Judicial Review (cont.); Advisory Opinions; Standing PDF

NOTE: JUDICIAL EXCLUSIVITY IN CONSTITUTIONAL INTERPRETATION? In Cooper v. Aaron, 358 U.S. 1 (1958), Arkansas had failed to comply with a district court order requiring desegregation. The school board’s petition for certiorari described the situation: “[the] legislative, executive, and judicial departments of the state government opposed the desegregation of Little Rock schools by enacting laws, calling out troops, making statements vilifying federal law and federal courts, and failing to utilize state law enforcement agencies and judicial processes to maintain public peace.” The state argued that desegregation would lead to undue violence and disorder and that those consequences justified disobedience of the decree. The Court rejected that argument on the ground that “law and order are not here to be preserved by depriving the Negro children of their constitutional rights.” But the Court went on to meet the view that “the Governor and Legislature [are] not bound by our holding in the Brown case”: Article VI of the Constitution makes the Constitution the “supreme Law of the Land.” In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as “the fundamental and paramount law of the nation,” declared in the notable case of Marbury v. Madison [that] “It is emphatically the province and duty of the judicial department to say what the law is.” This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3, “to support this Constitution.” Cooper might well be thought to go beyond Marbury. Marbury established that in the course of deciding cases, courts must look to the Constitution as an enforceable source of law. When there is a conflict between the Constitution and a statute, and when the conflict is relevant to the resolution of a justiciable controversy, the courts must allow the Constitution, as they interpret it, to prevail. But this principle might not establish any special judicial authority to interpret the Constitution. On one view, Marbury means only that every branch of government, acting within its sphere, is authorized to interpret the Constitution. Cooper v. Aaron suggests that the courts should see themselves as having been entrusted with a special and distinctive role as ultimate guardians of the meaning of the Constitution, and that other government officials must not interpret the Constitution for themselves but instead must look to the courts’ interpretation and take it as authoritative. The result would be that judicial rulings are authoritative, even if there is no decree against the relevant officials in a litigated case. Perhaps more generally such a view would suggest that Presidents, members of Congress, and others should not think independently about what the Constitution requires, but should instead ask how the Supreme Court would be likely to decide. If the passage from Cooper should be so understood, does it go too far in establishing “judicial supremacy”? What are the practical differences between Cooper and the narrower interpretation of Marbury? 1.The view from the presidency. Consider in this regard the responsibility of political actors, including most prominently the President, in circumstances in which (a) they believe that a statute is unconstitutional in the face of a court’s conclusion that it is constitutional, or in the expectation that the court will uphold it, and (b) they believe that the statute or measure is constitutional in the face of a judicial conclusion that it is unconstitutional, or in the expectation that the court will invalidate it. The two circumstances might seem very different. p. 41 Consider the view that in the first situation, political officials can legitimately make their own judgments about what the Constitution means, and act on the basis of those judgments. More particularly: Suppose that the Supreme Court has upheld or would uphold a statute that the President believes unconstitutional. (It might be an environmental statute, regulating private property owners and attacked as a “taking” of property, or it might be a restriction on commercial advertising, or it might be discrimination against transgender persons.) The Constitution imposes on all branches of government, not just the courts, a duty to comply with the Constitution. A necessary inference is that the President and members of Congress must make their own judgments on constitutional issues. This responsibility might seem especially insistent in light of the fact that moral issues frequently become constitutional issues. If the courts’ duty is exclusive, politics becomes drained of morality, and political actors will be making decisions on the basis of expediency alone. Thus, for example, if the President or a member of Congress believes that a statute is unconstitutional, he or she must ignore it, even if the Court would uphold it. The Constitution plainly speaks to all public officials, and it is simply too important to be left entirely to the justices. See the veto message of Andrew Jackson, 1832, on an act to recharter the Bank of the United States, 2 Messages and Papers of the Presidents 576, 581–582 (J. Richardson ed., 1900) (vetoing on constitutional grounds a measure that had been upheld by the Court: “[The] opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both”). In support of this general conclusion, consider the views expressed by Jefferson, Letter to Abigail Adams, Sept. 11, 1804, in 8 The Writings of Thomas Jefferson 310 (M. Ford ed., 1897): You seem to think it devolved on the judges to decide on the validity of the sedition law. But nothing in the Constitution has given them a right to decide for the Executive, any more than to the Executive to decide for them. Both magistracies are equally independent in the sphere of action assigned to them. The judges, believing the law constitutional, had a right to pass a sentence of fine and imprisonment, because that power was placed in their hands by the Constitution. But the Executive, believing the law to be unconstitutional, was bound to remit the execution of it; because that power has been confided to him by the Constitution. That instrument meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their sphere of action, but for the Legislature and Executive also, would make the judiciary a despotic branch. The second situation might be a lot harder. Suppose the President, or some other public official, believes that the Supreme Court has wrongly invalidated a statute. Examples include decisions invalidating laws restricting abortions, laws forbidding the President from engaging in certain actions designed to reduce the risk of a terrorist attack, or laws requiring states to recognize same-sex marriage. What is the President’s duty in the face of such laws? May he sign or propose legislation that would run afoul of the Court’s decision? May he attempt to get the Court to overrule its decision through such acts and through repetitive and insistent litigation? May he campaign against the Court? See Lincoln’s First Inaugural Address, Mar. 4, 1861, in 6 Messages and Papers of the Presidents 5 (J. Richardson ed., 1900): I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding, in any case, upon the parties to a suit, as to the object of that suit, while they are also entitled to a very high respect and consideration in all parallel cases by all other departments of the government. And, while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. p. 42 At the same time, the candid citizen must confess that if the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned the government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes. Other Presidents, including Franklin Roosevelt and Richard Nixon, have expressed similar views. Can this position be distinguished from the refusal of Governor Faubus of Arkansas to comply with the decision in Brown v. Board of Education? See if you can draw a distinction that does not speak of the moral or legal correctness of Brown. Consider the views of President Reagan’s Attorney General Edwin Meese in The Law of the Constitution, 61 Tul. L. Rev. 979 (1987): [There] is [a] necessary distinction between the Constitution and constitutional law. The two are not synonymous.... Obviously [a Supreme Court decision] does have binding quality: It binds the parties in a case and also the executive branch for whatever enforcement is necessary. But such a decision does not establish a “supreme Law of the Land” that is binding on all persons and parts of government, henceforth and forevermore.... To confuse the Constitution with judicial pronouncements allows no standard by which to criticize and to seek the overruling of [cases] such as Dred Scott, and Plessy v. Ferguson. To do otherwise, as Lincoln said, is to submit to government by judiciary. But such a state could never be consistent with the principles of our Constitution. Indeed, it would be utterly inconsistent with the very idea of the rule of law to which we, as a people, have always subscribed. 2.