For the Balkinization Symposium on James E. Pfander, Cases Without Controversies: Uncontested Adjudication in Article III Courts (Oxford University Press, 2021).
Fred Smith
In
James Pfander’s Cases Without Controversies: Uncontested Adjudication in
Article III Courts, he has achieved four remarkable feats. First, he has
written a history of Article III requirements that covers multiple millennia,
furnishing the reader with a lantern that illuminates important sites along the
path that has led us to the “adverseness” and “injury-in-fact” requirements. Second,
he has produced an explanatory account of longstanding practices that seem at
odds with these oft-articulated, nearly ubiquitous doctrines of justiciability.
Third, he offers a new doctrinal theory of justiciability that, unlike extant
doctrine, comports with text, history, and the animating concepts that often
accompany descriptions of standing. Fourth, he provides a general theory of how
to integrate history into constitutional interpretation.
For a scholar as careful and imaginative as Pfander to provide any one of those four contributions would be a cause for courts and commentators to take note. That Pfander has produced all four contributions in one book makes it a must-read. This review will provide an overview of these four dimensions of the book, and offer one lingering question.
First, in the way of history, Pfander
illustrates the prevalence of non-adversarial invocations of judicial power in:
Roman courts; subsequent civil law systems in continental Europe; and colonial
practices in what is now the United States.
From Roman times, to the Middle Ages to the Enlightenment Era and
beyond, courts entertained “voluntary” or “non-contentious jurisdiction.” (p.
17). And indeed “[n]on-contentious jurisdiction remains a feature of
continental judicial systems today.” (p.
21). Moreover, uncontested proceedings were a feature of federal jurisdiction
in the early life of the republic, dating back to the First Congress, which
gave federal Article III courts, among others, the power to naturalize citizens
who met Congressionally prescribed requirements.
American
jurists viewed controversies and uncontested cases distinctly, cautioning that
courts should play a special, inquisitorial role courts when “there are no
hostile parties who can adjust or establish anything by way of stipulation.” (p. 35). And they rejected the notion that
other branches of government could overturn their decisions in non-contentious
cases. See Hayburn's Case, 2 U.S. 409 (1792). But the idea
that uncontested cases could be a part of the federal docket seems to have been
without controversy for roughly the first one hundred years of the nation’s
history. As Chief Justice John Marshall and Justice Joseph Story explained,
“cases” represented a more capacious term than “controversies.” Those jurists’ opinions reflected the view
that on matters of federal law and admiralty, federal courts may decide cases
even in the absence of controverted legal positions and oppositional interests.
Only when dealing with other subject matters—like state law under diversity
jurisdiction—does the Constitution demand that there be an actual “controversy”
with adverse parties.
Second, Pfander offers an
explanatory account of why, today, there is a yawning gap between some judicial
practices—such as consent decrees, ex parte warrants, and default judgments—and
well-accepted doctrines like the requirement that parties have adverse
interests. He traces the development to the late nineteenth century, when Justice
Stephen Field offered a revisionist and apparently idiosyncratic view of the
word “case.” On Justice Field’s account,
the word “case… implies the existence of present or possible adverse parties
whose contentions are submitted to the court for adjudication.” (p. 89). And
over the decades that followed, in cases that include Muskrat v. United
States, 219 U.S. 346 (1911), Justice Field’s account gained prominence at
Supreme Court. According to Pfander, Field’s account had particular resonance
among jurists who, chastened by judicial excesses during the Lochner
era, were sympathetic to limiting the role of federal courts with respect to
challenges to the administrative state.
Third, Pfander offers a theory of
justiciability that eschews preoccupation with either adverseness or an
injury-in-fact requirement. After all,
Pfander notes in paraphrasing Akhil Amar, “it takes a theory to beat a theory.”
(p. 162). On Pfander’s approach, “the federal courts should exercise
uncontested jurisdiction only if [1] the party invoking federal power has a
concrete interest in the litigation of the legal claim,” [2] the court has been
“called upon to exercise judicial judgment in the application of federal law to
the facts” and [3] “their decisions will enjoy the finality essential to the
federal judicial role.” (p. 9). Pfander also draws on Justice Marshall and
Justice Story’s early descriptions of the word “case” to advance the concept of
“litigable interest.” Pfander defines
“litigable interest” as a claim of right and title to sue, both of which
Congress may authorize. He argues that Congress should get broad deference in
creating avenues for federal courts to hear claims. In his view, this deference
is especially important when Congress adopts a judicial cause of action as a
means of enforcement against private actors, as opposed to challenges to
the administrative state, where other separation of powers concerns may arise.
