The nature of judicial review - Organization and relationshi...

Learning Outcomes

This article explains how judicial review operates within the dual state–federal court system for MBE purposes, including:

• How state and federal court systems are structured, the distinction between general and limited jurisdiction, and when they exercise concurrent versus exclusive authority over particular types of cases.
• The scope of the Supreme Court’s original and appellate jurisdiction, the role of Congress in regulating appellate review, and how the final judgment rule controls access to the Court.
• Congress’s power to create and abolish lower federal courts, to define their subject-matter jurisdiction within Article III limits, and the constitutional constraints on jurisdiction-stripping statutes.
• The Eleventh Amendment and broader state sovereign immunity doctrine, including who may sue a state, when Ex parte Young permits prospective relief, and how Congress may validly abrogate immunity under the Fourteenth Amendment.
• Article III’s “case or controversy” requirement, with emphasis on advisory opinions, constitutional standing elements, third-party and organizational standing, ripeness, mootness, and the main exceptions that keep otherwise moot cases alive.
• The doctrine of adequate and independent state grounds and how it limits Supreme Court review of state court decisions that rest on sufficient, non-federal bases.
• The political question doctrine, key Baker v. Carr factors, and common exam scenarios in which federal courts will deem constitutional disputes non-justiciable.
• How to apply these jurisdictional and justiciability doctrines to bar-style multiple-choice fact patterns to identify which courts have power to hear and decide each case.

MBE Syllabus

For the MBE, you are required to understand judicial review and the organization and relationship of state and federal courts, with a focus on the following syllabus points:

• The structure and relationship of state and federal courts in the federal system.
• The Supreme Court’s original and appellate jurisdiction.
• Congressional power to define and limit federal court jurisdiction.
• The Eleventh Amendment and state sovereign immunity.
• The “case or controversy” requirement: advisory opinions, standing, ripeness, mootness.
• The doctrine of adequate and independent state grounds.
• The political question doctrine and other justiciability limits on federal courts.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is NOT within the original jurisdiction of the U.S. Supreme Court?
   1. Disputes between two states
   2. Cases affecting ambassadors
   3. Appeals from state supreme courts
   4. Cases in which the United States is a party
2. Congress passes a law removing the Supreme Court’s appellate jurisdiction over a certain type of federal case. Is this constitutional?
   1. Yes, Congress may make exceptions to appellate jurisdiction
   2. No, Congress cannot limit Supreme Court jurisdiction
   3. Yes, but only if the President consents
   4. No, unless the case involves a state
3. A state supreme court decision rests on both a federal and a state constitutional ground. The state ground is sufficient to support the judgment. Can the U.S. Supreme Court review the case?
   1. Yes, always
   2. No, if the state ground is adequate and independent
   3. Yes, if the federal issue is important
   4. No, unless the state court requests review
4. Which of the following is required for a federal court to hear a case?
   1. The parties must be U.S. citizens
   2. The case must present a “case or controversy”
   3. The case must involve a state law issue
   4. The President must approve

Introduction

The U.S. legal system is built on a dual court structure, with both state and federal courts exercising judicial power. Understanding how these courts are organized, how they interact, and the limits on their authority is essential for the MBE. The Supreme Court stands at the top of the federal system, with specific original and appellate jurisdiction. The Constitution and Congress define the scope of federal judicial power, while doctrines such as “case or controversy” and adequate and independent state grounds limit when federal courts, including the Supreme Court, may decide cases.

Judicial review—courts’ power to interpret and invalidate government action that conflicts with the Constitution—operates within this structural framework. Federal courts cannot simply decide any legal question; they are constrained by jurisdictional grants, sovereign immunity, and justiciability doctrines.

Key Term: Federal Question Jurisdiction
The authority of federal courts to hear cases “arising under” the U.S. Constitution, federal statutes, or treaties.

Key Term: Diversity Jurisdiction
The authority of federal courts to hear certain civil cases between citizens of different states (or between a state and a foreign citizen), when statutory requirements such as the amount in controversy are met.