“Underenforced” constitutional norms. It might be argued that the Constitution sometimes invalidates official action, even if the Supreme Court declines so to hold. There is, in this view, a difference between what the Constitution requires and what the Court says it requires. The Court might decide that, because of the need to defer to other branches of government or because of other limitations on its own competence, some measure does not violate the Constitution; but such a holding might not bind other officials in the process of deciding whether a proposed course of action is constitutional, since those officials are not constrained by principles of deference. See Sager, Fair Measure: The Status of Underenforced Constitutional Norms, 91 Harv. L. Rev. 1212, 1220–1221, 1227 (1978): Conventional analysis does not distinguish between fully enforced and underenforced constitutional norms; as a general matter, the scope of a constitutional norm is considered to be coterminous with the scope of its judicial enforcement. [Where] a federal judicial construct is found not to extend to certain official behavior because of institutional concerns rather than analytical perceptions, it seems strange to regard the resulting decision as a statement about the meaning of the constitutional norm in question. After all, what the members of the federal tribunal have actually determined is that there are good reasons for stopping short of exhausting the content of the constitutional concept with which they are dealing; the limited judicial construct which they have fashioned or accepted is occasioned by this determination and does not derive from a judgment about the scope of the constitutional concept itself. [The] most direct consequence of adopting this revised view is the perception that government officials have a legal obligation to obey an underenforced constitutional norm which extends beyond its interpretation by the federal judiciary to the full dimensions of the concept which the norm embodies. This obligation to obey constitutional norms at their underenforced margins requires governmental officials to fashion their own conceptions of these norms and measure their conduct by reference to these conceptions. p. 43 Public officials cannot consider themselves free to act at what they perceive or ought to perceive to be peril to constitutional norms merely because the federal judiciary is unable to enforce these norms at their margins. On this view, branches of government other than courts act properly when they interpret the Constitution more expansively than does the Court. Perhaps, then, political branches are within their rights if they conclude (for example) that the death penalty is unconstitutional, that affirmative action programs are unconstitutional, that environmental statutes violate the takings clause, or that government must fund abortions — even if the Supreme Court disagrees. 3.Settlement. Consider the position that the view of judicial supremacy suggested in Cooper v. Aaron can be defended simply as a way of ensuring settlement of questions that badly need to be settled. See Alexander and Schauer, On Extrajudicial Constitutional Interpretation, 110 Harv. L. Rev. 1377 (1997). In this argument, “good institutional design requires norms that compel decision-makers to defer to the judgments of others with which they disagree.” Id. at 1387. But it might be asked whether it is possible, or desirable, for the Supreme Court to have the power to “settle” constitutional questions. —----------------------------- Ex parte McCardle 74 U.S. (7 Wall.) 506 (1869) [McCardle published articles in a newspaper in Mississippi, which was then under the control of the national army pursuant to the Reconstruction plan adopted by Congress after the Civil War. He was arrested under charges of libel; disturbing the peace; inciting insurrection, disorder, and violence; and impeding reconstruction. McCardle sought habeas corpus from a federal court in Mississippi, claiming that Congress lacked constitutional authority to establish a system of military government in the states. p. 70 The case was in this sense a fundamental challenge to Congress’s reconstruction power. After losing in the trial court, McCardle appealed, invoking a habeas corpus act enacted in 1867. Congress feared that the case would be a vehicle for invalidating the reconstruction plan. Congress therefore enacted — while the case was pending, and over presidential veto on constitutional grounds — a statute that repealed the provision of the 1867 habeas corpus act that McCardle had invoked.] The Chief Justice [Chase] delivered the opinion of the court. The first question necessarily is that of jurisdiction; for, if the act of March, 1868, takes away the jurisdiction defined by the act of February, 1867, it is useless, if not improper, to enter into any discussion of other questions. It is quite true, as was argued by the counsel for the petitioner, that the appellate jurisdiction of this court is not derived from acts of Congress. It is, strictly speaking, conferred by the Constitution. But it is conferred “with such exceptions and under such regulations as Congress shall make.” It is unnecessary to consider whether, if Congress had made no exceptions and no regulations, this court might not have exercised general appellate jurisdiction under rules prescribed by itself. For among the earliest acts of the first Congress, at its first session, was the act of September 24th, 1789, to establish the judicial courts of the United States. That act provided for the organization of this court, and prescribed regulations for the exercise of its jurisdiction.... The principle that the affirmation of appellate jurisdiction implies the negation of all such jurisdiction not affirmed having been thus established, it was an almost necessary consequence that acts of Congress, providing for the exercise of jurisdiction, should come to be spoken of as acts granting jurisdiction, and not as acts making exceptions to the constitutional grant of it. The exception to appellate jurisdiction in the case before us, however, is not an inference from the affirmation of other appellate jurisdiction. It is made in terms. The provision of the act of 1867, affirming the appellate jurisdiction of this court in cases of habeas corpus is expressly repealed. It is hardly possible to imagine a plainer instance of positive exception. We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words. What, then, is the effect of the repealing act upon the case before us? We cannot doubt as to this. Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause. And this is not less clear upon authority than upon principle. Counsel seem to have supposed, if effect be given to the repealing act in question, that the whole appellate power of the court, in cases of habeas corpus, is denied. But this is an error. The act of 1868 does not except from that jurisdiction any cases but appeals from Circuit Courts under the act of 1867. It does not affect the jurisdiction which was previously exercised. The appeal of the petitioner in this case must be dismissed for want of jurisdiction. NOTE: POLITICAL CONTROL OVER JURISDICTION OF ARTICLE III COURTS Does Ex parte McCardle stand for the proposition that Congress has plenary power over the appellate jurisdiction of the Supreme Court? In Ex parte Yerger, 75 U.S. (8 Wall.) 85 (1869), the Court converted into a holding the last paragraph of the McCardle opinion. p. 71 In Yerger, the Court asserted appellate jurisdiction over a habeas corpus proceeding brought by a petitioner in military detention. The source of jurisdiction was certiorari based on pre-1867 legislation. The language of Ex parte McCardle suggests that there are no constitutional constraints on Congress’s power over the appellate jurisdiction of the Supreme Court; but its holding might be read more narrowly in light of the conclusion, noted in McCardle itself and made clear in Yerger, that there was an alternative means of obtaining Supreme Court review. The question of congressional power over the appellate jurisdiction of the Supreme Court has occasionally assumed considerable importance, with proposals to prevent the Supreme Court from hearing cases involving (among other things) school prayer, reapportionment, school desegregation, and abortion. No such proposal has passed Congress. But there has been substantial debate about the constitutionality of the proposals, versions of which have been introduced at numerous stages in the history of the nation. Consider the following proposal: The Supreme Court shall not have jurisdiction to review, by appeal, writ of certiorari, or otherwise, any case arising out of any State statute, ordinance, rule, regulation, or any part thereof, or arising out of any act interpreting, applying, or enforcing a State statute, ordinance, rule, or regulation, which relates to voluntary prayers in public schools and public buildings. Would this proposal be constitutional? If one thought that Supreme Court decisions restricting school prayer should be overruled, why might one think that this proposal would be counterproductive? 1.Restricting jurisdiction and the separation of powers. If plenary power to restrict jurisdiction existed, Congress could immunize state and federal laws from Supreme Court review. Congress could, for example, enact a law and provide that the Supreme Court could not assess its constitutionality. Indeed, Congress could for all practical purposes cut the Supreme Court out of the constitutional scheme — for example, by depriving the Court of jurisdiction in all federal question cases. At first glance, such a power might seem to be a striking intrusion on the separation of powers system. Would it be possible to argue that the power to restrict jurisdiction is not such an intrusion at all but is instead a means of making it tolerable to have judicial review in a system of representative government? See C. Black, Decision According to Law (1981). Under this view, the availability of the power to limit jurisdiction is an important check on the Supreme Court, discouraging it from straying too far from “popular will,” as expressed in legislative and executive enactments, and allowing the legislature to retain ultimate control over the Court. At the same time, the existence of an unexercised, but broad, exceptions power gives reason to find public acquiescence in or ratification of Supreme Court decisions. But perhaps such arguments attribute too much to legislative inaction. In any event, the nature and limits of the exceptions power remain shrouded in uncertainty. The remainder of this Note outlines some of the competing views. 2.The plenary power argument.To some, the exceptions clause grants Congress plenary power over the appellate jurisdiction of the Supreme Court. Congress may make exceptions whenever and for whatever reasons it chooses. This view draws support from the literal language of the Constitution. The text itself contains no limits on congressional power to make “exceptions” to the appellate jurisdiction of the Supreme Court. The only limits in this view are those that derive from the political process. The plenary power argument obtains support from McCardle and from numerous dicta in early cases. See Van Alstyne, A Critical Guide to Ex parte McCardle, 15 Ariz. L. Rev. 229 (1973). 