Justiciability Keeps Cases Out of Supreme Court
Poor old William Marbury didn’t get the judgeship because he sued to get his commission in the wrong place and at the wrong time.
The case, of course, was Marbury v. Madison in 1803 and Chief Justice John Marshall reached into his bag of constitutional oddities and pulled out a variation of “justiciability” to mystify ordinary mortals, reminding them that the document required litigants to have a “case and controversy” before he’d let them in the door.
Just a week ago, a majority of his successors said those suing to stop a transfer of cash from the Defense Department budget to the Trump wall would have to go back to Point A because they didn’t have standing, a critical element of justiciability. Trump v. Sierra Club No. 19A60.
A year ago, a plaintiff in a partisan gerrymandering case was thwarted when the Court ruled there was no standing to sue. Gill v. Whitford.
This past term another critical element of justiciability, called “political question,” was held to bar relief in the key opinion of the year. Rucho v. Common Cause.
You’ve heard angry and aggrieved citizens scream, “I’m taking this all the way to the Supreme Court!” As Marbury learned 216 years ago, the rules of justiciability may stand in the way and some of them are just now being ironed out, as Rucho taught us.
But it’s never as easy as saying, “Oh, the Court won’t hear that because it’s a political question,” or, “Your client doesn’t have a chance because she doesn’t have standing.” Consider: Justice Felix Frankfurter told the world nearly 60 years ago that the courts should stay out of the political thicket of gerrymandering (Colegrove v. Green) but their honors slashed their judicial machetes in just such thickets until this summer, and then only for partisan gerrymandering cases.
And as for standing, if you want to see how truly screwed up it can become, read the opinion in, and lower court history of, the California gay marriage case, Hollingsworth v. Perry (2013).
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