1. Federal Courts Class 2 Alan Heinrich

2. Standing - Recap New federal lawsuits challenging Bush Admin. Eavesdropping actions: (1) Plaintiffs who believe they have been subject to policy because of their ethnicity. (2) Plaintiffs who believe that have been subject to policy because they are attorneys who have represented “Gitmo” detainees.

3. Ripeness Ripeness test for declaratory judgment patent cases: explicit threat by patentee creating reasonable apprehension of suit. activities by DJ plaintiff that could constitute infringement Touchstone: “whether need for judicial attention is real and immediate.”

4. Mootness What can a patentee do to defeat jurisdiction over a DJ claim for non-infringement or invalidity?

5. Mootness What can a patentee do to defeat jurisdiction over a DJ claim for non-infringement or invalidity? Would the patentee’s “promise” not to sue defeat jurisdiction over the DJ claim?

6. Mootness Mootness = Temporal aspect of standing.

7. Mootness “Exception”: Defendant’s voluntary cessation of challenged conduct.

8. Mootness “Exception”: Cases “capable of repetition yet evading review.” Examples?

9. Mootness “Exception”: Cases “capable of repetition yet evading review.” Examples? Cases with short fuses – abortion, education

10. Mootness Basis for mootness doctrine: Article III requirement of “case” or “controversy”? Is injury in moot case still “redressable”? Prudential limitation? Concern that parties are manipulating judicial process?

11. “Political Question” Baker v. Carr: Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

12. “Political Question” Factors reduce to SOP considerations: Judicially manageable standards? Entrusted to discretion of other branch?

13. “Political Question” Luther v. Borden Judicial enforceability of Guarantee Clause (Art. IV, Section 4): “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”

14. “Political Question” Luther v. Borden Dispositive Political Question factor for contemporaneous Court?

15. “Political Question” Luther v. Borden Dispositive Political Question factor for contemporaneous Court? Guarantee clause determinations entrusted to Congress.

16. “Political Question” Luther v. Borden Dispositive Political Question factor for Baker v. Carr Court? No manageable standards for judicial enforcement of Guarantee Clause.

17. “Political Question” Baker v. Carr Dispositive Political Question factor? Judicially manageable standards: One person, one vote.

18. “Political Question” Powell v. McCormack Dispositive Political Question factor?

19. “Political Question” Powell v. McCormack Dispositive Political Question factor? Demonstrable commitment to Congress?

20. “Political Question” Powell v. McCormack Dispositive Political Question factor? Demonstrable commitment to Congress? Art. I, Section 5: Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members…

21. “Political Question” Powell v. McCormack Dispositive Political Question factor? Demonstrable commitment to Congress? Did the House of Representatives refuse to seat Powell due to a dispute over “elections,” “returns” or “qualifications”?

22. “Political Question” Powell v. McCormack Dispositive Political Question factor? Judicially manageable standards?

23. “Political Question” Powell v. McCormack Does Court’s approach render Political Question doctrine “self-liquidating”? [Supp. p. 38.]

24. “Political Question” Factors reduce to SOP considerations: Judicially manageable standards? Entrusted to discretion of other branch?

26. Vieth v. Jubelirer Is a “political gerrymandering” EP challenge a non-justiciable Political Q?

27. Vieth v. Jubelirer Is a “political gerrymandering” EP challenge a non-justiciable Political Q? Entrusted to Congress? -- see section II of plurality opinion Judicially manageable standards? -- see section III of plurality opinion

28. Vieth v. Jubelirer Proposed standards for deciding “political gerrymandering” claim:  Bandemer Intent? Effect?  Vieth plaintiffs Intent? Effect?

29. Vieth v. Jubelirer What factors led plurality to conclude that no judicially manageable standards exist for political gerrymandering claim?

30. Vieth v. Jubelirer What factors led plurality to conclude that no judicially manageable standards exist for political gerrymandering claim?  Political affiliation not immutable  Political affiliation not readily discernible  Some political considerations in districting are permissible  No right to proportional representation

31. Vieth v. Jubelirer Breyer’s dissent  Is districting that leads to anti-majoritarian results per se unconstitutional?  Right to proportional representation?  What is “unjustified entrenchment”? What would “justified entrenchment” be?

32. Vieth v. Jubelirer Is a “political gerrymandering” EP challenge a non-justiciable Political Q? 4-justice plurality: YES 4-justice dissent: NO Justice Kennedy?

33. Vieth v. Jubelirer Is a “political gerrymandering” EP challenge a non-justiciable Political Q? 4-justice plurality: YES 4-justice dissent: NO Justice Kennedy? save claim for rainy day: “If workable standards do emerge to measure these burdens, courts should be prepared to order relief.”

35. Article III: Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. Section 2. 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... In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. Cong’l Control Over Jdx

36. Must Congress vest entire judicial power in federal courts? 28 U.S.C. 1331 28 U.S.C. 1332 28 U.S.C. 1257

37. Cong’l Control Over Jdx “Traditional” view: Congress’s power is plenary State courts have vital Const’l role Supremacy clause

38. Cong’l Control Over Jdx “Essential Functions” view: “Exceptions” implies a “Rule” Federal court review must be available to assure supremacy and consistency of federal law.

39. Cong’l Control Over Jdx “Independent Unconstitutionality” view: Congress’s control over federal court jurisdiction must not violate any other constitutional provision (e.g., 5 th Amend. DP clause).

40. Cong’l Control Over Jdx Could Congress pass statute: “No federal court shall have jurisdiction to entertain claims or defenses based on the government’s failure to provide a Miranda warning.”

41. Cong’l Control Over Jdx Could Congress pass statute: “No federal court shall have jurisdiction to entertain claims or defenses based on the government’s failure to provide a Miranda warning.” Marbury: Jurisdiction to hear case is jurisdiction to decide case constitutionally.

42. Cong’l Control Over Jdx Could Congress pass statute: “No federal court shall have jurisdiction over challenges to redistricting schemes brought by African-American plaintiffs.”

43. Cong’l Control Over Jdx Could Congress pass statute: “No federal court shall have jurisdiction over challenges to state or federal law under Roe v. Wade and its progeny.”

44. Cong’l Control Over Jdx Could Congress pass statute: “No state or federal court shall have jurisdiction over challenges to state or federal law under Roe v. Wade and its progeny.”

45. Ex Parte McCardle Procedural posture: “original” writ vs. appeal Supports “traditional” view of Congress’s plenary power over jurisdiction? Sleight of hand – review via “original writ” still available?

46. Webster v. Doe What “serious constitutional question” did the majority seek to avoid? What are Scalia’s views on the scope of Congress’s power to control fed. ct. jdx? The role of state courts? The role of judicial review?

47. Detainee Treatment Act (2005)

48. Special review procedures (CADC) for final determinations of military commissions. No review prior to final determinations Review is discretionary in certain circumstances No review of challenges to conditions of confinement Detainee Treatment Act (2005)

49. Hamdan v. Rumsfeld "This is the first case since Ex parte McCardle [1868] to involve a possible attempt by Congress to abolish retroactively the Supreme Court's jurisdiction over a pending appeal," the brief says. It adds that "any such attempt would raise questions that go to the heart of our constitutionali structure, and would in this case imperil an essential function of the Supreme Court."

50. Article III: Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. Independent Judiciary

52. Legislative Courts Can Northern Pipeline, Thomas and Schor be reconciled?