Doctrines Built on the Ban

Doctrines Built on the Ban

The ban on advisory opinions governs direct requests, such as the questions President Washington sent to the Justices, but a court can end up giving advice without anyone asking for it. A lawsuit can reach the court with the wrong plaintiff, it can arrive before the facts have matured, or it can continue after the dispute has ended, and in each situation a ruling on the legal question would look much like the opinion the court may not give. The Court treats the ban as a foundational principle that informs the operation of every other major area of justiciability law.¹ It has also sometimes described a dispute in which a party lacks standing, or in which the claim is not ripe, as calling for a prohibited advisory opinion.² That usage is looser than the formal refusal of 1793, which answered a request from another branch, so the later doctrines are best understood as extending the same reasoning to ordinary lawsuits.

Each doctrine takes up one of those three ways of sliding into advice and asks its own question. Standing asks whether the particular plaintiff has a sufficiently immediate and personal stake in the claim. Its demand for an immediate interest, as opposed to a future one, expresses the no-advisory-opinions principle, while its demand for a personal interest, as opposed to a public or taxpayer interest, expresses a second principle, the counter-majoritarian concern.³ That concern arises because federal judges, once confirmed, sit for life with no reduction in salary and are largely insulated from electoral accountability, which protects political minorities but leaves courts poorly placed to decide matters that the electorate or the political branches should control.⁴ Ripeness asks whether the dispute has matured enough to decide, and mootness asks whether it still exists, and both are applications of the no-advisory-opinions principle.⁵ The political question doctrine does related work from the other direction, keeping courts out of matters the Constitution assigns to the political branches, and it has its own treatment elsewhere.⁶

Because each of the three has a full reading of its own, the subsections below teach only how each one applies the logic of the ban and leave the detailed tests for those readings. A later section returns to the fact that some parts of these doctrines come from Article III itself and cannot be changed by Congress, while others are prudential. The first of the three, standing, is the one with the widest effect on federal litigation, and the next subsection, Standing and Personal Stake, begins there.

Standing and Personal Stake

The first of the three ways a lawsuit can slide into advice is by arriving with the wrong plaintiff, and the doctrine that screens for that problem is standing. Standing asks whether the particular person seeking relief has a sufficiently immediate and personal stake in the claim to make it justiciable.⁷ The Court has called it perhaps the most important of the case-or-controversy doctrines, and it has described the requirement as one of the means by which the judiciary ensures that its decisions are not merely advisory opinions.⁸ The gist of the inquiry is whether the plaintiff has "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination."⁹ That is the adversity element from the start of this chapter, applied to the individual plaintiff. A person with a real stake has every reason to develop the facts and press the legal question, and a person who is merely interested in the answer gives the court no assurance that the issue will be tested against actual consequences.

Each requirement closes a different gap between the plaintiff and the court's ruling. The injury ties the plaintiff to the dispute, traceability ties the injury to the defendant, and redressability ties the remedy to the injury. Break any one link and the court would be announcing what the law is for a person it cannot help, which is the role the ban on advisory opinions withholds from it.¹¹

Injury in fact is the heart of the inquiry.¹² It means an invasion of a legally protected interest, and the interest can be bodily, financial, related to property, environmental, or aesthetic, so long as a court does not regard it as too abstract.¹³ The injury must also be concrete, meaning real and not abstract, and particularized, meaning it affects the plaintiff in a personal and individual way.¹⁴ Jean, burned when the gas tank exploded in the example from the start of this chapter, satisfies both, because tort law protects freedom from bodily harm and her burns are an actual and personal invasion of that interest.¹⁵ In the variation where Jean is uninjured and sues only to push products-liability law toward stricter standards, nothing about her own situation separates her from any citizen who shares her view, and the personal-injury element fails for that reason.

A park closure shows the line between a personal injury and a mere opinion. Residents of Boston who object to the closing of a park in Boise out of regret over the loss of green space have no standing, because their feeling is generalized and no use of theirs is affected.¹⁶ Residents of Boise who have visited the park in the past and would keep visiting if it stayed open have standing, because the closure takes away something they actually use.¹⁷ Timing matters as well. If the Bostonians announce a vague intention to visit the park some day, their claim is tied to a harm more particular than regret, but it still depends on the speculative occurrence of future events, and it fails.¹⁸ The same problem arose in Lujan v. Defenders of Wildlife, where members of a wildlife group said they had visited habitats abroad and hoped to return and see endangered species there. One of them admitted she had no current plans and would go back only at some unspecified time, and the Court found that the plaintiffs had not made the required showing of injury and redressability.¹⁹ The desire to observe an animal species, even for aesthetic reasons, is a cognizable interest, but the test also requires that the party seeking review be among the injured.²⁰

