            iv.      The federal district court twice dined relief to Schiavo’s parents, the Eleventh Circuit affirmed, and the Supreme Court denied review.
                                                             v.      No Court was willing to allow Congress to overturn a state court’s judgment in a particular case.
e.        United States v. Klein:
                                                               i.      At issue in Klein was forfeiture of property of those who stood in rebellion of the US and the owner would have to start a claim and show that he in fact was in rebellion against the US. Johnson gave presidential pardons that would enable one to regain his property. Klein sues for his property presents his pardon and the lower court orders the government has to return the property. Klein was one of a large number of cases where people had been pardoned and restored of their property rights.
                                                              ii.      The govn’t says they don’t want to give the property back – Klein appeals to the Supreme Court. Congress adopts a statue that no longer enables the S. Ct. to hear these claims and interprets the effect of the pardon in a manner contradictory to the Court. 
                                                            iii.      The S.Ct. determines congress has acted unconstitutionally because they violated separation of powers and invalidated the judiciary function. The act is invalidated (wiped off) and the earlier holding of the court is maintained. Congress violated the President’s power by denying the effect of a pardon – it is the role of the S. Ct. to interpret the pardon in a legal sense. 
                                                            iv.       Any jurisdictional limitation must be neutral; that is, Congress may not decide the merits of a case under the guise of limiting jurisdiction. 
                                                             v.      The legislature may still change the substantive law even after judgment.
f.        Miller v. French: The distinguished both Plaut and Klein and upheld a provision of the Prison Litigation Reform Act that required federal courts to stay injunctions that they had entered concerning prison conditions if they did not act within 30 days in response to a government’s motion to end the injunctions. 
                                                               i.      The Court said that the injunction is not the last word of the judicial department because it is always open to modification.
                                                              ii.      Moreover, the Court said that Congress can change the substantive law and require that injunctions be modified to be in accord with the new law. 
                                                            iii.      The Court said the change in the substantive law distinguished this act from the law in Klein.
g.        Winberry v. Salisbury
                                                               i.      The New Jersey Constitution sets forth that the State Supreme Court has the authority to  enact rules of procedure
                                                              ii.      If the state legislature tries to enact these rules this action would be unconstitutional. 
                                                            iii.      This is distinguishable from the federal system where Congress enacts the rules of procedure rather than the Supreme Court.
h.       Note on the Patriot Act:
                                                               i.      The legislation is elegantly worded because it seems like the court is finding fact. Courts make probable cause determinations all of the time – The act says “The court shall enter an ex parte order authorizing the installation and use of a pen register or trap and trace device anywhere within the United States, if the court finds that the attorney for the Government has certified to the court that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation.                                      
                                                              ii.      Chen believes there to be a Constitutional issue with the Patriot Act but it is unlikely any party will ever have standing to bring a case re: the constitutionality of the Patriot act.
i.         United States v. Johnson
j.         Note on feigned and collusive cases: There has to be at least an outward potential for adversity. The lesson is if you are going to a law suit at least put forth some outward indicia that there is the potential for adversity.
                                                               i.      Don’t pay both sides salary.
                                                              ii.      One party should not have too much control over the other. 
                                                            iii.      Cooperative litigation happens often – there is not going to be this silly indicia like one side telling the other you don’t actually have to show up or get involved and I will pay your legal fees.
                                                            iv.      The adversity issue would more so come under the issue of standing rather than of collusive behavior.
V.                  Plaintiff’s standing
a.       Standing in General:
                                                               i.      The focus on standing is whether the plaintiff is an appropriate person to assert a claim. 
1.       The plaintiff must have some direct, concrete interest in the outcome of the case.
2.       Most problematic cases involve public law litigation or suits by ideological plaintiffs, those who challenge some governmental act on the basis of strongly held ideological views.
3.       Standing is built on the idea of separation of powers.
4.       The Supreme Court said that the standing inquiry is especially rigorous (because of separation of powers concerns) when reaching the merits of the dispute would force it to decide whether an action taken by one of the other two branches of the federal government was unconstitutional.
                                                              ii.      Article III of the Constitution imposes three absolute requirements, which can never be overridden by statute.
1.       Injury in fact: That the plaintiff show he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant
a.       Injury must be distinct and palpable.
2.       Causation: that the injury is fairly traceable to the challenged action
3.       Redressability: A favorable decision is likely to redress the injury.
                                                            iii.      The Supreme Court also recognizes additional prudential limitations on standing. Prudential limitations are not imposed by the Constitution but the Court in the interest of judicial administration. These prudential limitations can be overridden by statute.
1.       Prohibition against 3rd party standing: The plaintiff must assert his/her own interest.
2.       Zone of interests: the plaintiff’s interest must fall within the zone of interests protected by the relevant law.
3.       Generalized Grievance: The plaintiff must not assert a grievance shared in equal parts by all citizens or a large class of citizens the harm alone usually does not warrant jurisdiction
b.       Constitutional Standing Concerns:
                                                               i.      Allen v. Wright: (Causation & Injury In-fact)
1.       Challenge to the IRS for not being sufficiently vigilant in weeding out schools that were being discriminatory and taking away the tax break. The suit was brought by black students enrolled in public school.  Two injuries claimed (1) stigmatic injury – that the govn’t is subsidizing schools which are racially segregated and (2) the govn’t is fostering segregation and encouraging students to continue the segregating process. This would change the life of the plaintiff because if the segregated school system continues and the students

s act is constitutional there is no further analysis.
b.       Abbott Laboratories v. Gardner
                                                               i.      The Food and Drug Administration promulgated a regulation requiring the inclusion of generic names for prescription drugs on all labels and other printed materials. Violations of the regulation were punishable by civil and criminal sanctions. Thirty-seven drug companies, accounting for 90 percent of the supply of prescription drugs in the country, challenged the regulation as exceeding the scope of the FDA’s authority under the pertinent statutes. The government argued that the case was not ripe until a drug company was prosecuted for violating the regulation. 
