Monday, September 18, 2006


Limits Upon Judicial Power

The Concept of Separation of Powers requires that the Judiciary not overly involve itself in the affairs of the Executive and Legislative Branches. The concept also requires that the federal judiciary not overly involve itself in questions which are purely matters of state law. This is known as concerns of Federalism. Some limitations upon the courts are imposed by the Constitution, and through the Constitution, by acts of Congress. Other limitations arise from the Court’s own judicial restraint, a tradition of not wanting to get involved in certain controversies.

A. Congressional Statutes Regulating Judicial Power

As noted above, the Congress has the power to limit the appellate jurisdiction of the U.S. Supreme Court. It did so in the Judiciary Act of 1789, and did so again in 1867. In doing so, it granted to all federal courts the power to issue Writs of Habeas Corpus to anyone whose liberty had been unconstitutionally restrained. The amendment also allowed appeals from the trial level all the way to the U.S. Supreme Court.

1. Ex Parte McCardle 74 U.S. (7 Wall.) 506, 19 L. Ed. 264 (1869)

a. The Facts Of The Case

McCardle was a Mississippi newpaperman who was being held by the military for publishing certain articles the military deemed slanderous and incendiary. McCardle sought a Writ of Habeas Corpus from the federal courts, but was denied. His case eventually came before the U.S. Supreme Court. After the hearing there, but before the Decision, the Congress passed a new law taking away the power of the Supreme Court to hear appeals of habeas corpus cases.

As one might note from the dates involved, this case took place amidst the backdrop of Reconstruction after the Civil War. The military had been placed in charge of the government of many of the defeated southern states. The military didn’t cotton to the opinions expressed by Mr. McCardle in his newspaper and locked him up because of it (while one might wonder what became of the First Amendment arguments in this matter, it should be noted that the First Amendment does not cover libelous speech nor speech which presents a clear and present danger to the public--such as “fighting words” or yelling “fire” in a crowded theater).

b. The Legal Arguments

The Court first noted that the powers of judicial review and appellate jurisdiction are not conferred by any act of Congress, but rather by the Constitution itself. However, the Constitution (Article III, Section 2) allows the Congress to regulate and limit the appellate jurisdiction of the Supreme Court. In this case, the Congress clearly and expressly removed the power of the Supreme Court to hear Habeas Corpus cases on appeal. Because of this, Justice Chase wrote:

"We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words… Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is the power to declare law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause."

We should take from this case the fact that the Congress has the power to limit the Supreme Court’s appellate jurisdiction by simply passing a statute. The only limitation upon this power would come through some other aspect of the Constitution. For instance, the Congress could not pass a law limiting the Supreme Court’s power to hear appeals cases involving only men or only blacks, or only jews, as this would violate the 14th Amendment's Equal Protection Clause.

B. Judicial Restraint

1. Case or Controversy Requirements

a. No Advisory Opinions

In order for a court to hear a case, there must be an actual case or controversy arising. For instance, if the Congress intended to impose a law regulating the sale of rodents, it could not first ask the Supreme Court to render an advisory opinion on whether that hypothetical law would be constitutional. Only persons actually aggrieved under a law would be permitted to argue a case.

1) Muskrat v. United States (1911), 219 U.S. 346

A) The Facts Of The Case

In 1902, Congress passed a law giving certain Cherokee tribal lands to certain tribal members. In 1904 and 1906, Congress amended the 1902 law to increase the number of persons given the lands. In 1907, Congress passed a law allowing David Muskrat and a few others to bring suit in the Court of Claims to challenge the validity of the 1904 and 1906 Amendments.

B) The Legal Arguments

Justice Day wrote that:

It is therefore evident that there is neither more nor less in this procedure than an attempt to provide for a judicial determination, final in this court, of the constitutional validity of an Act of Congress. Is such a determination within the judicial power conferred by the Constitution? … We think it is not… The exercise of this, the most important and delicate duty of this court is not given to it as a body with revisory power over the action of Congress, but because the rights of the litigants in justiciable controversies require the court to choose between the fundamental law and a law purporting to be enacted within constitutional authority… It is true that the United States is made a defendant to this action, but it has no interest adverse to the claimants… The whole purpose of the law is to determine the constitutional validity of this class of legislation….

We should take from this case the lesson that the Supreme Court will not issue advisory opinions at the request of anyone, not even Congress or the Executive Branch. There have been times when President Washington’s secretary of State, Thomas Jefferson, requested that the Supreme Court issue advisory opinions on the construction and interpretation of certain treaties to be signed by the government. The Supreme Court regularly declined to offer these opinions, replying instead that the Executive Branch might be better served by getting its cabinet together and discussing the matter amongst themselves.

2. Standing Requirements

Another area where the Courts have exercised Judicial Self Restraint comes when considering issues relating to the Standing of a party to make an argument. Before you bring a case before the court, you must have standing to do so. There are two ways to have standing, an injury in fact, and secondly, whether or not a party has alleged a personal stake in the outcome sufficient to assure concrete adversity which sharpens the presentations of the issues. When one decides standing issues, the first thing you should ask is “Is the proper person raising this particular issue?”

There are three reasons why courts look at Standing issues. First, it is argued that without being personally aggrieved, the Party in the case might not be sufficiently hacked off enough to assert his case in its best possible light.

Secondly, Courts lack the Constitutional authority to address any matter which is not a “case of controversy.” It is argued that without Standing, there is no “case or controversy.”

Thirdly, Courts have long followed the concept of judicial restraint, choosing not to get involved in matters where the parties do not have standing. Wrapped up in the standing issue is the separation of powers argument. The Courts should not intrude into the other branches of government unless there is a harm so grievous that it is necessary.

To look at the issue of standing in its simplest context, if someone trespassed upon your next door neighbor’s land, could you sue the trespasser on your neighbor’s behalf? The answer is always in the negative. You won’t have any damages because you do not own the land of your neighbor.

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