The two halves of the injury requirement connect to two different principles. The demand that the injury be actual or imminent expresses the ban on advisory opinions, since a ruling on an injury that may never occur resolves a dispute that may never exist.²¹ The demand that the injury be concrete and particularized expresses the counter-majoritarian concern, since it reserves harms to the general public welfare for the elected branches and insists on interests the plaintiff actually suffers.²² That second half explains why a generalized interest in lawful government is not enough. In Allen v. Wright, the plaintiffs claimed that they and their children were stigmatized by the IRS's grant of tax-exempt status to racially discriminatory private schools, and the Court held that a denigration injury suffered by all members of a racial group is an abstract, generalized grievance. A plaintiff who claims only the harm that every citizen suffers from the government's failure to apply the law properly does not state a case or controversy, and the Allen plaintiffs had not alleged that they were personally denied equal treatment.²³

The reason runs through the separation of powers. Vindicating the public's interest in the government's observance of the law is the function of Congress and the Chief Executive, and if every citizen's interest in compliance were enough to sue, the courts would take over the President's duty to see that the laws are faithfully executed and become continuing monitors of executive action.²⁴ A stake that distinguishes the plaintiff from the public at large also gives the court a workable boundary. Without one, the same legal question could be brought by anyone on any government act, and the court would be a general legal adviser by another name.

A generalized grievance is easy to confuse with a widely shared harm, and the two are different. In Massachusetts v. Environmental Protection Agency, the agency argued that because greenhouse gas emissions inflict widespread harm, standing presented an insuperable obstacle, and the Court disagreed, explaining that it does not matter how many persons have been injured so long as the party bringing suit is injured in a concrete and personal way.²⁵ The Commonwealth owned a substantial portion of its coastal property, and rising seas had already begun to swallow that land, which made its injury particular to it as a landowner.²⁶ Students lose this issue when they treat widely shared harm as the same thing as a generalized grievance. The line is whether the plaintiff's own harm is concrete and personal, not how many others share it.

The second requirement is that the injury be fairly traceable to the defendant's challenged conduct and not the result of independent action by a third party who is not before the court.²⁷ Its purpose is to prevent a plaintiff from using a genuine injury as a platform for legal claims that are insufficiently related to it.²⁸ A broken leg may support a damages suit against the person who struck it with a bat, but it would not likely support a suit against the bat's manufacturer on the theory that its factory violates environmental law.²⁹ In Allen, the schools' own decisions about whom to admit stood between the IRS's tax treatment and the harm the plaintiffs described, and the causal chain was too attenuated to support standing.³⁰ The link to the advisory-opinion ban follows from that gap: a judgment against a defendant who did not cause the harm settles a legal question while leaving the plaintiff's situation exactly as it was.

The third requirement is that a favorable decision be likely, and not merely speculative, to redress the injury.³¹ Redressability is the effective-relief element of a case or controversy, seen from the plaintiff's side. A decree that cannot change the plaintiff's situation is only an opinion about what the law is.³² The requirement follows the case upward: a party seeking relief from a federal appellate court must show that a ruling in its favor would correct a cognizable injury, because otherwise the ruling would be purely advisory.³³

Two procedural points complete the picture. The party invoking federal jurisdiction bears the burden of establishing each element, and the proof required rises with the stage of the case, from factual allegations at the pleading stage to specific facts at summary judgment and supporting evidence at trial.³⁴ Standing is also addressed at the outset, while the plaintiff must keep suffering actual injury throughout the case, which is the subject of mootness.³⁵ The three elements above are the constitutional core. Courts have also recognized further, nonconstitutional requirements, such as limits on suing over another person's rights, and specialized rules for taxpayers and organizations, which belong to a fuller treatment than this overview.³⁶

On an exam stem, the first move is to identify the plaintiff and ask what harm is that plaintiff's own. If the answer is only a view about what the law should be or a concern that the government is not following it, the injury element fails. If a real injury exists, the remaining questions are whether the defendant caused it and whether the relief sought would repair it, and a failure at any step ends the case before the merits.