                                                              ii.      The Supreme Court disagreed and permitted pre-enforcement review. The Court stated: “If petitioners wish to comply they must change all their labels, advertisements and promotional materials; they must destroy stocks of printed matter; and they must invest heavily in new printing type and new supplies. The alternative to compliance…would risk serious criminal and civil penalties for the unlawful distribution of misbranded drugs.
                                                            iii.      The Court first determines FDA statutory scheme does not exclude this type of action. The Court will not apply declaratory or injunctive schemes unless the issue is ripe. The Court should (1) evaluate both the fitness of the issues for judicial decision (Are the issues presented appropriate for judicial resolution) and (2) Evaluate the hardship to the parties of withholding the Court’s consideration.  
c.        Toilet Goods Association v. Gardner
                                                               i.      An FDA regulation permitted the FDA free access to all manufacturing processes involved in the production of color additives and authorized the suspension of certifications for the sales if access is denied. A cosmetic manufacturing company sought a declaratory judgment invalidating the regulation. But unlike Abbott Laboratories, the Court said that the matter was not ripe because there was minimal hardship to denying review. The Court explained that “a refusal to admit an inspector would at most lead only to a suspension of certification services to the particular party, a determination that can then be promptly challenged through an administrative procedure, which in turn is reviewable by the court.”
                                                              ii.      Abbott Laboratories is distinguish because it requires immediate change of conduct to comply with the act.
d.       O’Shea v. Littleton
                                                               i.      A group of plaintiffs allege there is something wrong with the Criminal justice system because they suffered from illegal bond sentencing – a racially based animus by local judges and prosecutors about how bail was set and local ordinances imposed.
                                                              ii.      The Court held speculation and conjecture are not enough even with regard to plaintiffs that might have suffered this challenged conduct in the past. Past conduct would be moot because the plaintiffs already served time. All you could do is prevent future conduct – the issue with this claim is it is speculative – will these guys be arrested again.  The court makes a point of noting there is no challenge to substantive law it is the conduct of how the law is administered. In order for the case to be live in regard to them the plaintiff would actually have to be arrested – whether they would ever be. This is the issue with mootness and ripeness – if the person is already convicted and sentenced and served time the case is moot – it the person is not yet arrested the case is not yet ripe.
                                                            iii.      The Supreme Court held that the complaint failed to satisfy the threshold requirement imposed by U.S. Const. art. III that those who seek to invoke the power of federal courts must allege an actual case or controversy. None of respondents claimed they suffered any injury in the manner specified, and the case or controversy requirement was not satisfied by general assertions that respondents would be prosecuted for violating valid criminal laws. Moreover, respondents did not establish likelihood of substantial and immediate irreparable injury and inadequacy of remedies at law.
VIII.           Political Questions: Enacted to protect separation of powers. Judicially created doctrine to give deference to the other branches of government.
a.       Baker v. Carr
                                                               i.      A political question is essentially a function of the separation of powers. Prominent on the surface of any case held to involve a political question is found a (1) textually demonstrable constitutional commitment of the issue to a coordinate political department; or (2) a lack of judicially discoverable and manageable standards for resolving it; or (3) the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or (4) the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or (5) an unusual need for unquestioning adherence to a political decision already made; or (6) the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
b.       Nixon v. United States
                                                               i.      Judge Walter Nixon from Southern District of Mississippi claims that Senate Rule XI (which allows a subcommittee of Senators to hear evidence against an individual who has been impeached and to report that evidence to the full Senate) violates the Impeachment Trial Clause, Article I, §3, cl. 6 (provides: the Senate shall have the sole Power to try all Impeachments).   Nixon was found guilty of lying to a federal grand jury, convicted and sentenced to prison.
                                                              ii.      The Court held this controversy is nonjusticiable (involves a political question) where there is a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it (Baker v. Carr).  
                                                            iii.      Are there judicially manageable standards to define the word try?  What does it mean “to try” an impeachment?   Nixon argues that the word “try” imposes by implication an additional requirement on the Senate in that the proceedings must be in the nature of a judicial trial.  This precludes the Senate from delegating to a select committee the task of hearing the testimony of witnesses.   The majority disagrees with this.  The Court lacks jurisdiction to even define the word try.  The constitution gives the Senate the sole power of impeachment. 
1.         History supports this contention.  There has never been a question or even commentary as to the possibility of judicial review in the context of the impeachment powers.
2.        Structural – framers labored over the question of where the impeachment power should lie and decided that it should lie solely with the Senate.   They decided that the Senate was the most fit b/c they are representative of the people.
                                                            iv.      Framers recognized that most likely there would be two sets of proceedings for individuals who commit impeachable offenses – the impeachment trial and a separate criminal trial.   Framers deliberately separated to avoid raising the specter of bias to ensure independent judgments.
Judicial review would be inconsistent with the Framers’ insistence that our system be one of checks and balances.   Impeachment was designed to be the only check on the Judicial Branch by the Legislature.  Nixon argues that judicial review is necessary as a check on the Legislature.   However, the House accuses and the Senate tries and this therefore avoids the inconvenience of making the same persons both accusers and judges.  An additional safeguard