3.Separation of powers constraints: the “essential functions” hypothesis. One argument against recognition of a plenary power under the exceptions clause is based on the proposition that Congress cannot “destroy the essential role of the Supreme Court in the constitutional plan.” Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362, 1365 (1953). p. 72 The argument is largely a structural one. The framers and ratifiers, it is claimed, intended the Court to perform an important function in the separation of powers scheme: to ensure that Congress, the President, and the states are kept within constitutional limits. (Consider The Federalist No. 78 and Martin v. Hunter’s Lessee.) If Congress had power to remove the Court’s jurisdiction, it could insulate its own laws, or those of the states, from constitutional attack, effectively writing the Court out of the constitutional system. Such a power, it is sometimes claimed, is not consistent with the intended function of courts in the constitutional order. See Ratner, Congressional Power over the Appellate Jurisdiction of the Supreme Court, 109 U. Pa. L. Rev. 157 (1960). Can this view be reconciled with the language of the exceptions clause? Proponents suggest that the use of the term “exceptions” itself contemplates a narrow power, one that is consistent with the general view that the Court would exercise jurisdiction in all or most federal question cases. See Ratner, supra; Sager, Foreword: Constitutional Limitations on Congress’ Authority to Regulate the Jurisdiction of the Federal Courts, 95 Harv. L. Rev. 17 (1981). On this view, the extent of Congress’s power may not be subject to precise limits, but it is clear that Congress cannot deprive the Court of jurisdiction in (all or some?) constitutional cases. See also R. Berger, Congress vs. the Supreme Court (1969) (suggesting that the exceptions power is limited to issues of fact). Is this position supported or undermined by Marbury v. Madison? Consider Wechsler, The Courts and the Constitution, 65 Colum. L. Rev. 1001, 1005–1006 (1965): The plan of the Constitution for the courts [was] quite simply that the Congress would decide from time to time how far the federal judicial institution should be used within the limits of the federal judicial power. [Federal] courts, including the Supreme Court, do not pass on constitutional questions because there is a special function vested in them to enforce the Constitution or police the other agencies of government. They do so rather for the reason that they must decide a litigated case that is otherwise within their jurisdiction and in doing so must give effect to the supreme law of the land. That is, at least, what Marbury v. Madison was all about. Is this a proper reading of Marbury? Consider the following view: Marbury and The Federalist No. 78 rest on the broader ground that the Supreme Court was accorded a distinctive role as the guarantor of the supremacy of the federal Constitution as against the states and the federal legislature. Recognition of an unlimited power to make exceptions would be inconsistent with the intended role of the Supreme Court in the separation of powers scheme, generating precisely the evils that led Hamilton to support the existence of judicial review. Compare Cooper v. Aaron, supra. Does it matter whether the exceptions power is used to insulate federal or state laws from judicial review? Would the dangers be different in the two different cases? See Sager, supra, at 55: To remove or permit the removal from the entire federal judiciary, including the Supreme Court, of the constitutional review of state conduct would be to alter the balance of federal authority fundamentally and dangerously. In an observation intended to defuse rather than ignite the sense of crisis that surrounded the Court in 1913, Justice Holmes uttered his famous words on the matter of Supreme Court jurisdiction: “I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States.” [The] case for regarding federal judicial supervision of the states as essential to the scheme of the Constitution is a strong one. Even if it is accepted that there is an “essential functions” limitation on jurisdictional restrictions, the question remains whether particular provisions are inconsistent with the Court’s “essential function.” p. 73 Would the bill reprinted above, eliminating federal court jurisdiction in school prayer cases, destroy the Supreme Court’s “essential role”? Consider the fact that the Court would retain jurisdiction in all other cases raising constitutional questions. 4.Independent constitutional barriers. There is little doubt that other constitutional provisions, like the equal protection component of the due process clause, limit Congress’s power under the exceptions clause. For example, Congress could not constitutionally provide that Republicans, but no one else, may have access to the Supreme Court. Such a provision would violate the first amendment and thus would be independently unconstitutional. How far does this rationale extend? Does it justify a conclusion that selective withdrawals of jurisdiction — for example, busing, abortion, or school prayer — are unconstitutional? See Tribe, Jurisdictional Gerrymandering: Zoning Disfavored Rights out of the Federal Courts, 16 Harv. C.R.-C.L. L. Rev. 129 (1981). Consider Bator, Congressional Power over the Jurisdiction of the Federal Courts, 27 Vill. L. Rev. 1030, 1036–1037 (1982): Neither the equal protection clause nor any other clause of the Constitution requires equal jurisdiction treatment for different subject-matters of litigation. [A] somewhat narrower argument is that if it is shown that Congress’ motive in requiring a certain category of case to be brought in the exclusive original jurisdiction of the state courts is “hostility” to the substantive constitutional right in question, it can be struck down. I do not understand how such a rule could be administered. What would be an adequate indication of hostility? [The] state courts, equally with the federal, are charged with the task of enforcing and protecting federal constitutional rights. 5.The relevance of United States v. Klein. Consider in this regard United States v. Klein, 80 U.S. (13 Wall.) 128 (1872). Klein had sued for indemnification of property taken during the Civil War. It was a necessary predicate for relief that the claimant show that he was not a supporter of the rebellion against the national government, and the courts had held that a presidential pardon was evidence that the claimant had not in fact participated. A statute, enacted while the United States’ appeal was pending from a decision awarding indemnification to Klein, provided that a presidential pardon was to be used as evidence that the person pardoned had participated in a rebellion. The statute added that courts should dismiss suits involving such claimants for want of jurisdiction. The Court invalidated the statute on the ground that dismissal would allow Congress to “prescribe rules of decision to the Judicial Department of the government in cases pending before it.” According to the Court, this was inconsistent with the separation of powers. The Court added that the statute would be permissible under the exceptions clause if it were a denial of “the right to appeal in a particular class of cases.” The problem here was that it was “a means to an end,” that is, denial “to pardons granted by the President of the effect which this court had adjudged them to have.” Perhaps Klein is different from McCardle because it involved not merely a withdrawal of jurisdiction but also an effort “to bind the Court to decide [the] case in accordance with a rule of law [that is] independently unconstitutional.” See P. Bator, P. Mishkin, D. Shapiro, and H. Wechsler, Hart & Wechsler’s The Federal Courts and the Federal System 316 (2d ed. 1973). Note also Justice Douglas’s contention that “[there] is a serious question whether the McCardle case could command a majority view today.” Glidden Co. v. Zdanok, 370 U.S. 530, 605 (1962) (dissenting opinion). 6.The lower federal courts.The power of Congress over the jurisdiction of the lower federal courts raises somewhat different issues. It is generally agreed that article III imposes on Congress no obligation to create lower federal courts at all. See Sheldon v. Sill, 49 U.S. (8 How.) 441 (1850). If Congress need not create lower federal courts, a natural inference might be that Congress has plenary power over the sorts of issues that lower courts might hear. This is a classic “lesser included” argument: The authority to create the lower courts necessarily includes the power to restrict the lower courts to certain specified issues. p. 74 The argument is also, however, based on the fact that this reading is the only one consistent with the understanding which animated the compromise adopted by the Framers. The essence of that compromise was an agreement that the question whether access to the lower courts was necessary to assure the effectiveness of federal law [should] be left a matter of political and legislative judgment, to be made from time to time in the light of particular circumstances. It would make nonsense of that notion to hold that the only power to be exercised is the all-or-nothing power to decide whether none or all of the cases to which the federal judicial power extends need the haven of a lower court. Bator, supra, at 1031. Are there any limits on Congress’s power over the lower federal courts? Suppose, for example, that Congress bars the lower federal courts from hearing cases involving abortion, school prayer, or desegregation — as numerous bills introduced in the late 1970s and 1980s threatened to do. Consider the following possibilities. a. Eisenberg, in Congressional Authority to Restrict Lower Federal Court Jurisdiction, 83 Yale L.J. 498, 532–533 (1974), relies on the expansion of the caseload of the lower federal courts and their important role in protecting federal rights to argue: The inability of the Supreme Court to do justice