Cases and Controversies

Author:Jonathan D. Varat

Page 322

Article III of the Constitution vests the JUDICIAL POWER OF THE UNITED STATES in one constitutionally mandated Supreme Court and such subordinate federal courts as Congress may choose to establish. Federal judges are appointed for life with salaries that cannot be diminished, but they may exercise their independent and politically unaccountable power only to resolve "cases" and "controversies" of the kinds designated by Article III, the most important of which are cases arising under the Constitution and other federal law. The scope of the federal judicial power thus depends in large measure on the Supreme Court's interpretations of the "case" and "controversy" limitation applicable to the Court itself and to other Article III tribunals.

That limitation not only inhibits Article III courts from arrogating too much power unto themselves; it also prevents Congress from compelling or authorizing decisions by federal courts in nonjudicial proceedings and precludes Supreme Court review of state court decisions in proceedings that are not considered "cases" or "controversies" under Article III. The limitation thus simultaneously confines federal judges and reinforces their ability to resist nonjudicial tasks pressed on them by others.

The linkage between independence and circumscribed power is a continuously important theme in "case" or "controversy" jurisprudence, as is the connection between "case" or "controversy" jurisprudence and the power of JUDICIAL REVIEW of government acts for constitutionality?a power that MARBURY V. MADISON (1803) justified primarily by the need to apply the Constitution as relevant law to decide a "case." During the CONSTITUTIONAL CONVENTION OF 1787, EDMUND RANDOLPH, proposed that the President and members of the federal judiciary be joined in a council of revision to veto legislative excesses. The presidential VETO POWER was adopted instead, partly to keep the judiciary out of the legislative process and partly to insure that the judges would decide cases independently, without bias in favor of legislation they had helped to formulate. Similar concerns led the convention to reject CHARLES PINCKNEY'S proposal to have the Supreme Court provide ADVISORY OPINIONS at the request of Congress or the President. Finally, in response to JAMES MADISON'S doubts about extending the federal judicial power to expound the Constitution too broadly, the Convention made explicit its understanding that the power extended only to "cases of a Judiciary nature." The Framers understood that the judicial power of constitutional governance would expand if the concept of "case" or "controversy" did.

What constitutes an Article III "case," of a "judiciary nature," is hardly self-evident. No definition was articulated when the language was adopted, but only an apparent intent to circumscribe the federal judicial function, and to insure that it be performed independently of the other branches. In this century, Justice FELIX FRANKFURTER suggested that Article III precluded federal courts from deciding legal questions except in the kinds of proceedings entertained by the English and colonial courts at the time of the Constitution's adoption. But the willingness of English courts to give advisory opinions then?a practice clearly inconsistent with convention history and the Court's steadfast policy since 1793?refutes the...

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