“When Congress creates litigable interests in private regulatory programs, the
Court has little justification for second-guessing that decision.” (p. 184).
Fourth, Pfander concludes by
offering a theory of how to integrate history into constitutional
interpretation. “How should we read and interpret our eighteenth-century
Constitution as the pace of social and legal change makes it increasingly
difficult to recover unwritten assumptions, tacit understandings, unspoken
commitments, and background legal norms of the founding generation?” (p. 223) In
answering this question, Pfander argues that modest, careful, assessments of
litigation practices should co-exist with “arguments [arising] from longstanding
tradition.” (p. 227). To this end, he advocates for what he calls “constructive
constitutional history.” (p.228) “Constructive,” here, “means useful and
forward-looking.” (p.228). With a degree of “[e]pistemic humility,” he
advocates for a use of history that attempts to reaffirm traditional practices
without unduly upsetting settled law.
(p. 231).
Pfander has offered a compelling
exposition of gaps between history and the law of justiciability. Further, he
has offered constructive ways to bridge those gaps, as a matter of theory and
as a matter of practice.
I
was left with one lingering question: Why does the book implicitly accept as a
given that all or almost all of standing doctrine should be housed in Article
III? At some points in Pfander’s narrative, this choice is surprising given
that, rightly in my view, Pfander contends that justiciability doctrines should
be flexible enough to take into account important ways that judicial overreach can
undermine the public interest. He
contends that when someone challenges a federal agency’s conduct, for example, a
relevant consideration is whether there are others who could better advance the
claim the litigant is making. (p. 185).
But Pfander does not answer why considerations of that sort must be housed in
the “litigable interest” standard or, more broadly, in Article III. Could some
of these considerations be housed in the equitable standards that govern
injunctions more generally? And are some
of them better understood as prudential concerns, rather than inexorable
constitutional commands?
Indeed, the more that justiciability doctrines
are understood as constitutional mandates, the less flexibility those doctrines
sometimes invite, and the less susceptible they are to Congressional
refinements. The diverging approaches of
the majority and the dissenters in United States v. Windsor, 570
U.S. 744 (2013), offers an example of this phenomenon. The dissenters
believed that the adverseness requirement inhered in Article III, and could not
be disturbed. The fact that the litigants had the same legal positions was, in
their view, fatal to the Supreme Court’s jurisdiction. The majority, by
contrast, characterized the adverseness requirement as prudential, and
accordingly assessed whether the underlying rationales that animated the
requirement would be fulfilled by invoking the doctrine in that specific
case. Given that prudential doctrines
offer the kind of flexibility that Pfander deems important, why not house some
aspects of standing there?
Perhaps
the implicit answer to this question can be found in Pfander’s theory of
“constructive constitutional history.”
His book is an attempt to, where possible, marry tradition and current
practice. He is attempting to build up, rather than tear down. And therefore,
his theory requires that one choose a doctrinal baseline from which to build
up. For Pfander, this baseline apparently involves continuing to house the bulk
of standing doctrine in Article III, a decision that arguably makes sound sense
given the Court’s recently reaffirmed view that prudential limits on judicial
power are disfavored.[1] But it would nonetheless be helpful to hear
more about why that should serve as the baseline. After all, for Pfander’s
ideas to gain the force of law, courts must revisit important precedents.
Something must come down, then, in order to build back up. Why shouldn’t the
Court’s penchant for constitutionalizing prudential concerns be among the
precedential structures that come down?
In the end, Pfander’s book is
fascinating and bold, offering an important blend of history and trenchant
theoretical insights. Any scholar or jurist interested in the field of standing
should read it. Indeed, I found myself wishing the Supreme Court had the book
in hand before its recent opinion in TransUnion LLC v. Ramirez, wherein
the Court steered the doctrine even further from the traditions that Pfander
outlines. Pfander’s prescient book will be published, then, as the gap between
history and doctrine continues to grow both at the expense of Congress’s proper
role in our constitutional design, and at the expense of access to justice.
At
one point late in the book, Pfander casually remarks that this is an area of
law that inspires “hope” and “fear.” (p. 185) (“The Court reaffirmed the injury
requirement, but did less than was hoped and feared.”). My hope? That Pfander’s
compelling work will help to narrow the gaps between history and practice, and
between justice and law.
Fred Smith is Associate Professor, Emory Law School. You can reach him by e-mail at fred.smith@emory.edu.
[1] Susan B. Anthony List v.
Driehaus, 573 U.S. 149, 167 (2014); Lexmark Int’l, Inc. v. Static
Control Components, Inc., 572 U.S. 118, 126 (2014).