in every case within the Article III grant of jurisdiction has broad implications. It means that Congress cannot deny lower federal courts jurisdiction on the ground that Supreme Court review of state court judgments provides an adequate vindication for federal rights. [The] lower federal courts are thus indispensable if the judiciary is to be a co-equal branch and if the “judicial Power of the United States” is to remain the power to protect rights guaranteed by the Constitution and its amendments. Abolition of the lower federal courts is no longer constitutionally permissible. b. The “independent constitutional constraints” on congressional limits on the jurisdiction of the Supreme Court apply as well to limits on the jurisdiction of the lower courts. Here, the same considerations apply as discussed above. c. Note also the position of Justice Story in Martin v. Hunter’s Lessee, supra, to the effect that at any time some federal court must have jurisdiction over any case to which the article III power extends. This view, however, has been rejected in modern practice. Note, for example, that diversity jurisdiction extends only to cases in which the amount in controversy is over $75,000 and that Congress has never granted the Supreme Court appellate jurisdiction over diversity cases brought in state courts. For a careful elaboration on these questions of a position similar to that of Justice Story, see Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B.U. L. Rev. 205 (1985). NOTE: THE POWER OF REPRISAL — GENERAL THOUGHTS What conclusions do these various mechanisms of control — constitutional amendment, appointment, impeachment, popular opinion, and jurisdictional limits — suggest? Do Congress and the President have enough, or too much, authority over the Court? Consider the following views: (1) In light of the various mechanisms of control, the countermajoritarian difficulty said to be produced by the existence of judicial review is much less severe than it appears at first glance. The various safeguards make it much less troublesome that interpretation is often or inevitably discretionary; there is usually a political corrective, even in the short run. p. 75 (2) The mechanisms of control make the courts so dependent on the political branches that justifications for Marbury that rely on the political insulation of the judges ultimately break down. It turns out that the judges are not insulated at all. They are emphatically political actors. (3) The various mechanisms are insufficient to eliminate and even to reduce the countermajoritarian difficulty. It remains the case that the power of judicial review permits unelected judges to have what is in effect the final say on issues of public importance. The fact that the judges are subject to some control through other means does not respond to the basic problem. Consider, finally, the question of efficacy. Sometimes Supreme Court decisions have less fundamental consequences for the real world than its advocates and its critics think. For example, only about 2 percent of black children in the South attended desegregated schools ten years after the Supreme Court’s decision in Brown v. Board of Education. Especially when the Court is attempting to engage in large-scale social reform, its efforts are likely to be disappointing. Frequently lawyers and law students assume that society will simply follow Supreme Court decisions, but difficulties of implementation severely complicate this assumption. It may be that these difficulties provide an additional argument against an active judicial role in social reform. For elaborations of this theme, see G. Rosenberg, The Hollow Hope (rev. ed. 2008); D. Horowitz, The Courts and Social Policy (1979). E.“CASE OR CONTROVERSY” REQUIREMENTS AND THE PASSIVE VIRTUES A number of devices require or permit federal courts not to resolve certain cases. Most of these devices are, in whole or in part, an inference from article III, section 2, providing that the “Judicial Power shall extend” to enumerated “Cases” and “Controversies.” This provision, it is often said, forbids the courts from invalidating legislative or executive action “merely” because it is unconstitutional. The courts may rule only in the context of a constitutional case. This principle has a number of concrete implications. In general, it means that courts may not issue “advisory opinions”; may not decide “political questions”; must have before them someone with “standing,” or with some kind of personal stake in the controversy; and may not decide issues that are either “premature” or “moot.” What purposes are served by the “case or controversy” requirement? There are several candidates. First, the requirement might promote democratic self-government by ensuring a measure of judicial restraint. By limiting the occasions for judicial intervention into legislative or executive processes, the case or controversy requirement reduces the presence of the federal judiciary in American life — and so too friction between the branches produced by judicial review. This rationale is often tied to a concern with the countermajoritarian difficulty. The questions raised by this rationale are whether judicial restraint, thus understood, is desirable, and, if so, whether the case or controversy requirement is a sensible way to promote such restraint. Note in particular that judicial restraint is promoted by these devices not by requiring a deferential approach to the merits but by preventing the courts from reaching the merits at all. Second, the case or controversy requirement might ensure that constitutional issues will be resolved only in the context of concrete disputes rather than in response to problems that may be hypothetical, abstract, or speculative. This consequence, it is sometimes said, distinguishes legislative and judicial decisionmaking and promotes sound constitutional conclusions. Notice, however, that even if a decision comes in a concrete setting, the decision’s effects extend far more broadly. When the Supreme Court held that Jane Roe had a right to an abortion in Roe v. Wade or that Linda Brown had the right to attend a nonsegregated school in Brown v. Board of Education, no one thinks that the Court’s primary focus was on the particular cases before it. p. 76 Third, the case or controversy requirement is said to promote the ends of individual autonomy and self-determination, by ensuring that constitutional decisions are rendered at the behest of those actually injured rather than at the behest of bystanders attempting to disrupt mutually advantageous accommodations or to impose their own views of public policy on government. Consider, for example, the fact that people can object to racial discrimination or environmental harm only if they have been subject to those injuries. Outsiders with an ideological interest are barred. This rationale is sometimes accompanied by a suggestion that case or controversy limitations ensure real adversity between the parties and thus ensure against collusive litigation. But note that sometimes the fact that a lawsuit has not resulted stems from ignorance, poverty, or alienation rather than from satisfaction with the status quo. Consider also A. Bickel, The Least Dangerous Branch 115–116 (1962): One of the chief faculties of the judiciary, which is lacking in the legislature and which fits the courts for the function of evolving and applying constitutional principles, is that the judgment of courts can come later, after the hopes and prophecies expressed in legislation have been tested in the actual workings of our society; the judgment of courts may be had in concrete cases that exemplify the actual consequences of legislative or executive actions. [It] may be added that the opportunity to relate a legislative policy to the flesh-and-blood facts of an actual case [to] observe and describe in being what the legislature may or may not have foreseen as probable — this opportunity as much as, or more than, anything else enables the Court to appeal to the nation’s second thought. Moreover, [these requirements] create a time lag between legislation and adjudication. [Hence] it cushions the clash between the Court and any given legislative majority. In Bickel’s view, the “passive virtues” of inaction operate as a necessary means of mediating between the two (competing) ideas at work in U.S. government: electoral accountability and governance according to principle. The “passive virtues” operate to ensure that the latter idea does not swallow up the former, by permitting the Court to defer to the political process without resolving the issue either way. But see Gunther, The Subtle Vices of the Passive Virtues, 64 Colum. L. Rev. 1 (1964), objecting that an “unprincipled” approach to justiciability issues is unacceptable and will ultimately undermine the Court’s role. Note also that some of the various justiciability doctrines are largely a creation not of the founding period but of the twentieth century — in particular, of efforts by Justices Brandeis, Frankfurter, and others seeking to immunize what they considered to be progressive government, and especially administrative agencies, from judicial review. The fact that some justiciability constraints are mostly traceable to this period, rather than to the founding, might have significant implications for current approaches to those constraints. But see Woolhandler and Nelson, Does History Defeat Standing Doctrine?, 102 Mich. L. Rev. 689 (2004) (arguing that during the eighteenth and nineteenth centuries, American courts imposed various limitations on the standing of private individuals that were “influenced by... ideas about the proper role of the judiciary, its relationship to the political branches of the state and federal governments, and the legitimate allocations of public and private power”). 