United States V. Klein

• 1872. Limited Congressional power approved in McCardle. How? Perhaps Congress can control jurisdiction, but it can’t instruct the SCt how to decide cases. But it’s not altogether clear what Klein holds.

Good confusion

• Congressional power to strip SCt of its jurisdiction remains uncertain. “Doubts about the constitutionality of jurisdictional limitations partially account for Congress’s failure to adopt such statutes.” This is because many people accept structural argument that SCt must check Congress when it violates USC.

• Debate is mainly in academia; there is not much case law here.

Case or Controversy Requirement

• SCt cannot issue advisory opinions. It must wait for an actual controversy to appear before it before it can decide a constitutional question. This fact may assuage our worries about the possibility of judicial tyranny, and so may help to justify judicial review.

• On the other hand, case/controversy requirement may cut in the other direction. James Bradley Thayer famously argued that this limitation of judicial power entailed an obligation of the judiciary to defer to the legislature. Here is his argument:

• It is only as litigation springs up and raises the point of constitutionality, that any question for the courts can regularly emerge.

• Thus, it may be that the mere legislative decision will accomplish results throughout the country of the profoundest importance before any judicial question can arise or be decided.

• It is plain that where a power so momentous as this primary authority to interpret is given, the actual determinations of the body to whom it is intrusted are entitled to a corresponding respect; and this not on mere grounds of courtesy or conventional respect, but on very solid/significant grounds of policy and law.

• Judiciary may well reflect that if they had been regarded by the people as the chief protection against legislative violation of the USC, they would not have been allowed merely this incidental/postponed control. They would have been let in, as it was sometimes endeavored in the conventions to let them in, to a revision of the laws before they begin to operate.

• Koppelman. Is Thayer correct here? Does Marshall’s opinion in Marbury answer this argument?

Standing

• Background

• This prohibiting of advisory opinions is the source of the law of standing.

• In order to be able to compel judicial decision, a litigant must have a legally cognizable stake in the controversy. If a federal court decision will not redress an injury, either because what is complained of is not an injury or because the decision will have no effect, then the decision would be an advisory opinion.

• Standing doctrine goes back to Marshall’s claim that individual rights and nothing else is the SCt’s business:

• “Although the requirements of standing must be met in every lawsuit filed in federal court, the issue frequently arises in cases presenting important constitutional and public law statutory questions. As such, standing is crucial in defining the scope of judicial protection of constitutional rights. Because standing is jurisdictional, federal courts can raise it on their own and it may be challenged at any point in the federal court proceedings.” (Erwin Chermerinsky)

• Standing Requirements. Standing has constitutional and prudential components which must be satisfied to get into any federal court (98-99). Prudential components can be overruled by statute; constitutional components cannot be overruled by statute.

• Constitutional

1. P must allege that he has suffered or imminently will suffer an injury

2. P must allege that injury is fairly traceable to D’s conduct,

3. P must allege that a favorable decision is likely to redress the injury.

• Prudential modality

1. P must assert own rights, not those of third parties,

2. Court won’t adjudicate abstract questions or generalized grievances,

3. P’s complaint must fall within the legally protected zone of interests.