Overview of Cases and Controversies

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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.

Article III, Section 2, Clause 1 identifies the circumstances and parties to which the judicial power of the National Government applies.1 As provided by the Constitution, the judicial power extends to nine classes of cases and controversies which fall into two general groups depending on the “character of the cause” and the “character of the parties.” 2 As to the “character of the cause,” the judicial power extends to cases arising under the “Constitution, the Laws of the United States and Treaties made under . . . their Authority” ; to all cases “affecting Ambassadors, or other public Ministers and Consuls” ; and to all cases of “admiralty and maritime Jurisdiction.” 3 As to the “character of the parties,” the judicial power extends to controversies where the “United States shall be a Party” ; and 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 Land under Grants of different States, or the Citizens thereof, and foreign States, Citizens or Subjects.” 4 In Cohens v. Virginia, Chief Justice John Marshall explained these principles, stating:

In the first, jurisdiction depends on the character of the cause, whoever may be the parties. This class comprehends ‘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.’ This cause extends the jurisdiction of the court to all the cases described, without making in its terms any exception whatever, and without any regard to the condition of the party. If there be any exception, it is to be implied, against the express words of the article. In the second class, the jurisdiction depends entirely on the character of the parties. In this are comprehended ‘controversies between two or more states, between a state and citizens of another state,’ and ‘between a state and foreign states, citizens or subjects’ if these be the parties, it is entirely unimportant, what may be the subject of controversy. Be it what it may, these parties have a constitutional right to come into the courts of the Union.5

The Supreme Court has further noted that judicial power is “the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision.” 6 The meaning attached to the terms “cases” and “controversies” 7 determines therefore the extent of the judicial power as well as the capacity of the federal courts to receive jurisdiction. According to Chief Justice Marshall in Osborn v. Bank of the United States, judicial power is capable of acting only when the subject is submitted in a case and a case arises only when a party asserts his rights “in a form prescribed by law.” 8

Justiciable “cases” and “controversies” not only require that disputes be of the types specified in Article III, Section 2, Clause 1, but also that the disputes be, in fact, actual “cases” and “controversies.” Consequently, the parties must truly be adverse to each, the dispute must be concrete, not hypothetical, and the dispute must be capable of being resolved through an award of specific relief. In Aetna Life Insurance Company v. Haworth, Chief Justice Charles Evans Hughes explained this aspect of the “cases” and “controversies” requirement stating:

A “controversy” in this sense must be one that is appropriate for judicial determination. A justiciable controversy is thus distinguished from a difference or dispute of a hypothetical character; from one that is academic or moot. The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.9

Chief Justice Earl Warren also advised on the nature of “cases” and “controversies,” noting:

Embodied in the words “cases” and “controversies” are two complementary but somewhat different limitations. In part those words limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process. And in part those words define the role assigned to the Judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government. Justiciability is the term of art employed to give expression to this dual limitation placed upon federal courts by the case and controversy doctrine.10

Factors which determine whether a dispute qualifies as a “case” or “controversy” under the Constitution include adversity, the existence of a real interest, and standing. Adversity requires that the parties be truly adverse to each other with real interests in contention.11 As such, suits that are collusive or feigned by two friendly parties to resolve a question of interest to them are not justiciable.12 A real interest requires that a real issue be presented, as contrasted with speculative, abstract, hypothetical, or moot issues or cases that are not yet ripe for review.13 Standing concerns who may bring a suit and requires that the party seeking relief has “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpes the presentation of issues upon which the court so largely depends of illumination of difficult constitutional questions.” 14 The constitutional requirements for standing under Article III require that the plaintiff has personally (1) suffered some actual or threatened injury; (2) that injury can fairly be traced to the challenged action of the defendant; and (3) that the injury is likely to be redressed by a favorable decision.15 Persons do not have standing to sue in federal court when they can only claim that they have an interest or have suffered an injury that is shared by all members of the public.16 These factors are discussed at greater length in other Constitution Annotated essays.

1: U.S. Const. art. III, § 2, cl. 1.
2: Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 378 (1821).
3: U.S. Const. art. III § 2, cl. 1.
4: U.S. Const. art. III § 2, cl. 1.
5: Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 378 (1821).
6: Muskrat v. United States, 219 U.S. 346, 356 (1911).
7: The two terms may be used interchangeably, inasmuch as a “controversy,” if distinguishable from a “case” at all, is so only because it is a less comprehensive word and includes only suits of a civil nature. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239 (1937).
8: Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824).
9: Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240–41 (1937). Cf. Public Service Comm’n v. Wycoff Co., 344 U.S. 237, 242 (1952).
10: Flast v. Cohen, 392 U.S. 83, 94–95 (1968).
11: Muskrat v. United States, 219 U.S. 346 (1911).
12: Lord v. Veazie, 49 U.S. (8 How.) 251 (1850).
13: Ala. State Fed’n of Labor v. McAdory, 325 U.S. 450, 461 (1945) (stating that it is the Court’s “considered practice not to decide abstract, hypothetical or contingent questions.” ); Giles v. Harris, 189 U.S. 475, 486 (1903) (stating that a party cannot maintain a suit “for a mere declaration in the air” ); Texas v. ICC, 258 U.S. 158 (1922) ( “It is only where rights, in themselves appropriate subjects of judicial cognizance, are being, or about to be, affected prejudicially by the application or enforcement of a statute that its validty may be called in question by a suitor and determined by an exertion of the judicial power.” ); Ashwander v. TVA, 297 U.S. 288, 324 (1936) ( “The pronouncements, policies and program of the Tennessee Valley Authority and its directors, their motives and desires, did not give rise to a justiciable controversy save as they had fruition in action of a definite and concrete character constituting an actual or threatened interference with the rights of the person complaining.”
14: Baker v. Carr, 369 U.S. 186, 204 (1962). That persons or organizations have a personal, ideological interest sufficiently strong to create adverseness is not alone enough to confer standing; rather the adverseness is the consequence of one being able to satisfy the Article III requisite of injury in fact. Valley Forge Christian College v. Ams. United, 454 U.S. 464, 482–486 (1982); Schlesinger v. Reservists Comm. To Stop the War, 418 U.S. 208, 225–226 (1974). Nor is the fact that, if plaintiffs have no standing to sue, no one would have standing, a sufficient basis for finding standing. Id. at 227.
15: Americans United, 452 U.S. at 472; Allen v. Wright, 468 U.S. 737, 751 (1984); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992); Monsanto C. v. Geerston Seed Farms, 561 U.S. ___, No. 09–475, slip op. (2010). But see United States v. Parole Comm’n v. Geraghty, 445 U.S. 388 (1980).
16: Schlesinger v. Reservists Comm. To Stop the War, 418 U.S. 208 (1974).