1.Advisory Opinions One justiciability doctrine is unquestionably traceable to the early period. Under the first President, the Supreme Court said that it was constitutionally forbidden to issue “advisory opinions” — opinions on the constitutionality of legislative or executive actions that did not grow out of a case or controversy. President Washington, through Secretary of State Thomas Jefferson, asked the justices whether he might request their views about legal questions growing out of a war, in which the United States was neutral, between England and France. The justices responded: p. 77 The three departments of the government [being] in certain respects checks upon each other, and our being judges of a court in the last resort, are considerations which accord strong arguments against the propriety of our extrajudicially 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, seems to have been purposely as well as expressly united to the executive departments. We exceedingly regret every event that may cause embarrassment to your administration, but we derive consolation from the reflection that your judgment will discern what is right. Is the Court’s conclusion a natural or an inevitable interpretation of article III? Suppose that a President asked the Chief Justice to provide him with advice about a policy matter in an unofficial capacity. Would it be unconstitutional for the Chief Justice to respond? Is not the clear implication of the justice’s response to President Jefferson that any opinion the justices offered would be in their unofficial capacity? Note in this regard that Chief Justice Earl Warren served as head of the commission that investigated the assassination of President Kennedy and that by statute the Chief Justice serves on the Board of Regents of the Smithsonian Institute. The Chief Justice also regularly testifies before Congress and makes recommendations regarding matters relating to the federal judiciary. Surely these activities are constitutional? Some state supreme courts, including the Supreme Judicial Court of Massachusetts, are authorized to issue advisory opinions; many courts in Eastern Europe have been given this power in the aftermath of communism. Note also that the Office of Legal Counsel of the Department of Justice has, at least for the executive branch, assumed an advice-giving role, informing the President and other members of the executive branch of its views about the constitutionality of proposed courses of action. See 28 U.S.C. §§511–513 (authorizing the Attorney General to give his advice and opinion on questions of law to the President and to heads of executive departments). The Office of Legal Counsel has made public a wide variety of legal opinions issued since 1977. Perhaps, however, advisory bodies of this kind end up having close collegial relations with those to whom they give advice. Note, for example, that the assistant attorney general in charge of the Office of Legal Counsel is a political appointee. As a result, the judgments of that office might suffer from an absence of independence — an issue that received considerable attention in connection with the war on terror and the administration of George W. Bush. See J. Goldsmith, The Terror Presidency (2007). See also B. Ackerman, The Decline and Fall of the American Republic 146 (2010) (calling for creation of a “Supreme Executive Tribunal” of nine presidentially nominated, Senate-confirmed “judges for the executive branch.”). Some of the gains provided by advisory opinions are furnished by the declaratory judgment procedure, which enables a party under certain circumstances to obtain a declaration of its rights and obligations before engaging in contemplated conduct. Why is that procedure constitutional? See Nashville, Cincinnati & St. Louis Railway v. Wallace, 288 U.S. 249 (1933). 2.Standing Lujan v. Defenders of Wildlife 504 U.S. 555 (1992) Justice Scalia delivered the opinion of the Court with respect to Parts I, II, III-A, and IV, and an opinion with respect to Part III-B in which [Chief Justice Rehnquist], Justice White, and Justice Thomas join. p. 78 This case involves a challenge to a rule promulgated by the Secretary of the Interior interpreting §7 of the Endangered Species Act of 1973 (ESA), in such fashion as to render it applicable only to actions within the United States or on the high seas. The preliminary issue, and the only one we reach, is whether the respondents here, plaintiffs below, have standing to seek judicial review of the rule. I The ESA seeks to protect species of animals against threats to their continuing existence caused by man. The ESA instructs the Secretary of the Interior to promulgate by regulation a list of those species which are either endangered or threatened under enumerated criteria, and to define the critical habitat of these species. Section 7(a)(2) of the Act then provides, in pertinent part: Each Federal agency shall, in consultation with and with the assistance of the Secretary [of the Interior], insure that any action authorized, funded, or carried out by such agency... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical. In 1978, the Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS), on behalf of the Secretary of the Interior and the Secretary of Commerce respectively, promulgated a joint regulation stating that the obligations imposed by §7(a)(2) extend to actions taken in foreign nations. The next year, however, the Interior Department began to reexamine its position. A revised joint regulation, reinterpreting §7(a)(2) to require consultation only for actions taken in the United States or on the high seas, was proposed in 1983, and promulgated in 1986. Shortly thereafter, respondents, organizations dedicated to wildlife conservation and other environmental causes, filed this action against the Secretary of the Interior, seeking a declaratory judgment that the new regulation is in error as to the geographic scope of §7(a)(2), and an injunction requiring the Secretary to promulgate a new regulation restoring the initial interpretation.... II Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements: First, the plaintiff must have suffered an “injury in fact” — an invasion of a legally-protected interest which is (a) concrete and particularized, and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be “fairly... traceable to the challenged action of the defendant, and not... the result [of] the independent action of some third party not before the court.” Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.” The party invoking federal jurisdiction bears the burden of establishing these elements. [At] the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we “presume that general allegations embrace those specific facts that are necessary to support the claim.” In response to a summary judgment motion, however, the plaintiff can no longer rest on such “mere allegations,” but must “set forth” by affidavit or other evidence “specific facts,” Fed. Rule Civ. Proc. 56(e), which for purposes of the summary judgment motion will be taken to be true. And at the final stage, those facts (if controverted) must be “supported adequately by the evidence adduced at trial.” When the suit is one challenging the legality of government action or inaction, the nature and extent of facts that must be averred (at the summary judgment stage) or proved (at the trial stage) in order to establish standing depends considerably upon whether the plaintiff is himself an object of the action (or forgone action) at issue. p. 79 If he is, there is ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it. When, however, as in this case, a plaintiff’s asserted injury arises from the government’s allegedly unlawful regulation (or lack of regulation) of someone else, much more is needed. In that circumstance, causation and redressability ordinarily hinge on the response of the regulated (or regulable) third party to the government action or inaction — and perhaps on the response of others as well. The existence of one or more of the essential elements of standing “depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict,” ASARCO Inc. v. Kadish, 490 U.S. 605, 615 (1989) (opinion of Kennedy, J.); and it becomes the burden of the plaintiff to adduce facts showing that those choices have been or will be made in such manner as to produce causation and permit redressability of injury. Thus, when the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily “substantially more difficult” to establish.... III A Respondents’ claim to injury is that the lack of consultation with respect to certain funded activities abroad “increases the rate of extinction of endangered and threatened species.” Of course, the desire to use or observe an animal species, even for purely aesthetic purposes, is undeniably a cognizable interest for purpose of standing.... [With] respect to this aspect of the case, the Court of Appeals focused on the affidavits of two Defenders’ members — Joyce Kelly and Amy Skilbred. Ms. Kelly stated that she traveled to Egypt in 1986 and “observed the traditional habitat of the endangered Nile crocodile there and intends to do so again, and hopes to observe the crocodile directly,” and that she “will suffer harm in fact as a result of [the] American... role... in overseeing the rehabilitation of the Aswan High Dam on the Nile... and [in] developing... Egypt’s... Master Water Plan.” Ms. Skilbred averred that she traveled to Sri Lanka in 1981 and “observed the habitat” of “endangered species such as the Asian elephant and the leopard” at what is now the site of the Mahaweli Project funded by the Agency for International Development (AID), although she “was unable to see any of the endangered species”; “this development project,” she continued, “will seriously reduce endangered, threatened, and endemic species habitat including areas that I visited... [, which] may severely shorten the future of these species”; that threat, she concluded, harmed her because she “intends to return to Sri Lanka in the future and hopes to be more fortunate in spotting at least the endangered elephant and leopard.” When Ms. Skilbred was asked at a subsequent deposition if and when she had any plans to return to Sri Lanka, she reiterated that “I intend to go back to Sri Lanka,” but confessed that she had no current plans: “I don’t know when. There is a civil war going on right now. I don’t know. Not next