Scotus – Don’t Blame the Framers

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What is the “Judicial Power?”1 It’s worth knowing because the Constitution’s Article III grants all of it to Scotus and inferior courts. Does the Judicial Power extend to striking down any and all state or congressional laws or state constitutional amendments? Through the Judicial Power, may courts fabricate previously unknown rights? What about lawsuits against government climate or border wall policies? Is this what the Framers had in mind?

The Framers’ Judicial Power allows the courts to decide and pronounce a judgement and carry it into effect. According to Chief Justice Marshall, Judicial Power is capable of acting only when the subject is submitted in a case, and a case arises only when a party asserts his rights “in a form prescribed by law.”

The language of Article III § 2 makes clear the Framers did not envision federal judges rummaging around as they pleased through the Constitution and laws of the United States, but instead provided for resolution of disputes arising in a “judicial” manner.

Potential abuse of Judicial Power was of concern to the Framers, leading them to establish limits on the circumstance in which the courts could consider cases. When, late in the Federal Convention, a delegate proposed to extend the Judicial Power beyond the consideration of statutes and treaties, and to include cases arising under the Constitution, Madison’s notes captured these anxieties. He was apprehensive about extending an implied open jurisdiction, beyond the Judicial Power, to any and all possible instances arising under the Constitution. He wrote, “the right of expounding the Constitution in cases not of this nature ought not to be given to that Department.” Consequently, “[t]he motion of Docr. Johnson was agreed to nem : con : it being generally supposed that the jurisdiction given was constructively limited to cases of a Judiciary nature—.”

This interpretation is reenforced by the refusal of the Convention to assign judges the extra-judicial functions which some members of the Convention had proposed for them. Thus, for instance, the Convention four times voted down proposals for judges, along with executive branch officials, to sit on a Council of Revision with the power to veto bills passed by Congress. A similar fate befell suggestions that the Chief Justice be a member of a privy council to assist the President and that the President or either House of Congress be allowed to request advisory opinions of the Supreme Court.

So, while the Framers extended the Judicial Power to “cases, in law and equity, arising under this Constitution,” the cases brought before federal courts must still be a controversy appropriate for judicial determination subject to the Judicial Power. A justiciable controversy is distinguished from a difference or dispute of a hypothetical character; from one that is academic or moot. The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.

The business of federal courts is limited to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process. Persons do not have standing to sue in federal court when all they can claim is that they have an interest or have suffered an injury that is shared by all members of the public. Thus, a group of persons suing as citizens to litigate a contention that membership of Members of Congress in the military reserves constituted a violation of Article I, § 6, cl. 2, was denied standing. “The only interest all citizens share in the claim advanced by respondents is one which presents injury in the abstract. . . . [The] claimed nonobservance [of the clause], standing alone, would adversely affect only the generalized interest of all citizens in constitutional governance.”2

Constitutional Standards: Injury in Fact, Causation, and Redressability. Although the Court had been inconsistent, it settled upon the rule that, “at an irreducible minimum,” the constitutional requisites under Article III for the existence of standing are that the plaintiff must personally have:

1) suffered some actual or threatened injury;
2) that injury can fairly be traced to the challenged action of the defendant; and
3) that the injury is likely to be redressed by a favorable decision.

For a time, the actual or threatened injury requirement included an additional requirement that such injury be the product of a wrong which directly results in the violation of a legal right. In other words, the injury needs to be one of property, one arising out of contract, one protected against tortuous invasion, or one founded in a statute which confers a privilege. Despite this test, the observable tendency of the Court was to find standing in cases which were grounded in injuries far removed from property rights.

Nonetheless, the Court has been wary in constitutional cases of granting standing to persons who alleged threats or harm to interests that they shared with the larger community of people at large.

The Framers’ plan of government granted Article III judges a circumspect Judicial Power and not plenary authority to cast about the Constitution in search of undiscovered positive rights. In a system famous for checks of one branch upon another, the Framers provided further safeguards against a runaway, oligarchic judiciary. Congress has explicit authority to regulate the court system and define much of its jurisdiction.

Make no mistake. Our courts are out of control not because the Framers got Article III wrong. Through its refusal to use its Article III authority to check Scotus, Congress condones our runaway judiciary.

1. General Reference: The Constitution Annotated, 725-739.

2. Connecticut injured no one in 1965 with a law that proscribed the sale of chemical birth control pills. In the denial of legal abortion, Texas did no harm to Jane Roe. Ditto for Obergefell v. Hodges. What of a suit filed by Our Children’s Trust against the national government on behalf of 21 youths, aged 11 to 22, arguing their right to a “stable climate system?” The suit asked the court to order the government to issue laws and regulations to fight global warming.