Article III, Section 2, Clause 1:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

The Supreme Court has frequently scrutinized the ripeness of pre-enforcement challenges to criminal statutes.1 The Court has explained that, when challenging a criminal statute, the plaintiff need not “first expose himself to actual arrest or prosecution.” 2 Rather, it is sufficient for the plaintiff to allege that he (1) intends to engage in constitutionally protected activity prohibited by the statute and (2) faces a “credible threat of prosecution.” 3 For example, an abortion provider who faces “a sufficiently direct threat” that a state will prosecute him for violating a statute that criminalizes abortion need not necessarily await prosecution before challenging that statute’s constitutionality.4

Conversely, a challenger who cannot claim that he has “ever been threatened with prosecution, that a prosecution is likely, or even that a prosecution is remotely possible” cannot “allege a dispute susceptible to resolution by a federal court.” 5 For example, in Poe v. Ullman, the plaintiffs challenged the constitutionality of a state statute that criminalized the use of contraceptive devices.6 Even though the statute had been on the books for more than eight decades, the state had only attempted to enforce it on a single occasion, and drugstores in the state commonly and openly sold such devices without any apparent fear of prosecution.7 Thus, the plaintiffs faced no reasonable fear of prosecution, and the Court accordingly held that the constitutionality of the statute was not ripe for decision.8

One might argue, however, that the Court has not always applied these principles consistently. In Epperson v. Arkansas, for example, the plaintiff challenged the constitutionality of an Arkansas statute that made it a misdemeanor to teach the theory of evolution in public schools and universities.9 No teacher had ever been prosecuted under the challenged statute.10 Even though the plaintiff did not appear to face a reasonable threat of prosecution, the Court concluded—with minimal discussion—that the plaintiff had nonetheless presented a justiciable controversy.11 Epperson is therefore arguably inconsistent with the Court’s other ripeness cases. The Court has attempted to reconcile Epperson by focusing on the age of the statute being challenged; a challenge to a criminal statute that has been on the books for decades yet has almost never been enforced will likely not be ripe for immediate review, whereas a pre-enforcement challenge to a statute that is “recent and not moribund” may be justiciable.12 That distinction, however, may not be altogether satisfying; the anti-evolution statute in Epperson had been on the books for four decades, yet the Supreme Court nonetheless deemed the plaintiff’s challenge ripe for immediate adjudication.13 Thus, as the Court itself has intimated, it is not always easy to predict whether any given pre-enforcement challenge to a criminal statute will be justiciable.14

Footnotes

1

See, e.g., Susan B. Anthony List v. Driehaus, 573 U.S. 149, 167–68 (2014); Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 297–302 (1979); Doe v. Bolton, 410 U.S. 179, 188–89 (1973); Epperson v. Arkansas, 393 U.S. 97, 101–02 (1968); Poe v. Ullman, 367 U.S. 497, 498–509 (1961).

2

Babbitt, 442 U.S. at 298 (quoting Steffel v. Thompson, 415 U.S. 452, 459 (1974)) (brackets omitted).

3

Id. (quoting Doe v. Bolton, 410 U.S. 179, 188 (1973)).

4

See Doe, 410 U.S. at 188.

5

Babbitt, 442 U.S. at 298–99 (quoting Younger v. Harris, 401 U.S. 37, 42 (1971)).

6

367 U.S. at 498.

7

See id. at 501–02.

8

See id. at 508. Cf. Griswold v. Connecticut, 381 U.S. 479, 480–81 (1965) (deeming a challenge to an anti-contraceptive statute justiciable where appellants had been arrested for violating the statute, found guilty, and fined).

9

See 393 U.S. 97, 98–99 (1968).

10

Id. at 101–02.

11

See id. at 102.

12

See Doe v. Bolton, 410 U.S. 179, 188–89 (1973).

13

See Epperson, 393 U.S. at 98, 101–02.

14

See Poe v. Ullman, 367 U.S. 497, 508 (1961) (remarking, in the course of dismissing as unripe a pre-enforcement challenge to a criminal statute, that “[j]usticiability is . . . not a legal concept with fixed content or susceptible of scientific verification” ).