[SOUND] >> Having discussed the authority of the federal court to engage in judicial review. Declare unconstitutional legislative and executive acts. The question has to be faced. What are the limits on the judicial power? If what we're looking for as limits or things that will produce determinate results in specific cases, they don't exist. If what we're saying is, what's a way of ensuring that courts will always interpret the Constitution, whatever we regard as proper, that can't possibly be there. The Constitution is written in very broad, open-ended language. As I've discussed, this was intentional, because the Constitution that's meant to endure for ages to come. Inevitably, The Supreme Court, and all courts interpreting it, have a great deal of discretion. So what I mean by limits on the court, is what are the outer boundary constraints on what the courts can do? Well, I would suggest there are a number of different limits on what the courts can do It's wrong to see the courts as unchecked. Let me talk about four kinds of limits that exist in the federal judicial power. First, I want to talk about Constitutional limits. Second, I want to talk about interpretive limits. Third, I want to talk about statutory limits, and finally, I want to talk about political limits. And I think the underlying question, as I go through this material, is whether this is enough. Do we need other checks and constraints on the federal judicial power? Let me begin then, with the constitutional limits that exist on the federal courts. Article III section II of the Constitution says that the federal courts can hear nine categories of cases and controversies. And those two words, cases and controversies appear throughout Article III, Section II. So for example, Article III, Section II says, the federal courts could hear cases arising under the Constitution, laws and treaties of the United States. That's technically called federal-question jurisdiction. The authority of the Supreme Court and of all federal courts to decide issues of federal law. Further down in Article III, Section II it says, that the federal courts can hear controversies between citizens of different states. This is sometimes referred to as diversity jurisdiction. This is the ability of the federal court to hear cases where there's citizens from other states, like someone from California suing someone from Illinois, and by statute there's more than $75,000 is the amount in controversy. The framers of the Constitution thought that no state could be trusted where its own citizens were involved, the federal judiciary will provide a neutral forum. The Supreme Court, since early in American history, has said that these words, cases and controversies impose an important limit on the federal judicial power. In fact, the Supreme Court has interpreted just these two words, cases and controversies as restricting with the federal court can do. The Supreme Court, on many occasions, has said that these doctrines all derive from interpreting the words cases and controversies are a crucial way of defining the role of the federal judiciary In a democratic society. Let me mention some examples of the doctrines that come from interpreting these words, cases, and controversies and the Supreme Court has said, these are all Constitutional limits in what the federal courts could do. For instance, the Supreme Court has said that federal courts cannot issue advisory opinions. Federal courts have to hear actual disputes between adverse litigants. This arose early in American History. The United States government, in it's infancy decided to be neutral, between a war that was going on between England and France. George Washington is president of the United States, problemgated with a series of questions to the United States supreme court. But what were the duties of a neutral party when a war was going on? And this was George Washington, the President of the Constitutional Convention, asking the Supreme Court. One would think that if anyone would know what's Constitutional it would be George Washington. But the Supreme Court answered in a letter saying that it couldn't give such advice. That the federal courts can't give advisory opinions. The federal courts can only resolve actual disputes between adverse litigants. The Supreme Court wrote a nice rejection letter to George Washington, saying that the court had no doubt that the president and his advisors, in their wisdom, could find the right solution. But the court said, at the outset of American history, that the federal judiciary can decide only cases and controversies, only if there is an actually dispute between adverse litigants. In Canada, there's the ability of Parliament to ask the Canadian Supreme Court for advisory opinions. In many states, it's possible to ask the state Supreme Courts, the state's highest court, for an advisory opinion. But not in the federal courts, and not to the United State Supreme Court. because the Supreme Court says, there's not a case in controversy the court is trying to limit its role in the system of separation of powers. Another example of a constitutional limit, derive from the words case and controversies, it's called standing. In order for a person to sue in a Federal court, he or she must have standing to sue. The Supreme Court has said, that standing comes from its interpretation of the words that I've mentioned Cases and controversies. Take a simple example. Mississippi adopted a law greatly restricting the access to abortion. In fact, the Mississippi law would close down the last clinic in Jackson, Mississippi where abortions are performed. Can I, Irwin Shimerinski, a male law professor at the University of California Irvine School of Law, bring a challenge to that Mississippi law? No, I'm not personally injured by it. The court would say I don't have standing to sue. Or to use the language I've already mentioned. There's no actual dispute between adverse litigants if I'm suing the state of Mississippi. It doesn't matter how much i care about it. Doesn't matter how knowledgeable I am about constitutional law, doesn't matter how good or bad a lawyer I'd be, I don't have standing to sue. The Supreme Court has said that the standing requirement is at the very core of the Article III requirement for cases and controversies. And standing serves many purposes. It's about making sure that there's an actual factual record for the court to effectively decide the case. It's about keeping from being a flood of litigation that would overwhelm the federal courts. So making sure that cases are presented in an adversarial posture The best informed decision making. The Supreme Court has said that