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Constitutional Law I
Santa Clara University School of Law
Joondeph, Bradley W.

ConLawI – Joondeph, Spring 2010
The Power of Judicial Review
Marbury v. Madison – 1803
a.      Supreme Court can review executive action, but not on political questions
b.      Supreme Court can review the constitutionality of an act of Congress
                                                              i.      Constitution imposes limits of government’s power, which would be meaningless without judicial enforcement
                                                             ii.      SC’s authority to decide cases implies the power to declare laws unconstitutional
                                                           iii.      Judges would violate their oath to uphold the Constitution if they enforce unconstitutional laws
Judicial Review of State Court Judgments
a.      SC has the right of judicial review over any case or controversy arising under the Constitution or Federal Law
                                                              i.      Fletcher v. Peck (1810) – Yazoo Lands Case
1.      First case in which SC ruled a state law unconstitutional
                                                             ii.      Martin v. Hunter’s Lesee (1816)
1.      absolute right of decision must rest somewhere
2.      state judges may have special interests or prejudices
3.      necessary to establish uniformity of decisions throughout the country
                                                           iii.      Cohens v. Virginia (1821)
1.      judicial power extends to all cases arising under the Constitution or a law of the U.S., whoever may be the parties
2.      state courts cannot be trusted to adequately protect federal rights because state judges are dependent on the will of the state legislature
Limits on Federal Judicial Authority
Congress’s Authority to Impose Limits
a.      Art III §2 cl.2 Jurisdiction of Supreme Court: “…in all the cases before mentioned, the Supreme Court shall have appellate jurisdiction…with such exceptions, and under such regulations as the Congress shall make.”
b.      Ex Parte McCardle – 1869
                                                              i.      McCardle had appealed to SC under the Habeas Corpus Act of 1867, which granted appellate jurisdiction to the SC to review denial of habeas corpus petitions.
                                                             ii.      After the case was argued but before an opinion was delivered, Congress suspended the SC’s jurisdiction over the case. 
                                                           iii.      Congress’s withdrawal of SC’s jurisdiction was valid under Art. III §2. But withdrawal does not affect the jurisdiction that was exercised in prior cases.
c.      Exceptions Clause: Congress can regulate and make exceptions to SC’s appellate jurisdiction. 
Justiciability Limits
a.      Justiciability doctrines determine which matters federal courts can hear and decide and which they cannot. Neither the text of the Constitution nor the framers expressly mentioned any of these limitations.
Policy Reasons for Justiciability Requirements
                                                              i.      Separation of powers
                                                             ii.      Conserve judicial resources
                                                           iii.      Improve judicial decision making by providing courts with concrete controversies for resolution
                                                          iv.      Prevents courts from adjudicating the rights of those who are not parties to the suit
Prohibition on Advisory Opinions
                                                              i.      What is an advisory opinion?
1.      Opinions on the legality of executive or legislative action that do not involve and actual “case or controversy”
2.      Abstract legal question that is not a concrete dispute between actual parties
3.      If there is no binding legal effect, then it is an advisory opinion
                                                             ii.      History: In 1793, G. Washington seeks advice of SC justices on legal questions involving the U.S.’s neutrality toward the war between France and England. SC refused to issue such an advisory opinion.
                                                           iii.      SC has determined the “case or controversy” requirement of Art III §2 prohibits federal courts from issuing advisory opinions.
                                                              i.      Whether a party is entitled to have the courts decide the merits of a case.
                                                             ii.      Three Elements Required for Standing (Lujan) – Constitutional Basis
1.      Plaintiff must have suffered an injury in fact (i.e. an invasion of a legally protected right), which is (a) concrete and particularized and (b) actual or imminent.
a.      LA v. Lyons, plaintiff lacked standing enjoin police because he could not demonstrate the substantial likelihood that he, personally would be choked again. (could sue for damages for past choking)
b.      Lujan plaintiff’s could not show sufficient likelihood that they would be injured in the future by a destruction of endangered species abroad. The fact that they wanted to return to Sri Lanka “some day” was insufficient and the fact that they had visited in the past proved nothing. 
c.      Citizen Suit Provisions – CoA in Lujan gave P standing based on finding that they had suffered a procedural injury – that the injury-in-fact requirement had been satisfied by congressional conferral (in the Endangered Species Act) upon all persons of an abstract, self-contained, noninstrumental “right” to have the Executive observe the procedures required by law. SC rejected CoA’s logic – there must be an injury in fact.
d.      FEC v. Akins – plaintiff had standing because the federal statute created an individual right to information and denial of that right was a concrete enough injury to confer standing – “where the harm is concrete, though widely shared, the Court has found injury in fact” – important post-Lujan clarification: Congress by statute can create rig

           i.      Ripeness doctrine seeks to prevent premature adjudication. Separates matters that are premature (because injury is speculative or may never occur), from those that are appropriate for adjudication
                                                             ii.      Criteria for Determining Ripeness
1.      Hardship of denying review
a.      A hardship is likely to be suffered in the absence of a judgement
                                                                                                                                      i.      Caused by the law as it will eventually be applied
                                                                                                                                     ii.      Caused by collateral injuries, or
                                                                                                                                   iii.      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
2.      Fitness of issue for judicial review
a.      The more a question is purely a legal issue the analysis of which does not depend on a particular factual context, the more likely it is that the court will find ripeness
Mootness – “standing in time”
                                                              i.      The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence
                                                             ii.      Procedure – mootness can be raised by court sua sponte at any point
                                                           iii.      Mootness occurs when litigants no longer have a concrete stake in the outcome because of changes in the factual situation or in the law occurring after the lawsuit has begun (i.e. after initial standing was established)
                                                          iv.      Exceptions
1.      Capable of Repetition Yet Evading Review
a.      Some issues occur and are over so quickly that they will always be moot before the litigation process is complete. When such issues are likely to recur, the court may continue to exercise jurisdiction despite mootness (Roe v. Wade)
2.      Voluntary Cessation
Case is not dismissed for mootness if the ∆ ceases the allegedly improper behavior but is free to resume it at any time. Only if there is no