Limits on Judicial Power – Jurisdiction stripping and the prohibition on advisory opinions

1. Purposes

   1. Ripeness and Mootness: limits on when courts can hear cases

   2. Congressional limits and Prohibitions on Advisory Opinions – limits what cases courts can hear

   3. Standing: Limits who can bring particular cases that can be heard by the courts

2. Interpretive limits

3. Congressional limits

   1. Arguments for congressional authority to strip

      1. It is Constitutional

         1. Article III, Sec. 2: Exceptions and Regulations Clause – “the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as Congress shall make.”

      2. Need for a majoritarian check on the Court

      3. The support for this authority is in case law

   2. Arguments against

      1. Facilitates majority tyranny

      2. A majoritarian check on the Court in undesirable

      3. It undermines the supremacy of federal law

   3. Ex Parte McCardle (1868) – McCardle arrested for writing and publishing a series of editorials that were critical of Reconstruction. He sought a writ of habeas corpus on the ground that the Reconstruction Acts under which he was arrested were unconstitutional. McCardle appealed to Supreme Court under Military Reconstruction Act that conferred jurisdiction on appeal. After hearing arguments in the case, but prior to announcing a decision, Congerss withdrew its act conferring jurisdiction.

      1. Held: Act of 1868 (that stripped jurisdiction) was consistent with the regulation and exceptions clause, and that the court therefore did not have jurisdiction to decide McCardle’s case.

         1. Question of whether Congress has authority to strip Supreme Court jurisdiction over any matter, including constitutional matters, not addressed.

   4. United States v. Klein (1871)– Repondent brought suit in United States Court of Claims, seeking compensation for property taken during the Civil War. Supreme Court had held that a presidential pardon had the effect of proof that one did not support the rebellion, so pardoned individuals could petition for return of property or compensation. In response, Congress passed statute stating that pardon was inadmissible as evidence in claim for seized property. Congress also required that if a court found a pardon was secured without an express disclaimer of guilt, such finding was to act as a bar to jurisdiction. The estate of the Respondent who was pardoned had received a judgment granting recovery from the Court of Claims. US argues that the statute requires dismissal of the case for want of jurisdiction.

      1. Held: Statute Unconstitutional, not a proper exercise of congressional power. Exceptions and Regulations clause does not give Congress the power to direct the Court to make a particular decision.

         1. Article III, Sec. 2 also states that both judicial and legislative powers must be kept distinct. Separation of Powers Limit.

            1. Grants judicial power to Supreme court/inferior courts

            2. Grants legislative power to determine the appellate jurisdiction of the Supreme Court

            3. To keep the powers separate, the rule must be that once Congress has granted the Supreme Court appellate jurisdiction over certain matters, it cannot intrude on this judicial power by prescribing a particular outcome in the case

   5. Robertson v. Seattle Audobon Society (1992)

      1. Held: Separation of powers considerations do not limit Congress from changing the law applicable to a set of cases pending in the federal court, so long as it does so by changing the background law rather than dictating to federal judges how they are to apply the pre-existing law.

   6. Prohibition of Advisory Opinions

      1. Pros

         1. If unconstitutional law passes, it will discourage constitutionally lawful activity until declared unconstitutional

         2. Saves Congress time – do not have to waste time enacting the law, having it litigated and then declared unconstitutional

      2. Cons

         1. Waste judicial resources

         2. No case or controversy

         3. Takes away from judicial legitimacy

         4. No concrete facts – Judicial decision making is enhanced by the benefit of concrete facts

      3. Characteristics that must be present in order for federal court to decide a matter

         1. Actual dispute between adverse litigants (Neutrality controversy)

         2. Substantial likelihood that a federal court decision in favor of a claimant will bring about some change/have some effect (Hayburn)

      4. Plaut v. Spendthrift Farm, Inc. (!995)– In 1991, Court held that actions brought under 10(b) of Securities Exchange Act must be brought within one year of discovering facts leading to the violation, and within three years of the violation itself. In response, Congress amended law to allow cases filed before the decision to go forward, if they could have been brought under the previous law. Petitioner had brought suit prior to the decision, but the suit was dismissed in accordance with Court’s ruling. Petitioner attempted to resume prosecution of dismissed case.

         1. Impermissible advisory opinion problem?

            1. Yes: In overturning the Court’s final judgment, Congress essentially renders its prior ruling an impermissible advisory opinion

            2. No: Court interpreted a statute, Congress revised the statute and created a new cause of action with a longer statute of limitations.

         2. Held: Statute did raise an impermissible advisory opinion problem. Congress may pass retroactive legislation that affects cases still pending appeal. But a judgment “conclusively resolves the case” – Congress cannot allow case to resume once judgment has been rendered. This was an improper interference with separation of powers limits on legislative power.

4. Justiciability limits – judicially created limits on the matters that can be heard by federal courts

   1. Derived from Article III, Sec. 2: “The Judicial Power shall extend to all Cases [or] Controversies”

   2. Standing

      1. Definition

         1. The determination of whether a particular person is the proper party to present a particular issue to the court for determination. Addresses whether “a party has a sufficient stake in an otherwise...

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