the constitutional requirement for standing imposes three requirements that must be met in order for a person to be sued. They're called injury, causation, and redressability. In order for a plaintiff to sue in any federal court, the plaintiff must prove that he or she has been injured. That the injury was caused by the defendant's conduct. And that a favorable federal court decision will ultimately redress that injury. Let me start by just briefly talking about the injury requirement. Injury is the way that makes sure that there is an actual dispute between adverse litigants. To explain this requirement for injury I want to compare a couple of Supreme Court cases from 40 years ago. The first case was called Sierra v Morton. Disney wanted to build a ski resort in a beautiful area known as Mineral King Valley. The Sierra club sued to stop construction. But the Supreme Court ruled that the Sierra Club lacked standing to sue, because they failed to allege that any of their members had ever used Mineral King. Justice Byron White is quoted in the book The Brethren as saying, why didn't they just have one goddamn member walk through the park? And sure enough when the case was sent back to the lower courts, they amended their complaint to say that some of their members had used Mineral King and then the Supreme Court said it's standing. Because then they had alleged a personally suffered injury, about a year later, the court decided another case, its known as SCRAP vs The United States. SCRAP stands for Students Challenging Regulatory Agency Proceedings. A group of law students And George Washington University has a clinic project. Decided to challenge a federal agency. The Interstate Commerce Commission and it's increase in freight rates. And the students said [COUGH] that the ICC the Interstate Commerce Commission Increasing freight rates would have the effect of lessening recycling. Decreasing recycling would mean that more virgin materials would have to be used. That would spoil the environment and it would harm the areas where they regularly hiked and fished Place they used for recreation. Now that's a pretty attenuated chain. They're saying the Interstate Commerce Commission has increased freight rates. Increasing freight rates makes it harder to have recycling. Less recycling means more mining and cutting down of timber and that hurts. Areas that they go for recreation, for hiking and fishing. Yet the Supreme Court said that was enough for standing. Because the Supreme Court said that their complaint alleged a personally suffered injury. In order for a plaintiff to sue, The plaintiff has to allege in the complaint. The plaintiff has to prove he personally suffered injury. Only then does the plaintiff have standing. Let me give another example from just a couple of years ago. It's a case called Clapper v. Amnesty International. It well illustrates this requirement that in order for a person to have standing, the person must have a personally suffered injury. In 2008, Congress amended the Foreign Intelligence Surveillance Act to allow the National Security Agency to intercept electronic communications Between those in the United States and those in designated foreign countries. A law suit was brought arguing that this violates the Constitution. Some of the plaintiffs were lawyers. They said that they regularly represent clients in these countries and they were chilled from engaging in communications. Because they had to protect the attorney-client privilege and they didn't know that the government was going to be or wasn't going to be intercepting their communications. Other plaintiffs involved journalists who said they regularly ran stories in these countries and their speech would be chilled in talking to them. The plaintiffs also include business people who said that they regularly engage in deals and their communications would be chilled. Nonetheless, the Supreme Court ruled that all of these plaintiffs lacked standing because they couldn't show a personally suffered Injury. It was a 5- 4 decision, Justice Samuel Alito wrote for the court, joined by the other conservatives on the current court, Chief Justice Roberts, Justice Scalia, Thomas Scalia, Kennedy and Thomas. Justice Alito, writing for the court said None of the plaintiffs could show that the National Security Agency had intercepted their communications or was likely to intercept their communications in the future. The Supreme Court said the plaintiffs can't demonstrate a personally suffered injury. And therefore the plaintiffs lacked standing to sue. So a key constitutional limit on the federal judicial power is the authority of the federal courts to have case and controversies and standing is an example of that. Let me give one more example of the restriction that comes from this requirement for injury And it's a case of over 30 years ago, City of Los Angeles versus Lyons in 1982. Adolph Lyons was a 22-year-old African-American man. He was stopped by Los Angeles police officers for a burnt out tail light. The officer slammed Lyons' hands above his head, and he complained that his keys were cutting into the skin of his palm. An officer then administered a choke hold on Lyons. Literally the officer used his forearm to choke Lyons and render him unconscious. Lyons awoke. He was spitting blood and dirt. He'd urinated and defecated. The officer gave Lyons a traffic ticket for a burned out tail light and let him go. Lyons did some research and he discovered to that point 16 people in Los Angeles. Must all like him, African American men had died from police use of the choke hold. Lyons sued the City of Los Angeles for an injunction to stop officers from using the choke hold except when necessary to protect the officer's life or safety. But the Supreme Court ordered Lyons's case dismissed. The court ruled that Lyons lacked standing to sue. The Supreme Court said that Lyons could not show that he personally was likely to be choked again in the future. The court said a plaintiff like Lyons. Who's suing for an injunction must show a likelihood of personal future injury. Hundreds of other cases have been dismissed since because plaintiffs can't show, even though they were injured, that they'd be hurt again in the future. It further illustrates why the injure requirement for standing is so important in limiting the power of the federal courts. Many think the court has gone too far in this regard. The people of with constitutional violations. Like Lyons or like those [INAUDIBLE] international should be able to sue. What's the interesting these cases are so often five to four split on ideological grounds, logical grounds, logical grounds, logical grounds.
