The Right to Petition Government for Redress of Grievances, Part VI

The second rationale that is said to justify the prudential standing doctrines is “case or controversy.”  It should be fairly straightforward, but, sadly, it isn’t.  The Supreme Court and Congress have tried to outdo each other in reducing the importance of case or controversy in adjudication of disputes.  Progressives are to blame for this, especially one particular brand of progressives: environmentalists.

Article III, Section 2 of the Constitution states, “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, . . . [and to] controversies [between specified parties].”[1]  I elaborated in Parts III and IV that the case or controversy requirement is not a limit on the individual right to petition the judiciary, but the only way to exercise it: to get your foot inside the courthouse door, you must have an injury traceable to a defendant’s conduct.  Indeed, Chief Justice Marshall, in Marbury v. Madison wrote, “The very essence of civil liberty consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.”[2]  But there is an expression used in legal circles: don’t look at a court’s lips; look at its hips.  Sure, all courts have sung praises of the case or controversy rationale, but their hips have consistently danced to a completely different tune.  The Supreme Court has repeatedly said that courts have an “unflagging obligation” to allow plaintiffs with concrete injuries to petition the courts.[3]  But in the same breath, the Court has also allowed Congress to reduce the importance of case or controversy.  Because Article III gives Congress complete power over lower federal courts (i.e. courts lower than the Supreme Court), and control over Supreme Court appellate jurisdiction, Congress can severely limit the individual right to petition by:

1. eliminating federal court jurisdiction, (For example, in “1981 and 1982 alone, thirty jurisdiction-stripping bills were introduced in Congress. . . . Most of the proposals stem from dissatisfaction with Supreme Court decisions . . . dealing with controversial ‘social issues’ of school prayer, abortion, and busing.”[4])
2. eliminating or changing the right of action in certain categories of cases. (There is a scandalous distinction between having a right and having a right of action.  Congress can eliminate, change, or reduce the right of action to sue and still maintain the façade that government recognizes and protects the right.  For example, imagine if one has a property right in land, but no right of action to sue those who trespass on their land.)

The common denominator in these Congress excesses is this: the individual right to petition for redress of grievances is violated.  Jurisdiction-stripping has the effect of disallowing individuals with injuries from petitioning the judiciary.  Tweaking the right of action has the effect of disallowing individuals from petitioning the judiciary to protect their rights. 

It doesn’t end here.  There are other ways in which Congress reduces the power of the judiciary to decide just deserts.  Though these ways do not affect a plaintiff’s right to get his foot inside the courthouse door, they nevertheless create a huge disincentive for plaintiffs from petitioning a court for redress of grievances:

1. eliminating or changing the cause of action, (Courts do not infer a cause of action for violation of rights if Congress has already provided a remedy, even if the remedy if grossly inadequate.[5]  That is, if someone intentionally sets fire to your house, the principle of just deserts would dictate the initiator of force should pay for your direct losses.  But if the legislature, by statute, states that the remedy available for house burning is $1,000 in damages, you have no option but to sue for that paltry sum of $1,000.  Thus, a court will not allow you to have an independent common law cause of action for arson.[6])
2. statutorily reducing the availability of remedy for certain causes of actions,  (This is similar to eliminating or changing the cause of action.  But here, the legislature is saying that you have an independent common law cause of action to sue for arson, but you can recover only $1,000 or your direct losses, whichever is less.)
3. reducing power of judicial review.  (The classic example is the Administrative Procedure Act.[7]  Typically, the legislature gives a pre-concocted formula that should be dispensed as justice for a given set of facts.)

I will have to tackle each of these later, but I mention these legislative excesses here to round up the picture.  The point is that, armed with its modern progressive notion of separation of powers, the Supreme Court has repeatedly stated that the legislature can tell the judiciary to disregard case or controversy.  The Court, after all, has tied its own hands and said that it should defer to Congress’ determination of policy choices, that separation of powers demands the courts to faithfully implement Congress policy without first determining whether the policy undermines the Constitution. 

