Introduction

Actual Disputes and Advisory Opinions

Introduction

Before a federal court asks whether a statute or an executive act is constitutional, it asks a prior question: is it entitled to ask at all? That threshold inquiry is easy to overlook, because the most famous statement of judicial power makes the power sound unconditional. In Marbury v. Madison the Court declared that the Constitution is law, that it is the province and duty of the judiciary to say what the law is, and that this duty includes testing the acts of Congress and the Executive against the Constitution.¹ Yet the reasoning that produced that result also supplied its boundary. Chief Justice Marshall's argument was that a court may declare a statute unconstitutional only as a consequence of its power to decide a case properly before it, so a statute that may well be invalid stays beyond judicial pronouncement until a proper case brings it into court.² Judicial review is therefore a byproduct of deciding disputes, which means a federal court has no general commission to answer legal questions on request.

The two versions of that scene differ in exactly the way the Constitution cares about. In the second, an actual dispute exists between a state and an executive officer over their legal relations, and the judgment will bind them, so the court's opinion is no longer merely advisory.³ The text behind that line is Article III, Section 2, which extends the judicial power to enumerated "Cases" and "Controversies," among them cases arising under the Constitution and laws of the United States and controversies to which the United States is a party.⁴ The Court has read that list as a limit as well as a grant, because a conferral of power over enumerated matters has long been understood to imply that the judicial power extends to nothing else.⁵ The limit does two jobs. It confines federal courts to questions presented in an adversary setting and in a form the judicial process can resolve, and it allocates power among the branches so that courts stay out of areas committed to others.⁶ The second job explains why the requirement matters most in constitutional cases. A court that reaches a constitutional question only when a real dispute requires it poses a modest threat to democratic government, while a court that could pronounce on demand would be free to insert itself into congressional debates and to supervise executive operations.⁷

This chapter teaches that threshold question. It begins by defining a case or controversy and then returns to Marbury to show how closely the two are linked. From there it takes up the most famous consequence of the requirement, the ban on advisory opinions, which sits at the core of Article III and serves as a fixed reference point for the rest of justiciability doctrine.⁸ The ban then reaches outward to explain why collusive suits fail, why a declaratory judgment issued in a genuine dispute is nonetheless permitted, and why the Supreme Court declines to review state-court judgments that rest on adequate and independent state grounds. The chapter closes with the neighboring doctrines of standing, ripeness, and mootness, each of which applies the same idea along a different dimension: whether the plaintiff has a personal stake, whether the dispute has arrived too soon, and whether it has outlived its life. Those three receive only a bridging treatment here, enough to show how each grows out of the ban. The first step is to see what the constitutional text actually requires, and the next section turns to that definition.