Judicial Power and Jurisdiction Cases and Controversies
SECTION 2. Clause 1. 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 and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State; between 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.
The potential for abuse of judicial power was of concern to the Founding Fathers, leading them to establish limits on the circumstance in which the courts could consider cases. When, late in the Convention, a delegate proposed to extend the judicial power beyond the consideration of laws and treaties to include cases arising under the Constitution, Madison’s notes captured these concerns. “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.” 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—.”359
This passage, and the language of Article III, § 2, makes clear 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. This interpretation is reenforced by the refusal of the Convention to assign the judges the extra-judicial functions which some members of the Convention—Madison and Wilson notably—conceived 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 laws passed by Congress.360 A similar fate befell suggestions that the Chief Justice be a member of a privy council to assist the President361 and that the President or either House of Congress be able to request advisory opinions of the Supreme Court.362 The intent of the Framers in rejecting the latter proposal was early effectuated when the Justices declined a request of President Washington to tender him advice respecting legal issues growing out of United States neutrality between England and France in 1793.363 Moreover, the refusal of the Justices to participate in a congressional plan for awarding veterans’ pensions364 bespoke a similar adherence to the restricted role of courts. These restrictions have been encapsulated in a series of principles or doctrines, the application of which determines whether an issue is met for judicial resolution and whether the parties raising it are entitled to have it judicially resolved. Constitutional restrictions are intertwined with prudential considerations in the expression of these principles and doctrines, and it is seldom easy to separate out the two strands.365The Two Classes of Cases and Controversies
By the terms of the foregoing section, the judicial power extends to nine classes of cases and controversies, which fall into two general groups. In the words of Chief Justice Marshall in Cohens v. Virginia:366 “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 jurisdiction 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 foreign states, citizens or subjects.’ If these be the parties, it is entirely 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.”367
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.”368 The meaning attached to the terms “cases” and “controversies”369 determines therefore the extent of the judicial power as well as the capacity of the federal courts to receive jurisdiction. 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.”370 “By cases and controversies are intended the claims of litigants brought before the courts for determination by such regular proceedings as are established by law or custom for the protection or enforcement of rights, or the prevention, redress, or punishment of wrongs. Whenever the claim of a party under the Constitution, laws, or treaties of the United States takes such a form that the judicial power is capable of acting upon it, then it has become a case. The term implies the existence of present or possible adverse parties whose contentions are submitted to the Court for adjudication.”371
Chief Justice Hughes once essayed a definition, which, however, presents a substantial problem of labels. “A ‘controversy’ in this sense must be one that is appropriate for judicial determination. A justiciable controversy is thus 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.”372 Of the “case” and “controversy” requirement, Chief Justice Warren admitted that “those two words have an iceberg quality, containing beneath their surface simplicity submerged complexities which go to the very heart of our constitutional form of government. Embodied in the words ‘cases’ and ‘controversies’ are two complementary but somewhat different limitations. In part those words limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process. And in part those words define the role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government. Justiciability is the term of art employed to give expression to this dual limitation placed upon federal courts by the case and controversy doctrine.”373 Justice Frankfurter perhaps best captured the ﬂavor of the “case” and “controversy” requirement by noting that it takes the “expert feel of lawyers” often to note it.374
From these quotations may be isolated several factors which, in one degree or another, go to make up a “case” and “controversy.”
359 2 M. Farrand, supra at 430.
360 The proposal was contained in the Virginia Plan. 1 id. at 21. For the four rejections, see id. at 97–104, 108–10, 138–40, 2 id. at 73–80, 298.
361 Id. at 328–29, 342–44. Although a truncated version of the proposal was reported by the Committee on Detail, id. at 367, the Convention never took it up.
362 Id. at 340–41. The proposal was referred to the Committee on Detail and never heard of again.
363 1 C. Warren, supra at 108–111; 3 Correspondence And Public Papers Of John Jay 633–635 (H. Johnston ed., 1893); Hart & Wechsler (6th ed.), supra at 50–52.
364 Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792), discussed “Finality of Judgment as an Attribute of Judicial Power,” supra.
365 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. Municipal Court, 331 U.S. 549, 568–575 (1947).
366 19 U.S. (6 Wheat.) 264 (1821).
367 19 U.S. at 378.
368 Muskrat v. United States, 219 U.S. 346, 356 (1911).
369 The two terms may be used interchangeably, inasmuch as a “controversy,” if distinguishable from a “case” at all, is so only because it is a less comprehensive word and includes only suits of a civil nature. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239 (1937).
370 Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824).
371 In re Pacific Ry. Comm’n, 32 F. 241, 255 (C.C. Calif. 1887) (Justice Field). See also Smith v. Adams, 130 U.S. 167, 173–174 (1889).
372 Aetna Life Ins. Co. v. Haworth, 300 U.S. 229, 240–241 (1937). Cf. Public Service Comm’n v. Wycoff Co., 344 U.S. 237, 242 (1952).
373 Flast v. Cohen, 392 U.S. 83, 94–95 (1968).
374 “The jurisdiction of the federal courts can be invoked only under circumstances which to the expert feel of lawyers constitute a ‘case or controversy.’” Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 149, 150 (1951).