Ripeness and Premature Suits

A lawsuit can also slide into advice by arriving before the facts have matured, and the doctrine that screens for that problem is ripeness. Standing asks whether the plaintiff is the right person to bring the action, while ripeness asks whether this is the right time to bring it.³⁸ Justice Stone's phrasing in Nashville, Chattanooga & St. Louis Railway v. Wallace, the decision the declaratory-judgment discussion above relied on, divides the work the same way: standing corresponds to the “valuable legal rights,” and ripeness and mootness to the threat of “imminent invasion” against them.³⁹ Mootness is ripeness run in the other direction, since a ripeness defect is a suit brought too early and a mootness defect is a suit brought too late.⁴⁰

An early suit is a problem for the same reasons that justify refusing advice. In a premature case the concrete facts that would help the court reach a well-informed decision are often missing, because it may be uncertain what is going to happen, or whether anything will happen that would create a controversy at all.⁴¹ A ruling on a dispute that may never take shape wastes the court's time, risks an unnecessary confrontation with another branch of government, and may turn out to be merely advisory.⁴² The difficulty concentrates in the middle ground between the plainly past and the plainly present. A court has little trouble deciding a challenge to events already on the record, but requests for anticipatory relief, such as a declaration or an injunction before the government acts, are where contingencies and factual gaps are most prominent and where courts most insist on a clearly defined record so that decisions will be informed and narrow.⁴³ Ripeness is part of the case-or-controversy requirement of Article III and also a mix of judge-made prudential considerations that courts consult when deciding whether to award declaratory or injunctive relief, a mix that a later section of this chapter separates out.⁴⁴

The usual approach asks two questions, drawn from Abbott Laboratories v. Gardner: whether the issues presented are fit for judicial decision, and whether delaying decision would cause hardship to the parties.⁴⁵ Because the doctrine belongs to Article III, it is not confined to suits against agencies, and all federal litigation must be ripe.⁴⁶ Each question has its own logic. Fitness addresses the record problem just described: an issue is fit when it does not depend on uncertain or contingent future events, because only then can the court see how the law actually operates on the plaintiff and confine its ruling to those facts. Hardship does subtler work, because without it the fitness question would push every challenger to wait. The Court's reluctance to decide hypothetical cases can cause serious hardship,⁴⁷ and where delay would force a party either to bear the cost of complying with a government measure or to violate it and invite enforcement in order to learn whether it is valid, withholding review carries a price that the court must weigh.⁴⁸ Courts are most willing to review a rule before it is enforced when, as a practical matter, it requires the plaintiff to adjust conduct immediately.⁴⁹

The fitness side of the test is clearest in United Public Workers v. Mitchell. Federal employees challenged the Hatch Act of 1940, which barred federal executive employees from taking any active part in political management or political campaigns, and they sought a declaratory judgment that the ban violated the First Amendment.⁵⁰ Most of them alleged only that they wished to act contrary to the rule, not that the rule had been violated, and the precise nature of their intended activities was unclear.⁵¹ The Court found the claims unripe, explaining that it could only speculate about the kinds of political activity the employees wanted to engage in and the contents of their proposed statements, and that a hypothetical threat is not enough.⁵² The mechanism follows from what a First Amendment question depends on. Whether the government may restrict a political act turns on what the act is, so a ruling on the whole ban for unspecified conduct would have judged the law's wisdom without any facts to test it, and the Court described the employees' generality of objection as an attack on the law's political expediency.⁵³ The Court also saw no threat of interference beyond the one implied by the existence of the law and its regulations.⁵⁴

Poe v. Ullman, which the declaratory-judgment discussion above introduced as a timing case, fails at a different point. The Court disallowed an attack on a Connecticut birth-control statute because prosecutorial inertia showed there was no substantial threat that the law would be enforced.⁵⁵ The two decisions therefore mark separate ways a challenge can be premature. In Mitchell the plaintiffs' own conduct was undefined, so the Court had no concrete facts to which to apply the law. In Poe the missing piece was the government's side of the dispute, since a statute that no one expects to be enforced puts no one to a choice between obeying it and risking a penalty.

The decisions on the other side show that distance in time does not by itself make a dispute unripe. In Lake Carriers' Ass'n v. MacMullan a state law prohibited discharging sewage from boats, and state officials announced that they would not enforce it until land-based pump-out facilities were available, a construction process that would take a substantial amount of time.⁵⁶ Enforcement was years away, yet the Court held the suit ripe, because it was inevitable that the law would be enforced and the boat owners therefore had to begin installing new facilities on their boats now, in anticipation of the day the law took effect.⁵⁷ The Regional Rail Reorganization Act Cases state the principle in general terms. Eight railroads challenged the conveyance of their property to Conrail before the reorganization plan had been formulated, and the Court held the case ripe because, where the operation of a statute against certain individuals is inevitable, a delay before its provisions take effect does not defeat a justiciable controversy.⁵⁸ Both prongs of the test are met in those cases. Nothing about the owners' obligations depended on a contingency, so the issues were fit, and waiting would have forced them either to spend money under a law that might be invalid or to skip the preparation and risk violating the law later.

