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Talking Points: The Rules of Judicial Restraint

What is Judicial Restraint? Judicial restraint is a theory of judicial interpretation that encourages judges to limit the exercise of their own power. -The definition of judicial restraint, as taken from Wikipedia Over the course of our nations history, the U.S. Supreme Court has developed a series of rules regarding judicial restraint. Each rule is grounded in one or more of the following concerns: The constraints imposed upon the Court by Article III, Section 2 of the U.S. Constitution

Maintenance of our nations adversarial system of justice, in which two sides with opposing interests present evidence and arguments before an impartial third party Separation of powers The issuance of unnecessary rulings The proper deference due to the other branches of government (Congress, the executive branch, and/or the states) Below is a discussion of these rules and their applications. As you read these Talking Points, keep in mind that different judges will interpret these rules differently, and that some judges may not follow all of them. The Rules of Judicial Restraint Jurisdiction Rule: The U.S. Supreme Court will not hear cases over which it lacks jurisdiction: Article III, Section 2 grants the Court two forms of jurisdiction: Original1 and appellate2. If a case falls outside of these two grants, then the Court lacks jurisdiction, and cannot hear the case. The Original Jurisdiction Clause lists several categories of cases over which the Court has original jurisdiction:

Original Jurisdiction: The power of a court to hear a case for the first time. Appellate Jurisdiction: The power of a court to hear a case on appeal from a lower court.

In all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original Jurisdiction. -The Original Jurisdiction Clause of Article III, Section 2 of the U.S. Constitution, as taken from The Heritage Guide to the Constitution The Court has given the Clause a rigid construction with regards to the categories of cases it covers. For example, in the landmark case of Marbury v. Madison (1803), the Court ruled-in relevant part-that Congress cannot add to the categories listed in the Clause. However, the Court does not hold the view that the Clause grants it exclusive jurisdiction over all of the categories of cases contained therein. It has given its consent to Congresss establishment of concurrent jurisdiction with lower federal courts over certain originaljurisdiction cases, such as those affecting ambassadors. The Appellate Jurisdiction Clause reads as follows: In all the other Cases before mentioned [in Article III, Section 2], the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. -The Appellate Jurisdiction Clause of Article III, Section 2 of the U.S. Constitution, as taken from The Heritage Guide to the Constitution In general, the Court has interpreted the Clause as giving Congress broad latitude to alter the categories of cases included within the Courts appellate jurisdiction. For example, in Ex parte McCardle (1869), the Court held that Congress had acted within its authority under the Clause when it repealed a statute granting the Court appellate jurisdiction in habeas corpus cases. In sum, if a case falls outside of the coverage of the Original and Appellate Jurisdiction Clauses, then the Court is constitutionally barred from hearing it.

Advisory Opinion Rule: The U.S. Supreme Court will not issue advisory opinions: An advisory opinion is an opinion in which a court-outside of the context of traditional litigationinterprets a law or rules on a laws constitutionality. The issue of advisory opinions first arose early in the nations history. In 1793, the administration of President George Washington requested the Court to issue such an opinion. In response, Chief Justice John Jay wrote a letter to Washington, in which he stated that he would not do so. Jay concluded that the issuance of an advisory opinion would violate the principle of separation of powers, and advised Washington to consult his Cabinet for the advice he needed.

The Courts concerns about issuing unnecessary rulings and maintaining the adversarial system also provide support for the Advisory Opinion Rule. In general, the Court considers any ruling it issues in the absence of adversarial proceedings to be unnecessary.

Ripeness Rule: The U.S. Supreme Court will not hear unripe cases: An unripe case is a case in which relevant events have not yet advanced to the point where judicial action is warranted. The goal of the Ripeness Rule is to prevent the issuance of rulings that ultimately turn out to be unnecessary as events continue to unfold3. As an example of the Ripeness Rules application, consider Poe v. Ullman (1961), a challenge to a Connecticut statute banning contraception4. The appellants in this case claimed that the States Attorneys announced intent to prosecute violations of the States laws, coupled with his statement that the use of contraception and the giving of advice on contraception violated State law, gave rise to a claim necessitating judicial action. The Court disagreed, and determined that the case was unripe. Writing for the majority, Justice Felix Frankfurter called attention to the fact that only one prosecution5 had been made under the statute since its enactment in 1879. Frankfurter concluded that, given this paucity of prosecutions, the appellants fear of prosecution under the statute was unrealistic, and thus did not give rise to a claim sufficient to justify the Courts exercise of its judicial-review power.

