Supreme Court Decisions on Federal and State Court Jurisdiction and Powers, Study notes of Law

Download Supreme Court Decisions on Federal and State Court Jurisdiction and Powers and more Study notes Law in PDF only on Docsity! 593 ARTICLE III JUDICIAL DEPARTMENT CONTENTS Page Section 1. Judicial Power, Courts, Judges ............................................................................... 597 Organization of Courts, Tenure, and Compensation of Judges ...................................... 597 One Supreme Court .................................................................................................... 598 Inferior Courts ............................................................................................................. 599 Abolition of Courts ............................................................................................... 600 Compensation .............................................................................................................. 600 Diminution of Salaries ......................................................................................... 600 Courts of Specialized Jurisdiction .............................................................................. 602 Legislative Courts: The Canter Case ......................................................................... 604 Power of Congress Over Legislative Courts ....................................................... 605 Review of Legislative Courts by Supreme Court ............................................... 606 The ‘‘Public Rights’’ Distinction .......................................................................... 607 Constitutional Status of the Court of Claims and the Court of Customs and Patent Appeals .................................................................................................. 610 Status of Courts of the District of Columbia ..................................................... 611 Bankruptcy Courts ............................................................................................... 613 Agency Adjudication ............................................................................................ 615 Noncourt Entities in the Judicial Branch ................................................................. 617 Judicial Power ............................................................................................................................ 618 Characteristics and Attributes of Judicial Power ............................................................ 618 ‘‘Shall Be Vested’’ ........................................................................................................ 619 Finality of Judgment as an Attribute of Judicial Power ................................................. 620 Award of Execution ..................................................................................................... 621 Ancillary Powers of Federal Courts ......................................................................................... 623 The Contempt Power .......................................................................................................... 623 Categories of Contempt ............................................................................................... 623 The Act of 1789 ............................................................................................................ 625 An Inherent Power ...................................................................................................... 625 First Amendment Limitations on the Contempt Power ........................................... 627 Due Process Limitations on Contempt Power: Right to Notice and to a Hearing Versus Summary Punishment ................................................................................ 629 Due Process Limitations on Contempt Power: Right to Jury Trial ........................ 630 Due Process Limitations on Contempt Power: Impartial Tribunal ......................... 631 Contempt by Disobedience of Orders ......................................................................... 634 Contempt Power in Aid of Administrative Power .................................................... 634 Sanctions Other than Contempt ....................................................................................... 635 Power to Issue Writs: The Act of 1789 ............................................................................. 636 Common Law Powers of District of Columbia Courts .............................................. 637 Habeas Corpus: Congressional and Judicial Control ............................................... 638 Habeas Corpus: The Process of the Writ ................................................................... 639 Congressional Limitation of the Injunctive Power .......................................................... 641 Injunctions Under the Emergency Price Control Act of 1942 ................................. 643 The Rule-Making Power and Powers Over Process ......................................................... 644 594 ART. III—JUDICIAL DEPARTMENT Ancillary Powers of Federal Courts—Continued The Rule-Making Power and Powers Over Process—Continued Limitations to This Power .......................................................................................... 645 Appointment of Referees, Masters, and Special Aids ............................................... 646 Power to Admit and Disbar Attorneys ...................................................................... 646 Section 2. Judicial Power and Jurisdiction .............................................................................. 647 Clause 1. Cases and Controversies; Grants of Jurisdiction ............................................ 647 Judicial Power and Jurisdiction—Cases and Controversies .................................... 648 The Two Classes of Cases and Controversies .................................................... 649 Adverse Litigants ................................................................................................. 651 Collusive and Feigned Suits ......................................................................... 652 Stockholder Suits .......................................................................................... 653 Substantial Interest: Standing ............................................................................ 654 Citizens Suits ................................................................................................ 655 Taxpayer Suits .............................................................................................. 656 Constitutional Standards: Injury in Fact and Causation .......................... 658 Prudential Standing Rules ........................................................................... 661 Standing to Assert the Constitutional Rights of Others ........................... 662 Organizational Standing .............................................................................. 665 Standing of States to Represent Their Citizens ......................................... 665 Standing of Members of Congress ............................................................... 666 Standing to Challenge Nonconstitutional Governmental Action .............. 668 The Requirement of a Real Interest ................................................................... 670 Advisory Opinion .......................................................................................... 671 Declaratory Judgment .................................................................................. 673 Ripeness ......................................................................................................... 676 Mootness ........................................................................................................ 679 Retroactivity versus Prospectivity ............................................................... 683 Political Questions ............................................................................................... 687 Origins and Development ............................................................................. 688 The Doctrine Before Baker v. Carr ............................................................. 689 Baker v. Carr ................................................................................................ 693 Powell v. McCormack ................................................................................... 694 The Doctrine Reappears ............................................................................... 696 Judicial Review ............................................................................................................ 698 The Establishment of Judicial Review ............................................................... 698 Marbury v. Madison ..................................................................................... 701 Judicial Review and National Supremacy .................................................. 703 Limitations on the Exercise of Judicial Review ................................................. 705 Constitutional Interpretation ....................................................................... 705 Prudential Considerations ............................................................................ 706 The Doctrine of ‘‘Strict Necessity’’ ............................................................... 707 The Doctrine of Clear Mistake ..................................................................... 708 Exclusion of Extra-Constitutional Tests ..................................................... 709 Presumption of Constitutionality ................................................................ 710 Disallowance by Statutory Interpretation .................................................. 710 Stare Decisis in Constitutional Law ............................................................ 711 Conclusion ..................................................................................................... 712 Jurisdiction of Supreme Court and Inferior Federal Courts ................................... 713 Cases Arising Under the Constitution, Laws, and Treaties of the United States ................................................................................................................. 713 Development of Federal Question Jurisdiction .......................................... 713 When a Case Arises Under .......................................................................... 714 597 1 M. FARRAND, THE FRAMING OF THE CONSTITUTION OF THE UNITED STATES (New Haven: 1913), 79. 2 The most complete account of the Convention’s consideration of the judiciary is J. GOEBEL, ANTECEDENTS AND BEGINNINGS TO 1801, HISTORY OF THE SUPREME COURT OF THE UNITED STATES, Vol. 1 (New York: 1971), ch. 5. 3 1 M. FARRAND, op. cit., n. 1, 21–22. That this version might not possibly be an accurate copy, see 3 id., 593–594. 4 1 id., 95, 104. 5 Id., 95, 105. The words ‘‘One or more’’ were deleted the following day without recorded debate. Id., 116, 119. 6 Id., 124–125. JUDICIAL DEPARTMENT ARTICLE III SECTION 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. ORGANIZATION OF COURTS, TENURE, AND COMPENSATION OF JUDGES The Constitution is almost completely silent concerning the or- ganization of the federal judiciary. ‘‘That there should be a national judiciary was readily accepted by all.’’ 1 But whether it was to con- sist of one high court at the apex of a federal judicial system or a high court exercising appellate jurisdiction over state courts that would initially hear all but a minor fraction of cases raising na- tional issues was a matter of considerable controversy. 2 The Vir- ginia Plan provided for a ‘‘National judiciary [to] be established to consist of one or more supreme tribunals, and of inferior tribunals to be chosen by the National Legislature. . . . ’’ 3 In the Committee of the Whole, the proposition ‘‘that a national judiciary be estab- lished’’ was unanimously adopted, 4 but the clause ‘‘to consist of One supreme tribunal, and of one or more inferior tribunals’’ 5 was first agreed to, then reconsidered, and the provision for inferior tri- bunals stricken out, it being argued that state courts could ade- quately adjudicate all necessary matters while the supreme tribu- nal would protect the national interest and assure uniformity. 6 598 ART. III—JUDICIAL DEPARTMENT Sec. 1—Judicial Power, Courts, Judges 7 Madison’s notes use the word ‘‘institute’’ in place of ‘‘appoint’’, id., 125, but the latter appears in the Convention Journal, id., 118, and in Yates’ notes, id., 127, and when the Convention took up the draft reported by the Committee of the Whole ‘‘ap- point’’ is used even in Madison’s notes. 2 id., 38, 45. 8 On offering their motion, Wilson and Madison ‘‘observed that there was a dis- tinction between establishing such tribunals absolutely, and giving a discretion to the Legislature to establish or not establish them.’’ 1 id., 125. The Committee on Detail provided for the vesting of judicial power in one Supreme Court ‘‘and in such inferior Courts as shall, when necessary, from time to time, be constituted by the legislature of the United States.’’ 2 id., 186. Its draft also authorized Congress ‘‘[t]o constitute tribunals inferior to the Supreme Court.’’ Id., 182. No debate is recorded when the Convention approved these two clauses, Id. 315, 422–423, 428–430. The Committee on Style left the clause empowering Congress to ‘‘constitute’’ inferior tri- bunals as was, but it deleted ‘‘as shall, when necessary’’ from the Judiciary article, so that the judicial power was vested ‘‘in such inferior courts as Congress may from time to time’’—and here deleted ‘‘constitute’’ and substituted the more forceful—‘‘or- dain and establish.’’ Id., 600. 9 The provision was in the Virginia Plan and was approved throughout, 1 id., 21. 10 Id, 121; 2 id., 44–45, 429–430. 11 Article I, § 3. 12 Act of September 24, 1789, 1 Stat. 73. The authoritative works on the Act and its working and amendments are F. FRANKFURTER & J. LANDIS, THE BUSINESS OF THE SUPREME COURT (New York: 1928); Warren, New Light on the History of the Federal Judicial Act of 1789, 37 Harv. L. Rev. 49 (1923); see also J. GOEBEL, op. cit., n. 2, ch. 11. 13 Act of September 24, 1789, 1 Stat. 73, § 1. 14 12 Stat. 794, § 1. Wilson and Madison thereupon moved to authorize Congress ‘‘to appoint inferior tribunals,’’ 7 which carried the implication that Congress could in its discretion either designate the state courts to hear federal cases or create federal courts. The word ‘‘appoint’’ was adopted and over the course of the Convention changed into phras- ing that suggests something of an obligation on Congress to estab- lish inferior federal courts. 8 The ‘‘good behavior’’ clause excited no controversy, 9 while the only substantial dispute with regard to de- nying Congress the power to intimidate judges through actual or threatened reduction of salaries came on Madison’s motion to bar increases as well as decreases. 10 One Supreme Court The Convention left up to Congress decision on the size and composition of the Supreme Court, the time and place for sitting, its internal organization, save for the reference to the Chief Justice in the impeachment provision, 11 and other matters. These details Congress filled up in the Judiciary Act of 1789, one of the seminal statutes of the United States. 12 By the Act, the Court was made to consist of a Chief Justice and five Associate Justices. 13 The number was gradually increased until it reached a total of ten under the act of March 3, 1863. 14 As one of the Reconstruction Congress’ restrictions on President Andrew Johnson, the number 599ART. III—JUDICIAL DEPARTMENT Sec. 1—Judicial Power, Courts, Judges 15 Act of July 23, 1866, 14 Stat. 209, § 1. 16 Act of April 10, 1869, 16 Stat. 44. 17 Hearings before the Senate Judiciary Committee on S. 1392, Reorganization of the Judiciary, 75th Congress, 1st sess. (1937), pt. 3, 491. For earlier proposals to have the Court sit in divisions, see F. FRANKFURTER & J. LANDIS, op. cit., n. 12, 74–85. 18 1 C. WARREN, THE SUPREME COURT IN UNITED STATES HISTORY (Boston: rev. ed. 1926), 222–224. 19 Act of September 24, 1789, 1 Stat. 73, §§ 2–3. 20 Id., 74, §§ 4–5 21 Cf. F. FRANKFURTER & J. LANDIS, op. cit., n. 12, chs. 1–3: J. GOEBEL. op. cit., n. 2, 554–560, 565–569. Upon receipt of a letter from President Washington solicit- ing suggestions regarding the judicial system, WRITINGS OF GEORGE WASHINGTON, J. Fitzpatrick ed., (Washington: 1943), 31, Chief Justice Jay prepared a letter for the approval of the other Justices, declining to comment on the policy questions but raising several issues of constitutionality, that the same man should not be ap- pointed to two offices, that the offices were incompatible, and that the act invaded the prerogatives of the President and Senate. 2 G. MCREE, LIFE AND CORRESPOND- ENCE OF JAMES IREDELL (New York: 1858), 293–296. The letter was apparently never forwarded to the President. WRITINGS OF WASHINGTON, op. cit., 31–32 n. 58. When the constitutional issue was raised in Stuart v. Laird, 1 Cr. (5 U.S.) 299, 309 (1803), it was passed over with the observation that the practice was too established to be questioned. was reduced to seven as vacancies should occur. 15 The number ac- tually never fell below eight before the end of Johnson’s term, and Congress thereupon made the number nine. 16 Proposals have been made at various times for an organization of the Court into sections or divisions. No authoritative judicial ex- pression is available, although Chief Justice Hughes in a letter to Senator Wheeler in 1937 expressed doubts concerning the validity of such a device and stated that ‘‘the Constitution does not appear to authorize two or more Supreme Courts functioning in effect as separate courts.’’ 17 Congress has also determined the time and place of sessions of the Court. It utilized this power once in 1801 to change its terms so that for fourteen months the Court did not convene, so as to forestall a constitutional attack on the repeal of the Judiciary Act of 1801. 18 Inferior Courts Congress also acted in the Judiciary Act of 1789 to create infe- rior courts. Thirteen district courts were constituted to have four sessions annually, 19 and three circuit courts were established to consist jointly of two Supreme Court justices each and one of the district judges of such districts which were to meet twice annually in the various districts comprising the circuit. 20 This system had substantial faults in operation, not the least of which was the bur- den imposed on the Justices who were required to travel thousands of miles each year under bad conditions. 21 Despite numerous ef- 602 ART. III—JUDICIAL DEPARTMENT Sec. 1—Judicial Power, Courts, Judges 35 Id., 278–282. 36 Id., 282. 37 36 Stat. 539. 38 56 Stat. 23, §§ 31–33. judges nor as an encroachment on the independence of the judici- ary. 35 To subject judges who take office after a stipulated date to a nondiscriminatory tax laid generally on an income, said the Court ‘‘is merely to recognize that judges are also citizens, and that their particular function in government does not generate an im- munity from sharing with their fellow citizens the material burden of the government whose Constitution and laws they are charged with administering.’’ 36 Courts of Specialized Jurisdiction By virtue of its power ‘‘to ordain and establish’’ courts, Con- gress has occasionally created courts under Article III to exercise a specialized jurisdiction. These tribunals are like other Article III courts in that they exercise ‘‘the judicial power of the United States,’’ and only that power, that their judges must be appointed by the President and the Senate and must hold office during good behavior subject to removal by impeachment only, and that the compensation of their judges cannot be diminished during their continuance in office. One example of such courts was the Com- merce Court created by the Mann-Elkins Act of 1910, 37 which was given exclusive jurisdiction of all cases to enforce orders of the Interstate Commerce Commission except those involving money penalties and criminal punishment, of cases brought to enjoin, annul, or set aside orders of the Commission, of cases brought under the act of 1903 to prevent unjust discriminations, and of all mandamus proceedings authorized by the act of 1903. This court actually functioned for less than three years, being abolished in 1913, as was mentioned above. Another court of specialized jurisdiction, but created for a lim- ited time only, was the Emergency Court of Appeals organized by the Emergency Price Control Act of January 30, 1942. 38 By the terms of the statute, this court consisted of three or more judges designated by the Chief Justice from the judges of the Untied States district courts and circuit courts of appeal. The Court was vested with jurisdiction and powers of a district court to hear ap- peals filed within thirty days against denials of protests by the Price Administrator and with exclusive jurisdiction to set aside reg- ulations, orders, or price schedules, in whole or in part, or to re- mand the proceeding, but the court was tightly constrained in its treatment of regulations. There was interplay with the district 603ART. III—JUDICIAL DEPARTMENT Sec. 1—Judicial Power, Courts, Judges 39 In Lockerty v. Phillips, 319 U.S. 182 (1943), the limitations on the use of in- junctions, except the prohibition against interlocutory decrees, was unanimously sustained. A similar court was created to be utilized in the enforcement of the economic controls imposed by President Nixon in 1971. P.L. 92–210, 85 Stat. 743, 211(b). Al- though controls ended in 1974, see 12 U.S.C. § 1904 note, Congress continued the Temporary Emergency Court of Appeals and gave it new jurisdiction. Emergency Petroleum Allocation Act of 1973, P.L. 93–159, 87 Stat. 633, 15 U.S.C. § 754, incor- porating judicial review provisions of the Economic Stabilization Act. The Court was abolished, effective March 29, 1993, by P. L. 102–572, 106 Stat. 4506. Another similar specialized court was created by § 209 of the Regional Rail Re- organization Act, P. L. 93–226, 87 Stat. 999, 45 U.S.C. § 719, to review the final sys- tem plan under the Act. Regional Rail Reorganization Act Cases(Blanchette v. Con- necticut Gen. Ins. Corp.), 419 U.S. 102 (1974). 40 By the Federal Courts Improvement Act of 1982, P. L. 97–164, 96 Stat. 37, 28 U.S.C. § 1295. Among other things, this Court assumed the appellate jurisdiction of the Court of Claims and the Court of Customs and Patent Appeals. 41 Act of Oct. 10, 1980, 94 Stat. 1727. 42 28 U.S.C. § 1407. 43 P. L. 95–511,92 Stat. 1788, 50 U.S.C. § 1803. 44 Ethics in Government Act, Title VI, P. L. 95–521, 92 Stat. 1867, as amended, 28 U.S.C. §§ 591–599. The court is a ‘‘Special Division’’ of the United States Court of Appeals for the District of Columbia; composed of three regular federal judges, only one of whom may be from the D. C. Circuit, who are designated by the Chief Justice. 28 U.S. C. § 49. The constitutionality of the Special Division was upheld in Morrison v. Olson, 487 U.S. 654, 670–685 (1988). courts, which were charged with authority to enforce orders issued under the Act, although only the Emergency Court had jurisdiction to determine the validity of such orders. 