Case or controversy requires that there be a violation of an individual right and such violation be traceable to an ascertained defendant’s conduct.  A third party whose right is not violated has no right to petition for redress of someone else’s grievance.  Case or controversy requires that the judiciary not allow others to step in to impose their version of societal conformity on others.  But Congress has undermined “case or controversy” by inserting citizen suit provisions in statutes to allow enviro-progressives to impose their version of conformity on others.  Citizen suit provisions, as found in the Clean Air Act, the Clean Water Act, the Endangered Species Act, typically allow any person to sue on behalf of the environment.  And because these suits originate inside administrative agencies like the EPA, and because only appeals from agency decisions are taken to the judiciary, and because the Administrative Procedure Act allows the judiciary to review and overturn agency decisions only if they are “arbitrary or capricious” or unsupported by “substantial evidence,”[8] (i.e. the Courts will rubber stamp the agency decision so long as it has given some reason—any reason—even if the Court does not agree with the reasoning), the cards are stacked against defendants from the very beginning.   

The demise of “case or controversy” started in the last decade of the 19^th century.  Though there were other events (and jurists[9]) that contributed to this demise, Justice Oliver Wendell Holmes’ influential article, “The Path of the Law,”[10] has proved to be the single most damaging article to American constitutionalism.  Holmes argues in “The Path of the Law” that courts should not decide cases and controversies in the abstract, that courts cannot afford to engage in conceptual rhetoric because doing so would be theoretical speculation.  The legislature, or the will of the majority, is all-powerful, and a paternalistic government can create and destroy rights if it so chooses; there is no way that a judge can know the truth or know which policy choice is better.  If the legislature says X is a case or controversy, then so it is.  If the legislature says Y is not a case or controversy, then it isn’t.  Any judge who rules otherwise is an “activist” who undermines the Constitution and oversteps the station of his office. 

H.L.A. Hart later cashed-in on Justice Holmes’ jurisprudence in his book “The Concept of Law.”  Echoing Thomas Hobbes’ “Leviathan,” Hart said the only legitimate government is a paternalistic government, and all rights have positivist origins.  Courts should, according to Hart, leave the legislature free to order society.  There can be no liberty, only ordered liberty, he says.  Look at the Supreme Court’s 14^th Amendment jurisprudence today.  The Court said, as early as 1937 and since, that a right is fundamental only if it is “implicit in the concept of ordered liberty.”[11]

So, today, if my individual right was violated and the violation can be traced to a particular defendant’s conduct (i.e. there is a case or controversy), do I have a right to petition the judiciary for redress of grievances?  No.  I have to navigate a complex web of statutes to determine my right of action, the cause of action, the available remedy, and the procedural route I must take to the court.  Further, I am at a constant danger of being sued even if I didn’t violate anyone else’s right (i.e. there is no case or controversy) if some tree-hugging enviro-progressive decides that putting a new furnace in my Rocky Mountains cottage will make the indigenous skunks eat their young. 

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[1] Emphasis added.

[2] 5 U.S. (1 Cranch) 137, 163 (1803).

[3] Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976).

[4] Gerald Gunther, Congressional Power to Curtail Federal Court Jurisdiction: An Opinionated Guide to the Ongoing Debate, 36 Stan. L. Rev. 895-96 (1984) (internal citations omitted).

[5] See Schweiker v. Chilicky, 487 U.S. 412 (1988).

[6] This is a very crude example, but I think it drives the point home.

[7] P.L. 79-404, 60 Stat. 238, codified under Title 5 of the United States Code.

[8] 5 U.S.C. § 706.

[9] For example, Justice Banjamin Cardozo, Justice Learned Hand.

[10] Oliver Wendell Holmes, The Path of the Law, 10 Harv. L. Rev. 457 (1897).

[11] Palko v. Connecticut, 302 U.S. 319 (1937).