Mootness Rule: The U.S. Supreme Court will not hear moot cases: In contrast to an unripe case, a moot case features events that have advanced beyond the point where judicial action is warranted. The same concern motivating the Ripeness Rule-the issuance of unnecessary rulingsmotivates the Mootness Rule. Unlike the Ripeness Rule, however, the Court also cites the cases or controversies language of Article III, Section 2 as support for the Mootness Rule. DeFunis v. Odegaard (1974) provides an example of the Courts application of the Mootness Rule. In this case, Marco DeFunis, Jr., an applicant to a law school, challenged the schools denial of admission, alleging that it was based on his race in violation of the Equal Protection Clause of the 14th Amendment to the U.S. Constitution. The trial court ruled in his favor, and ordered his admission. DeFunis continued his studies as the case made its way through the court system. By the time the case reached the U.S. Supreme Court, DeFunis was in his final term of law school. Because of this fact, the Court held that the case was moot, since events had advanced beyond the point where a ruling would have an impact on the rights of the parties.
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Simmonds v. Immigration and Naturalization Service ((2nd Circuit) 2003) The statute at issue in Poe was overturned four years later in Griswold v. Connecticut (1965).

State v. Nelson (1940): Two doctors and a nurse were charged with giving information on contraception. The case was subsequently dismissed upon the prosecutions motion.

The Mootness Rule contains two exceptions: The voluntary cessation exception and the capable of repetition, yet evading review exception. Under the voluntary cessation exception, a defendants voluntary cessation of his allegedly unlawful conduct will not render a case moot unless it could be said with assurance that there is no reasonable expectation that the wrong will be repeated. The Court justifies this exception with its concern that a defendant could otherwise render a case moot by ceasing its allegedly unlawful activity, and subsequently resume the activity once the threat of litigation has passed. Under the capable of repetition, yet evading review exception, a case will not be rendered moot if a particular circumstance-such as pregnancy6-that gives rise to the case abates, but could potentially return in the future. This exception reflects the Courts acknowledgement that the judicial process is slow, and also its concern that the Mootness Rule would otherwise bar it from considering valid claims arising from inherently transient circumstances that are capable of recurring and causing similar injury.

Standing Rule: The U.S. Supreme Court will not hear a case in which a party lacks standing: The Court divides its standing requirement into two prongs. The first, known as Article III standing, is rooted in the cases or controversies language of Article III, Section 2. In Lujan v. Defenders of Wildlife (1992), Justice Antonin Scalia-writing for the majoritysummarized the elements of Article III standing: First, the plaintiff must have suffered an injury in fact-an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical[.] Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be fairlytrace[able] to the challenged action of the defendant, and not [the] result [of] the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. -Justice Antonin Scalia, Lujan v. Defenders of Wildlife (1992) In sum, to assert Article III standing, a party making a constitutional challenge to a law must show that the laws operation has harmed-or will imminently harm-him. The standing requirements second prong-known as prudential standing-is grounded in the Courts concerns about separation of powers, the issuance of unnecessary rulings, and the proper deference due to the other branches of government. In his majority opinion in Elk Grove Unified School District v. Newdow (2004), Justice John Paul Stevens articulated the elements of-and the justification for-the prudential standing requirement:
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Roe v. Wade (1973)

Although we have not exhaustively defined the prudential dimensions of the standing doctrine, we have explained that prudential standing encompasses the general prohibition on a litigants raising another persons legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiffs complaint fall within the zone of interests protected by the law invoked. Without such limitations-closely related to [Article III] concerns but essentially matters of judicial selfgovernance-the courts would be called upon to decide abstract questions of wide public significance even though other governmental institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights. -Justice John Paul Stevens, Elk Grove Unified School District v. Newdow (2004) If a party cannot demonstrate both Article III standing and prudential standing, then the Court will not address the merits of his case.

Political Question Rule: The U.S. Supreme Court will not hear a case that addresses a political question: If the Court determines that the resolution of an issue is the sole province of another branch of government, then it will deem the issue a political question, and refuse to rule on it. This Rule arises from the Courts concerns about separation of powers and the proper deference due to the other branches of government. In Baker v. Carr (1962), the Court articulated the features of political questions: Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non judicial discretion; or the impossibility of a courts undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for nonjusticiability on the ground of a political questions presence. -Justice William Brennan, Baker v. Carr (1962) The Court has held that cases arising from certain provisions of the U.S. Constitution present political questions. Most prominent among these provisions is the Guarantee Clause of Article IV, Section 4, which guarantees to every State in [the] Union a Republican Form of Government. Another example of such a provision is the Trial of Impeachment Clause of

Article I, Section 3. The Court held in Nixon v. United States (1993) that cases arising from the Clause present political questions, since a textually demonstrable constitutional commitment of the issue of impeachment to the Senate existed.

