A Brief Note On Justiciability

Several of this blogs most faithful supporters suggested that I do a post on justiciability, having just referenced that concept in the last post about the emoluments cases.  It is both an abstract and a very real concept.  I'll try to focus on the real world application of the term, the one that will show up in legal memorandums and judicial opinions. 

A word about legal terminology in general.  Legal terms are capable of being defined yet are constantly being interpreted.  They have a core meaning yet there is a fuzzy area surrounding them where the interpretations take hold.  Also, there are the exceptions to that core meaning which need to be understood to grasp the entire concept of that term, and also related terms that affect the meaning of the term itself.  For example, take the term "moot" or "mootness".  Legal actions cannot be brought or continued after a matter has been resolved, leaving no live case for a court to deal with.  You need a live dispute: federal courts can't give advisory opinions (state courts are different, depending on the state).  And if you said that's what "moot" means, you'd be right.  But to fully understand mootness, you need to be aware of the four exceptions to mootness (e.g., capable of repetition yet avoiding review), which involve cases that appear to be moot at first blush (the core meaning) but are not held to be moot for various reasons.  More about them in a future post.  Just know that is how legal terms function.

"Justiciability" is the term that concerns the limits on the legal issues over which a court can exercise its judicial authority.  Also called the Case and Controversy requirement (after Article III, Section 2 of the Constitution's reference to "Cases" and "Controversies" and the extent of federal court authority), justiciability refers to whether a court possesses the the ability to provide adequate resolution of a dispute.  If the court feels it cannot do that, it will deem the case not justiciable.  But how does the court make that determination?

The court needs to determine four things: whether the case is ripe; whether the case is moot; whether the person bringing the case has standing; and whether the case is of the type the court ought not to decide, most often called the political question doctrine.  A neat way to see these four issues (picked up, believe it or not, from a QuicStudy guide) goes like this: Is it too early? (ripeness); Is it too late (mootness); It's not you (standing); It's not us (political question doctrine),  Here is a very brief summary of each:

Ripeness (Is it too early?): A claim is not ripe for adjudication if it rests upon contingent future events that either may not occur or not occur as anticipated.  In short, you need a real or imminent harm, otherwise, the facts are not fully developed and the court is giving an advisory opinion.

Mootness (Is it too late?): The case cannot have been resolved before the court gets to pass on it.  You need a live controversy.  

Standing (It's not you): Ripeness and mootness (even with the exceptions) are fairly straightforward.  Standing is more complex, and the Supreme Court continues to refine this concept.  The basic standard is set forth in cases such as Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), where the Supreme Court created a three-part test to determine whether a party has standing to sue:
1. The plaintiff must have suffered an "injury in fact," meaning that the injury is of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent [and you can see that this is where ripeness and mootness come into play]
2. There must be a causal connection between the injury and the conduct brought before the court
3. It must be likely, rather than speculative, that a favorable decision by the court will redress the injury

Political question doctrine (It's not us): Courts will refuse to hear a case that they believe involves a political question, that is, a question that is too politically charged and that involves a question best handled by the other branches of government (Executive and Legislative), especially ones that the Constitution makes the sole responsibility of the other branches, for example, foreign affairs (Executive) and how to handle an impeachment (Legislative).

This is only a summary of the four parts of justiciability: there are exceptions, and the law is always evolving (or trying to).  I'll give a fuller treatment of them in future posts, but now you have a rough guide to the four factors (and you need all four) to make a case justiciable.  This should (I hope) help you read judicial opinions and quality news stories with more understanding.  And don't be shy about sending me questions in the "Comments" section.  They not only get your questions answered, but they help me think through issues and help me plan future posts.


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