Review the following two brief passages from Cornell Law Schools US Constitution Annotated regarding the federal powers of judicial review (judicial review=the ability of federal/national courts to declare federal/national laws enacted by Congress and state laws enacted by state legislatures unconstitutional/in violation of the Federal Constitution):
Despite the Constitutional authority vested in federal courts to review the constitutionality of Federal and State laws, the Federal (National) Judiciary (i.e. federal courts) has self-imposed various limitations on its ability to engage in judicial review. Some of these limitations include the following:
- No Advisory Opinions: Federal Courts dont hear cases to merely provide their opinion on a matter. There has to be an actual dispute between two or more parties (i.e. there must be a real case or controversy for federal courts to review and decide the constitutionality of a law.)
- Ripeness: Federal Courts dont typically review cases involving laws that have not yet been enforced or for which a party has not yet suffered harm. A law must become ripe in the sense that a party has suffered actual harm or is in immediate threat of harm before Federal Courts will review a laws constitutionality.
- Mootness: Similar to the ripeness requirement, with some exceptions, Federal Courts will not typically review cases that involve the application of laws that are no longer in effect or the enforcement of which can no longer harm the party in question.
- Standing: The person/entity who challenges the constitutionality of a law must have standing (i.e. a concrete stake in the outcome of a judicial decision). To establish standing, the person/entity must show that they suffered a real injury/harm as a result of the enforcement of the law and that a favorable decision of the Federal Court will provide a remedy for the person/entity in question.
- Adequate and Independent State Grounds: Federal Courts will review decisions made by state courts only if the decision made by the state court was grounded in a federal legal question (i.e. Constitution or federal law). If the decision was based solely on a State Constitution or state law, then Federal Courts will not review the matter.
- Abstention: In cases where the claim of unconstitutionality of a state law is already being resolved by state-level institutions, Federal Courts typically abstain from interfering in the resolution of the matter until state-level institutions have completed their processes and made their own determinations.
- Political Questions: Federal Courts have decided not to review cases involving matters that other branches of the Federal Government have Constitutional authority to determine (i.e. Congress or the President). For example, cases related to relations with foreign countries, war, determinations of political parties, procedures related to impeachment proceedings, among others, are not reviewable by Federal Courts.
- Eleventh Amendment Limits: The 11th Amendment prohibits Federal Courts from reviewing a case in which a private party or a foreign government has brought a claim against a state government or a state governments officers (with some exceptions).
Now, please answer the following three questions:
- Which of the above eight limitations on Federal judicial review do you find most compelling, convincing, or most important (i.e. pick one)? Why?
- If you were a Supreme Court Justice and could vote to remove one of these limitations, thereby expanding your powers as a member of the Supreme Court, which would it be? Why?