Collusion Rule: The U.S. Supreme Court will not hear collusive cases: A collusive case is a case in which both parties have an interest in the same outcome. The Collusion Rule arises from precisely the same concerns as the Advisory Opinion Rule: The issuance of unnecessary rulings, maintenance of the adversarial system, and separation of powers. Collusive cases are inherently nonadversarial. As mentioned earlier regarding the Advisory Opinion Rule, the Court holds the general view that any ruling it issues as a result of nonadversarial proceedings is unnecessary. In his concurrence in Ashwander v. Tennessee Valley Authority (1936), Justice Louis Brandeis also cites separation of powers concerns as support for the Collusion Rule. He quotes Justice David Josiah Brewers opinion in Chicago & Grand Trunk Railway Company v. Wellman (1892), in which Brewer states that a party who fails in the legislature cannot-via a collusive case-attempt to achieve the same goal through the judiciary.

Constitutional Avoidance Rule: The U.S. Supreme Court will not unnecessarily address the constitutionality of a law: Among the types of rulings that it deems unnecessary, the Court includes rulings on the constitutionality of a law in cases in which the issues could have been resolved by other, non-constitutional, means. Justice Brandeis cites the Constitutional Avoidance Rule in his concurrence in Ashwander: The Court will not pass upon a constitutional question, although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. This rule has found most varied application. Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter. Appeals from the highest court of a state challenging its decision of a question under the Federal Constitution are frequently dismissed because the judgment can be sustained on an independent state ground. -Justice Louis Brandeis, Ashwander v. Tennessee Valley Authority (1936) As Brandeis notes, the Constitutional Avoidance Rule is divided into two prongs. The first prong asks whether the issue could be resolved via statutory construction or general law. As an example, consider Escambia County v. McMillan (1984). In this case, a group of black voters argued that a local governments election scheme violated the Voting Rights Act of 1965, as well

as various provisions of the U.S. Constitution. The U.S. District Court invalidated the scheme on both statutory and constitutional grounds. However, the Court of Appeals-without considering the appellees Voting Rights Act claim7-affirmed the District Courts ruling solely on constitutional grounds. In a per curiam opinion, the U.S. Supreme Court held that the Court of Appeals erred in declining to consider the statutory claim before the constitutional claims, and refused to address the merits of the case. More recently, in Northwest Austin Municipal Utility District Number One v. Holder (2009), the Court considered a combination of statutory and constitutional claims regarding Section 5 of the Voting Rights Act of 1965, which requires certain jurisdictions to obtain preclearance from the federal government before implementing any voting-related changes. The Court declined to consider the constitutional claim, as it found the text of the Voting Rights Act sufficient to resolve the case. The second prong-which applies to appeals from state courts-asks whether the state courts judgment could stand on an independent state ground. The Court articulated the method by which it determines whether a decision rests on an independent state ground in Michigan v. Long (1983): [W]hena state court decision fairly appears to rest primarily on federal law, or to be interwoven with federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so. If a state court chooses merely to rely on federal precedents as it would on the precedents of all other jurisdictions, then it need only make clear by a plain statement in its judgment or opinion that the federal cases are being used only for the purpose of guidance, and do not themselves compel the result that the court has reached. In this way, both justice and judicial administration will be greatly improved. If the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent state grounds, we, of course, will not undertake to review the decision. -Justice Sandra Day OConnor, Michigan v. Long (1983) The Court reasoned that this approach struck the proper balance between the need for deference to state courts and the avoidance of unnecessary rulings on the one hand, and the need for uniformity in the application of federal law on the other.

Constitutional Restraint Rule: The U.S. Supreme Court will limit itself to creating constitutional rules that are no broader than necessary to address the particular cases
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The Court of Appeals had determined that consideration of the appellees Voting Rights Act claim was unnecessary, since they had already affirmed the District Courts ruling on constitutional grounds.

before it: As with the previous two rules, the Constitutional Restraint Rule is listed in Justice Brandeiss concurrence in Ashwander: The Court will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. -Justice Louis Brandeis, Ashwander v. Tennessee Valley Authority (1936) As an example of the Constitutional Restraint Rule in action, consider the Courts recent line of cases holding that life imprisonment without the possibility of parole-when imposed on juveniles-violates the Cruel and Unusual Punishments Clause of the 8th Amendment to the U.S. Constitution. This line begins with Graham v. Florida (2010), in which the Court held that life imprisonment without the possibility of parole violates the Clause when imposed on a juvenile non-homicide offender. Two years later, in Miller v. Alabama (2012), the Court extended its holding in Graham to include juvenile homicide offenders. Because the offender in Graham did not commit homicide, the Court-applying the Constitutional Restraint Rule-did not address the propriety of life-without-parole sentences for juvenile homicide offenders. The Court addressed that question only when presented with such an offender in Miller. The Constitutional Restraint Rule is closely related to the Constitutional Avoidance Rule, and is also motivated by the same concern: The issuance of unnecessary rulings on constitutional issues.

