Test Case

Author:Clement E. Vose

Page 2676

Whenever a unit of government, or an interest in the private sector, wants a favorable constitutional DECISION on a point in question, a test case is often organized to gain a ruling from the Supreme Court. The Court has not defined the term, and need not, as there is no judicial criterion for "test case" under the CASES AND CONTROVERSIES clause of Article III. Scholarship on the judicial process provides the best understanding of the term as a strategy employed by different interests, for differing ends. FLETCHER V. PECK (1810) showed that systematically plotting a test case, so framing it as to elicit particular answers based on prediction concerning how the Justices are likely to respond, and then using the judicial decision for political advantage is not a strategy unique to recent CIVIL RIGHTS cases but a durable aspect of constitutional litigation since the early years of the Republic.

Organizers of test cases sometimes look upon victory in the Supreme Court as a secondary goal. For example, the arguments of the National Woman Suffrage Association that women, as citizens, were already enfranchised by terms of the FOURTEENTH AMENDMENT breathed new life into the organization through publicity of test cases. MINOR V. HAPPERSETT (1875) and two other cases failed but they produced national news.

The Department of Justice took little initiative in enforcing new legislation in the nineteenth century, largely because Congress intended enforcement to come through complaints of individuals entitled to sue violators. An example of this is the CIVIL RIGHTS CASES (1883). Individuals challenged about a hundred violations of the CIVIL RIGHTS ACT OF 1875. Eventually, five came to the Supreme Court as test cases, where they were unsuccessfully argued by the SOLICITOR GENERAL. These test cases were not managed; they simply happened as individual blacks complained.

Business interests may bring test cases to prevent enforcement of new regulatory legislation, as in 1917 when David Clark for the Southern Cotton Manufacturers sought to invalidate the KEATING-OWEN ACT which prohibited shipment in INTERSTATE COMMERCE of designated products manufactured in plants employing children. Stephen Wood reports the advice of a Philadelphia lawyer to the manufacturers:

No legal proceeding will lie until the [Keating-Owen] bill is in operation. Some action must be taken under some provision of the bill so that a real and not a moot...

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