39 Other specialized courts are the Court of Appeals for the Fed- eral Circuit, which is in many respects like the geographic circuits. Created in 1982, 40 this court has exclusive jurisdiction to hear ap- peals from the United States Court of Federal Claims, from the Federal Merit System Protection Board, the Court of International Trade, the Patent Office in patent and trademark cases, and in various contract and tort cases. The Court of International Trade, which began life as the Board of General Appraisers, became the United States Customs Court in 1926, and was declared an Article III court in 1956, came to its present form and name in 1980. 41 The Judicial Panel on Multidistrict Litigation, staffed by federal judges from other courts, is authorized to transfer actions pending in different districts to a single district for trial. 42 To facilitate the gathering of foreign intelligence information, through electronic surveillance, search and seizure, as well as other means, Congress authorized in 1978 a special court, composed of seven regular federal judges appointed by the Chief Justice, to re- ceive applications from the United States and to issue warrants for intelligence activities. 43 Even greater specialization is provided by the special court cre- ated by the Ethics in Government Act; 44 the court is charged, upon 604 ART. III—JUDICIAL DEPARTMENT Sec. 1—Judicial Power, Courts, Judges 45 In Freytag v. CIR, 501 U.S. 868 (1991), a controverted decision held Article I courts to be ‘‘Courts of Law’’ for purposes of the appointments clause. Art. II, § 2, cl. 2. See id., 888–892 (majority opinion), and 901–914 (Justice Scalia dissenting). 46 1 Pet. (26 U.S.) 511 (1828). 47 Id., 546. 48 In Glidden Co. v. Zdanok, 370 U.S. 530, 544–545 (1962), Justice Harlan as- serted that Chief Justice Marshall in the Canter case ‘‘did not mean to imply that the case heard by the Key West court was not one of admiralty jurisdiction other- wise properly justiciable in a Federal District Court sitting in one of the States. . . . All the Chief Justice meant . . . is that in the territories cases and controversies falling within the enumeration of Article III may be heard and decided in courts constituted without regard to the limitations of that article. . . .’’ 49 Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 106 (1982) (Justice White dissenting). the request of the Attorney General, with appointing an independ- ent counsel to investigate and prosecute charges of illegality in the Executive Branch. The court also has certain supervisory powers over the independent counsel. Legislative Courts: The Canter Case Legislative courts, so-called because they are created by Con- gress in pursuance of its general legislative powers, have comprised a significant part of the federal judiciary. 45 The distinction be- tween constitutional courts and legislative courts was first made in American Ins. Co. v. Canter, 46 which involved the question of the admiralty jurisdiction of the territorial court of Florida, the judges of which were limited to a four-year term in office. Said Chief Jus- tice Marshall for the Court: ‘‘These courts, then, are not constitu- tional courts, in which the judicial power conferred by the Constitu- tion on the general government, can be deposited. They are incapa- ble of receiving it. They are legislative courts, created in virtue of the general right of sovereignty which exists in the government, or in virtue of that clause which enables Congress to make all needful rules and regulations, respecting the territory belonging to the United States. The jurisdiction with which they are invested, is not a part of that judicial power which is defined in the 3rd article of the Constitution, but is conferred by Congress, in the execution of those general powers which that body possesses over the territories of the United States.’’ 47 The Court went on to hold that admiralty jurisdiction can be exercised in the States only in those courts which are established in pursuance of Article III but that the same limitation does not apply to the territorial courts, for in legislating for them ‘‘Congress exercises the combined powers of the general, and of a state government.’’ 48 Canter postulated a simple proposition: ‘‘Constitutional courts exercise the judicial power described in Art. III of the Constitution; legislative courts do not and cannot.’’ 49 A two-fold difficulty at- 607ART. III—JUDICIAL DEPARTMENT Sec. 1—Judicial Power, Courts, Judges 61 Pope v. United States, 323 U.S. 1, 14 (1944); D. C. Court of Appeals v. Feld- man, 460 U.S. 462 (1983). 62 18 How. (59 U.S.) 272 (1856). 63 Id., 284. 64 Ex parte Bakelite Corp., 279 U.S. 438, 451 (1929). 65 Gordon v. United States, 117 U.S. 697 (1864); McElrath v. United States, 102 U.S. 426 (1880); Williams v. United States, 289 U.S. 553 (1933). On the status of the then-existing Court of Claims, see Glidden Co. v. Zdanok, 370 U.S. 530 (1962). 66 United States v. Coe, 155 U.S. 76 (1894) (Court of Private Land Claims). 67 Wallace v. Adams. 204 U.S. 415 (1907); Stephens v. Cherokee Nation, 174 U.S. 445 (1899) (Choctaw and Chickasaw Citizenship Court). formance of judicial functions and therefore the exercise of judicial power, the Court may be vested with appellate jurisdiction. 61 The ‘‘Public Rights’’ Distinction.—A major delineation of the distinction between Article I courts and Article III courts was attempted in Murray’s Lessee v. Hoboken Land & Improvement Co. 62 In this case was challenged a summary procedure, without benefit of the courts, for the collection by the United States of mon- eys claimed to be due from one of its customs collectors. It was ob- jected that the assessment and collection was a judicial act carried out by nonjudicial officers and thus invalid under Article III. Ac- cepting that the acts complained of were judicial, the Court none- theless sustained the act by distinguishing between any act, ‘‘which, from its nature, is the subject of a suit at the common law, or in equity, or admiralty,’’ which, in other words, is inherently ju- dicial, and other acts which Congress may vest in courts or in other agencies. ‘‘[T]here are matters, involving public rights, which may be presented in such form that the judicial power is capable of act- ing on them, and which are susceptible of judicial determination, but which congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper.’’ 63 The dis- tinction was between those acts which historically had been deter- mined by courts and those which historically had been resolved by executive or legislative acts and comprehended those matters that arose between the government and others. Thus, Article I courts ‘‘may be created as special tribunals to examine and determine var- ious matters, arising between the government and others, which from their nature do not require judicial determination and yet are susceptible of it. The mode of determining matters of this class is completely within congressional control.’’ 64 Among the matters susceptible of judicial determination, but not requiring it, are claims against the United States, 65 the dis- posal of public lands and claims arising therefrom, 66 questions con- cerning membership in the Indian tribes, 67 and questions arising out of the administration of the customs and internal revenue 608 ART. III—JUDICIAL DEPARTMENT Sec. 1—Judicial Power, Courts, Judges 68 Old Colony Trust Co. v. CIR, 279 U.S. 716 (1929); Ex Parte Bakelite Corp., 279 U.S. 438 (1929). 69 See In re Ross, 140 U.S. 453 (1891) (consular courts in foreign countries). Military courts may, on the other hand, be a separate entity of the military having no connection to Article III. Dynes v. Hoover, 20 How. (61 U.S.) 65, 79 (1857). 70 285 U.S. 22 (1932). 71 Id. 51. On the constitutional problems of assignment to an administrative agency, see Atlas Roofing Co. v. OSHRC, 430 U.S. 442 (1977); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 48 (1937). 72 Id., 51–65. 73 Id., 50, 51, 58–63. Thus, Article III concerns were satisfied by a review of the agency fact finding upon the administrative record. Id., 63–65. The plurality opinion denied the validity of this approach in Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 86 n. 39 (1982), although Justice white in dissent accept- ed it. Id., 115. The plurality, rather, rationalized Crowell and subsequent cases on an analysis seeking to ascertain whether agencies or Article I tribunals were ‘‘ad- juncts’’ of Article III courts, that is, whether Article III courts were sufficiently in charge to protect constitutional values. Id., 76–87. 74 Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 67– 70 (1982) (plurality opinion). Thus, Justice Brennan states that at a minimum a matter of public right must arise ‘‘‘between the government and others’’’ but that the presence of the United States as a proper party to the proceeding is a necessary but not sufficient means to distinguish ‘‘private rights.’’ Id., 69 & n. 23. Crowell v. Benson, however, remained an embarrassing presence. laws. 68 Other courts similar to territorial courts, such as consular courts and military courts martial, may be justified on like grounds. 69 The ‘‘public rights’’ distinction appears today to be a descrip- tion without a significant distinction. Thus, in Crowell v. Benson, 70 the Court approved an administrative scheme for determination, subject to judicial review, of maritime employee compensation claims, although it acknowledged that the case involved ‘‘one of pri- vate right, that is, of the liability of one individual to another under the law as defined.’’ 71 This scheme was permissible, the Court said, because in cases arising out of congressional statutes, an administrative tribunal could make findings of fact and render an initial decision of legal and constitutional questions, as long as there is adequate review in a constitutional court. 72 The ‘‘essential attributes’’ of decision must remain in an Article III court, but so long as it does, Congress may utilize administrative decisionmakers in those private rights cases that arise in the con- text of a comprehensive federal statutory scheme. 73 That the ‘‘pub- lic rights’’ distinction marked a dividing line between those matters that could be assigned to legislative courts and to administrative agencies and those matters ‘‘of private right’’ that could not be was reasserted in Marathon, but there was much the Court plurality did not explain. 74 The Court continued to waver with respect to the importance to decision-making of the public rights/private rights distinction. In 609ART. III—JUDICIAL DEPARTMENT Sec. 1—Judicial Power, Courts, Judges 75 Thomas v. Union Carbide Agric. Products Co., 473 U.S. 568 (1985); CFTC v. Schor, 478 U.S. 833 (1986). The cases also abandoned the principle that the Federal Government must be a party for the case to fall into the ‘‘public rights’’ category. Thomas, supra, 586; and see id., 596–599 (Justice Brennan concurring). 76 ‘‘In essence, the public rights doctrine reflects simply a pragmatic under- standing that when Congress selects a quasi-judicial method of resolving matters that ‘could be conclusively determined by the Executive and Legislative Branches,’ the danger of encroaching on the judicial powers is reduced.’’ Thomas v. Union Car- bide Agric. Products Co., 473 U.S. 568, 589 (1985) (quoting Northern Pipeline, supra, 458 U.S., 68 (plurality opinion)). 77 Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 51–55 (1989). A seventh Amendment jury-trial case, the decision is critical to the Article III issue as well, because, as the Court makes clear what was implicit before, whether Congress can submit a legal issue to an Article I tribunal and whether it can dispense with a civil jury on that legal issue must be answered by the same analysis. Id., 52–53. 78 Id., 52–54. The Court reiterated that the Government need not be a party as a prerequisite to a matter being of ‘‘public right.’’ Id., 54. Concurring, Justice Scalia argued that public rights historically were and should remain only those matters to which the Federal Government is a party. Id, 65. two cases following Marathon, it rejected the distinction as ‘‘a bright line test,’’ and instead focused on ‘‘substance’’—i.e., on the extent to which the particular grant of jurisdiction to an Article I court threatened judicial integrity and separation of powers prin- ciples. 75 Nonetheless, the Court indicated that the distinction may be an appropriate starting point for analysis. Thus, the fact that private rights traditionally at the core of Article III jurisdiction are at stake leads the Court to ‘‘searching’’ inquiry as to whether Con- gress is encroaching inordinately on judicial functions, while the concern is not so great where ‘‘public’’ rights are involved. 76 However, in a subsequent case, the distinction was pronounced determinative not only of the issue whether a matter could be re- ferred to a non-Article III tribunal but whether Congress could dis- pense with civil jury trials. 77 In so doing, however, the Court viti- ated much of the core content of ‘‘private’’ rights as a concept and left resolution of the central issue to a balancing test. That is, ‘‘public’’ rights are, strictly speaking, those in which the cause of action inheres in or lies against the Federal Government in its sov- ereign capacity, the understanding since Murray’s Lessee. However, to accommodate Crowell v. Benson, Atlas Roofing, and similar cases, seemingly private causes of action between private parties will also be deemed ‘‘public’’ rights, when Congress, acting for a valid legislative purpose pursuant to its Article I powers, fashions a cause of action that is analogous to a common-law claim and so closely integrates it into a public regulatory scheme that it becomes a matter appropriate for agency resolution with limited involve- ment by the Article III judiciary. 78 Nonetheless, despite its fixing by Congress as a ‘‘core proceeding’’ suitable for an Article I bank- ruptcy court adjudication, the Court held the particular cause of ac- 612 ART. III—JUDICIAL DEPARTMENT Sec. 1—Judicial Power, Courts, Judges 95 O’Donoghue v. United States, 289 U.S. 516 (1933). 96 Id., 535–546. Chief Justice Hughes in dissent argued that Congress’ power over the District was complete in itself and the power to create courts there did not derive at all from Article III. Id., 551. See the discussion of this point of O’Donoghue in National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582 (1949). Cf. Hob- son v. Hansen, 265 F. Supp. 902 (D.C.D.C. 1967) (three-judge court). 97 P.L. 91–358, 84 Stat. 475, D.C. Code § 11–101. 98 411 U.S. 389 (1973) lyzing the nature of the legislative courts, the Court stated that the courts of the District were legislative courts. In 1933, nevertheless, the Court, abandoning all previous dicta on the subject, found the courts of the District of Columbia to be constitutional courts exercising judicial power of the United States, 95 with the result that it assumed the task of reconciling the performance of nonjudicial functions by such courts with the rule that constitutional courts can exercise only the judicial power of the United States. This task was accomplished by the argument that in establishing courts for the District, Congress is performing dual functions in pursuance of two distinct powers, the power to constitute tribunals inferior to the Supreme Court, and its plenary and exclusive power to legislate for the District of Columbia. How- ever, Article III, § 1, limits this latter power with respect to tenure and compensation, but not with regard to vesting legislative and administrative powers in such courts. Subject to the guarantees of personal liberty in the Constitution, ‘‘Congress has as much power to vest courts of the District with a variety of jurisdiction and pow- ers as a State legislature has in conferring jurisdiction on its courts.’’ 96 In 1970, Congress formally recognized two sets of courts in the District, federal courts, district courts and a Court of Appeals for the District of Columbia, created pursuant to Article III, and courts equivalent to state and territorial courts, created pursuant to Arti- cle I. 97 Congress’ action was sustained in Palmore v. United States. 98 When legislating for the District, the Court held, Con- gress has the power of a local legislature and may, pursuant to Ar- ticle I, § 8, cl. 17, vest jurisdiction to hear matters of local law and local concerns in courts not having Article III characteristics. The defendant’s claim that he was denied his constitutional right to be tried before an Article III judge was denied on the basis that it was not absolutely necessary that every proceeding in which a charge, claim, or defense based on an act of Congress or a law made under its authority need be conducted in an Article III court. State courts, after all, could hear cases involving federal law as could territorial and military courts. ‘‘[T]he requirements of Article III, which are applicable where laws of national applicability and affairs of na- 613ART. III—JUDICIAL DEPARTMENT Sec. 1—Judicial Power, Courts, Judges 99 Id., 407–408. See also Pernell v. Southall Realty Co., 416 U.S. 363, 365–365 (1974); Swain v. Pressley, 430 U.S. 372 (1977); Key v. Doyle, 434 U.S. 59 (1978). Under Swain, provision for hearing of motions for postjudgment relief by convicted persons in the District, the present equivalent of habeas for federal convicts, is placed in Article I courts. That there are limits to Congress’ discretion is asserted in dictum in Territory of Guam v. Olsen, 431 U.S. 195, 201–202, 204 (1977). 100 Bankruptcy Act of 1978, P.L. 95–598, 92 Stat. 2549, codified in titles 11, 28. The bankruptcy courts were made ‘‘adjuncts’’ of the district courts by § 201(a), 28 U.S.C. § 151(a). For citation to the debate with respect to Article III versus Article I status for these courts, see Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 61 n. 12 (1982) (plurality opinion). 101 The statement of the holding is that of the two concurring Justices, id., 89 (Justices Rehnquist and O’Connor), with which the plurality agreed ‘‘at the least,’’ while desiring to go further. Id., 87 n. 40. tional concern are at stake, must in proper circumstances give way to accommodate plenary grants of power to Congress to legislate with respect to specialized areas having particularized needs and warranting distinctive treatment.’’ 99 Bankruptcy Courts.—After extended and lengthy debate, Congress in 1978 revised the bankruptcy act and created as an ‘‘ad- junct’’ of the district courts a bankruptcy court composed of judges, vested with practically all the judicial power of the United States, serving for 14 year terms, subject to removal for cause by the judi- cial councils of the circuits, and with salaries subject to statutory change. 100 The bankruptcy courts were given jurisdiction over all civil proceedings arising under the bankruptcy code or arising in or related to bankruptcy cases, with review in Article III courts under a clearly erroneous standard. In a case in which a claim was made against a company for breaches of contract and warranty, purely state law claims, the Court held unconstitutional the conferral upon judges not having the Article III security of tenure and com- pensation of jurisdiction to hear state law claims of traditional common law actions of the kind existing at the time of the drafting of the Constitution. 101 While the holding was extremely narrow, a plurality of the Court sought to rationalize and limit the Court’s ju- risprudence of Article I courts. According to the plurality, as a fun- damental principle of separation of powers, the judicial power of the United States must be exercised by courts having the at- tributes prescribed in Article III. Congress may not evade the con- stitutional order by allocating this judicial power to courts whose judges lack security of tenure and compensation. Only in three nar- rowly circumscribed instances may judicial power be distributed outside the Article III framework: in territories and the District of Columbia, that is, geographical areas in which no State operated as sovereign and Congress exercised the general powers of govern- ment; courts martial, that is, the establishment of courts under a constitutional grant of power historically understood as giving the 614 ART. III—JUDICIAL DEPARTMENT Sec. 1—Judicial Power, Courts, Judges 102 Id., 63–76 (Justice Brennan, joined by Justices Marshall, Blackmun, and Ste- vens). 103 The plurality also rejected an alternative basis, a contention that as ‘‘ad- juncts’’ of the district courts, the bankruptcy courts were like United States mag- istrates or like those agencies approved in Crowell v. Benson, 285 U.S. 22 (1932), to which could be assigned factfinding functions subject to review in Article III courts, the fount of the administrative agency system. Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 76–86 (1982). According to the plurality, the act vested too much judicial power in the bankruptcy courts to treat them like agencies, and it limited the review of Article III courts too much. 104 Id., 92, 105–113, 113–116 (Justice White, joined by Chief Justice Burger and Justice Powell). 105 Ex parte Bakelite Corp., 279 U.S. 438 (1929), was, after all, a unanimous opinion and did not long survive. political branches extraordinary control over the precise subject matter; and the adjudication of ‘‘public rights,’’ that is, the litiga- tion of certain matters that historically were reserved to the politi- cal branches of government and that were between the government and the individual. 102 In bankruptcy legislation and litigation not involving any of these exceptions, the plurality would have held, the judicial power to process bankruptcy cases could not be as- signed to the tribunals created by the act. 103 The dissent argued that, while on its face Article III provided for exclusivity in assigning judicial power to Article III entities, the history since Canter belied that simplicity. Rather, the precedents clearly indicated that there is no difference in principle between the work that Congress may assign to an Article I court and that which must be given to an Article III court. Despite this, the dis- sent contended that Congress did not possess plenary discretion in choosing between the two systems; rather, in evaluating whether jurisdiction was properly reposed in an Article I court, the Supreme Court must balance the values of Article III against both the strength of the interest Congress sought to further by its Article I investiture and the extent to which Article III values were under- mined by the congressional action. This balancing would afford the Court, the dissent believed, the power to prevent Congress, were it moved to do so, from transferring jurisdiction in order to emas- culate the constitutional courts of the United States. 104 Again, no majority could be marshaled behind a principled dis- cussion of the reasons for and the limitation upon the creation of legislative courts, not that a majority opinion, or even a unanimous one, would necessarily presage the settling of the law. 105 But the breadth of the various opinions left unclear not only the degree of discretion left in Congress to restructure the bankruptcy courts, but placed in issue the constitutionality of other legislative efforts 617ART. III—JUDICIAL DEPARTMENT Sec. 1—Judicial Power, Courts, Judges 118 Cf. Union Carbide, supra, 473 U.S., 591 (fact that ‘‘FIFRA arbitration scheme incorporates its own system of internal sanctions and relies only tangen- tially, if at all, on the Judicial Branch for enforcement’’ cited as lessening danger of encroachment on ‘‘Article III judicial powers’’). 119 Granfinanciera, supra, 492 U.S., 51–55, 55–60. 