Saving Construction Rule: The U.S. Supreme Court will strike down a law as unconstitutional only if it cannot reasonably construe the law in a manner that will save it from unconstitutionality: The Saving Construction Rule is a self-explanatory rule motivated by one concern: The proper deference due to the other branches of government. Additionally, Justice Brandeis includes the Rule among those listed in his concurrence in Ashwander: When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided. -Justice Louis Brandeis, Ashwander v. Tennessee Valley Authority (1936) As Justice Joseph Story notes in his opinion in United States v. Coombs (1838), the Rule is-at its core-a presumption that the other branch of government did not intend to exceed its constitutional authority when enacting the law at issue. This presumption is defeated only when the Court determines that the sole available conclusion is one of unconstitutionality. One does not need to look far to see an example of the Courts application of the Saving Construction Rule. In National Federation of Independent Businesses v. Sebelius (2012), the

Court-in relevant part-considered the constitutionality of Obamacares individual mandate8. In the majority opinion, Chief Justice John Roberts first rejected the governments primary argument that the mandate was a legitimate exercise of Congresss power under the Commerce Clause9. However, he subsequently invoked the Rule, interpreted the mandate as a tax, and upheld it as a legitimate exercise of Congresss power under the Spending Clause10.

Severability Rule: If possible, the U.S. Supreme Court will strike down only that portion of a law that runs afoul of the U.S. Constitution: Closely related to the Saving Construction Rule, the Severability Rule has the same roots as its sister Rule. The Rule arises from the Courts concern about the proper deference due to the other branches of government. As with the Saving Construction Rule, the Severability Rule finds support in the presumption that the other branch of government did not intend to exceed its constitutional authority in enacting the law in question. The Court provides an articulation of the Severability Rule in Loeb v. Columbia Township Trustees (1900), in which it cited the following quote from an Ohio courts holding: The question arises, however, whether, if that portion of the section is declared wholly or in part unconstitutional and void, it may not result in invalidating the entire section. As one section of a statute may be repugnant to the Constitution without rendering the whole act void, so one provision of a section may be invalid by reason of its not conforming to the Constitution while all the other provisions may be subject to no constitutional infirmity. One part may stand while another will fall, unless the two are so connected or dependent on each other in subject matter, meaning, or purpose that the good cannot remain without the bad. The point is not whether the parts are contained in the same section, for the distribution into sections is purely artificial, but whether they are essentially and inseparably connected in substance whether the provisions are so interdependent that one cannot operate without the other. -Justice John Marshall Harlan, Loeb v. Columbia Township Trustees (1900), quoting Fayette County Treasurer v. Peoples & Drovers Bank (47 Ohio St. 503)

Individual mandate: A provision of Obamacare requiring most individuals to purchase health insurance that meets certain minimum standards, or else pay a penalty.
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The Congress shall have the PowerTo regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes[.] The Commerce Clause of Article I, Section 8 of the U.S. Constitution, as taken from The Heritage Guide to the Constitution
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The Congress shall have the Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States[.] The Spending Clause of Article I, Section 8 of the U.S. Constitution, as taken from The Heritage Guide to the Constitution

In sum, when the Court is faced with a choice between invalidating an unconstitutional provision of an otherwise constitutional law and striking down the entire law, it will choose the former option whenever possible.

Sources: 1. Wikipedia Article: Judicial Restraint (http://en.wikipedia.org/wiki/Judicial_restraint) 2. The Heritage Guide to the Constitution (www.heritage.org/constitution)
3. The Founders Constitution: John Jay to George Washington (http://press-

pubs.uchicago.edu/founders/documents/a3_2_1s34.html)

Cases: 1. Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936) 2. Baker v. Carr, 369 U.S. 186 (1962) 3. Chicago & Grand Trunk Railway Company v. Wellman, 143 U.S. 339 (1892) 4. DeFunis v. Odegaard, 416 U.S. 312 (1974) 5. Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004) 6. Escambia County v. McMillan, 466 U.S. 48 (1984) 7. Ex parte McCardle, 74 U.S. 506 (1869) 8. Graham v. Florida, 560 U.S. ___ (2010) 9. Loeb v. Columbia Township Trustees, 179 U.S. 472 (1900) 10. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) 11. Marbury v. Madison, 5 U.S. 137 (1803) 12. Michigan v. Long, 463 U.S. 1032 (1983) 13. Miller v. Alabama, 10-9646 (2012) 14. National Federation of Independent Businesses v. Sebelius, 11-393 (2012) 15. Nixon v. United States, 506 U.S. 224 (1993) 16. Northwest Austin Municipal Utility District Number One v. Holder, 557 U.S. ___ (2009) 17. Poe v. Ullman, 367 U.S. 497 (1961) 18. Roe v. Wade, 410 U.S. 113 (1973)

19. Simmonds v. Immigration and Naturalization Service, 326 F.3d 351 (2nd Circuit (2003)) 20. United States v. Coombs, 37 U.S. 72 (1838)