The variable that moved the answer is whether the law will operate on the plaintiff without any further contingency. Where it will, the delay is only a matter of time and the plaintiff's present hardship justifies review. Where its operation depends on an event that may not occur, the court would be deciding a question that might never arise.

None of this requires a plaintiff to break the law first. Older decisions seemed to tell citizens that a statute could be tested only by violating it and risking punishment if the challenge failed, and the Declaratory Judgment Act was intended to avoid precisely that risk.⁵⁹ The Court has also recognized that the risk of enforcing a provision of debatable validity may constrain people enough to create a ripe controversy, as when a drug manufacturer was allowed to challenge a labeling requirement that the government had not yet enforced.⁶⁰ In Susan B. Anthony List v. Driehaus a unanimous Court held a pre-enforcement challenge to Ohio's false-statement law for political campaigns justiciable, reasoning that when an individual is subject to such a threat, an actual arrest, prosecution, or other enforcement action is not a prerequisite to challenging the law.⁶¹ The group there had already faced an Elections Commission proceeding in which probable cause was found, and the Court found a credible threat of enforcement and called the threat of future enforcement substantial.⁶² That posture is the opposite of Poe, where nothing suggested the statute would ever be applied to anyone.

On an exam stem that challenges a law or order before anyone has been penalized, the working question is whether the dispute has hardened into something concrete. The answer comes from two places: whether the plaintiff's own intended conduct is defined, and whether enforcement is inevitable or credibly threatened. The usual trap is requiring the plaintiff to be prosecuted or fined first, a requirement the pre-enforcement decisions reject whenever the threat is credible and the plaintiff must adjust conduct now. The opposite error treats a sincere dislike of a statute, or the bare existence of a law that no one enforces, as a ripe controversy. Because the defect is one of timing, a premature challenge can be brought again once the facts mature, and the next subsection takes up the mirror image, a dispute that was alive when the complaint was filed and has since lost its life.

Mootness and Lost Disputes

The preceding subsection treated the suit filed too early, and mootness is its mirror image: a suit that was properly filed but has since lost the dispute that justified it, so that it arrives, in effect, too late.⁶⁵ Article III requires an actual controversy at every stage of federal litigation, in the trial court, on appeal, and in the Supreme Court itself.⁶⁶ In Lewis v. Continental Bank Corp. the Court put the point this way: “it is not enough that a dispute was very much alive when suit was filed, or when review was obtained in the Court of Appeals.”⁶⁷ The requirement carries forward the elements taught at the start of this chapter, adverse parties disputing their own legal relations and a decree that can give effective relief, and it asks that both survive for the life of the case and not merely on the day the complaint is filed.⁶⁸

Many different events can end a dispute after filing. A settlement leaves no controversy alive, and the controversy is over when the challenged statute or regulation expires or is repealed.⁶⁹ Death can have the same effect when a criminal defendant dies during an appeal or a civil plaintiff dies and the cause of action does not survive.⁷⁰ A law that regulates minors can no longer affect a litigant who has passed out of its age bracket through the lapse of time.⁷¹ The test covers these and every other case, since any change in circumstances that has the practical effect of ending the dispute is grounds for dismissal as moot.⁷² The reason follows from what the court would be left to do. Once a decree can no longer affect the parties' rights, there is, as the Court has put it, “no subject matter on which the judgment of the court's order can operate,” and any opinion the court gave would only recite what the law is.⁷³ Adversity fades at the same moment, because a litigant whose injury has disappeared has little reason to develop the facts or press the strongest argument, and that removes the incentive that makes the adversary system reliable. For these reasons mootness is understood primarily as an expression of the ban on advisory opinions.⁷⁴

Mootness also overlaps with the redressability element of standing, and the usual dividing line is timing. If a court could not have redressed the injury even on the day the complaint was filed, the plaintiff lacks standing, but if the injury was redressable at filing and stopped being so later, mootness doctrine typically applies.⁷⁵ A prisoner who challenges visitation regulations has standing at the outset, yet if the prisoner is paroled or the regulations change before judgment, the claim is no longer live and may be dismissed.⁷⁶ The burdens differ as well. The party asserting mootness, typically the defendant, must show that it is absolutely clear the injury will not recur, while the plaintiff bears the burden of establishing standing.⁷⁷