120 Id., 59 n. 14. more narrowly confined than was the grant to bankruptcy courts at issue in Marathon, and as more closely resembling the ‘‘model’’ approved in Crowell v. Benson. The CFTC’s jurisdiction, unlike that of bankruptcy courts, was said to be confined to ‘‘a particularized area of the law;’’ the agency’s orders were enforceable only by order of a district court, 118 and reviewable under a less deferential standard, with legal rulings being subject to de novo review; and the agency was not empowered, as had been the bankruptcy courts, to exercise ‘‘all ordinary powers of district courts.’’ Granfinanciera followed analysis different from that in Schor, although it preserved Union Carbide through its concept of ‘‘public rights.’’ State law and other legal claims founded on private rights could not be remitted to non-Article III tribunals for adjudication unless Congress in creating an integrated public regulatory scheme has so taken up the right as to transform it. It may not simply relabel a private right and place it into the regulatory scheme. The Court is hazy with respect to whether the right must be itself a creature of federal statutory action. The general descriptive lan- guage suggests that, but in its determination whether the right at issue in the case, the recovery of preferential or fraudulent trans- fers in the context of a bankruptcy proceeding, the Court seemingly goes beyond this point. Though a statutory interest, the actions were identical to state-law contract claims brought by a bankrupt corporation to augment the estate. 119 Schor was distinguished sole- ly on the waiver part of the decision, relating to the individual in- terest, without considering the part of the opinion deciding the in- stitutional interest on the merits and utilizing a balancing test. 120 Thus, while the Court has made some progress in reconciling its growing line of disparate cases, doctrinal harmony has not yet been achieved. Noncourt Entities in the Judicial Branch Passing on the constitutionality of the establishment of the Sentencing Commission as an ‘‘independent’’ body in the judicial branch, the Court acknowledged that the Commission is not a court and does not exercise judicial power. Rather, its function is to pro- mulgate binding sentencing guidelines for federal courts. It acts, therefore, legislatively, and its membership of seven is composed of three judges and three nonjudges. But the standard of constitu- 618 ART. III—JUDICIAL DEPARTMENT Sec. 1—Judicial Power, Courts, Judges 121 Mistretta v. United States, 488 U.S. 361, 384–97 (1989). Clearly, some of the powers vested in the Special Division of the United States Court of Appeals for the District of Columbia Circuit under the Ethics in Government Act in respect to the independent counsel were administrative, but because the major nonjudicial power, the appointment of the independent counsel, was specifically authorized in the ap- pointments clause, the additional powers were miscellaneous and could be lodged there by Congress. Implicit in the Court’s analysis was the principle that a line ex- ists that Congress could not cross over. Morrison v. Olson, 487 U.S. 654, 677–685 (1988). 122 Justice SAMUEL MILLER, ON THE CONSTITUTION (New York: 1891), 314. 123 Muskrat v. United States, 219 U.S. 346, 361 (1911). 124 United States v. Arrendondo, 6 Pet. (31 U.S.) 691 (1832). 125 General Investment Co. v. New York Central R. Co., 271 U.S. 228, 230 (1926). 126 William v. United States, 289 U.S. 553, 566 (1933) ; Yakus v. United States, 321 U.S. 414, 467–468 (1944) (Justice Rutledge dissenting). 127 Michaelson v. United States, 266 U.S. 42 (1924). tionality, the Court held, is whether the entity exercises powers that are more appropriately performed by another branch or that undermine the integrity of the judiciary. Because the imposition of sentences is a function traditionally exercised within congression- ally prescribed limits by federal judges, the Court found the func- tions of the Commission could be located in the judicial branch. Nor did performance of its functions contribute to a weakening of the judiciary, or an aggrandizement of power either, in any meaningful way, the Court observed. 121 JUDICIAL POWER Characteristics and Attributes of Judicial Power Judicial power is the power ‘‘of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision.’’ 122 It is ‘‘the right to deter- mine actual controversies arising between diverse litigants, duly instituted in courts of proper jurisdiction.’’ 123 Although the terms ‘‘judicial power’’ and ‘‘jurisdiction’’ are frequently used interchange- ably and jurisdiction is defined as the power to hear and determine the subject matter in controversy between parties to a suit 124 or as the ‘‘power to entertain the suit, consider the merits and render a binding decision thereon,’’ 125 the cases and commentary support, indeed require, a distinction between the two concepts. Jurisdiction is the authority of a court to exercise judicial power in a specific case and is, of course, a prerequisite to the exercise of judicial power, which is the totality of powers a court exercises when it as- sumes jurisdiction and hears and decides a case. 126 Included with- in the general power to decide cases are the ancillary powers of courts to punish for contempts of their authority, 127 to issue writs 619ART. III—JUDICIAL DEPARTMENT Sec. 1—Judicial Power, Courts, Judges 128 McIntire v. Wood, 7 Cr. (11 U.S.) 504 (1813); Ex parte Bollman, 4 Cr. (8 U.S.) 75 (1807). 129 Wayman v. Southard, 10 Wheat. (23 U.S.) 1 (1825). 130 Gumble v. Pitkin, 124 U.S. 131 (1888). 131 Ex parte Peterson, 253 U.S. 300 (1920). 132 Ex parte Garland, 4 Wall. (71 U.S. ) 333, 378 (1867). 133 Martin v. Hunter’s Lessee, 1 Wheat. (14 U.S.) 304, 328–331 (1816). See also 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES (Boston: 1833), 1584–1590. 134 See, e.g., Turner v. Bank of North America, 4 Dall. (4 U.S.) 8, 10 (1799) (Jus- tice Chase). A recent, sophisticated attempt to resurrect the core of Justice Story’s argument is Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B. U. L. Rev. 205 (1985); and see Symposium: Article III and the Judiciary Act of 1789, 138 U. Pa. L. Rev. 1499 (1990) (with articles by Amar, Meltzer, and Redish). Briefly, the matter is discussed more fully infra, Pro- fessor Amar argues, in part, from the text of Article III, § 2, cl. 1, that the use of the word ‘‘all’’ in each of federal question, admiralty, and public ambassador subclauses means that Congress must confer the entire judicial power to cases in- volving those issues, whereas it has more discretion in the other six categories. 135 Which was, of course, the point of Marbury v. Madison, 1 Cr. (5 U.S.) 137 (1803), once the power of the Court to hold legislation unconstitutional was estab- lished. 136 The Mayor v. Cooper, 6 Wall. (73 U.S.) 247, 252 (1868); Cary v. Curtis, 3 How. (44 U.S.) 236 (1845); Sheldon v. Sill, 8 How. (49 U.S.) 441 (1850); United States v. Hudson & Goodwin, 7 Cr. (11 U.S.) 32, 33 (1812); Kline v. Burke Construc- tion Co., 260 U.S. 226 (1922). It should be noted, however, that some judges have expressed the opinion that Congress’ authority is limited to some degree by the Con- stitution, such as by the due process clause, so that a limitation on jurisdiction which denied a litigant access to any remedy might be unconstitutional. Cf. Eisentrager v. Forrestal, 174 F. 2d 961, 965–966 (D.C.Cir. 1949), revd. on other grounds sub nom, Johnson v. Eisentrager, 339 U.S. 763 (1950); Battaglia v. General in aid of jurisdiction when authorized by statute, 128 to make rules governing their process in the absence of statutory authorizations or prohibitions, 129 to order their own process so as to prevent abuse, oppression, and injustice and to protect their own jurisdic- tion and officers in the protection of property in custody of law, 130 to appoint masters in chancery, referees, auditors, and other inves- tigators, 131 and to admit and disbar attorneys. 132 ‘‘Shall Be Vested.’’—The distinction between judicial power and jurisdiction is especially pertinent to the meaning of the words ‘‘shall be vested’’ in § 1. Whereas all the judicial power of the Unit- ed States is vested in the Supreme Court and the inferior federal courts created by Congress, neither has ever been vested with all the jurisdiction which could be granted and, Justice Story to the contrary, 133 the Constitution has not been read to mandate Con- gress to confer the entire jurisdiction it might. 134 Thus, except for the original jurisdiction of the Supreme Court, which flows directly from the Constitution, two prerequisites to jurisdiction must be present: first, the Constitution must have given the courts the ca- pacity to receive it, 135 and, second, an act of Congress must have conferred it. 136 The fact that federal courts are of limited jurisdic- 622 ART. III—JUDICIAL DEPARTMENT Sec. 1—Judicial Power, Courts, Judges 146 Act of February 24, 1855, 10 Stat. 612, as amended, Act of March 3, 1963, 12 Stat. 737. 147 Gordon v. United States, 2 Wall. (69 U.S.) 561 (1865). Following congres- sional repeal of the objectionable section, Act of March 17, 1866, 14 Stat. 9, the Court accepted appellate jurisdiction. United States v. Jones, 119 U.S. 477 (1886); De Groot v. United States, 5 Wall. (72 U.S.) 419 (1867). But note that execution of the judgments was still dependent upon congressional appropriations. On the effect of the requirement for appropriations at a time when appropriations had to be made for judgments over $100,000, see Glidden Co. v. Zdanok, 370 U.S. 530, 568–571 (1962). Cf. Regional Rail Reorganization Act Cases (Blanchette v. Connecticut Gen- eral Ins. Corp.), 419 U.S. 102, 148–149 & n. 35 (1974). 148 Published at 117 U.S. 697, 703. Subsequent cases accepted the doctrine that an award of execution as distinguished from finality of judgment was an essential attribute of judicial power. See In re Sanborn, 148 U.S. 122, 226, (1893); ICC v. Brimson, 154 U.S. 447, 483 (1894); La Abra Silver Mining Co. v. United States, 175 U.S. 423, 457 (1899); Frasch v. Moore, 211 U.S. 1 (1908); Muskrat v. United States, 219 U.S. 346, 355, 361–362 (1911): Postum Cereal Co. v. California Fig Nut Co., 272 U.S. 693 (1927). 149 Liberty Warehouse Co. v. Grannis, 273 U.S. 70 (1927). 150 Liberty Warehouse Co. v. Burley Tobacco Growers’ Coop. Marketing Assn., 276 U.S. 71 (1928). peals to the Supreme Court, after which judgments in favor of claimants were to be referred to the Secretary of the Treasury for payments out of the general appropriation for payment of private claims. But the act also provided that no funds should be paid out of the Treasury for any claims ‘‘till after an appropriation therefor shall be estimated by the Secretary of the Treasury.’’ 146 The opin- ion of the Court merely stated that the implication of power in the executive officer and in Congress to revise all decisions of the Court of Claims requiring payment of money denied that court the judi- cial power from the exercise of which ‘‘alone’’ appeals could be taken to the Supreme Court. 147 In his posthumously-published opinion, Chief Justice Taney, because the judgment of the Court of Claims and the Supreme Court depended for execution upon future action of the Secretary and of Congress, regarded any such judgment as nothing more than a certificate of opinion and in no sense a judicial judgment. Congress could not therefore authorize appeals to the Supreme Court in a case where its judicial power could not be exercised, where its judgment would not be final and conclusive upon the par- ties, and where processes of execution were not awarded to carry it into effect. Taney then proceeded to enunciate a rule which was rigorously applied until 1933: the award of execution is a part and an essential part of every judgment passed by a court exercising ju- dicial powers and no decision was a legal judgment without an award of execution. 148 The rule was most significant in barring the lower federal courts from hearing proceedings for declaratory judg- ments 149 and in denying appellate jurisdiction in the Supreme Court from declaratory proceedings in state courts. 150 623ART. III—JUDICIAL DEPARTMENT Sec. 1—Judicial Power, Courts, Judges 151 Fidelity National Bank & Trust Co. v. Swope, 274 U.S. 123, 132 (1927). 152 Nashville, C. & St. L. Ry. v. Wallace, 288 U.S. 249 (1933). The decisions in Swope and Wallace removed all constitutional doubts previously shrouding a pro- posed federal declaratory judgment act, which was enacted in 1934, 48 Stat. 955, 28 U.S.C. §§ 2201–2202, and unanimously sustained in Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937). 153 E.g., United States v. United Mine Workers, 330 U.S. 258 (1947). 154 Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441–443 (1911); Ex parte Grossman, 267 U.S. 87 (1925). See also Bassette v. W. B. Conkey Co., 194 U.S. 324, 327–328 (1904). 155 384 U.S. 364 (1966). But, in 1927, the Court began backing away from its absolute insistence upon an award of execution. Unanimously holding that a declaratory judgment in a state court was res judicata in a subse- quent proceeding in federal court, the Court admitted that ‘‘[w]hile ordinarily a case or judicial controversy results in a judgment re- quiring award of process of execution to carry it into effect, such relief is not an indispensable adjunct to the exercise of the judicial function.’’ 151 Then, in 1933, the Court interred the award-of-execu- tion rule in its rigid form and accepted an appeal from a state court in a declaratory proceeding. 152 Finality of judgment, however, re- mains the rule in determination of what is judicial power without regard to the demise of Chief Justice Taney’s formulation. ANCILLARY POWERS OF FEDERAL COURTS The Contempt Power Categories of Contempt.—Crucial to an understanding of the history of the law governing the courts’ powers of contempt is an awareness of the various kinds of contempt. With a few notable ex- ceptions, 153 the Court has consistently distinguished between criminal and civil contempts on the basis of the vindication of the authority of the courts on the one hand and the preservation and enforcement of the rights of the parties on the other. A civil con- tempt has been traditionally viewed as the refusal of a person in a civil case to obey a mandatory order. It is incomplete in nature, may be purged by obedience to the court order, and does not in- volve a sentence for a definite period of time. The classic criminal contempt is one where the act of contempt has been completed, punishment is imposed to vindicate the authority of the court, and a person cannot by subsequent action purge himself of such con- tempt. 154 In the case of Shillitani v. United States, 155 the defend- ants were sentenced by their respective District Courts for two years imprisonment for contempt of court; the sentence contained a purge clause providing for the unconditional release of the contemnors upon agreeing to testify before a grand jury. 624 ART. III—JUDICIAL DEPARTMENT Sec. 1—Judicial Power, Courts, Judges 156 Id., 370. 157 Id., n. 6. See Hicks v. Feiock, 485 U.S. 624 (1988) (remanding for determina- tion whether payment of child support arrearages would purge a determinate sen- tence, the proper characterization critical to decision on a due process claim). 158 267 U.S. 87, 119–120 (1925). In an analogous case, the Court was emphatic in a dictum that Congress cannot require a jury trial where the contemnor has failed to perform a positive act for the relief of private parties, Michalson v. United States ex rel. Chicago, S.P., M. & Ry. Co., 266 U.S. 42, 65–66 (1924). But see Bloom v. Illinois, 391 U.S. 194, 202 (1968). 159 See United States v. United Mine Workers, 330 U.S. 258, 299 (1947). 160 Act of March 2, 1831, ch. 99, § 1, 4 Stat. 488. Cf. Rule 42(a), FRCrP, which provides that ‘‘[a] criminal contempt may be punished summarily if the judge cer- tifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court.’’ See also Beale, Contempt of Court, Civil and Criminal, 21 Harv. L. Rev. 161, 171–172 (1908). 161 See Fox, The Nature of Contempt of Court, 37 L.Q. Rev. 191 (1921). Upon appeal, the Supreme Court held that the defendants were in civil contempt, notwithstanding their sentence for a defi- nite period of time, on the grounds that the test for determining whether the contempt is civil or criminal is what the court pri- marily seeks to accomplish by imposing sentence. 156 Here, the pur- pose was to obtain answers to the questions for the grand jury and the court provided for the defendants’ release upon compliance; whereas, ‘‘a criminal contempt proceeding would be characterized by the imposition of an unconditional sentence for punishment or deterrence.’’ 157 The issue of whether a certain contempt is either civil or criminal can be of great importance as demonstrated in the dictum of Ex parte Grossman, 158 in which Chief Justice Taft, while holding for the Court on the main issue that the President may pardon a criminal contempt, noted that he may not pardon a civil contempt. Notwithstanding the importance of distinguishing be- tween the two, there have been instances where defendants have been charged with both civil and criminal contempt for the same act. 159 A second but more subtle distinction, with regard to the cat- egories of contempt, is the difference between direct and indirect contempt—albeit civil or criminal in nature. Direct contempt re- sults when the contumacious act is committed ‘‘in the presence of the Court or so near thereto as to obstruct the administration of justice;’’ 160 indirect contempt is behavior which the Court did not itself witness. 161 The nature of the contumacious act, i.e., whether it is direct or indirect, is important because it determines the ap- propriate procedure for charging the contemnor. As will be evi- denced in the following discussion, the history of the contempt pow- ers of the American judiciary is marked by two trends: a shrinking of the court’s power to punish a person summarily and a multiply- 627ART. III—JUDICIAL DEPARTMENT Sec. 1—Judicial Power, Courts, Judges first to request the United States Attorney to prosecute a criminal contempt and only if refused should they appoint a private lawyer. Id., 801–802. Still using its su- pervisory power, the Court held that the district court had erred in appointing coun- sel for a party that was the beneficiary of the court order; disinterested counsel had to be appointed. Id., 802–808. Justice Scalia contended that the power to prosecute is not comprehended within Article III judicial power and that federal judges had no power, inherent or otherwise, to initiate a prosecution for contempt or to appoint counsel to pursue it. Id., 815. See also United States v. Providence Journal Co., 485 U.S. 693 (1988), which involved the appointment of a disinterested private attorney. The Supreme Court dismissed the writ of certiorari after granting it, however, hold- ing that only the Solicitor General representing the United States could bring the petition to the Court. See 28 U.S.C. § 518. 174 493 U.S. 265 (1990). The decision was an exercise of the Court’s supervisory power. Id., 276. Four Justices dissented. Id., 281. 175 247 U.S. 402 (1918). 176 Id., 418–421. 177 263 U.S. 255 (1923). While the contempt power may be inherent, it is not unlimited. In Spallone v. United States, 174 the Court held that a district court had abused its discretion by imposing contempt sanctions on indi- vidual members of a city council for refusing to vote to implement a consent decree remedying housing discrimination by the city. The proper remedy, the Court indicated, was to proceed first with con- tempt sanctions against the city, and only if that course failed should it proceed against the council members individually. First Amendment Limitations on the Contempt Power.— The phrase ‘‘in the presence of the Court or so near thereto as to obstruct the administration of justice’’ was interpreted in Toledo Newspaper Co. v. United States 175 so broadly as to uphold the ac- tion of a district court judge in punishing for contempt a newspaper for publishing spirited editorials and cartoons on questions at issue in a contest between a street railway company and the public over rates. A majority of the Court held that the test to be applied in determining the obstruction of the administration of justice is not the actual obstruction resulting from an act, but ‘‘the character of the act done and its direct tendency to prevent and obstruct the discharge of judicial duty.’’ Similarly, the test whether a particular act is an attempt to influence or intimidate a court is not the influ- ence exerted upon the mind of a particular judge but ‘‘the reason- able tendency of the acts done to influence or bring about the bale- ful result . . . without reference to the consideration of how far they may have been without influence in a particular case.’’ 176 In Craig v. Hecht, 177 these criteria were applied to sustain the impris- onment of the comptroller of New York City for writing and pub- lishing a letter to a public service commissioner which criticized the action of a United States district judge in receivership proceed- ings. 628 ART. III—JUDICIAL DEPARTMENT Sec. 1—Judicial Power, Courts, Judges 178 313 U.S. 33, 47–53 (1941). 179 314 U.S. 252, 260 (1941). 180 See also Wood v. Georgia, 370 U.S. 375 (1962), further clarifying the limita- tions imposed by the First Amendment upon this judicial power and delineating the requisite serious degree of harm to the administration of law necessary to justify exercise of the contempt power to punish the publisher of an out-of-court statement attacking a charge to the grand jury, absent any showing of actual interference with the activities of the grand jury. It is now clearly established that courtroom conduct to be punishable as con- tempt ‘‘must constitute an imminent, not merely a likely, threat to the administra- tion of justice. The danger must not be remote or even probable; it must imme- diately imperil.’’ Craig v. Harney, 331 U.S. 367, 376 (1947); In re Little, 404 U.S. 553, 555 (1972). 181 E.g., Estes v. Texas, 381 U.S. 532 (1965); Marshall v. United States, 360 U.S. 310 (1959); Sheppard v. Maxwell, 384 U.S. 333 (1966). 182 384 U.S. 333, 363 (1966). The decision in the Toledo Newspaper case, however, did not follow earlier decisions interpreting the act of 1831 and was grounded on historical error. For these reasons, it was reversed in Nye v. United States, 178 and the theory of constructive contempt based on the ‘‘reasonable tendency’’ rule was rejected in a proceed- ing wherein defendants in a civil suit, by persuasion and the use of liquor, induced a plaintiff feeble in mind and body to ask for dis- missal of the suit he had brought against them. The events in the episode occurred more than 100 miles from where the court was sitting and were held not to put the persons responsible for them in contempt of court. Although Nye v. United States was exclusively a case of statutory construction, it was significant from a constitu- tional point of view because its reasoning was contrary to that of earlier cases narrowly construing the act of 1831 and asserting broad inherent powers of courts to punish contempts independently of, and contrary to, congressional regulation of this power. Bridges v. California 179 was noteworthy for the dictum of the majority that the contempt power of all courts, federal as well as state, is limited by the guaranty of the First Amendment against interference with freedom of speech or of the press. 