year, I will say. In the future.” We shall assume for the sake of argument that these affidavits contain facts showing that certain agency-funded projects threaten listed species — though that is questionable. They plainly contain no facts, however, showing how damage to the species will produce “imminent” injury to Mss. Kelly and Skilbred. That the women “had visited” the areas of the projects before the projects commenced proves nothing. [Such] “some day” intentions — without any description of concrete plans, or indeed even any specification of when the some day will be — do not support a finding of the “actual or imminent” injury that our cases require. Besides relying upon the Kelly and Skilbred affidavits, respondents propose a series of novel standing theories. p. 80 The first, inelegantly styled “ecosystem nexus,” proposes that any person who uses any part of a “contiguous ecosystem” adversely affected by a funded activity has standing even if the activity is located a great distance away. This approach, as the Court of Appeals correctly observed, is inconsistent with our opinion in [Lujan v. National Wildlife Federation, 497 U.S. 871, 887–889 (1990)], which held that a plaintiff claiming injury from environmental damage must use the area affected by the challenged activity and not an area roughly “in the vicinity” of it. It makes no difference that the general-purpose section of the ESA states that the Act was intended in part “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved,” 16 U.S.C. §1531(b). To say that the Act protects ecosystems is not to say that the Act creates (if it were possible) rights of action in persons who have not been injured in fact, that is, persons who use portions of an ecosystem not perceptibly affected by the unlawful action in question. Respondents’ other theories are called, alas, the “animal nexus” approach, whereby anyone who has an interest in studying or seeing the endangered animals anywhere on the globe has standing; and the “vocational nexus” approach, under which anyone with a professional interest in such animals can sue. Under these theories, anyone who goes to see Asian elephants in the Bronx Zoo, and anyone who is a keeper of Asian elephants in the Bronx Zoo, has standing to sue because the Director of AID did not consult with the Secretary regarding the AID-funded project in Sri Lanka. This is beyond all reason. Standing is not “an ingenious academic exercise in the conceivable,” United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 688 (1973), but as we have said requires, at the summary judgment stage, a factual showing of perceptible harm. It is clear that the person who observes or works with a particular animal threatened by a federal decision is facing perceptible harm, since the very subject of his interest will no longer exist. It is even plausible — though it goes to the outermost limit of plausibility — to think that a person who observes or works with animals of a particular species in the very area of the world where that species is threatened by a federal decision is facing such harm, since some animals that might have been the subject of his interest will no longer exist, see Japan Whaling Assn. v. American Cetacean Soc., 478 U.S. 221, 231, n.4 (1986). It goes beyond the limit, however, and into pure speculation and fantasy, to say that anyone who observes or works with an endangered species, anywhere in the world, is appreciably harmed by a single project affecting some portion of that species with which he has no more specific connection.... B The most obvious problem in the present case is redressability. Since the agencies funding the projects were not parties to the case, the District Court could accord relief only against the Secretary: He could be ordered to revise his regulation to require consultation for foreign projects. But this would not remedy respondents’ alleged injury unless the funding agencies were bound by the Secretary’s regulation, which is very much an open question.... Respondents assert that this legal uncertainty did not affect redressability (and hence standing) because the District Court itself could resolve the issue of the Secretary’s authority as a necessary part of its standing inquiry. Assuming that it is appropriate to resolve an issue of law such as this in connection with a threshold standing inquiry, resolution by the District Court would not have remedied respondents’ alleged injury anyway, because it would not have been binding upon the agencies. They were not parties to the suit, and there is no reason they should be obliged to honor an incidental legal determination the suit produced.... A further impediment to redressability is the fact that the agencies generally supply only a fraction of the funding for a foreign project. AID, for example, has provided less than 10% of the funding for the Mahaweli Project. p. 81 Respondents have produced nothing to indicate that the projects they have named will either be suspended, or do less harm to listed species, if that fraction is eliminated. As in [Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26 (1976)], it is entirely conjectural whether the nonagency activity that affects respondents will be altered or affected by the agency activity they seek to achieve. There is no standing. IV The Court of Appeals found that respondents had standing for an additional reason: because they had suffered a “procedural injury.” The so-called “citizen-suit” provision of the ESA provides, in pertinent part, that “any person may commence a civil suit on his own behalf (A) to enjoin any person, including the United States and any other governmental instrumentality or agency... who is alleged to be in violation of any provision of this chapter.” The court held that, because §7(a)(2) requires interagency consultation, the citizen-suit provision creates a “procedural right” to consultation in all “persons” — so that anyone can file suit in federal court to challenge the Secretary’s (or presumably any other official’s) failure to follow the assertedly correct consultative procedure, notwithstanding their inability to allege any discrete injury flowing from that failure. To understand the remarkable nature of this holding one must be clear about what it does not rest upon: This is not a case where plaintiffs are seeking to enforce a procedural requirement the disregard of which could impair a separate concrete interest of theirs (e.g., the procedural requirement for a hearing prior to denial of their license application, or the procedural requirement for an environmental impact statement before a federal facility is constructed next door to them).‍‍7 Nor is it simply a case where concrete injury has been suffered by many persons, as in mass fraud or mass tort situations. Nor, finally, is it the unusual case in which Congress has created a concrete private interest in the outcome of a suit against a private party for the government’s benefit, by providing a cash bounty for the victorious plaintiff. Rather, the court held that the injury-in-fact requirement had been satisfied by congressional conferral upon all persons of an abstract, self-contained, noninstrumental “right” to have the Executive observe the procedures required by law. We reject this view. We have consistently held that a plaintiff raising only a generally available grievance about government — claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large — does not state an Article III case or controversy.... To be sure, our generalized-grievance cases have typically involved Government violation of procedures assertedly ordained by the Constitution rather than the Congress. But there is absolutely no basis for making the Article III inquiry turn on the source of the asserted right. p. 82 Whether the courts were to act on their own, or at the invitation of Congress, in ignoring the concrete injury requirement described in our cases, they would be discarding a principle fundamental to the separate and distinct constitutional role of the Third Branch — one of the essential elements that identifies those “Cases” and “Controversies” that are the business of the courts rather than of the political branches. “The province of the court,” as Chief Justice Marshall said in Marbury v. Madison, 1 Cranch 137, 170 (1803), “is, solely, to decide on the rights of individuals.” Vindicating the public interest (including the public interest in government observance of the Constitution and laws) is the function of Congress and the Chief Executive. The question presented here is whether the public interest in proper administration of the laws (specifically, in agencies’ observance of a particular, statutorily prescribed procedure) can be converted into an individual right by a statute that denominates it as such, and that permits all citizens (or, for that matter, a subclass of citizens who suffer no distinctive concrete harm) to sue. If the concrete injury requirement has the separation-of-powers significance we have always said, the answer must be obvious: To permit Congress to convert the undifferentiated public interest in executive officers’ compliance with the law into an “individual right” vindicable in the courts is to permit Congress to transfer from the President to the courts the Chief Executive’s most important constitutional duty, to “take Care that the Laws be faithfully executed,” Art. II, §3. It would enable the courts, with the permission of Congress, “to assume a position of authority over the governmental acts of another and co-equal department,” Frothingham v. Mellon, 262 U.S., at 489, and to become “‘virtually continuing monitors of the wisdom and soundness of Executive action.’” [Allen v. Wright,] 468 U.S., at 760 (quoting Laird v. Tatum, 408 U.S. 1, 15 (1972)). We have always rejected that vision of our role: When Congress passes an Act empowering administrative agencies to carry on governmental activities, the power of those agencies is circumscribed by the authority granted. This permits the courts to participate in law enforcement entrusted to administrative bodies only to the extent necessary to protect