The paradigm case is DeFunis v. Odegaard. Marco DeFunis, a white applicant denied admission to the University of Washington Law School, challenged the school's affirmative action program under the Equal Protection Clause, and a preliminary injunction let him attend while the suit was pending. By the time the case reached the Supreme Court he was a third-year student, and the university stated that he would be allowed to finish whatever the Court decided.⁷⁸ The Court dismissed, reasoning that federal courts cannot decide questions that cannot affect the rights of the litigants before them, and that because DeFunis would complete his studies regardless of the ruling, Article III barred it from reaching the constitutional issues.⁷⁹ The facts show exactly what mootness removes. The relief he sought was the chance to finish law school, he already had it, and the school's promise guaranteed he would keep it, so a ruling for either side would leave him where he stood. The suit had not been filed as a class action, which meant no other applicant's continuing stake could carry it forward.⁸⁰ The cost was real, since an important question about affirmative action in state university admissions went undecided and divided the lower courts for three decades before it returned for decision.⁸¹

Dismissal when the plaintiff's stake ends is the rule, but the Court recognizes exceptions, and each one exists because mechanical dismissal would defeat the purpose of the doctrine. The first covers wrongs capable of repetition yet evading review. Some injuries last so briefly that they are always over before federal proceedings finish, so if the end of the plaintiff's own stake always required dismissal, those injuries could never be reviewed. A case therefore survives when the injury is likely to recur, could happen to the plaintiff again, and is so short-lived that it will always evade review.⁸²

The archetypal illustration is Roe v. Wade. Jane Roe sued in 1970, while pregnant, to challenge the Texas abortion law, and by the time the Supreme Court decided the case in 1973 she was no longer pregnant.⁸³ The Court held the case was not moot. A gestation period of roughly 266 days is shorter than the ordinary appellate process, so treating the end of the pregnancy as the end of the case would mean that pregnancy litigation seldom survived beyond trial, and pregnancy often comes more than once to the same woman.⁸⁴ The merits holding in Roe was later overruled, but the case remains the standard example of the exception.⁸⁵

DeFunis and Roe both lost their personal stake before the Supreme Court ruled, so what separates them is the two features the exception requires. DeFunis would never again run the law school's admissions process, so the question was not capable of repetition as to him, and nothing about the issue kept it from reaching the Court with relative speed in some other applicant's case.⁸⁶ Roe's injury was bound to end before review could finish, and it could recur. The same reasoning carried Super Tire Engineering Co. v. McCorkle, decided the same day as DeFunis, where the labor strike behind a challenge to state regulations was over, but the plaintiffs might strike again and the Court reached the merits.⁸⁷

The second exception covers voluntary cessation. A defendant who stops the challenged conduct after being sued could otherwise stop just long enough to win dismissal and then resume, and the courts would be compelled to leave that defendant free to return to the old practice.⁸⁸ The defendant's own decision to stop is for that reason treated differently from an event outside the defendant's control. In Friends of the Earth v. Laidlaw Environmental Services a case becomes moot on this ground only if later events make it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur, and the burden of showing that rests on the party asserting mootness.⁸⁹

The variable that moved the answer is whether the defendant remains free to resume the conduct. Two further points keep the doctrine from being applied too crudely. Mootness is assessed claim by claim, so the end of past wrongful conduct may moot a request for an injunction while leaving a claim for damages alive, because a concrete interest in the outcome, however small, keeps a claim from being moot.⁹⁰ The Court also recognizes a third exception when the named plaintiff in a class action ceases to belong to the class seeking relief, as in Sosna v. Iowa, where the plaintiff challenging Iowa's one-year residency requirement for divorce obtained a divorce in another state.⁹¹ That exception explains why the class-action posture matters in DeFunis, which was not brought as a class action.

The Court has sometimes called mootness a constitutional limitation, and at other times it has relaxed the rule so that it would not be so rigid as to prevent review of important constitutional issues, even speaking of the flexible character of the doctrine.⁹² The better view is that mootness is rooted partly in Article III's limit of the judicial power to cases and controversies and partly in a rule of self-restraint that the Court relaxes at times, and the Court is not always clear about which ground it is using in a given decision.⁹³ The next section of this chapter returns to the line between constitutional and prudential limits.

On an exam stem, the working question is what has happened since filing and whether any ruling could still change the parties' legal position. Students lose this issue when they treat a dispute that was alive at filing as enough, or when they reason that an important constitutional question justifies deciding a case whose stake has ended, since the Court dismissed DeFunis even though the issue was important.⁹⁴ The opposite error is to dismiss whenever circumstances change, without checking whether the injury is capable of repetition yet evading review or whether the defendant simply stopped and remains free to resume.