180 A series of cases involving highly publicized trials and much news media attention and exploitation, 181 however, caused the Court to suggest that the contempt and other powers of trial courts should be utilized to stem the flow of publicity before it can taint a trial. Thus, Justice Clark, speaking for the majority in Shepard v. Maxwell, 182 noted that ‘‘[i]f publicity during the proceedings threatens the fairness of the trial, a new trial should be ordered. But we must remember that reversals are but palliatives; the cure lies in those remedial measures that will prevent the prejudice at its inception. Neither prosecutors, counsel for defense, the accused, witness, court staff nor law enforcement officers coming under the 629ART. III—JUDICIAL DEPARTMENT Sec. 1—Judicial Power, Courts, Judges 183 For another approach, bar rules regulating the speech of counsel and the First Amendment standard, see Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991). 184 128 U.S. 289 (1888). 185 267 U.S. 517 (1925). 186 Id., 535, 534. 187 343 U.S. 1 (1952). jurisdiction of the court should be permitted to frustrate its func- tion. Collaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regu- lation, but is highly censurable and worthy of disciplinary meas- ures.’’ Though the regulation the Justice had in mind was presum- ably to be of the parties and related persons rather than of the press, the potential for conflict with the First Amendment is obvi- ous as well as is the necessity for protection of the equally impor- tant right to a fair trial. 183 Due Process Limitations on Contempt Power: Right to Notice and to a Hearing versus Summary Punishment.—In- cluded among the notable cases raising questions concerning the power of a trial judge to punish summarily for alleged misbehavior in the course of a trial is Ex parte Terry, 184 decided in 1888. Terry had been jailed by the United States Circuit Court of California for assaulting in its presence a United States marshal. The Supreme Court denied his petition for a writ of habeas corpus. In Cooke v. United States, 185 however, the Court remanded for further pro- ceedings a judgment of the United States Circuit Court of Texas sustaining the judgment of a United States district judge sentenc- ing to jail an attorney and his client for presenting the judge a let- ter which impugned his impartiality with respect to their case, still pending before him. Distinguishing the case from that of Terry, Chief Justice Taft, speaking for the unanimous Court, said: ‘‘The important distinction . . . is that this contempt was not in open court. . . . To preserve order in the court room for the proper con- duct of business, the court must act instantly to suppress disturb- ance or violence or physical obstruction or disrespect to the court when occurring in open court. There is no need of evidence or as- sistance of counsel before punishment, because the court has seen the offense. Such summary vindication of the court’s dignity and authority is necessary. It has always been so in the courts of the common law and the punishment imposed is due process of law.’’ 186 As to the timeliness of summary punishment, the Court at first construed Rule 42(a) of the Federal Rules of Criminal Procedure, which was designed to afford judges clearer guidelines as to the ex- ercise of their contempt power, in Sacher v. United States, 187 as to 632 ART. III—JUDICIAL DEPARTMENT Sec. 1—Judicial Power, Courts, Judges 201 343 U.S. 1 (1952). See Dennis v. United States, 341 U.S. 494 (1951). tered some cautionary words to guide trial judges in the utilization of their contempt powers. ‘‘The power of contempt which a judge must have and exercise in protecting the due and orderly adminis- tration of justice and in maintaining the authority and dignity of the court is most important and indispensable. But its exercise is a delicate one and care is needed to avoid arbitrary or oppressive conclusions. This rule of caution is more mandatory where the con- tempt charged has in it the element of personal criticism or attack upon the judge. The judge must banish the slightest personal im- pulse to reprisal, but he should not bend backward and injure the authority of the court by too great leniency. The substitution of an- other judge would avoid either tendency but it is not always pos- sible. Of course, where acts of contempt are palpably aggravated by a personal attack upon the judge in order to drive the judge out of the case for ulterior reasons, the scheme should not be permitted to succeed. But attempts of this kind are rare. All of such cases, however, present difficult questions for the judge. All we can say upon the whole matter is that where conditions do not make it im- practicable, or where the delay may not injure public or private right, a judge called upon to act in a case of contempt by personal attack upon him, may, without flinching from his duty, properly ask that one of his fellow judges take his place. Cornish v. United States, 299 F. 283, 285; Toledo Newspaper Co. v. United States, 237 F. 986, 988. The case before us is one in which the issue between the judge and the parties had come to involve marked personal feeling that did not make for an impartial and calm judicial consid- eration and conclusion, as the statement of the proceedings abun- dantly shows.’’ Sacher v. United States 201 grew out of a tempestuous trial of eleven Communist Party leaders in which Sacher and others were counsel for the defense. Upon the conviction of the defendants, the trail judge at once found counsel guilty of criminal contempt and imposed jail terms of up to six months. At issue directly was whether the contempt charged was one which the judge was au- thorized to determine for himself or whether it was one which under Rule 42(b) could only be passed upon by another judge and after notice and hearing, but behind this issue loomed the applica- bility and nature of due process requirements, in particular wheth- er the defense attorneys were constitutionally entitled to trial be- fore a different judge. A divided Court affirmed most of the convic- tions, setting aside others, and denied that due process required a hearing before a different judge. ‘‘We hold that Rule 42 allows the 633ART. III—JUDICIAL DEPARTMENT Sec. 1—Judicial Power, Courts, Judges 202 Id., 13–14. 203 348 U.S. 11 (1954). 204 400 U.S. 455 (1971). See also Johnson v. Mississippi, 403 U.S. 212 (1971); Holt v. Virginia, 381 U.S. 131 (1965). Even in the absence of a personal attack on a judge that would tend to impair his detachment, the judge may still be required to excuse himself and turn a citation for contempt over to another judge if the re- sponse to the alleged misconduct in his courtroom partakes of the character of ‘‘marked personal feelings’’ being abraded on both sides, so that it is likely the judge has felt a ‘‘sting’’ sufficient to impair his objectivity. Taylor v. Hayes, 418 U.S. 488 (1974). trial judge, upon the occurrence in his presence of a contempt, im- mediately and summarily to punish it, if, in his opinion, delay will prejudice the trial. We hold, on the other hand, that if he believes the exigencies of the trial require that he defer judgment until its completion, he may do so without extinguishing his power. . . . We are not unaware or unconcerned that persons identified with un- popular causes may find it difficult to enlist the counsel of their choice. But we think it must be ascribed to causes quite apart from fear of being held in contempt, for we think few effective lawyers would regard the tactics condemned here as either necessary or helpful to a successful defense. That such clients seem to have thought these tactics necessary is likely to contribute to the bar’s reluctance to appear for them rather more than fear of contempt. But that there may be no misunderstanding, we make clear that this Court, if its aid be needed, will unhesitatingly protect counsel in fearless, vigorous and effective performance of every duty per- taining to the office of the advocate on behalf of any person whatso- ever. But it will not equate contempt with courage or insults with independence. It will also protect the processes of orderly trial, which is the supreme object of the lawyers calling. 202 In Offutt v. United States, 203 acting under its supervisory pow- ers over the lower federal courts, the Court set aside a criminal contempt conviction imposed on a lawyer after a trial marked by highly personal recriminations between the trial judge and the law- yer. In a situation in which the record revealed that the contuma- cious conduct was the product of both lack of self-restraint on the part of the contemnor and a reaction to the excessive zeal and per- sonal animosity of the trial judge, the majority felt that any con- tempt trial must be held before another judge. This holding that when a judge becomes personally embroiled in the controversy with an accused he must defer trial of his contempt citation to another judge, founded on the Court’s supervisory powers, was constitutionalized in Mayberry v. Pennsylvania, 204 in which a de- fendant acting as his own counsel engaged in quite personal abuse of the trial judge. The Court appeared to leave open the option of the trial judge to act immediately and summarily to quell contempt 634 ART. III—JUDICIAL DEPARTMENT Sec. 1—Judicial Power, Courts, Judges 205 See Illinois v. Allen, 397 U.S. 337 (1970), in which the Court affirmed that summary contempt or expulsion may be used to keep a trial going. 206 330 U.S. 258, 293–307 (1947). 207 See Walker v. City of Birmingham, 388 U.S. 307 (1967). 208 203 U.S. 563 (1906). 209 See United States v. United Mine Workers, 330 U.S. 258, 299 (1947). But see Cheff v. Schnackenberg, 384 U.S. 273 (1966), and supra, 630–631, as to due process limitations. 210 154 U.S. 447 (1894). by citing and convicting an offender, thus empowering the judge to keep the trial going, 205 but if he should wait until the conclusion of the trial he must defer to another judge. Contempt by Disobedience of Orders.—Disobedience of in- junctive orders, particularly in labor disputes, has been a fruitful source of cases dealing with contempt of court. In United States v. United Mine Workers, 206 the Court held that disobedience of a tem- porary restraining order issued for the purpose of maintaining ex- isting conditions, pending the determination of the court’s jurisdic- tion, is punishable as criminal contempt where the issue is not friv- olous but substantial. Second, the Court held that an order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings, even though the statute under which the order is issued is unconstitutional. 207 Third, on the basis of United States v. Shipp, 208 it was held that violations of a court’s order are punishable as criminal contempt even though the order is set aside on appeal as in excess of the court’s jurisdiction or though the basic action has become moot. Finally, the Court held that conduct can amount to both civil and criminal contempt, and the same acts may justify a court in resorting to coercive and punitive measures, which may be imposed in a single proceeding. 209 Contempt Power in Aid of Administrative Power.—Pro- ceedings to enforce the orders of administrative agencies and sub- poenas issued by them to appear and produce testimony have be- come increasingly common since the leading case of ICC v. Brimson, 210 where it was held that the contempt power of the courts might by statutory authorization be utilized in aid of the Interstate Commerce Commission in enforcing compliance with its orders. In 1947, a proceeding to enforce a subpoena duces tecum is- sued by the Securities and Exchange Commission during the course of an investigation was ruled to be civil in character on the ground that the only sanction was a penalty designed to compel obedience. The Court then enunciated the principle that where a fine or im- prisonment imposed on the contemnor is designed to coerce him to do what he has refused to do, the proceeding is one for civil con- 637ART. III—JUDICIAL DEPARTMENT Sec. 1—Judicial Power, Courts, Judges 224 495 U.S. 33 (1990). 225 Id., 55 (citing Griffin v. Prince Edward County School Bd., 377 U.S. 218, 233–234 (1964) (an order that local officials ‘‘exercise the power that is theirs’’ to levy taxes in order to open and operate a desegregated school system ‘‘is within the court’s power if required to assure . . . petitioners that their constitutional rights will no longer be denied them’’)). 226 Id., 50–52. 227 1 Cr. (5 U.S.) 137 (1803). Cf. Wiscart v. D’Auchy, 3 Dall. (3 U.S.) 321 (1796). 228 McIntire v. Wood, 7 Cr. (11 U.S.) 504 (1813); McClung v. Silliman, 6 Wheat. (19 U.S.) 598 (1821). 229 12 Pet. (37 U.S.) 524 (1838). Whether Article III itself is an independent source of the power of federal courts to fashion equitable remedies for constitutional violations or whether such remedies must fit within congressionally authorized writs or procedures is often left unexplored. In Missouri v. Jenkins, 224 for example, the Court, rejecting a claim that a fed- eral court exceeded judicial power under Article III by ordering local authorities to increase taxes to pay for desegregation rem- edies, declared that ‘‘a court order directing a local government body to levy its own taxes is plainly a judicial act within the power of a federal court. 225 In the same case, the Court refused to rule on ‘‘the difficult constitutional issues’’ presented by the State’s claim that the district court had exceeded its constitutional powers in a prior order directly raising taxes, instead ruling that this order had violated principles of comity. 226 Common Law Powers of District of Columbia Courts.— That portion of § 13 which authorized the Supreme Court to issue writs of mandamus in the exercise of its original jurisdiction was held invalid in Marbury v. Madison, 227 as an unconstitutional en- largement of the Supreme Court’s original jurisdiction. After two more futile efforts to obtain a writ of mandamus, in cases in which the Court found that power to issue the writ had not been vested by statute in the courts of the United States except in aid of al- ready existing jurisdiction, 228 a litigant was successful in Kendall v. United States ex rel. Stokes, 229 in finding a court that would take jurisdiction in a mandamus proceeding. This was the circuit court of the United States for the District of Columbia, which was held to have jurisdiction, on the theory that the common law, in force in Maryland when the cession of that part of the State that became the District of Columbia was made to the United States, remained in force in the District. At an early time, therefore, the federal courts established the rule that mandamus can be issued only when authorized by a constitutional statute and within the 638 ART. III—JUDICIAL DEPARTMENT Sec. 1—Judicial Power, Courts, Judges 230 In 1962, Congress conferred upon all federal district courts the same power to issue writs of mandamus as was hitherto exercisable by federal courts in the Dis- trict of Columbia. 76 Stat. 744, 28 U.S..C § 1361. 231 Reference to the ‘‘writ of habeas corpus’’ is to the ‘‘Great Writ,’’ habeas cor- pus ad subjiciendum, by which a court would inquire into the lawfulness of a deten- tion of the petitioner. Ex parte Bollman, 4 Cr. (8 U.S.) 75, 95 (1807). For other uses, see Carbo v. United States, 364 U.S. 611 (1961); Price v. Johnston, 334 U.S. 266 (1948). Technically, federal prisoners no longer utilize the writ of habeas corpus in seeking post-conviction relief, now the largest office of the writ, but proceed under 28 U.S.C. § 2255, on a motion to vacate judgment. Intimating that if § 2255 afforded prisoners a less adequate remedy than they would have under habeas corpus, it would be unconstitutional, the Court in United States v. Hayman, 342 U.S. 205 (1952), held the two remedies to be equivalent. Cf. Sanders v. United States, 373 U.S. 1. 14 (1963). The claims cognizable under one are cognizable under the other. Kaufman v. United States, 394 U.S. 217 (1969). Therefore, the term habeas corpus is used here to include the § 2255 remedy. There is a plethora of writings about the writ. See, e.g., P. BATOR, et al., HART & WECHSLER’S THE FEDERAL COURTS AND THE FEDERAL SYSTEM (Westbury, N.Y.: 3d ed. 1988), Ch. XI, 1465–1597 (hereinafter HART & WECHSLER); Developments in the Law - Federal Habeas Corpus, 83 Harv. L. Rev. 1038 (1970). 232 Professor Chafee contended that by the time of the Constitutional Conven- tion the right to habeas corpus was so well established no affirmative authorization was needed. The Most Important Human Right in the Constitution, 32 B.U.L. Rev. 143, 146 (1952). But compare Collins, Habeas Corpus for Convicts—Constitutional Right or Legislative Grace?, 40 Calif. L. Rev. 335, 344–345 (1952). 233 4 Cr. (8 U.S.) 75 (1807). 234 Id., 94. And see Ex parte Dorr, 3 How. (44 U.S.) 103 (1845). 235 Id., 95. Note that in quoting the clause, Marshall renders ‘‘shall not be sus- pended’’ as ‘‘should not be suspended.’’ limits imposed by the common law and the separation of pow- ers. 230 Habeas Corpus: Congressional and Judicial Control.—Al- though the writ of habeas corpus 231 has a special status because its suspension is forbidden, except in narrow circumstances, by Ar- ticle I. § 9, cl. 2, nowhere in the Constitution is the power to issue the writ vested in the federal courts. Could it be that despite the suspension clause restriction Congress could suspend de facto the writ simply by declining to authorize its issuance? Is a statute needed to make the writ available or does the right to habeas cor- pus stem by implication from the suspension clause or from the grant of judicial power without need of a statute? 232 Since Chief Justice Marshall’s opinion in Ex parte Bollman, 233 it has been gen- erally accepted that ‘‘the power to award the writ by any of the courts of the United States, must be given by written law.’’ 234 The suspension clause, Marshall explained, was an ‘‘injunction,’’ an ‘‘ob- ligation’’ to provide ‘‘efficient means by which this great constitu- tional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted.’’ 235 And so it has been under- 639ART. III—JUDICIAL DEPARTMENT Sec. 1—Judicial Power, Courts, Judges 236 See Ex parte McCardle, 7 Wall. (74 U.S.) 506 (1869). Cf. Carbo v. United States, 364 U.S. 611, 614 (1961). 237 E.g., Eisentrager v. Forrestal, 174 F. 2d 961, 966 (D.C.Cir. 1949), revd. on other grounds sub nom., Johnson v. Eisentrager, 339 U.S. 763 (1950); and see Jus- tice Black’s dissent, id., 791, 798: ‘‘Habeas corpus, as an instrument to protect against illegal imprisonment, is written into the Constitution. Its use by courts can- not in my judgment be constitutionally abridged by Executive or by Congress.’’ And in Jones v. Cunningham, 371 U.S. 236, 238 (1963), the Court said: ‘‘The habeas cor- pus jurisdictional statute implements the constitutional command that the writ of habeas corpus be made available.’’ (Emphasis supplied). 238 Cf. Ex Parte McCardle, 7 Wall. (74 U.S.) 506 (1869). 239 Ex parte Bollman, 4 Cr. (8 U.S.) 75, 94 (1807). See Fay v. Noia, 372 U.S. 391, 409 (1963). 240 Act of March 2, 1833, § 7, 4 Stat. 634 (federal officials imprisoned for enforc- ing federal law); Act of August 29, 1842, 5 Stat. 539 (foreign nationals detained by a State in violation of a treaty). See also Bankruptcy Act of April 4, 1800, § 38, 2 Stat. 19, 32 (habeas corpus for imprisoned debtor discharged in bankruptcy), re- pealed by Act of December 19, 1803, 2 Stat. 248. 241 Act of February 5, 1867, 14 Stat. 385, conveyed power to federal courts ‘‘to grant writs of habeas corpus in all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States. . . .’’ On the law with respect to state prisoners prior to this statute, see Ex Parte Dorr, 3 How, (44 U.S.) 103 (1845); cf. Elkison v. Deliesseline, 8. Fed. Cas. 493 (No. 4366) (C.C.D.S.C. 1823) (Justice Johnson); Ex parte Cabrera, 4 Fed. Cas. 964 (No. 2278) (C.C.D.Pa. 1805) (Justice Washington). 242 28 U.S.C. §§ 2241(c), 2254(a). ‘‘Custody’’ does not mean one must be confined; a person on parole or probation is in custody. Jones v. Cunningham, 371 U.S. 236 (1963). A person on bail or on his own recognizance is in custody, Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 300–301 (1984); Lefkowitz v. Newsome, 420 U.S. 283, 291 n. 8 (1975); Hensley v. Municipal Court 411 U.S. 345 (1973), and stood since, 236 with a few judicial voices raised to suggest that what Congress could not do directly it could not do by omission, 237 but inasmuch as statutory authority has always existed authoriz- ing the federal courts to grant the relief they deemed necessary under habeas corpus the Court has never had to face the ques- tion. 238 Having determined that a statute was necessary before the federal courts had power to issue writs of habeas corpus, Chief Jus- tice Marshall pointed to § 14 of the Judiciary Act of 1789 as con- taining the necessary authority. 239 As the Chief Justice read it, the authorization was limited to persons imprisoned under federal au- thority, and it was not until 1867, with two small exceptions, 240 that legislation specifically empowered federal courts to inquire into the imprisonment of persons under state authority. 241 Pursu- ant to this authorization, the Court expanded the use of the writ into a major instrument to reform procedural criminal law in fed- eral and state jurisdictions. Habeas Corpus: The Process of the Writ.—A petition for a writ of habeas corpus is filed by or on behalf of a person in ‘‘cus- tody,’’ a concept which has been expanded so much that it is no longer restricted to actual physical detention in jail or prison. 242 642 ART. III—JUDICIAL DEPARTMENT Sec. 1—Judicial Power, Courts, Judges 256 Boyce’s Executors v. Grundy, 3 Pet. (28 U.S.) 210 (1830). 257 1 Stat. 333, 28 U.S.C. § 2283. 258 26 U.S.C. § 7421(a). 259 This provision was repealed in 1976, save for apportionment and districting suits and when otherwise required by an Act of Congress. P. L. 94–381, § 1, 90 Stat. 1119, and § 3, id., 28 U.S.C. § 2284. Congress occasionally provides for such courts, as in the Voting Rights Act. 42 U.S.C. §§ 1971, 1973c. 260 Repealed by P. L. 94–381, § 2, 90 Stat. 1119. Congress occasionally provides for such courts now, in order to expedite Supreme Court consideration of constitu- tional challenges to critical federal laws. See Bowsher v. Synar, 478 U.S. 714, 719– 721 (1986) (3-judge court and direct appeal to Supreme Court in the Balanced Budg- et and Emergency Deficit Control Act of 1985). 261 Repealed by P. L. 93–584, § 7, 88 Stat. 1918. 262 28 U.S.C. § 1342. 263 29 U.S.C. §§ 52, 101–110. 264 56 Stat. 31, 204 (1942). 265 Freeman v. Howe, 24 How. (65 U.S.) 450 (1861); Gaines v. Fuentes, 92 U.S. 10 (1876); Ex parte Young, 209 U.S. 123 (1908). 266 Infra, pp. 801–802. 