justiciable individual rights against administrative action fairly beyond the granted powers.... This is very far from assuming that the courts are charged more than administrators or legislators with the protection of the rights of the people. Congress and the Executive supervise the acts of administrative agents.... But under Article III, Congress established courts to adjudicate cases and controversies as to claims of infringement of individual rights whether by unlawful action of private persons or by the exertion of unauthorized administrative power. Stark v. Wickard, 321 U.S. 288, 309–310 (1944). “Individual rights,” within the meaning of this passage, do not mean public rights that have been legislatively pronounced to belong to each individual who forms part of the public. See also [Sierra Club v. Morton, 405 U.S. 727, 740–741 n.16 (1972)]. Nothing in this contradicts the principle that “the... injury required by Art. III may exist solely by virtue of ‘statutes creating legal rights, the invasion of which creates standing.’” [Warth v. Seldin, 422 U.S. 490, 500 (1975) (quoting Linda R. S. v. Richard D., 410 U.S. 614, 617 n.3 (1973)).] Both of the cases used by Linda R. S. as an illustration of that principle involved Congress’s elevating to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law (namely, injury to an individual’s personal interest in living in a racially integrated community, see Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 208–212 (1972), and injury to a company’s interest in marketing its product free from competition, see Hardin v. Kentucky Utilities Co., 390 U.S. 1, 6 (1968)). As we said in Sierra Club, “[Statutory] broadening [of] the categories of injury that may be alleged in support of standing is a different matter from abandoning the requirement that the party seeking review must himself have suffered an injury.” 405 U.S., at 738. Whether or not the principle set forth in Warth can be extended beyond that distinction, it is clear that in suits against the government, at least, the concrete injury requirement must remain. p. 83 We hold that respondents lack standing to bring this action. Justice Kennedy, with whom Justice Souter joins, concurring in part and concurring in the judgment.... While it may seem trivial to require that Mss. Kelly and Skilbred acquire airline tickets to the project sites or announce a date certain upon which they will return, this is not a case where it is reasonable to assume that the affiants will be using the sites on a regular basis, nor do the affiants claim to have visited the sites since the projects commenced. [I] am not willing to foreclose the possibility, however, that in different circumstances a nexus theory similar to those proffered here might support a claim to standing. See Japan Whaling Assn. v. American Cetacean Soc., 478 U.S. 221, 231, n.4 (1986) (“respondents... undoubtedly have alleged a sufficient ‘injury in fact’ in that the whale watching and studying of their members will be adversely affected by continued whale harvesting”). In light of the conclusion that respondents have not demonstrated a concrete injury here sufficient to support standing under our precedents, I would not reach the issue of redressability.... I also join [the] Court’s opinion with the following observations. As government programs and policies become more complex and far-reaching, we must be sensitive to the articulation of new rights of action that do not have clear analogs in our common-law tradition. [In] my view, Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before, and I do not read the Court’s opinion to suggest a contrary view. In exercising this power, however, Congress must at the very least identify the injury it seeks to vindicate and relate the injury to the class of persons entitled to bring suit. The citizen-suit provision of the Endangered Species Act does not meet these minimal requirements, because while the statute purports to confer a right on “any person... to enjoin... the United States and any other governmental instrumentality or agency... who is alleged to be in violation of any provision of this chapter,” it does not of its own force establish that there is an injury in “any person” by virtue of any “violation.” Justice Stevens, concurring in the judgment.... In my opinion a person who has visited the critical habitat of an endangered species has a professional interest in preserving the species and its habitat, and intends to revisit them in the future has standing to challenge agency action that threatens their destruction. [We] have no license to demean the importance of the interest that particular individuals may have in observing any species or its habitat, whether those individuals are motivated by aesthetic enjoyment, an interest in professional research, or an economic interest in preservation of the species. Indeed, this Court has often held that injuries to such interests are sufficient to confer standing, and the Court reiterates that holding today. The Court nevertheless concludes that respondents have not suffered “injury in fact” because they have not shown that the harm to the endangered species will produce “imminent” injury to them. I disagree. An injury to an individual’s interest in studying or enjoying a species and its natural habitat occurs when someone (whether it be the government or a private party) takes action that harms that species and habitat.... The plurality also concludes that respondents’ injuries are not redressable in this litigation for two reasons. First, respondents have sought only a declaratory judgment that the Secretary of the Interior’s regulation interpreting §7(a)(2) to require consultation only for agency actions in the United States or on the high seas is invalid and an injunction requiring him to promulgate a new regulation requiring consultation for agency actions abroad as well. But, the plurality opines, even if respondents succeed and a new regulation is promulgated, there is no guarantee that federal agencies that are not parties to this case will actually consult with the Secretary. p. 84 Furthermore, the plurality continues, respondents have not demonstrated that federal agencies can influence the behavior of the foreign governments where the affected projects are located. Thus, even if the agencies consult with the Secretary and terminate funding for foreign projects, the foreign governments might nonetheless pursue the projects and jeopardize the endangered species. Neither of these reasons is persuasive. We must presume that if this Court holds that §7(a)(2) requires consultation, all affected agencies would abide by that interpretation and engage in the requisite consultations. Certainly the Executive Branch cannot be heard to argue that an authoritative construction of the governing statute by this Court may simply be ignored by any agency head. Moreover, if Congress has required consultation between agencies, we must presume that such consultation will have a serious purpose that is likely to produce tangible results.... Although I believe that respondents have standing, I nevertheless concur in the judgment of reversal because I am persuaded that the Government is correct in its submission that §7(a)(2) does not apply to activities in foreign countries.... Justice Blackmun, with whom Justice O’Connor joins, dissenting.... [By] requiring a “description of concrete plans” or “specification of when the some day [for a return visit] will be” the Court, in my view, demands what is likely an empty formality. No substantial barriers prevent Kelly or Skilbred from simply purchasing plane tickets to return to the Aswan and Mahaweli projects.... The Court also rejects respondents’ claim of vocational or professional injury. The Court says that it is “beyond all reason” that a zoo “keeper” of Asian elephants would have standing to contest his government’s participation in the eradication of all the Asian elephants in another part of the world. I am unable to see how the distant location of the destruction necessarily (for purposes of ruling at summary judgment) mitigates the harm to the elephant keeper. If there is no more access to a future supply of the animal that sustains a keeper’s livelihood, surely there is harm. I have difficulty imagining this Court applying its rigid principles of geographic formalism anywhere outside the context of environmental claims. As I understand it, environmental plaintiffs are under no special constitutional standing disabilities.... I find myself unable to agree with the plurality’s analysis of redressability, based as it is on its invitation of executive lawlessness, ignorance of principles of collateral estoppel, unfounded assumptions about causation, and erroneous conclusions about what the record does not say. In my view, respondents have satisfactorily shown a genuine issue of fact as to whether their injury would likely be redressed by a decision in their favor.... The Court expresses concern that allowing judicial enforcement of “agencies’ observance of a particular, statutorily prescribed procedure” would “transfer from the President to the courts the Chief Executive’s most important constitutional duty, to ‘take Care that the Laws be faithfully executed,’ Art. II, sec. 3.” In fact, the principal effect of foreclosing judicial enforcement of such procedures is to transfer power into the hands of the Executive at the expense — not of the courts — but of Congress, from which that power originates and emanates.... [There] may be factual circumstances in which a congressionally imposed procedural requirement is so insubstantially connected to the prevention of a substantive harm that it cannot be said to work any conceivable injury to an individual litigant. But, as a general matter, the courts owe substantial deference to Congress’ substantive purpose in imposing a certain procedural requirement. In all events, “our separation-of-powers analysis does not turn on the labeling of an activity as ‘substantive’ as opposed to ‘procedural.’” There is no room for a per se rule or presumption excluding injuries labeled “procedural” in nature. p. 85 In conclusion, I cannot join the Court on what amounts to a slash-and-burn expedition through the law of environmental standing. In my view, “the very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.” Marbury v. Madison, 1 Cranch 137, 163 (1803). I dissent. p. 101 NOTE: THE EMERGENCE AND APPLICATION OF THE INJURY IN FACT REQUIREMENT The historical development of standing doctrine and the injury in fact requirement. An important part of standing doctrine focuses on what sorts of injuries can confer standing. This element of the law is best understood in terms of its historical development. 