Takings and Ripeness

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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.

Even though the Supreme Court has applied the Abbott Laboratories standard on numerous occasions since 1967,1 the Court has signaled that it may be willing to modify the standard, or perhaps even abrogate the ripeness doctrine entirely.

For example, recent Supreme Court decisions have questioned the ripeness doctrine’s prudential underpinnings. Before 2014, the Court had held repeatedly that the ripeness doctrine had both constitutional and prudential dimensions.2 However, in Susan B. Anthony List v. Driehaus, the Court, quoting its earlier holding that “'a federal court’s obligation to hear and decide’ cases within its jurisdiction ‘is virtually unflagging,’” questioned whether it is proper to deem a claim “nonjusticiable on grounds that are prudential, rather than constitutional.” 3 And in its 2020 ripeness opinion, the Court deemed a case unripe without mentioning the doctrine’s prudential component or discussing Abbott Laboratories’ fitness and hardship factors.4 It is therefore possible that the Supreme Court may someday unmoor the ripeness doctrine from its prudential foundations and replace the two-pronged Abbott Laboratories test with a new legal standard predicated solely on Article III’s Case or Controversy requirement.

The ripeness doctrine has also arguably diminished in importance as the Supreme Court has developed and refined other justiciability doctrines, especially the doctrine of Article III standing. In MedImmune, Inc. v. Genentech, Inc. and Susan B. Anthony List, the Court observed that because standing and ripeness both derive from the provisions of Article III limiting the federal courts’ jurisdiction to “Cases” and “Controversies,” the two doctrines often “ boil down to the same question.” 5 Thus, the Court ruled in Trump v. New York that a challenge to an Executive Branch policy was premature under the standing and ripeness doctrines alike.6 Consequently, under MedImmune, Susan B. Anthony List, and Trump, the degree to which the ripeness doctrine imposes any limitation on the justiciability of disputes that the Article III standing doctrine does not already impose is uncertain. Future Supreme Court decisions may clarify the extent to which the ripeness doctrine continues to play a role in the application of Article III’s case or controversy requirement.

1: See, e.g., Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 670 n.2 (2010); Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003); Texas v. United States, 523 U.S. 296, 300–01 (1998); Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 733 (1998); Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 201 (1983).
2: Nat’l Park Hosp. Ass’n, 538 U.S. at 808 (quoting Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n.18 (1993)). See also Stolt-Nielsen, 559 U.S. at 670 n.2; Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725, 733 n.7 (1997).
3: 573 U.S. 149, 167 (2014) (quoting Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 125–26 (2014)) (internal quotation marks omitted). But see id. ( “[W]e need not resolve the continuing vitality of the prudential ripeness doctrine in this case because the ‘fitness’ and ‘hardship’ factors are easily satisfied here.” ).
4: Trump v. New York, No. 20-366, slip op. at 1–7 (Dec. 18, 2020).
5: Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157 n.5 (2014). See also MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128 n.8 (2007) ( “The justiciability problem . . . can be described in terms of standing (whether plaintiff is threatened with ‘imminent’ injury in fact ‘fairly . . . trace[able] to the challenged action of the defendant,') or in terms of ripeness (whether there is sufficient ‘hardship to the parties [in] withholding court consideration’ until there is enforcement action).” ) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992); Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977)).
6: See No. 20-366, slip op. at 6–7 ( “[T]he standing and ripeness inquiries both lead to the conclusion that judicial resolution of this dispute is premature.” ).