267 254 U.S. 443 (1921). provision did no more than declare a pre-existing rule long applied in chancery courts, 256 it did assert the power of Congress to regu- late the equity powers of the federal courts. The Act of March 2, 1793, 257 prohibited the issuance of any injunction by any court of the United States to stay proceedings in state courts except where such injunctions may be authorized by any law relating to bank- ruptcy proceedings. In subsequent statutes, Congress prohibited the issuance of injunctions in the federal courts to restrain the col- lection of taxes, 258 provided for a three-judge court as a pre- requisite to the issuance of injunctions to restrain the enforcement of state statutes for unconstitutionality, 259 for enjoining federal statutes for unconstitutionality, 260 and for enjoining orders of the Interstate Commerce Commission, 261 limited the power to issue in- junctions restraining rate orders of state public utility commis- sions, 262 and the use of injunctions in labor disputes, 263 and placed a very rigid restriction on the power to enjoin orders of the Administrator under the Emergency Price Control Act. 264 All of these restrictions have been sustained by the Supreme Court as constitutional and applied with varying degrees of thor- oughness. The Court has made exceptions to the application of the prohibition against the stay of proceedings in state courts, 265 but it has on the whole adhered to the statute. The exceptions raise no constitutional issues, and the tendency has been alternately to con- tract and to expand the scope of the exceptions. 266 In Duplex Printing Press v. Deering, 267 the Supreme Court placed a narrow construction upon the labor provisions of the Clay- ton Act and thereby contributed in part to the more extensive re- striction by Congress on the use of injunctions in labor disputes in 643ART. III—JUDICIAL DEPARTMENT Sec. 1—Judicial Power, Courts, Judges 268 Lauf v. E. G. Shinner & Co., 303 U.S. 323 (1938); New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552 (1938). 269 Ibid.; see also Drivers’ Union v. Valley Co., 311 U.S. 91. 100–103 (1940), and compare Sinclair Refining Co. v. Atkinson, 370 U.S. 195 (1962), with Boys Markets v. Retail Clerks Union, 398 U.S. 235 (1970). 270 319 U.S. 182 (1943). 271 Id., 187 (quoting Cary v. Curtis, 3 How. (44 U.S.) 236, 245 (1845)). See South Carolina v. Katzenback, 383 U.S. 301, 331–332 (1966), upholding a provision of the Voting Rights Act of 1965 that made the district court for the District of Columbia the only avenue of relief for States seeking to remove the coverage of the Act. the Norris-LaGuardia Act of 1932, which has not only been de- clared constitutional 268 but has been applied liberally 269 and in such a manner as to repudiate the notion of an inherent power to issue injunctions contrary to statutory provisions. Injunctions Under the Emergency Price Control Act of 1942.—Lockerty v. Phillips 270 justifies the same conclusion. Here the validity of the special appeals procedure of the Emergency Price Control Act of 1942 was sustained. This act provided for a special Emergency Court of Appeals, which, subject to review by the Supreme Court, was given exclusive jurisdiction to determine the validity of regulations, orders, and price schedules issued by the Office of Price Administration. The Emergency Court and the Emergency Court alone was permitted to enjoin regulations or or- ders of OPA, and even it could enjoin such orders only after finding that the order was not in accordance with law or was arbitrary or capricious. The Emergency Court was expressly denied power to issue temporary restraining orders or interlocutory decrees, and in addition the effectiveness of any permanent injunction it might issue was to be postponed for thirty days. If review was sought in the Supreme Court by certiorari, effectiveness was to be postponed until final disposition. A unanimous Court, speaking through Chief Justice Stone, declared that there ‘‘is nothing in the Constitution which requires Congress to confer equity jurisdiction on any par- ticular inferior federal court.’’ All federal courts, other than the Su- preme Court, it was asserted, derive their jurisdiction solely from the exercise of the authority to ordain and establish inferior courts conferred on Congress by Article III, § 1, of the Constitution. This power, which Congress is left free to exercise or not, was held to include the power ‘‘of investing them with jurisdiction either lim- ited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good.’’ 271 Although the Court avoided passing upon the constitutionality of the prohibition against inter- locutory decrees, the language of the Court was otherwise broad enough to support it, as was the language of Yakus v. United 644 ART. III—JUDICIAL DEPARTMENT Sec. 1—Judicial Power, Courts, Judges 272 321 U.S. 414 (1944). But compare Adamo Wrecking Co. v. United States, 434 U.S. 275 (1978) (construing statute in way to avoid the constitutional issue raised in Yakus). In United States v. Mendoza-Lopez, 481 U.S. 828 (1987), the Court held that, when judicial review of a deportation order had been precluded, due process required that the alien be allowed to make a collateral challenge to the use of that proceeding as an element of a subsequent criminal proceeding. 273 Washington-Southern Co. v. Baltimore Co., 263 U.S. 629 (1924). 274 10 Wheat. (23 U.S.) 1 (1825). 275 106 U.S. 272, 280 (1882). 276 See Miner v. Atlass, 363 U.S. 641 (1960), holding that a federal district court, sitting in admiralty, has no inherent power, independent of any statute or the Supreme Court’s Admiralty Rules, to order the taking of deposition for the purpose of discovery. See also Harris v. Nelson. 394 U.S. 286 (1969), in which the Court found statutory authority in the ‘‘All Writs Statute’’ for a habeas corpus court to pro- pound interrogatories. 277 In the Act of June 19, 1934, 48 Stat. 1064, and contained in 28 U.S.C. § 2072, Congress, in authorizing promulgation of rules of civil procedure, reserved the power to examine and override or amend rules proposed pursuant to the act which it found to be contrary to its legislative policy. See Sibbach v. Wilson, 312 States, 272 which sustained a different phase of the special proce- dure for appeals under the Emergency Price Control Act. The Rule-Making Power and Powers Over Process Among the incidental powers of courts is that of making all necessary rules governing their process and practice and for the or- derly conduct of their business. 273 However, this power too is de- rived from the statutes and cannot go beyond them. The landmark case is Wayman v. Southard, 274 which sustained the validity of the Process Acts of 1789 and 1792 as a valid exercise of authority under the necessary and proper clause. Although Chief Justice Marshall regarded the rule-making power as essentially legislative in nature, he ruled that Congress could delegate to the courts the power to vary minor regulations in the outlines marked out by the statute. Fifty-seven years later, in Fink v. O’Neil, 275 in which the United States sought to enforce by summary process the payment of a debt, the Supreme Court ruled that under the process acts the law of Wisconsin was the law of the United States, and hence the Government was required to bring a suit, obtain a judgment, and cause execution to issue. Justice Matthews for a unanimous Court declared that the courts have ‘‘no inherent authority to take any one of these steps, except as it may have been conferred by the leg- islative department; for they can exercise no jurisdiction, except as the law confers and limits it.’’ 276 Conceding, in 1934, the limited competence of legislative bodies to establish a comprehensive sys- tem of court procedure, and acknowledging the inherent power of courts to regulate the conduct of their business, Congress author- ized the Supreme Court to prescribe rules for the lower federal courts not inconsistent with the Constitution and statutes. 277 Their 647ART. III—JUDICIAL DEPARTMENT Sec. 2—Jurisdiction Cl. 1—Cases and Controversies 289 Ex parte Secombe, 19 How. (60 U.S.) 9, 13 (1857). In Frazier v. Heebe, 482 U.S. 641 (1987), the Court exercised its supervisory power to invalidate a district court rule respecting the admission of attorneys. See In re Sawyer, 360 U.S. 622 (1959), with reference to the extent to which counsel of record during a pending case may attribute error to the judiciary without being subject to professional discipline. 290 4 Wall. (71 U.S.) 333 (1867). 291 Id., 378–380. Although a lawyer is admitted to practice in a federal court by way of admission to practice in a state court, he is not automatically sent out of the federal court by the same route, when ‘‘principles of right and justice’’ require otherwise. A determination of a state court that an accused practitioner should be disbarred is not conclusively binding on the federal courts. Theard v. United States, 354 U.S. 278 (1957), citing Selling v. Radford, 243 U.S. 46 (1917). Cf. In re Isserman, 345 U.S. 286, 288 (1953), where it was acknowledged that upon disbar- ment by a state court, Rule 2, par. 5 of the Rules of the Supreme Court imposes upon the attorney the burden of showing cause why he should not be disbarred in the latter, and upon his failure to meet that burden, the Supreme Court will ‘‘follow the finding of the state that the character requisite for membership in the bar is lacking.’’ In 348 U.S. 1 (1954), Isserman’s disbarment was set aside for reason of noncompliance with Rule 8 requiring concurrence of a majority of the Justices par- ticipating in order to sustain a disbarment. See also In re Disbarment of Crow, 359 U.S. 1007 (1959). For an extensive treatment of disbarment and American and Eng- lish precedents thereon, see Ex parte Wall, 107 U.S. 265 (1883). ‘‘it rests exclusively with the Court to determine who is qualified to become one of its officers, as an attorney and counsellor, and for what cause he ought to be removed.’’ Such power, he made clear, however, ‘‘is not an arbitrary and despotic one, to be exercised at the pleasure of the Court, or from passion, prejudice, or personal hostility; but it is the duty of the Court to exercise and regulate it by a sound and just judicial discretion, whereby the rights and independence of the bar may be as scrupulously guarded and main- tained by the Court, as the right and dignity of the Court itself.’’ 289 The Test-Oath Act of July 2, 1862, which purported to exclude former Confederates from the practice of law in the federal courts, was invalidated in Ex parte Garland. 290 In the course of his opin- ion for the Court, Justice Field discussed generally the power to admit and disbar attorneys. The exercise of such a power, he de- clared, is judicial power. The attorney is an officer of the court, and though Congress may prescribe qualifications for the practice of law in the federal courts, it may not do so in such a way as to in- flict punishment contrary to the Constitution or to deprive a par- don of the President of its legal effect. 291 SECTION 2. The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty 648 ART. III—JUDICIAL DEPARTMENT Sec. 2—Jurisdiction Cl. 1—Cases and Controversies 292 2 M. FARRAND, op. cit., n. 1, 430. 293 The proposal was contained in the Virginia Plan. 1 id., 21. For the four rejec- tions, see id., 97–104, 108–110, 138–140, 2 id., 73–80, 298. 294 Id., 328–329, 342–344. Although a truncated version of the proposal was re- ported by the Committee of Detail, id., 367, the Convention never took it up. 295 Id., 340–341. The proposal was referred to the Committee of Detail and never heard of again. and maritime Jurisdiction; to Controversies to which the Unit- ed States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State; be- tween Citizens of different States,—between Citizens of the same State claiming Land under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. JUDICIAL POWER AND JURISDICTION—CASES AND CONTROVERSIES Late in the Convention, a delegate proposed to extend the judi- cial power to cases arising under the Constitution of the United States as well as under its laws and treaties. Madison’s notes con- tinue: ‘‘Mr. Madison doubted whether it was not going too far to extend the jurisdiction of the Court generally to cases arising under the Constitution, and whether it ought not to be limited to cases of a Judiciary Nature. The right of expounding the Constitution in cases not of this nature ought not to be given to that Department. ‘‘The motion of Docr. Johnson was agreed to nem : con : it being generally supposed that the jurisdiction given was construc- tively limited to cases of a Judiciary nature—’’. 292 That the Framers did not intend for federal judges to roam at large in construing the Constitution and laws of the United States but rather preferred and provided for resolution of disputes arising in a ‘‘judicial’’ manner is revealed not only in the language of § 2 and the passage quoted above but as well in the refusal to associ- ate the judges in the extra-judicial functions which some members of the Convention—Madison and Wilson notably—conceived for them. Thus, four times proposals for associating the judges in a council of revision to pass on laws generally were voted down, 293 and similar fates befell suggestions that the Chief Justice be a member of a privy council to assist the President 294 and that the President or either House of Congress be able to request advisory opinions of the Supreme Court. 295 649ART. III—JUDICIAL DEPARTMENT Sec. 2—Jurisdiction Cl. 1—Cases and Controversies 296 1 C. WARREN, op. cit., n. 18, 108–111; 3 CORRESPONDENCE AND PUBLIC PA- PERS OF JOHN JAY, H. Johnston ed. (New York: 1893), 633–635; HART & WECHSLER, op. cit., n. 250, 65–67. 297 Hayburn’s Case, 2 Dall. (2 U.S.) 409 (1792), discussed supra, pp. 620–621. 298 See, e.g., Justice Brandeis dissenting in Ashwander v. TVA, 297 U.S. 288, 341, 345–348 (1936). Cf. Flast v. Cohen, 392 U.S. 83, 97 (1968); Rescue Army v. Mu- nicipal Court, 331 U.S. 549, 568–575 (1947). 299 6 Wheat. (19 U.S.) 264 (1821). 300 Id., 378. This intent of the Framers was early effectuated when the Jus- tices declined a request of President Washington to tender him ad- vice respecting legal issues growing out of United States neutrality between England and France in 1793. 296 Moreover, the refusal of the Justices to participate in the congressional plan for awarding veterans’ pensions 297 bespoke a similar adherence to the restricted role of courts. These restrictions have been encapsuled in a series of principles or doctrines, the application of which determines whether an issue is meet for judicial resolution and whether the parties raising it are entitled to have it judicially resolved. Con- stitutional restrictions are intertwined with prudential consider- ations in the expression of these principles and doctrines, and it is seldom easy to separate out the two strands. 298 The Two Classes of Cases and Controversies By the terms of the foregoing section, the judicial power ex- tends to nine classes of cases and controversies, which fall into two general groups. In the words of Chief Justice Marshall in Cohens v. Virginia: 299 ‘‘In the first, jurisdiction depends on the character of the cause, whoever may be the parties. This class comprehends ‘all cases in law and equity arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.’ This cause extends the jurisdiction of the Court to all the cases described, without making in its terms any exception whatever, and without any regard to the condition of the party. If there be any exception, it is to be implied, against the express words of the article. In the second class, the jurisdic- tion depends entirely on the character of the parties. In this are comprehended controversies between two or more States, between a State and citizens of another State,’ and ‘between a State and for- eign States, citizens or subjects.’ If these be the parties, it is en- tirely unimportant, what may be the subject of controversy. Be it what it may, these parties have a constitutional right to come into the courts of the Union.’’ 300 Judicial power is ‘‘the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties 652 ART. III—JUDICIAL DEPARTMENT Sec. 2—Jurisdiction Cl. 1—Cases and Controversies 310 Id., 361–362. The Indians obtained the sought-after decision the following year by the simple expedient of suing to enjoin the Secretary of the Interior from enforcing the disputed statute. Gritts v. Fisher, 224 U.S. 640 (1912). Other cases have involved similar problems, but they resulted in decisions on the merits. E.g., Cherokee Intermarriage Cases, 203 U.S. 76 (1906); La Abra Silver Mining Co. v. United States, 175 U.S. 423, 455–463 (1899); South Carolina v. Katzenbach, 383 U.S. 301, 335 (1966); but see id., 357 (Justice Black dissenting). The principal effect of Muskrat was to put in doubt for several years the validity of any sort of declara- tory judgment provision in federal law. 311 8 How. (49 U.S.) 251 (1850). 312 Id., 254–255. 313 Chicago & G.T. Ry. Co. v. Wellman, 143 U.S. 339, 345 (1892). cerning which the only judgment required is to settle the doubtful character of the legislation in question.’’ 310 Collusive and Feigned Suits.—Prime among the cases in which adverse litigants are required are those suits in which two parties have gotten together to bring a friendly suit to settle a question of interest to them. Thus, in Lord v. Veazie, 311 the latter had executed a deed to the former warranting that he had certain rights claimed by a third person and suit was instituted to decide the ‘‘dispute.’’ Declaring that ‘‘the whole proceeding was in con- tempt of the court, and highly reprehensible,’’ the Court observed: ‘‘The contract set out in the pleadings was made for the purpose of instituting this suit. . . . The plaintiff and defendant are at- tempting to procure the opinion of this court upon a question of law, in the decision of which they have a common interest opposed to that of other persons, who are not parties to the suit. . . . And their conduct is the more objectionable, because they have brought up the question upon a statement of facts agreed upon between themselves . . . and upon a judgment pro forma entered by their mutual consent, without any actual judicial decision. . . .’’ 312 ‘‘Whenever,’’ said the Court in another case, ‘‘in pursuance of an honest and actual antagonistic assertion of rights by one individual against another, there is presented a question involving the valid- ity of any act of any legislature, State or federal, and the decision necessarily rests on the competency of the legislature to so enact, the court must . . . determine whether the act be constitutional or not; but such an exercise of power is the ultimate and supreme function of courts. It is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital con- troversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.’’ 313 Yet, several widely known constitutional deci- sions have been rendered in cases in which friendly parties con- trived to have the actions brought and in which the suits were su- 653ART. III—JUDICIAL DEPARTMENT Sec. 2—Jurisdiction Cl. 1—Cases and Controversies 314 E.g., Hylton v. United States, 3 Dall. (3 U.S.) 171 (1796); Fletcher v. Peck, 6 Cr. (10 U.S.) 87 (1810); Scott v. Sandford, 19 How. (60 U.S.) 393 (1857); Cf. 1 C. WARREN, op. cit., n. 18, 147, 392–395; 2 id., 279–282. In Powell v. Texas, 392 U.S. 514 (1968), the Court adjudicated on the merits a challenge to the constitutionality of criminal treatment of chronic alcoholics although the findings of the trial court, agreed to by the parties, appeared rather to be ‘‘the premises of a syllogism trans- parently designed to bring this case’ within the confines of an earlier enunciated constitutional principle. But adversity arguably still existed. 315 Examples are naturalization cases, Tutun v. United States, 270 U.S. 568 (1926), entry of judgment by default or on a plea of guilty, In re Metropolitan Ry. Receivership, 208 U.S. 90 (1908), and consideration by the Court of cases in which the Solicitor General confesses error below. Cf. Young v. United States, 315 U.S. 257, 258–259 (1942); Casey v. United States, 343 U.S. 808 (1952); Rosengart v. Laird, 404 U.S. 908 (1972) (Justice White dissenting). See also Sibron v. New York, 392 U.S. 40, 58–59 (1968). 316 157 U.S. 429 (1895). The first injunction suit by a stockholder to restrain a corporation from paying a tax was apparently Dodge v. Woolsey, 18 How. (59 U.S.) 331 (1856). See also Brushaber v. Union Pacific R. Co., 240 U.S. 1 (1916). 317 Cf. Cheatham v. United States, 92 U.S. 85 (1875); Snyder v. Marks, 109 U.S. 189 (1883). 318 Smith v. Kansas City Title Co., 255 U.S. 180 (1921). 319 Ashwander v. TVA, 297 U.S. 288 (1936). See id., 341 (Justice Brandeis dis- senting in part). 320 298 U.S. 238 (1936). pervised and financed by one side. 314 And there are instances in which there may not be in fact an adverse party at certain stages, that is, some instances when the parties do not actually disagree, but in which the Court and the lower courts are empowered to ad- judicate. 315 Stockholder Suits.—Moreover, adversity in parties has often been found in suits by stockholders against their corporation in which the constitutionality of a statute or a government action is drawn in question, even though one may suspect that the interests of plaintiffs and defendant are not all that dissimilar. Thus, in Pol- lock v. Farmers’ Loan and Trust Co., 316 the Court sustained the ju- risdiction of a district court which had enjoined the company from paying an income tax even though the suit was brought by a stock- holder against the company, thereby circumventing a statute which forbade the maintenance in any court of a suit to restrain the col- lection of any tax. 317 Subsequently, the Court sustained jurisdic- tion in cases brought by a stockholder to restrain a company from investing its funds in farm loan bonds issued by federal land banks 318 and by preferred stockholders against a utility company and the TVA to enjoin the performance of contracts between the company and TVA on the ground that the statute creating it was unconstitutional. 319 Perhaps most notorious was Carter v. Carter Coal Co., 320 in which the president of the company brought suit against the company and its officials, among whom was Carter’s fa- 654 ART. III—JUDICIAL DEPARTMENT Sec. 2—Jurisdiction Cl. 1—Cases and Controversies 321 Stern, The Commerce Clause and the National Economy, 59 Harv. L. Rev. 645, 667–668 (1948) (detailing the framing of the suit). 322 Flast v. Cohen, 392 U.S. 83, 99 (1968). That this characterization is not the view of the present Court, see Allen v. Wright, 468 U.S. 737, 750, 752, 755–756, 759–761 (1984). In taxpayer suits, it is appropriate to look to the substantive issues to determine whether there is a logical nexus between the status asserted and the claim sought to be adjudicated. Id., 102; United States v. Richardson, 418 U.S. 166, 174–175 (1974); Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 78–79 (1978). 323 Baker v. Carr, 369 U.S. 186, 204 (1962). That persons or organizations have a personal, ideological interest sufficiently strong to create adverseness is not alone enough to confer standing; rather, the adverseness is the consequence of one being able to satisfy the Article III requisite of injury in fact. Valley Forge Christian Col- lege v. Americans United, 454 U.S. 464, 482–486 (1982); Schlesinger v. Reservists Com. to Stop the War, 418 U.S. 208, 225–226 (1974). Nor is the fact that if plaintiffs have no standing to sue, no one would have standing, a sufficient basis for finding standing. Id., 227. 324 Allen v. Wright,468 U.S. 737, 750 (1984) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). All the standards relating to whether a plaintiff is entitled to adju- dication of his claims must be evaluated ‘‘by reference to the Art. III notion that federal courts may exercise power only in the last resort, and as a necessity,’ . . . and only when adjudication is ‘consistent with a system of separated powers and [the dispute is one] traditionally thought to be capable of resolution through the ju- dicial process.’’’ Id., 752 (quoting, respectively, Chicago & Grand Trunk R. Co. v. Wellman, 143 U.S. 339, 345 (1892), and Flast v. Cohen, 392 U.S. 83, 97 (1968)). For the strengthening of the separation-of-powers barrier to standing, see Lujan v. De- fenders of Wildlife, 112 S.Ct. 2130, 2135–2136, 2142–2146 (1992). ther, a vice president of the company, and in which the Court en- tertained the suit and decided the case on the merits. 321 Substantial Interest: Standing Perhaps the most important element of the requirement of ad- verse parties may be found in the ‘‘complexities and vagaries’’ of the standing doctrine. ‘‘The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated.’’ 322 The ‘‘gist of the question of standing’’ is whether the party seeking re- lief has ‘‘alleged such a personal stake in the outcome of the con- troversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.’’ 323 This practical conception of standing has now given way to a primary emphasis upon separation of powers as the guide. ‘‘[T]he ‘case or controversy’ requirement defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is found- ed. The several doctrines that have grown up to elaborate that re- quirement are ‘founded in concern about the proper - and properly limited - role of the courts in a democratic society.’ ’’ 324 Standing as a doctrine is composed of both constitutional and prudential restraints on the power of the federal courts to render 657ART. III—JUDICIAL DEPARTMENT Sec. 2—Jurisdiction Cl. 1—Cases and Controversies 334 Id., 105. 335 United States v. Richardson, 418 U.S. 166 (1974); Schlesinger v. Reservists Com. to Stop the War, 418 U.S. 208, 227–228 (1974). 336 Valley Forge Christian College v. Americans United, 454 U.S. 464 (1982). 337 330 U.S. 1 (1947). 338 See Bradfield v. Roberts, 175 U.S. 291, 295 (1899); Crampton v. Zabriskie, 101 U.S. 601 (1880); Heim v. McCall, 239 U.S. 175 (1915). See also Illinois ex rel. McCollom v. Board of Education, 333 U.S. 203 (1948); Zorach v. Clauson, 343 U.S. 306 (1952); Engel v. Vitale, 370 U.S. 421 (1962) (plaintiffs suing as parents and tax- payers). 339 342 U.S. 429 (1952). Compare Alder v. Board of Education, 342 U.S. 485 (1952). See also Richardson v. Ramirez, 418 U.S. 24 (1974). whether other specific limitations constrained the taxing and spending clause in the same manner as the establishment clause. 334 Since Flast, the Court has refused to expand it. Litigants seek- ing standing as taxpayers to challenge legislation permitting the CIA to withhold from the public detailed information about its ex- penditures as a violation of Article I, § 9, cl. 7, and to challenge cer- tain Members of Congress from holding commissions in the re- serves as a violation of Article I, § 6, cl. 2, were denied standing, in the former cases because their challenge was not to an exercise of the taxing and spending power and in the latter because their challenge was not to legislation enacted under Article I, § 8, but rather was to executive action in permitting Members to maintain their reserve status. 335 An organization promoting church-state separation was denied standing to challenge an executive decision to donate surplus federal property to a church-related college, both because the contest was to executive action under a valid piece of legislation and because the property transfer was not pursuant to a taxing and spending clause exercise but was taken under the property clause of Article IV, § 3, cl. 2. 336 It seems evident that for at least the foreseeable future taxpayer standing will be restricted to establishment clause limitations on spending programs. Local taxpayers attacking local expenditures have generally been permitted more leeway than federal taxpayers insofar as standing is concerned. Thus, in Everson v. Board of Education, 337 such a taxpayer was found to have standing to challenge the use of public funds for transportation of pupils to parochial schools. 338 But in Doremus v. Board of Educ., 339 the Court refused an appeal from a state court for lack of standing of a taxpayer challenging Bible reading in the classroom. No measurable disbursement of public funds was involved in this type of activity, so that there was no direct injury to the taxpayer, a rationale similar to the spending program-regulatory program distinction of Flast. 658 ART. III—JUDICIAL DEPARTMENT Sec. 2—Jurisdiction Cl. 1—Cases and Controversies 340 Valley Forge Christian College v. Americans United, 454 U.S. 464, 472 (1982); Allen v. Wright, 468 U.S. 737, 751 (1984); Lujan v. Defenders of Wildlife, 112 S.Ct. 2130, 2136 (1992). See, however, United States Parole Comm. v. Geraghty, 445 U.S. 388 (1980), a class action case, in which the majority opinion appears to reduce the significance of the personal stake requirement. Id., 404 n. 11, reserving full consideration of the dissent’s argument at id ., 401 n. 1, 420–421. 341 Alabama Power Co. v. Ickes, 302 U.S. 464, 479 (1938). Cf. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 151–152 (1951) (Justice Frankfurter concurring). But see Frost v. Corporation Comm., 278 U.S. 515 (1929); City of Chi- cago v. Atchison, T. & S.F Ry., 357 U.S. 77 (1958). 342 Tennessee Power Co. v. TVA, 306 U.S. 118, 137–138 (1939). 343 C. WRIGHT, op. cit., n. 326, 65–66. 344 E.g., Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951) (indirect injury to organization and members by governmental maintenance of list of subversive organizations); NAACP v. Alabama ex rel Patterson, 357 U.S. 449 (1958) (same); Abington School District v. Schempp, 374 U.S. 203, 224 n. 9 (1963) (parents and school children challenging school prayers); McGowan v. Maryland, 366 U.S. 420, 430–431 (1961) (merchants challenging Sunday closing laws); Baker v. Carr 369 U.S. 186, 204–208 (1962) (voting rights). 345 Assn. of Data Processing Service Org. v. Camp, 397 U.S. 150 (1970); Barlow v. Collins, 397 U.S. 159 (1970). The ‘‘zone of interest’’ test is a prudential rather than constitutional standard. The Court sometimes uses language characteristic of the language. Thus, in Lujan v. Defenders of Wildlife, 112 S.Ct. 2130, 2136 (1992), the Court refers to injury in fact as ‘‘an invasion of a legally-protected interest,’’ but Constitutional Standards: Injury in Fact, Causation, and Redressability.—While the Court has been inconsistent over time, it has now settled upon the rule that, ‘‘at an irreducible minimum,’’ the constitutional requisites under Article III for the existence of standing are that the party seeking to sue must personally have suffered some actual or threatened injury that can fairly be traced to the challenged action of defendant and that the injury is likely to be redressed by a favorable decision. 340 For some time, injury alone was not sufficient; rather, the in- jury had to be ‘‘a wrong which directly results in the violation of a legal right,’’ 341 that is, ‘‘one of property, one arising out of con- tract, one protected against tortious invasion, or one founded in a statute which confers a privilege.’’ 342 The problem was that the ‘‘legal right’’ language was ‘‘demonstrably circular: if the plaintiff is given standing to assert his claims, his interest is legally protected; if he is denied standing, his interest is not legally protected.’’ 343 The observable tendency of the Court, however, was to find stand- ing frequently in cases distinctly not grounded in property rights. 344 In any event, the ‘‘legal rights’’ language has now been dis- pensed with. Rejection occurred in two administrative law cases in which the Court announced that parties had standing when they suffered ‘‘injury in fact’’ to some interest, ‘‘economic or otherwise,’’ that is arguably within the zone of interest to be protected or regu- lated by the statute or constitutional provision in question. 345 Now, 659ART. III—JUDICIAL DEPARTMENT Sec. 2—Jurisdiction Cl. 1—Cases and Controversies in context, here and in the cases cited, it is clear the reference is to any interest that the Court finds protectable under the Constitution, statutes, or regulations. 346 E.g., Lujan v. Defenders of Wildlife, 112 S.Ct. 2130, 2137–2138 (1992); Lujan v. National Wildlife Federation, 497 U.S. 871, 885 (1991); Duke Power Co. v. Caro- lina Environmental Study Group, 438 U.S. 59, 72–74 (1978); Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 261–263 (1977); Single- ton v. Wulff, 428 U.S. 106, 112–113 (1976); Warth v. Seldin, 422 U.S. 490, 498–499 (1975); Shea v. Littleton, 414 U.S. 488, 493–494 (1974); Linda R.S. v. Richard D., 410 U.S. 614, 617–618 (1973). 347 Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972); Gladstone, Re- altors v. Village of Bellwood, 441 U.S. 91 (1979); Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982). While Congress had provided for standing in the Act, thus re- moving prudential considerations affecting standing, it could not abrogate constitu- tional constraints. Gladstone, Realtors, supra, 100. Thus, the injury alleged satisfied Article III. 348 Sierra Club v. Morton, 405 U.S. 727, 735 (1972); United States v. SCRAP, 412 U.S. 669, 687–688 (1973); Duke Power Co., v. Carolina Environmental Study Group, 438 U.S. 59, 72–74 (1978). But the Court has refused to credit general alle- gations of injury untied to specific governmental actions. E.g., Lujan v. Defenders of Wildlife, 112 S.Ct. 2130 (1992); Lujan v. National Wildlife Federation, 497 U.S. 871 (1990). In particular, SCRAP, supra, is disfavored as too broad. Lujan v. De- fenders of Wildlife, supra, 2139–2140. Moreover, unlike the situation in taxpayer suits, there is no requirement of a nexus between the injuries claimed and the con- stitutional rights asserted. In Duke Power, supra, 78–81, claimed environmental and health injuries grew out of construction and operation of nuclear power plants but were not directly related to the governmental action challenged, the limitation of li- ability and indemnification in cases of nuclear accident. See also Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252, 264–265 (1991). 349 See supra, nn. 329–330. 350 Compare Warth v. Seldin, 422 U.S. 490, 499–500 (1975) (prudential), with Valley Forge Christian College v. Americans United, 454 U.S. 464, 485, 490 (1982) (apparently constitutional). In Allen v. Wright, 468 U.S. 737, 751 (1984), it is again prudential. environmental, aesthetic, and social interests, when impaired, af- ford a basis for making constitutional attacks upon governmental action. 346 The breadth of the injury in fact concept may be dis- cerned in a series of cases involving the right of private parties to bring actions under the Fair Housing Act to challenge alleged dis- criminatory practices. The subjective and intangible interests of persons in enjoying the benefits of living in integrated communities were found sufficient to permit them to attack actions which threatened or harmed those interests even though the actions were not directed at them. 347 Similarly, the interests of individuals and associations of individuals in using the environment afforded them the standing to challenge actions which threatened those environ- mental conditions. 348 Nonetheless, the Court has also in constitu- tional cases been wary of granting standing to persons who alleged threats or harm to interests which they shared with the larger community of people at large, a rule against airing ‘‘generalized grievances’’ through the courts, 349 although it is unclear whether this rule (or subrule) has a constitutional or a prudential basis. 350 662 ART. III—JUDICIAL DEPARTMENT Sec. 2—Jurisdiction Cl. 1—Cases and Controversies if it is an injury shared by a large class of other possible litigants.’’ Warth v. Seldin, 422 U.S. 490, 501 (1975). That is, the actual or threatened injury required may exist solely by virtue of ‘‘statutes creating legal rights, the invasion of which creates standing, even though no injury would exist without the statute.’’ Linda R.S. v. Richard D., 410 U.S. 614, 617 n. 3 (1973); O’Shea v. Littleton, 414 U.S. 488, 493 n. 2 (1974). Examples include United States v. SCRAP, 412 U.S. 669 (1973); Trafficante v. Metropolitan Life Ins. Co ., 409 U.S. 205 (1972); Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91 (1979). See also Buckley v. Valeo, 424 U.S. 1, 8 n. 4, 11–12 (1976). For a good example of the congressionally-created interest and the injury to it, see Havens Realty Corp. v. Coleman, 455 U.S. 363, 373–375 (1982) (Fair Housing Act created right to truthful information on availability of housing; black tester’s right injured through false information, but white tester not injured because he received truthful information). It is clear, however, that the Court will impose separation-of-powers restraints on the power of Congress to create interests to which injury would give standing. Lujan v. Defenders of Wildlife, 112 S.Ct. 2130, 2142–2146 (1992). 361 Valley Forge Christian College v. Americans United, 454 U.S. 464, 474–475 (1982); Allen v. Wright, 468 U.S. 737, 751 (1984). 362 Assn. of Data Processing Service Orgs. v. Camp, 397 U.S. 150, 153 (1970); Simon v. Eastern Kentucky Welfare Rights Org ., 426 U.S. 26, 39 n. 19 (1976); Val- ley Forge Christian College v. Americans United, 454 U.S. 464, 475 (1982); Clarke v. Securities Industry Assn., 479 U.S. 388 (1987). 363 United States v. Richardson, 418 U.S. 166, 173, 174–176 (1974); Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 80 (1978); Allen v. Wright, 468 U.S. 737, 751 (1984). In United States v. SCRAP, 412 U.S. 669, 687–688 (1973), a congressional conferral case, the Court agreed that the interest asserted was one shared by all, but the Court has disparaged SCRAP, asserting that it ‘‘surely went to the very outer limit of the law,’’ Whitmore v. Arkansas, 495 U.S. 149, 159 (1990). 364 United States v. Raines, 362 U.S. 17, 21–23 (1960); Yazoo & M.V.R. Co. v. Jackson Vinegar Co., 226 U.S. 217 (1912). Cf. Bender v. Williamsport Area School Dist., 475 U.S. 534 (1986). 365 318 U.S. 44 (1943). See Warth v. Seldin, 422 U.S. 490, 508–510 (1975) (chal- lenged law did not adversely affect plaintiffs and did not adversely affect a relation- ship between them and persons they sought to represent). rules as prudential ones, 361 only one of which has been a signifi- cant factor in the jurisprudence of standing. The first two rules are that the plaintiff’s interest, to which she asserts an injury, must come within the ‘‘zone of interest’’ arguably protected by the con- stitutional provision or statute in question 362 and that plaintiffs may not air ‘‘generalized grievances’’ shared by all or a large class of citizens. 363 The important rule concerns the ability of a plaintiff to represent the constitutional rights of third parties not before the court. Standing to Assert the Constitutional Rights of Others.— Usually, one may assert only one’s interest in the litigation and not challenge the constitutionality of a statute or a governmental ac- tion because it infringes the protectable rights of someone else. 364 In Tileston v. Ullman, 365 an early round in the attack on a state anticontraceptive law, a doctor sued, charging that he was pre- vented from giving his patients needed birth control advice. The Court held he had no standing; no right of his was infringed, and he could not represent the interests of his patients. But there are 663ART. III—JUDICIAL DEPARTMENT Sec. 2—Jurisdiction Cl. 1—Cases and Controversies 366 346 U.S. 249 (1953). 367 See also Buchanan v. Warley, 245 U.S. 60 (1917) (white plaintiff suing for specific performance of a contract to convey property to a Negro had standing to con- test constitutionality of ordinance barring sale of property to African Americans, in- asmuch as black defendant was relying on ordinance as his defense); Sullivan v. Lit- tle Hunting Park, 396 U.S. 229 (1969) (white assignor of membership in discrimina- tory private club could raise rights of black assignee in seeking injunction against expulsion from club). 368 E.g., Griswold v. Connecticut, 381 U.S. 479 (1965) (persons convicted of pre- scribing contraceptives for married persons and as accessories to crime of using con- traceptives have standing to raise constitutional rights of patients with whom they had a professional relationship; while use of contraceptives was a crime, it was doubtful any married couple would be prosecuted so that they could challenge the statute); Eisenstadt v. Baird, 405 U.S. 438 (1972) (advocate of contraception con- victed of giving device to unmarried woman had standing to assert rights of unmar- ried persons denied access; unmarried persons not subject to prosecution and were thus impaired in ability to obtain them or gain forum to assert rights). 369 E.g., Doe v. Bolton, 410 U.S. 179, 188–189 (1973) (doctors have standing to challenge abortion statute since it operates directly against them and they should not have to await criminal prosecution in order to determine their validity); Planned Parenthood v. Danforth, 428 U.S. 52, 62 (1976) (same); Craig v. Boren, 429 U.S. 190, 192–197 (1976) (licensed beer distributor could contest sex discriminatory alcohol laws because it operated on him, he suffered injury in fact, and was ‘‘obvious claim- ant’’ to raise issue); Carey v. Population Services Intl., 431 U.S. 678, 682–684 (1977) (vendor of contraceptives had standing to bring action to challenge law limiting dis- tribution). Older cases support the proposition. See, e.g., Pierce v. Society of Sisters, 268 U.S. 510 (1925); Bantam Books v. Sullivan, 372 U.S. 58 (1963). 370 Holland v. Illinois, 493 U.S. 474 (1990) (white defendant had standing to raise a Sixth Amendment challenge to exclusion of blacks from his jury, since de- fendant had a right to a jury comprised of a fair cross section of the community). several exceptions to this part of the standing doctrine that make generalization misleading. Many cases allow standing to third par- ties if they demonstrate a requisite degree of injury to themselves and if under the circumstances the injured parties whom they seek to represent would likely not be able to assert their rights. Thus, in Barrows v. Jackson, 366 a white defendant who was being sued for damages for breach of a restrictive covenant directed against African Americans—and therefore able to show injury in liability for damages—was held to have standing to assert the rights of the class of persons whose constitutional rights were infringed. 367 Similarly, the Court has permitted defendants who have been con- victed under state law—giving them the requisite injury—to assert the rights of those persons not before the Court whose rights would be adversely affected through enforcement of the law in ques- tion. 368 In fact, the Court has permitted persons who would be subject to future prosecution or future legal action—thus satisfying the injury requirement—to represent the rights of third parties with whom the challenged law has interfered with a relation- ship. 369 It is also possible, of course, that one’s own rights can be affected by action directed at someone from another group. 370 664 ART. III—JUDICIAL DEPARTMENT Sec. 2—Jurisdiction Cl. 1—Cases and Controversies 371 428 U.S. 106 (1976). 372 Compare id., 112–118 (Justices Blackmun, Brennan, White, and Marshall), with id., 123–131 (Justices Powell, Stewart, and Rehnquist, and Chief Justice Burg- er). Justice Stevens concurred with the former four Justices on narrower grounds limited to this case. 373 Caplin & Drysdale v. United States, 491 U.S. 617, 623–624 n. 3 (1989). 374 Whitmore v. Arkansas, 495 U.S. 149 (1990) (death row inmate’s challenge to death penalty imposed on a fellow inmate who knowingly, intelligently, and vol- untarily chose not to appeal cannot be pursued). 375 United States v. Raines, 362 U.S. 17, 21–24 (1960). 376 Lanzetta v. New Jersey, 306 U.S. 451 (1939); Thornhill v. Alabama, 310 U.S. 88 (1940); Winters v. New York, 333 U.S. 507 (1948); Dombrowski v. Pfister, 380 U.S. 479, 486–487 (1965); Gooding v. Wilson, 405 U.S. 518 (1972); Lewis v. City of New Orleans, 415 U.S. 130 (1974). The Court has narrowed its overbreadth doc- trine, though not consistently, in recent years. Broadrick v. Oklahoma, 413 U.S. 601 (1973); Young v. American Mini Theatres, 427 U.S. 50, 59–60 (1976), and id., 73 A substantial dispute was occasioned in Singleton v. Wulff, 371 over the standing of doctors, who were denied Medicaid funds for the performance of abortions not ‘‘medically indicated,’’ to assert the rights of absent women to compensated abortions. All the Jus- tices thought the Court should be hesitant to resolve a controversy on the basis of the rights of third parties, but they divided with re- spect to the standards exceptions. Four Justices favored a lenient standard, permitting third party representation when there is a close, perhaps confidential, relationship between the litigant and the third parties and when there is some genuine obstacle to third party assertion of their rights; four Justices would have permitted a litigant to assert the rights of third parties only when govern- ment directly interdicted the relationship between the litigant and the third parties through the criminal process and when litigation by the third parties is in all practicable terms impossible. 372 Following Wulff, the Court emphasized the close attorney-cli- ent relationship in holding that a lawyer had standing to assert his client’s Sixth Amendment right to counsel in challenging applica- tion of a drug-forfeiture law to deprive the client of the means of paying counsel. 373 However, a ‘‘next friend’’ whose stake in the out- come is only speculative must establish that the real party in inter- est is unable to litigate his own cause because of mental incapacity, lack of access to courts, or other disability. 374 A variant of the general rule is that one may not assert the unconstitutionality of a statute in other respects when the statute is constitutional as to him. 375 Again, the exceptions may be more important than the rule. Thus, an overly broad statute, especially one that regulates speech and press, may be considered on its face rather than as applied, and a defendant to whom the statute con- stitutionally applies may be enabled to assert its unconstitution- ality thereby. 376 667ART. III—JUDICIAL DEPARTMENT Sec. 2—Jurisdiction Cl. 1—Cases and Controversies found Member standing, and directed dismissal, but none of the Justices who set forth reasons addressed the question of standing. The opportunity to consider Mem- ber standing was strongly pressed in Burke v. Barnes, 479 U.S. 361 (1987), but the expiration of the law in issue mooted the case. 389 Reuss v. Balles, 584 F.2d 461, 466 (D.C.Cir.), cert. den., 439 U.S. 997 (1978). 390 Mitchell v. Laird, 488 F.2d 611 (D.C.Cir. 1973). 391 511 F.2d 430 (D.C.Cir. 1974). In Barnes v. Kline, 759 F.2d 21 (D.C.Cir. 1985), the court again found standing by Members challenging a pocket veto, but the Supreme Court dismissed the appeal as moot. Sub nom. Burke v. Barnes, 479 U.S. 361 (1987). Whether the injury was the nullification of the past vote on passage only or whether it was also the nullification of an opportunity to vote to override the veto has divided the Circuit, with the majority favoring the broader interpreta- tion. Goldwater v. Carter, 617 F.2d 697, 702 n. 12 (D.C.Cir.), and id., 711–712 (Judge Wright), vacated and remanded with instructions to dismiss, 444 U.S. 996 (1979) 392 Kennedy v. Sampson, 511 F.2d 430, 435–436 (D.C.Cir. 1974). See Harrington v. Bush, 553 F.2d 190, 199 n. 41 (D.C.Cir. 1977). Harrington found no standing in a Member’s suit challenging CIA failure to report certain actions to Congress, in order that Members could intelligently vote on certain issues. See also Reuss v. Balles, 584 F.2d 461 (D.C.Cir.), cert. den., 439 U.S. 997 (1978). 