1.The emergence of the injury in fact requirement.Standing limitations, in their current form, are actually relatively new. The injury in fact requirement evolved from the earlier requirement of a “legal injury.” A “legal injury” pointed to different considerations from those embodied in the requirement of “injury in fact.” To show a legal injury, one had to show that some law entitled one to relief; this showing could be made by identifying an injury to an interest that was protected at common law, or that entitled the plaintiff to redress under a relevant statute. On this view, the question whether there was standing was essentially the question whether there was a cause of action. Without a cause of action, there was no “case” and no “controversy.” Someone would have “standing” if she had a claim to relief under a statute. In this sense, the questions of standing, cause of action, and the merits were fused. Some of current doctrine reflects the view that people need a cause of action in order to bring suit; but the law is not adequately captured in that phrase. In the early days of standing doctrine — the first decades of the twentieth century — a common law interest was often treated as a necessary basis for standing. Standing limits, like other justiciability doctrines, were elaborated by justices allied with the progressive movement or the New Deal — most notably Justices Brandeis and Frankfurter, defenders of the regulatory state — who sought to develop devices immunizing government from judicial review. See, e.g., Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 154–155 (1951) (Frankfurter, J., concurring); Alabama Power Co. v. Ickes, 302 U.S. 464, 479–480 (1938); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341–345 (1936) (Brandeis, J., concurring); Fairchild v. Hughes, 258 U.S. 126, 129–130 (1922). Although these justices were hardly critical of government intervention into the economy, the consequence of the new standing requirements was a body of doctrine that was in fact rooted in a sharp split between the public and private spheres. Usually one had to show at least a common law interest to obtain standing. Beneficiaries of government action — consumers, public interest groups, victims of discrimination — were denied standing. Judicial intervention could be invoked by those trying to fend off government activity but not by those trying to obtain government protection. Invasion of private property rights was the usual basis for obtaining review. This understanding was an amalgam of common law and statutory interpretation. For the most part it was not thought to be constitutional in nature. For a detailed discussion of the relevant history, along with an evaluation of standing limits, see Winter, The Metaphor of Standing and the Problem of Self-Governance, 40 Stan. L. Rev. 1371 (1988). For a contrary view, see Woolhandler and Nelson, Does History Defeat Standing Doctrine?, 102 Mich. L. Rev. 689 (2004). In the 1960s and 1970s, however, courts emphasized that people invoking statutory interests also suffered “legal injury.” On this view, the fact that an interest protected by statute was at stake gave rise to an inference that Congress had intended to allow someone invoking that interest to bring suit. For example, people who listened to the radio could challenge decisions of the Federal Communications Commission, and people who enjoyed the environment could challenge the building of a power plant near a river. p. 102 See Office of Communication of the United Church of Christ v. FCC, 359 F.2d 994 (D.C. Cir. 1966); Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608 (2d Cir. 1965). This broadening of standing was done under the guise of statutory interpretation. It continued the original idea that whether someone had standing depended on whether Congress had conferred on that person a right to relief. Thus far, no “injury in fact” was required, and article III was implicated only insofar as courts treated a congressional grant of a right to relief as a necessary condition for standing. The real roots of modern standing law can be found not in the founding period, and not even during the New Deal, but instead in Association of Data Processing Services Organizations v. Camp, 397 U.S. 150 (1970). In that case, the Court boldly altered previous law by abandoning the legal interest test altogether in favor of a new inquiry into whether there was injury in fact. It is noteworthy that the injury in fact requirement seemed to be an interpretation of the Administrative Procedure Act, not an interpretation of the Constitution, though the Court was ambiguous on that point. It is also noteworthy that the Court clearly intended to broaden, rather than to narrow, standing. It emphasized that the injury in fact requirement is relatively lenient. According to the Court, it may include a wide variety of economic, aesthetic, environmental, and other harms. The consequence of Data Processing is that beneficiaries of government regulation, not merely those trying to fend off government action, can have standing to sue. But even under Data Processing, a merely ideological interest — or an interest in bringing about compliance with the law — is insufficient. But what is the line between an “injury in fact” and a “mere” ideological injury? Standing was denied on injury in fact grounds in Sierra Club v. Morton, 405 U.S. 727 (1972). The case involved an effort by an organization with “a special interest in the conservation and sound maintenance of the national parks” to challenge construction of a recreation area in a national forest. In the plaintiffs’ view, the construction would have violated federal law. The Court denied standing, saying that the fact that an aesthetic, conservational, or recreational harm would be sufficient did not mean that the Court would abandon “the requirement that the party seeking review must have himself suffered an injury.” In this case, the “Sierra Club failed to allege that it or its members” used the site in question. What is the purpose of denying standing in Sierra Club? Consider the view that the Sierra Club was litigating the rights of others who had a more direct stake in the controversy and the idea that those others, and not an intermeddling bystander, should have an exclusive right to raise the underlying legal issues. Contrast Sierra Club with United States v. SCRAP, 412 U.S. 669 (1973), in which the Court held that environmental groups could challenge the Interstate Commerce Commission’s failure to suspend a surcharge on railroad freight rates as unlawful under the Interstate Commerce Commission Act. The plaintiffs claimed that their members “used the forests, streams, mountains, and other resources in the Washington metropolitan area for camping, hiking, fishing, and sightseeing.” According to the Court, the Constitution was satisfied by the attenuated line of causation to the eventual injury of which the [plaintiffs] complained — a general rate increase would allegedly cause increased use of nonrecyclable commodities as compared to recyclable goods, thus resulting in the need to use more natural resources to produce such goods, some of which resources might be taken from the Washington area, and resulting in more refuse that might be discarded in national parks in the Washington area. p. 103 It is not at all clear, however, that SCRAP could command a majority today, as Massachusetts v. EPA reveals. The Court distinguished SCRAP in Summers v. Earth Island Institute, 555 U.S. 488 (2009). Plaintiffs, a group of environmental organizations, challenged the failure of the United States Forest Service to enforce regulations requiring it to establish notice, comment, and appeal procedures for proposed actions implementing land and resource management plans. The Court held that an affidavit submitted by a member of one of the organizations that he “has visited many National Forests and plans to visit several unnamed National Forests in the future” was insufficient to establish standing because it failed to allege that any particular timber sale or other project claimed to be unlawfully subject to regulations will impede a specific and concrete plan of [the affiant’s] to enjoy the National Forests. The National Forests occupy more than 190 million acres, an area larger than Texas. There may be a chance, but it is hardly a likelihood, that [affiant’s] wanderings will bring him to a parcel about to be affected by a project unlawfully subject to the regulations. Indeed, without further specification, it is impossible to tell which projects are in respondents’ view unlawfully subject to regulations. Compare Justice Breyer’s dissenting opinion, joined by Justices Stevens, Souter, and Ginsburg. He observed that the plaintiff organizations had “hundreds of thousands of members who use forests regularly across the nation.” The members’ activities led him to this analogy: “To know, virtually for certain, that snow will fall in New England this winter is not to know the name of each particular town where it is bound to arrive. The law of standing does not require the latter kind of specificity.” In reading the following note, consider the various reasons that the Court proffers for why an allegation fails to constitute an injury in fact. On the relationship of these arguments, see Stearns, Standing Back from the Forest: Justiciability and Social Choice, 83 Cal. L. Rev. 1309 (1995).

Judicial Review (cont.); Advisory Opinions; Standing PDF

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