393 Goldwater v. Carter, 617 F.2d 697, 702, 703 (D.C.Cir.) (en banc), vacated and remanded with instructions to dismiss, 444 U.S. 996 (1979). The failure of the Jus- It seems clear that a legislator ‘‘receives no special consideration in the standing inquiry,’’ 389 and that he, along with every other per- son attempting to invoke the aid of a federal court, must show ‘‘in- jury in fact’’ as a predicate to standing. What that injury in fact may consist of, however, is the basis of the controversy. A suit by Members for an injunction against continued pros- ecution of the Indochina war was held maintainable on the theory that if the court found the President’s actions to be beyond his con- stitutional authority, the holding would have a distinct and signifi- cant bearing upon the Members’ duties to vote appropriations and other supportive legislation and to consider impeachment. 390 The breadth of this rationale was disapproved in subsequent cases. The leading decision is Kennedy v. Sampson, 391 in which a Member was held to have standing to contest the alleged improper use of a pocket veto to prevent from becoming law a bill the Senator had voted for. Thus, Congressmen were held to have a derivative rather than direct interest in protecting their votes, which was sufficient for standing purposes, when some ‘‘legislative disenfranchisement’’ occurred. 392 In a comprehensive assessment of its position, the Cir- cuit distinguished between (1) a diminution in congressional influ- ence resulting from executive action that nullifies a specific con- gressional vote or opportunity to vote in an objectively verifiable manner, which will constitute injury in fact, and (2) a diminution in a legislator’s effectiveness, subjectively judged by him, resulting from executive action, such a failing to obey a statute, where the plaintiff legislator has power to act through the legislative process, in which injury in fact does not exist. 393 Having thus established 668 ART. III—JUDICIAL DEPARTMENT Sec. 2—Jurisdiction Cl. 1—Cases and Controversies tices to remark on standing is somewhat puzzling, since it has been stated that courts ‘‘turn initially, although not invariably, to the question of standing to sue.’’ Schlesinger v. Reservists Com. to Stop the War, 418 U.S. 208, 215 (1974). But see Harrington v. Bush, 553 F.2d 190, 207 (D.C.Cir. 1977). In any event, the Supreme Court’s decision vacating Goldwater deprives the Circuit’s language of precedential effect. United States v. Munsingwear, 340 U.S. 36, 39–40 (1950); O’Connor v. Don- aldson, 422 U.S. 563, 577 n. 12 (1975). 394 Riegle v. FOMC, 656 F.2d 873 (D.C.Cir.), cert. den., 454 U.S. 1082 (1981). 395 Assn. of Data Processing Service Org. v. Camp, 397 U.S. 150, 151–152 (1970), citing Flast v. Cohen, 392 U.S. 83, 101 (1968). ‘‘But where a dispute is other- wise justiciable, the question whether the litigant is a ‘proper party to request an adjudication of a particular issue,’ [quoting Flast, supra, 100], is one within the power of Congress to determine.’’ Sierra Club v. Morton, 405 U.S. 727, 732 n. 3 (1972). 396 Tennessee Power Co. v. TVA, 306 U.S. 118, 137–138 (1939). See also Ala- bama Power Co. v. Ickes, 302 U.S. 464 (1938); Perkins v. Lukens Steel Co., 310 U.S. 113 (1940). 397 Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 152 (1951) (Justice Frankfurter concurring). This was apparently the point of the definition of ‘‘legal right’’ as ‘‘one of property, one arising out of contract, one protected against tortious invasion, or one founded on a statute which confers a privilege.’’ Tennessee Power Co. v. TVA, 306 U.S. 118, 137–138 (1939). 398 Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 152 (1951) (Justice Frankfurter concurring). The Court approached this concept in two inter- related ways. (1) It might be that a plaintiff had an interest that it was one of the purposes of the statute in question to protect in some degree. Chicago Junction Case, 264 U.S. 258 (1924); Alexander Sprunt & Son v. United States, 281 U.S. 249 (1930); Alton R.R. v. United States, 315 U.S. 15 (1942). Thus, in Hardin v. Kentucky a fairly broad concept of Member standing, the Circuit then pro- ceeded to curtail it by holding that the equitable discretion of the court to deny relief should be exercised in many cases in which a Member had standing but in which issues of separation of powers, political questions, and other justiciability considerations counseled restraint. 394 The status of this issue thus remains in confusion. Standing to Challenge Nonconstitutional Governmental Action.—Standing in this sense has a constitutional content to the degree that Article III requires a ‘‘case’’ or ‘‘controversy,’’ neces- sitating a litigant who has sustained or will sustain an injury so that he will be moved to present the issue ‘‘in an adversary context and in a form historically viewed as capable of judicial resolu- tion.’’ 395 Liberalization of the law of standing in this field has been notable. The ‘‘old law’’ required that in order to sue to contest the lawfulness of agency administrative action, one must have suffered a ‘‘legal wrong,’’ that is, ‘‘the right invaded must be a legal right,’’ 396 requiring some resolution of the merits preliminarily. An injury-in-fact was insufficient. A ‘‘legal right’’ could be established in one of two ways. It could be a common-law right, such that if the injury were administered by a private party, one could sue on it; 397 or it could be a right created by the Constitution or a statute. 398 The statutory right 669ART. III—JUDICIAL DEPARTMENT Sec. 2—Jurisdiction Cl. 1—Cases and Controversies Utilities Co., 390 U.S. 1 (1968), a private utility was held to have standing to con- test allegedly illegal competition by TVA on the ground that the statute was meant to give private utilities some protection from certain forms of TVA competition. (2) It might be that a plaintiff was a ‘‘person aggrieved’’ within the terms of a judicial review section of an administrative or regulatory statute. Injury to an economic in- terest was sufficient to ‘‘aggrieve’’ a litigant. FCC v. Sanders Brothers Radio Station, 309 U.S. 470 (1940); Associated Industries v. Ickes, 134 F.2d 694 (2d Cir.), cert. dismd. as moot, 320 U.S. 707 (1943). 399 5 U.S.C. § 702. See also 47 U.S.C. § 202(b)(6)(FCC); 15 U.S.C. § 77i(a) (SEC); 16 U.S.C. § 825a(b)(FPC). 400 FCC v. Sanders Brothers Radio Station, 309 U.S. 470, 477 (1940); City of Chicago v. Atchison, T. & S.F.R. Co., 357 U.S. 77, 83 (1958); Hardin v. Kentucky Utilities Co., 390 U.S. 1, 7 (1968). 401 Assn. of Data Processing Service Org. v. Camp, 397 U.S. 150 (1970); Barlow v. Collins, 397 U.S. 159 (1970). Justices Brennan and White argued that only injury- in-fact should be requisite for standing. Id., 167. In Clarke v. Securities Industry Assn., 479 U.S. 388 (1987), the Court applied a liberalized zone-of-interest test. But see Lujan v. National Wildlife Federation, 497 U.S. 871, 885–889 (1990); Air Courier Conference v. American Postal Workers Union, 498 U.S. 517 (1991). In applying these standards, the Court, once it determined that the litigant’s interests were ‘‘ar- guably protected’’ by the statute in question, proceeded to the merits without there- after pausing to inquire whether in fact the interests asserted were among those protected. Arnold Tours v. Camp, 400 U.S. 45 (1970); Investment Company Institute v. Camp, 401 U.S. 617 (1971); Boston Stock Exchange v. State Tax Comm., 429 U.S. 318, 320 n. 3 (1977). Almost contemporaneously, the Court also liberalized the ripe- ness requirement in review of administrative actions. Gardner v. Toilet Goods Assn., 387 U.S. 167 (1967); Abbott Laboratories v. Gardner, 387 U.S. 136 (1967). 402 Assn. of Data Processing Service Org. v. Camp, 397 U.S. 150, 154 (1970). most relied on was the judicial review section of the Administrative Procedure Act, which provided that ‘‘[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is enti- tled to judicial review thereof.’’ 399 Early decisions under this stat- ute interpreted the language as adopting the ‘‘legal interest’’ and ‘‘legal wrong’’ standard then prevailing as constitutional require- ments of standing, which generally had the effect of limiting the type of injury cognizable in federal court to economic ones. 400 More recently, however, the Court promulgated a two-pronged standing test: if the litigant (1) has suffered injury-in-fact and if he (2) shows that the interest he seeks to protect is arguably within the zone of interests to be protected or regulated by the statutory guarantee in question, he has standing. 401 Of even greater impor- tance was the expansion of the nature of the injury required be- yond economic injury, which followed logically to some extent from the revision of the standard, to encompass ‘‘aesthetic, conserva- tional, and recreational’’ interests as well. 402 ‘‘Aesthetic and envi- ronmental well-being, like economic well-being, are important in- gredients of the quality of life in our society, and the fact that par- ticular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection 672 ART. III—JUDICIAL DEPARTMENT Sec. 2—Jurisdiction Cl. 1—Cases and Controversies 414 1 C. WARREN, op. cit., n. 18, 108–111. The full text of the exchange appears in 3 CORRESPONDENCE AND PUBLIC PAPERS OF JOHN JAY, H. Johnston ed. (New York: 1893), 486–489. 415 Id., 488. 416 Chicago & S. Air Lines v. Waterman Steamship Corp., 333 U.S. 103, 113 (1948). 417 See supra, p. 599 n. 21. 418 1 C. WARREN, op. cit., n. 18, 595–597. 419 Hearings Before the Senate Judiciary Committee on S. 1392, Reorganization of the Judiciary, 75th Congress, 1st sess. (1937), pt. 3, 491. See also Chief Justice Taney’s private advisory opinion to the Secretary of the Treasury that a tax levied on the salaries of federal judges violated the Constitution. S. TYLER, MEMOIRS OF ROGER B. TANEY (Baltimore: 1876), 432–435. 420 E.g., Acheson, Removing the Shadow Cast on the Courts, 55 A.B.A.J. 919 (1969); Jaffe, Professors and Judges as Advisors to Government: Reflections on the Roosevelt-Frankfurter Relationship, 83 Harv. L. Rev. 366 (1969). The issue has late- ly earned the attention of the Supreme Court, Mistretta v. United States, 488 U.S. 361, 397–408 (1989) (citing examples and detailed secondary sources), when it upheld the congressionally-authorized service of federal judges on the Sentencing Commission. the wars of the French Revolution. 414 Noting the constitutional separation of powers and functions in his reply, Chief Justice Jay said: ‘‘These being in certain respects checks upon each other, and our being Judges of a Court in the last resort, are considerations which afford strong arguments against the propriety of our extra- judicially deciding the questions alluded to, especially as the power given by the Constitution to the President, of calling on the heads of departments for opinions, seem to have been purposely as well as expressly united to the Executive departments.’’ 415 Although the Court has generally adhered to its refusal, Justice Jackson was not quite correct when he termed the policy a ‘‘firm and unvarying practice. . . .’’ 416 The Justices in response to a letter calling for suggestions on improvements in the operation of the courts drafted a letter suggesting that circuit duty for the Justices was unconsti- tutional, but they apparently never sent it; 417 Justice Johnson communicated to President Monroe, apparently with the knowledge and approval of the other Justices, the views of the Justices on the constitutionality of internal improvements legislation; 418 and Chief Justice Hughes in a letter to Senator Wheeler on President Roo- sevelt’s Court Plan questioned the constitutionality of a proposal to increase the membership and have the Court sit in divisions. 419 Other Justices have individually served as advisers and confidants of Presidents in one degree or another. 420 Nonetheless, the Court has generally adhered to the early precedent and would no doubt have developed the rule in any event, as a logical application of the case and controversy doctrine. As stated by Justice Jackson, when the Court refused to review an order of the Civil Aeronautics Board, which in effect was a mere 673ART. III—JUDICIAL DEPARTMENT Sec. 2—Jurisdiction Cl. 1—Cases and Controversies 421 Chicago & S. Air Lines v. Waterman Steamship Corp., 333 U.S. 103, 113– 114 (1948). 422 Muskrat v. United States, 219 U.S. 346 (1911). 423 United States v. Ferreira, 13 How. (54 U.S.) 40 (1852). 424 United Public Workers v. Mitchell, 330 U.S. 75 (1947). 425 Cf. Willing v. Chicago Auditorium Assn., 277 U.S. 274 (1928). 426 Fidelity National Bank & Trust Co. v. Swope, 274 U.S. 123 (1927); Nashville, C. & St. L. Ry. v. Wallace, 288 U.S. 249 (1963). 427 48 Stat. 955, as amended, 28 U.S.C. §§ 2201–2202. 428 Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937). 429 H. Rept. No. 1264, 73d Congress, 2d sess. (1934), 2. recommendation to the President for his final action: ‘‘To revise or review an administrative decision which has only the force of a rec- ommendation to the President would be to render an advisory opin- ion in its most obnoxious form—advice that the President has not asked, tendered at the demand of a private litigant, on a subject concededly within the President’s exclusive, ultimate control. This Court early and wisely determined that it would not give advisory opinions even when asked by the Chief Executive. It has also been the firm and unvarying practice of Constitutional Courts to render no judgments not binding and conclusive on the parties and none that are subject to later review or alteration by administrative ac- tion.’’ 421 The early refusal of the Court to render advisory opinions has discouraged direct requests for advice so that the advisory opinion has appeared only collaterally in cases where there was a lack of adverse parties, 422 or where the judgment of the Court was subject to later review or action by the executive or legislative branches of Government, 423 or where the issues involved were ab- stract or contingent. 424 Declaratory Judgments.—Rigid emphasis upon such ele- ments of judicial power as finality of judgment and award of execu- tion coupled with equally rigid emphasis upon adverse parties and real interests as essential elements of a case and controversy cre- ated serious doubts about the validity of any federal declaratory judgment procedure. 425 These doubts were largely dispelled by Court decisions in the late 1920s and early 1930s, 426 and Congress quickly responded with the Federal Declaratory Judgment Act of 1934. 427 Quickly tested, the Act was unanimously sustained. 428 ‘‘The principle involved in this form of procedure,’’ the House Re- port said, ‘‘is to confer upon the courts the power to exercise in some instances preventive relief; a function now performed rather clumsily by our equitable proceedings and inadequately by the law courts.’’ 429 Said the Senate Report: ‘‘The declaratory judgment dif- fers in no essential respect from any other judgment except that it is not followed by a decree for damages, injunction, specific per- formance, or other immediately coercive decree. It declares conclu- 674 ART. III—JUDICIAL DEPARTMENT Sec. 2—Jurisdiction Cl. 1—Cases and Controversies 430 S. Rept. No. 1005, 73d Congress, 2d sess. (1934), 2. 431 48 Stat. 955. The language remains quite similar. 28 U.S.C. § 2201. 432 Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239–240 (1937), 433 Id., 242–244. 434 Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 461 (1945). 435 Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941). 436 Brillhart v. Excess Ins. Co. of America, 316 U.S. 491, 494 (1942); Public Service Comm. v. Wycoff Co., 344 U.S. 237, 243 (1952); Public Affairs Associates v. Rickover, 369 U.S. 111, 112 (1962). sively and finally the rights of parties in litigations over a con- tested issue, a form of relief which often suffices to settle controver- sies and fully administer justice.’’ 430 The 1934 Act provided that ‘‘[i]n cases of actual controversy’’ federal courts could ‘‘declare rights and other legal relations of any interested party petitioning for such declaration, whether or not further relief is or could be prayed. . . .’’ 431 Upholding the Act, the Court said: ‘‘The Declaratory Judgment Act of 1934, in its limita- tion to ‘cases of actual controversy,’ manifestly has regard to the constitutional provision and is operative only in respect to con- troversies which are such in the constitutional sense. The word ‘ac- tual’ is one of emphasis rather than of definition. Thus the oper- ation of the Declaratory Judgment Act is procedural only. In pro- viding remedies and defining procedure in relation to cases and controversies in the constitutional sense the Congress is acting within its delegated power over the jurisdiction of the federal courts which the Congress is authorized to establish.’’ 432 Finding that the issue in the case presented a definite and concrete con- troversy, the Court held that a declaration should have been is- sued. 433 It has insistently been maintained by the Court that ‘‘the re- quirements for a justiciable case or controversy are no less strict in a declaratory judgment proceeding than in any other type of suit.’’ 434 As Justice Douglas has written: ‘‘The difference between an abstract question and a ‘controversy’ contemplated by the De- claratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for de- termining in every case whether there is such a controversy. Basi- cally, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient imme- diacy and reality to warrant the issuance of a declaratory judg- ment.’’ 435 It remains, therefore, for the courts to determine in each case the degree of controversy necessary to establish a case for pur- poses of jurisdiction. Even then, however, the Court is under no compulsion to exercise its jurisdiction. 436 677ART. III—JUDICIAL DEPARTMENT Sec. 2—Jurisdiction Cl. 1—Cases and Controversies 450 Regional Rail Reorganization Act Cases, 419 U.S. 102, 138–148 (1974) (cer- tainty of injury a constitutional limitation, factual adequacy element a prudential one). 451 Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 81– 82 (1978) (that plaintiffs suffer injury-in-fact and such injury would be redressed by granting requested relief satisfies Article III ripeness requirement; prudential ele- ment satisfied by determination that Court would not be better prepared to render a decision later than now). But compare Renne v. Geary, 501 U.S. 312 (1991). 452 330 U.S. 75 (1947). 453 Id., 90. In CSC v. National Assn. of Letter Carriers, 413 U.S. 548 (1973), without discussing ripeness, the Court decided on the merits anticipatory attacks on the Hatch Act. Plaintiffs had, however, alleged a variety of more concrete in- fringements upon their desires and intentions than the UPW plaintiffs had. 454 International Longshoremen’s Union v. Boyd, 347 U.S. 222 (1954). See also Electric Bond & Share Co. v. SEC, 303 U.S. 419 (1938); Alabama State Federation of Labor v. McAdory, 325 U.S. 450 (1945); Public Service Comm. v. Wycoff Co., 344 U.S. 237 (1952); Socialist Labor Party v. Gilligan, 406 U.S. 583 (1972). 455 In Adler v. Board of Education, 342 U.S. 485 (1952), without discussing ripe- ness, the Court decided on the merits a suit about a state law requiring dismissal of teachers advocating violent overthrow of the government, over a strong dissent arguing the case was indistinguishable from Mitchell. Id., 504 (Justice Frankfurter dissenting). In Cramp v. Board of Public Instruction, 368 U.S. 278 (1961), a state divided it into constitutional and prudential parts 450 and conflated standing and ripeness considerations. 451 The early cases generally required potential plaintiffs to expose themselves to possibly irreparable injury in order to invoke federal judicial review. Thus, in United Public Workers v. Mitchell, 452 gov- ernment employees alleged that they wished to engage in various political activities and that they were deterred from their desires by the Hatch Act prohibitions on political activities. As to all but one plaintiff, who had himself actually engaged in forbidden activ- ity, the Court held itself unable to adjudicate because the plaintiffs were not threatened with ‘‘actual interference’’ with their interests. The Justices viewed the threat to plaintiffs’ rights as hypothetical and refused to speculate about the kinds of political activity they might engage in or the Government’s response to it. ‘‘No threat of interference by the Commission with rights of these appellants ap- pears beyond that implied by the existence of the law and the regu- lations.’’ 453 Similarly, resident aliens planning to work in the Ter- ritory of Alaska for the summer and then return to the United States were denied a request for an interpretation of the immigra- tion laws that they would not be treated on their return as exclud- able aliens entering the United States for the first time, or alter- natively, for a ruling that the laws so interpreted would be uncon- stitutional, inasmuch as they had not gone and attempted to re- turn, although other alien workers had gone and been denied re- entry and the immigration authorities were on record as intending to enforce the laws as they construed them. 454 Of course, the Court was not entirely consistent in applying the doctrine. 455 678 ART. III—JUDICIAL DEPARTMENT Sec. 2—Jurisdiction Cl. 1—Cases and Controversies employee was permitted to attack a non-Communist oath, although he alleged he believed he could take the oath in good faith and could prevail if prosecuted, be- cause the oath was so vague as to subject plaintiff to the ‘‘risk of unfair prosecution and the potential deterrence of constitutionally protected conduct.’’ Id., 283–284. See also Baggett v. Bullitt, 377 U.S. 360 (1964); Keyishian v. Board of Regents, 385 U.S. 589 (1967). 456 E.g., Poe v. Ullman, 367 U.S. 497 (1961) (no adjudication of challenge to law barring use of contraceptives because in 80 years of the statute’s existence the State had never instituted a prosecution). But compare Epperson v. Arkansas, 393 U.S. 97 (1987) (merits reached in absence of enforcement and fair indication State would not enforce it); Vance v. Amusement Co., 445 U.S. 308 (1980) (reaching merits, al- though State asserted law would not be used, although local prosecutor had so threatened; no discussion of ripeness, but dissent relied on Poe, id., 317–318). 457 E.g., Younger v. Harris, 401 U.S. 37, 41–42 (1971); Boyle v. Landry, 401 U.S. 77 (1971); Golden v. Zwickler, 394 U.S. 103 (1969); O’Shea v. Littleton, 414 U.S. 488 (1974); Spomer v. Littleton, 414 U.S. 514 (1974); Rizzo v. Goode, 423 U.S. 362 (1976). 458 E.g., California Bankers Assn. v. Schultz, 416 U.S. 21 (1974); Hodel v. Vir- ginia Surface Mining & Reclamation Assn., 452 U.S. 264, 294–297 (1981); Renne v. Geary, 501 U.S. 312, 320–323 (1991). 459 Steffel v. Thompson, 415 U.S. 452 (1974); Wooley v. Maynard, 430 U.S. 705, 707–708, 710 (1977); Babbitt v. United Farm Workers, 442 U.S. 289, 297–305 (1979) (finding some claims ripe, others not). Compare Doe v. Bolton, 410 U.S. 179, 188– 189 (1973), with Roe v. Wade, 410 U.S. 113, 127–128 (1973). See also Planned Par- enthood v. Danforth, 428 U.S. 52 (1976); Colautti v. Franklin, 439 U.S. 379 (1979). 460 Buckley v. Valeo, 424 U.S. 1, 113–118 (1976); Regional Rail Reorganization Act Cases, 419 U.S. 102, 138–148 (1974) (holding some but not all the claims ripe). See also Goldwater v. Carter, 444 U.S. 996, 997 (Justice Powell concurring) (parties had not put themselves in opposition). It remains good general law that pre-enforcement challenges to criminal and regulatory legislation will often be unripe for judicial consideration because of uncertainty of enforcement, 456 because the plaintiffs can allege only a subjective feeling of inhibition or fear arising from the legislation or from enforcement of it, 457 or be- cause the courts need before them the details of a concrete factual situation arising from enforcement in order to engage in a reasoned balancing of individual rights and governmental interests. 458 But one who challenges a statute or possible administrative action need demonstrate only a realistic danger of sustaining an injury to his rights as a result of the statute’s operation and enforcement and need not await the consummation of the threatened injury in order to obtain preventive relief, such as exposing himself to actual ar- rest or prosecution. When one alleges an intention to engage in conduct arguably affected with a constitutional interest but pro- scribed by statute and there exists a credible threat of prosecution thereunder, he may bring an action for declaratory or injunctive re- lief. 459 Similarly, the reasonable certainty of the occurrence of the perceived threat to a constitutional interest is sufficient to afford a basis for bringing a challenge, provided the court has sufficient facts before it to enable it to intelligently adjudicate the issues. 460 Of considerable uncertainty in the law of ripeness is the Duke 679ART. III—JUDICIAL DEPARTMENT Sec. 2—Jurisdiction Cl. 1—Cases and Controversies 461 Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 81– 82 (1978). The injury giving standing to plaintiffs was the environmental harm aris- ing from the plant’s routine operation; the injury to their legal rights was alleged to be the harm caused by the limitation of liability in the event of a nuclear acci- dent. The standing injury had occurred, the ripeness injury was conjectural and speculative and might never occur. See id., 102 (Justice Stevens concurring in the result). It is evident on the face of the opinion and expressly stated by the objecting Justices that the Court utilized its standing/ripeness analyses in order to reach the merits, so as to remove the constitutional cloud cast upon the federal law by the district court decision. Id., 95, 103 (Justices Rehnquist and Stevens concurring in the result). 462 E.g., United States v. Munsingwear, 340 U.S. 36 (1950); Golden v. Zwickler, 394 U.S. 103, 108 (1969); SEC v. Medical Committee for Human Rights, 404 U.S. 403 (1972); Roe v. Wade, 410 U.S. 113, 125 (1973); Sosna v. Iowa, 419 U.S. 393, 398–399 (1975); United States Parole Comm. v. Geraghty, 445 U.S. 388, 397 (1980), and id., 411 (Justice Powell dissenting); Burke v. Barnes, 479 U.S. 361, 363 (1987); Honig v. Doe, 484 U.S. 305, 317 (1988); Lewis v. Continental Bank Corp., 494 U.S. 472, 477–478 (1990). 463 Lewis v. Continental Bank Corp., 494 U.S. 472,477–478 (1990) (internal cita- tions omitted). The Court’s emphasis upon mootness as a constitutional rule man- dated by Article III is long stated in the cases. E.g., Liner v. Jafco, 375 U.S. 301, 306 n. 3 (1964); DeFunis v. Odegaard, 416 U.S. 312, 316 (1974); Sibron v. New York, Power case in which the Court held ripe for decision on the merits a challenge to a federal law limiting liability for nuclear accidents at nuclear power plants, on the basis that because plaintiffs had sustained injury-in-fact and had standing the Article III requisite of ripeness was satisfied and no additional facts arising out of the occurrence of the claimed harm would enable the court better to de- cide the issues. 461 Should this analysis prevail, ripeness as a limi- tation on justiciability will decline in importance. Mootness.—It may be that a case presenting all the attributes necessary for federal court litigation will at some point lose some attribute of justiciability, will, in other words, become ‘‘moot.’’ The usual rule is that an actual controversy must exist at all stages of trial and appellate consideration and not simply at the date the ac- tion is initiated. 462 ‘‘Under Article III of the Constitution, federal courts may adjudicate only actual, ongoing cases or controversies. . . . Article III denies federal courts the power ‘to decide questions that cannot affect the rights of litigants in the case before them, . . . and confines them to resolving ‘real and substantial controvers[ies] admitting of specific relief through a decree of a con- clusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.’ . . . This case- or-controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate. To sustain our jurisdiction in the present case, it is not enough that a dispute was very much alive when suit was filed, or when review was obtained in the Court of Appeals. . . . The parties must continue to have a ‘per- sonal stake in the outcome’ of the lawsuit.’’ 463 Since, with the ad- 682 ART. III—JUDICIAL DEPARTMENT Sec. 2—Jurisdiction Cl. 1—Cases and Controversies 476 Weinstein v. Bradford, 423 U.S. 147, 149 (1975); Murphy v. Hunt, 455 U.S. 478, 482 (1982). See Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 125– 126 (1974), and id., 130–132 (Justice Powell dissenting). The degree of expectation or likelihood that the issue will recur has frequently divided the Court. Compare Murphy v. Hunt, supra, with Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976); compare Honig v. Doe, 484 U.S. 305, 318–323 (1988), with id., 332 (Justice Scalia dissenting). 477 Sibron v. New York, 392 U.S. 40, 49–58 (1968). See Gerstein v. Pugh, 420 U.S. 103 (1975). 478 Carroll v. President & Comrs. of Princess Anne, 393 U.S. 175 (1968). See Ne- braska Press Assn. v. Stuart, 427 U.S. 539 (1976) (short-term court order restricting press coverage). 479 E.g., Moore v. Ogilvie, 394 U.S. 814, 816 (1969); Rosario v. Rockefeller, 410 U.S. 752, 756 n. 5 (1973); Storer v. Brown, 415 U.S. 724, 737 n. 8 (1974). Compare Mills v. Green, 159 U.S. 651 (1895); Ray v. Blair, 343 U.S. 154 (1952). 480 Roe v. Wade, 410 U.S. 113, 124–125 (1973). 481 Sosna v. Iowa, 419 U.S. 393 (1975); Franks v. Bowman Transp. Co., 424 U.S. 747, 752–757 (1976). A suit which proceeds as a class action but without formal cer- tification may not receive the benefits of this rule. Board of School Comrs. v. Jacobs, 420 U.S. 128 (1975). See also Weinstein v. Bradford, 423 U.S. 147 (1975); Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 430 (1976). But see the characterization of these cases in United States Parole Comm. v. Geraghty, 445 U.S. 388, 400 n. 7 (1980). Mootness is not necessarily avoided in properly certified cases, but the standards of determination are unclear. See Kremens v. Bartley, 431 U.S. 119 (1977). 482 United States Parole Comm. v. Geraghty, 445 U.S. 388, 396 (1980). complaining party would be subjected to the same action again, mootness will not be found when the complained-of conduct ends. 476 The imposition of short sentences in criminal cases, 477 the issuance of injunctions to expire in a brief period, 478 and the short- term factual context of certain events, such as elections 479 or preg- nancies, 480 are all instances in which this exception is frequently invoked. An interesting and potentially significant liberalization of the law of mootness, perhaps as part of a continuing circumstances ex- ception, is occurring in the context of class action litigation. It is now clearly established that, when the controversy becomes moot as to the plaintiff in a certified class action, it still remains alive for the class he represents so long as an adversary relationship suf- ficient to constitute a live controversy between the class members and the other party exists. 481 The Court was closely divided, how- ever, with respect to the right of the named party, when the sub- stantive controversy became moot as to him, to appeal as error the denial of a motion to certify the class which he sought to represent and which he still sought to represent. The Court held that in the class action setting there are two aspects of the Article III mootness question, the existence of a live controversy and the exist- ence of a personal stake in the outcome for the named class rep- resentative. 482 Finding a live controversy, the Court determined that the named plaintiff retained a sufficient interest, ‘‘a personal 683ART. III—JUDICIAL DEPARTMENT Sec. 2—Jurisdiction Cl. 1—Cases and Controversies 483 Id., 403. Justices Powell, Stewart, Rehnquist, and Chief Justice Burger dis- sented, Id., 409, arguing there could be no Article III personal stake in a procedural decision separate from the outcome of the case. In Deposit Guaranty National Bank v. Roper, 445 U.S. 326 (1980), in an opinion by Chief Justice Burger, the Court held that a class action was not mooted when defendant tendered to the named plaintiffs the full amount of recovery they had individually asked for and could hope to retain. Plaintiffs’ interest in shifting part of the share of costs of litigation to those who would share in its benefits if the class were certified was deemed to be a sufficient ‘‘personal stake,’’ although the value of this interest was at best speculative. 484 The named plaintiff must still satisfy the class action requirement of ade- quacy of representation. United States Parole Comm. v. Geraghty, 445 U.S. 388, 405–407 (1980). On the implications of Geraghty, which the Court has not returned to, see HART & WECHSLER, op. cit., n. 250, 225–230. 485 Geraghty, supra, 445 U.S., 404 and n. 11. 486 Id., 419–424 (Justice Powell dissenting). 487 For a masterful discussion of the issue in both criminal and civil contexts, see Fallon & Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 Harv. L. Rev. 1731 (1991). 488 Stovall v. Denno, 388 U.S. 293, 301 (1967). stake,’’ in his claimed right to represent the class in order to satisfy the ‘‘imperatives of a dispute capable of judicial resolution;’’ that is, his continuing interest adequately assures that ‘‘sharply presented issues’’ are placed before the court ‘‘in a concrete factual setting’’ with ‘‘self-interested parties vigorously advocating opposing posi- tions.’’ 483 The immediate effect of the decision is that litigation in which class actions are properly certified or in which they should have been certified will rarely ever be mooted if the named plaintiff (or in effect his attorney) chooses to pursue the matter, even though the named plaintiff can no longer obtain any personal relief from the decision sought. 484 Of much greater potential significance is the possible extension of the weakening of the ‘‘personal stake’’ re- quirement in other areas, such as the representation of third-party claims in non-class actions and the initiation of some litigation in the form of a ‘‘private attorneys general’’ pursuit of adjudication. 485 It may be that the evolution in this area will be confined to the class action context, but cabining of a ‘‘flexible’’ doctrine of standing may be difficult. 486 Retroactivity Versus Prospectivity.—One of the distinguish- ing features of an advisory opinion is that it lays down a rule to be applied to future cases, much as does legislation generally. It should therefore follow that an Article III court could not decide purely prospective cases, cases which do not govern the rights and disabilities of the parties to the cases. 487 The Court asserted that this principle is true, while applying it only to give retroactive ef- fect to the parties to the immediate case. 488 Yet, occasionally, the 684 ART. III—JUDICIAL DEPARTMENT Sec. 2—Jurisdiction Cl. 1—Cases and Controversies 489 England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 422 (1964); James v. United States, 366 U.S. 213 (1961). See also Morrissey v. Brewer, 408 U.S. 471, 490 (1972). 490 Noncriminal constitutional cases included Lemon v. Kurtzman, 411 U.S. 192 (1973); City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970); Cipriano v. City of Houma, 395 U.S. 701 (1969). Indeed, in Buckley v. Valeo, 424 U.S. 1 (1976), and Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982), the Court postponed the effectiveness of its decision for a period during which Congress could repair the flaws in the statute. Noncriminal, nonconstitutional cases include Chevron Oil Co. v. Huson, 404 U.S. 97 (1971); Allen v. State Board of Elections, 393 U.S. 544 (1969); Hanover Shoe v. United Shoe Machinery Corp., 392 U.S. 481 (1968); Simpson v. Union Oil Co., 377 U.S. 13 (1964). 491 Because of shifting coalitions of Justices, Justice Harlan complained, the course of retroactivity decisions ‘‘became almost as difficult to follow as the tracks made by a beast of prey in search of its intended victim.’’ Mackey v. United States, 401 U.S. 667, 676 (1971) (separate opinion). 492 Robinson v. Neil, 409 U.S. 505, 507 (1973). The older rule of retroactivity de- rived from the Blackstonian notion ‘‘that the duty of the court was not to ‘pronounce a new law, but to maintain and expound the old one.’ ’’ Linkletter v. Walker, 381 U.S. 618, 622–623 (1965) (quoting 1 W. BLACKSTONE, COMMENTARIES *69). 493 Lemon v. Kurtzman, 411 U.S. 192, 198–199 (1973). 494 Linkletter v. Walker, 381 U.S. 618 (1965); Tehan v. United States ex rel. Shott, 382 U.S. 406 (1966). Court did not apply its holding to the parties before it, 489 and in a series of cases beginning in the mid-1960s it became embroiled in attempts to limit the retroactive effect of its—primarily but not exclusively 490—constitutional-criminal law decisions. The results have been confusing and unpredictable. 491 Prior to 1965, ‘‘both the common law and our own decisions recognized a general rule of retrospective effect for the constitu- tional decisions of this Court . . . subject to [certain] limited excep- tions.’’ 492 Statutory and judge-made law have consequences, at least to the extent that people must rely on them in making deci- sions and shaping their conduct. Therefore, the Court was moved to recognize that there should be a reconciling of constitutional in- terests reflected in a new rule of law with reliance interests found- ed upon the old. 493 In both criminal and civil cases, however, the Court’s discretion to do so has been constrained by later decisions. When in the 1960s the Court began its expansion of the Bill of Rights and applied the rulings to the States, a necessity arose to determine the application of the rulings to criminal defendants who had exhausted all direct appeals but who could still resort to habeas corpus, to those who had been convicted but still were on direct appeal, and to those who had allegedly engaged in conduct but who had not gone to trial. At first, the Court drew the line at cases in which judgments of conviction were not yet final, so that all persons in those situations obtained retrospective use of deci- sions, 494 but the Court then promulgated standards for a balancing process that resulted in different degrees of retroactivity in dif- 687ART. III—JUDICIAL DEPARTMENT Sec. 2—Jurisdiction Cl. 1—Cases and Controversies 507 Beam, supra. The holding described in the text is expressly that of only a two-Justice plurality. Id., 501 U.S., 534–544 (Justices Souter and Stevens). Justice White, Justice Blackmun, and Justice Scalia (with Justice Marshall joining the lat- ter Justices) concurred, id., 544, 547, 548 (respectively), but on other, and in the in- stance of the three latter Justices, and broader justifications. Justices O’Connor and Kennedy and Chief Justice Rehnquist dissented. Id., 549. 508 Beam, supra, 501 U.S., 549 (dissenting opinion of Justices O’Connor and Kennedy and Chief Justice Rehnquist), and id., 544 (Justice White concurring). And see Smith, supra, 496 U.S., 171 (plurality opinion of Justices O’Connor, White, Ken- nedy, and Chief Justice Rehnquist). 509 Beam, supra, 501 U.S., 547, 548 (Justices Blackmun, Scalia, and Marshall concurring). These three Justices, in Smith, supra, 496 U.S., 205, had joined the dis- senting opinion of Justice Stevens arguing that constitutional decisions must be given retroactive effect. 510 Rescue Army v. Municipal Court, 331 U.S. 549, 570 (1947); cf. Baker v. Carr, 369 U.S. 186, 278 (1962) (Justice Frankfurter dissenting). The most successful effort at conceptualization of the doctrine is Scharpf, Judicial Review and the Political Question: A Functional Analysis, 75 Yale L.J. 517 (1966). See HART & WECHSLER, op. cit., n. 250, 270–294. 511 Frank, Political Questions, in E. CAHN (ed.), SUPREME COURT AND SUPREME LAW (Bloomington: 1954), 36. company and once a new rule has been applied retroactively to the litigants in a civil case considerations of equality and stare decisis compel application to all. 507 While partial or selective prospectivity is thus ruled out, neither pure retroactivity or pure prospectivity is either required or forbidden. Four Justices adhered to the principle that new law, new rules, as defined above, may be applied purely prospectively, without vio- lating any tenet of Article III or any other constitutional value. 508 Three Justices argued that all prospectivity, whether partial or total, violates Article III by expanding the jurisdiction of the fed- eral courts beyond true cases and controversies. 509 Future cases must, therefore, be awaited for resolution of this issue. Political Questions It may be that there will be a case assuredly within the Court’s jurisdiction presented by parties with standing in which adverse- ness and ripeness will exist, a case in other words presenting all the qualifications we have considered making it a justiciable con- troversy, which the Court will nonetheless refuse to adjudicate. The ‘‘label’’ for such a case is that it presents a ‘‘political question.’’ Al- though the Court has referred to the political question doctrine as ‘‘one of the rules basic of the federal system and this Court’s appro- priate place within that structure,’’ 510 a commentator has re- marked that ‘‘[i]t is, measured by any of the normal responsibilities of a phrase of definition, one of the least satisfactory terms known to the law. The origin, scope, and purpose of the concept have elud- ed all attempts at precise statements.’’ 511 That the concept of polit- ical questions may be ‘‘more amenable to description by infinite 688 ART. III—JUDICIAL DEPARTMENT Sec. 2—Jurisdiction Cl. 1—Cases and Controversies 512 Ibid. 513 Baker v. Carr, 369 U.S. 186, 208–232 (1962). 514 1 Cr. (5 U.S.) 137, 170 (1803). 515 In Decatur v. Paulding, 14 Pet. (39 U.S.) 497, 516 (1840), the Court, refusing an effort by mandamus to compel the Secretary of the Navy to pay a pension, said: ‘‘The interference of the courts with the performance of the ordinary duties of the executive departments of the government, would be productive of nothing but mis- chief; and we are quite satisfied, that such a power was never intended to be given to them.’’ It therefore follows that mandamus will lie against an executive official only to compel the performance of a ministerial duty, which admits of no discretion, and may not be invoked to control executive or political duties which admit of dis- cretion. See Georgia v. Stanton, 6 Wall. (73 U.S.) 50 (1867); Mississippi v. Johnson, 4 Wall. (71 U.S.) 475 (1867); Kendall v. United States ex rel. Stokes, 12 Pet. (37 U.S.) 524 (1838). 516 3 Dall. (3 U.S.) 199 (1796). 517 12 Wheat. (25 U.S.) 19 (1827). 518 7 How. (48 U.S.) 1 (1849). 519 Cf. Baker v. Carr, 369 U.S. 186, 218–222 (1962); id., 292–297 (Justice Frank- furter dissenting). 520 Luther v. Borden, 7 How. (48 U.S.) 1, 40 (1849). itemization than by generalization’’ 512 is generally true, although the Court’s development of rationale in Baker v. Carr 513 has changed this fact radically, but the doctrine may be approached in two ways, by itemization of the kinds of questions that have been labeled political and by isolation of the factors that have led to the labeling. Origins and Development.—In Marbury v. Madison, 514 Chief Justice Marshall stated: ‘‘The province of the court is, solely, to decide on the rights of individuals, not to inquire how the execu- tive, or executive officers, perform duties in which they have a dis- cretion. Questions in their nature political, or which are, by the constitution and laws, submitted to the executive can never be made in this court.’’ 515 But the doctrine was asserted even earlier as the Court in Ware v. Hylton 516 refused to pass on the question whether a treaty had been broken. And in Martin v. Mott, 517 the Court held that the President acting under congressional authorization had exclusive and unreviewable power to determine when the militia should be called out. But it was in Luther v. Borden 518 that the concept was first enunciated as a doctrine separate from considerations of inter- ference with executive functions. This case presented the question of the claims of two competing factions to be the only lawful gov- ernment of Rhode Island during a period of unrest in 1842. 519 Chief Justice Taney began by saying that the answer was primarily a matter of state law that had been decided in favor of one faction by the state courts. 520 Insofar as the Federal Constitution had anything to say on the subject, the Chief Justice continued, that was embodied in the 689ART. III—JUDICIAL DEPARTMENT Sec. 2—Jurisdiction Cl. 1—Cases and Controversies 521 Id., 42 (citing Article IV, § 4). 522 Ibid. 523 Ibid. 524 Id., 43. 525 Id., 44. clause empowering the United States to guarantee to every State a republican form of government, 521 and this clause committed de- termination of the issue to the political branches of the Federal Government. ‘‘Under this article of the Constitution it rests with Congress to decide what government is the established one in a State. For as the United States guarantee to each State a repub- lican government, Congress must neccessarily decide what govern- ment is established in the State before it can determine whether it is republican or not. And when the senators and representatives of a State are admitted into the councils of the Union, the author- ity of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribu- nal.’’ 522 Here, the contest had not proceeded to a point where Con- gress had made a decision, ‘‘[y]et the right to decide is placed there, and not in the courts.’’ 523 Moreover, in effectuating the provision in the same clause that the United States should protect them against domestic violence, Congress had vested discretion in the President to use troops to protect a state government upon the application of the legislature or the governor. Before he could act upon the application of a legis- lature or a governor, the President ‘‘must determine what body of men constitute the legislature, and who is the governor. . . .’’ No court could review the President’s exercise of discretion in this re- spect; no court could recognize as legitimate a group vying against the group recognized by the President as the lawful government. 524 Although the President had not actually called out the militia in Rhode Island, he had pledged support to one of the competing gov- ernments, and this pledge of military assistance if it were needed had in fact led to the capitulation of the other faction, thus making an effectual and authoritative determination not reviewable by the Court. 525 The Doctrine Before Baker v. Carr.—Over the years, the po- litical question doctrine has been applied to preclude adjudication of a variety of issues. Certain factors appear more or less consist- ently through most but not all of these cases, and it is perhaps best to indicate the cases and issues deemed political before attempting to isolate these factors.