Structure of State and Federal Courts

The federal court system consists of three main levels:

• U.S. District Courts – trial courts of general federal jurisdiction.
• U.S. Courts of Appeals – intermediate appellate courts reviewing district court decisions.
• The U.S. Supreme Court – the highest court, with limited original and broad—but regulated—appellate jurisdiction.

Each state has its own court system, typically including:

• Trial courts of general jurisdiction (and sometimes specialized courts, such as probate or family courts).
• Intermediate appellate courts (in many, but not all, states).
• A state supreme court as the court of last resort on questions of state law.

Federal courts are courts of limited jurisdiction. They can hear only those cases authorized by Article III and by statute—principally federal question and diversity cases, plus some specialized categories (e.g., admiralty).

State courts are generally courts of general jurisdiction. They can hear most types of claims, including federal claims, unless Congress has made jurisdiction exclusive to federal courts (for example, many patent and bankruptcy matters).

Two important consequences for the MBE:

• A federal claim (e.g., a §1983 civil rights claim) can almost always be brought in either state or federal court, unless a statute expressly makes federal jurisdiction exclusive.
• State courts are usually required, under the Supremacy Clause, to apply federal law correctly when federal issues arise, and their decisions on those federal issues can be reviewed by the U.S. Supreme Court (subject to limits discussed below).

Key Term: Concurrent Jurisdiction
The situation in which both state and federal courts are authorized to hear a particular type of case.

Interaction Between State and Federal Courts

The dual system creates potential conflicts and overlaps. Several doctrines structure the relationship:

• Full Faith and Credit – States must generally give full faith and credit to final judgments of other states that had jurisdiction. By statute, the same principle applies between state and federal courts: a final state judgment can bind a later federal case, and vice versa, through preclusion doctrines.
• Anti-Injunction Act – A federal court usually may not enjoin pending state court proceedings, except when expressly authorized by Congress, necessary to aid the federal court’s jurisdiction, or needed to protect or effectuate its judgments. This prevents routine federal interference with state litigation.
• Concurrent Federal–State Litigation – Often, related cases proceed simultaneously in state and federal court. The court that reaches final judgment first can create claim or issue preclusion that binds the other, subject to proper jurisdiction and full faith and credit.

These rules reflect a balance between federal supremacy on federal questions and state autonomy in managing their own court systems.

The U.S. Supreme Court: Original and Appellate Jurisdiction

Article III places the Supreme Court at the apex of this system.

Key Term: Original Jurisdiction
The authority of a court to hear a case in the first instance, rather than on appeal.

Key Term: Appellate Jurisdiction
The authority of a court to review and revise the decision of a lower court.

Original Jurisdiction

Under Article III, the Supreme Court has original jurisdiction in:

• Cases affecting ambassadors, other public ministers, and consuls.
• Cases in which a state is a party (e.g., a suit between two states over a boundary or water rights).

Congress may assign some of these cases to lower federal courts as concurrent original jurisdiction, but Congress cannot expand or contract the categories of cases in which the Supreme Court has original jurisdiction. The constitutional grant is self-executing and exclusive as to subject matter.

Original-jurisdiction cases are rare; most Supreme Court work is appellate.

Appellate Jurisdiction

For all other federal questions and cases meeting Article III categorizations, the Supreme Court’s jurisdiction is appellate, “with such Exceptions, and under such Regulations as the Congress shall make.”

Key points for the exam:

• The Court’s appellate jurisdiction covers federal questions decided in federal courts and in state courts (if properly preserved and if there is no adequate and independent state ground).
• Review is usually discretionary, exercised through writs of certiorari.

Key Term: Certiorari
A discretionary device by which the Supreme Court chooses which cases to review; four Justices must vote to grant certiorari.

• The Court generally reviews only final judgments from the highest state court in which a decision could be had, and final decisions from federal courts of appeals.

Key Term: Final Judgment Rule
The principle that the Supreme Court (and usually federal courts of appeals) review cases only after a final judgment has been entered by the lower court, resolving all claims as to all parties, subject to narrow statutory exceptions.

Congressional Power Over Federal Court Jurisdiction

Article III gives Congress significant control over federal courts:

• Congress creates and may abolish lower federal courts and defines their subject matter jurisdiction within Article III limits.
• Congress may make exceptions to and regulate the Supreme Court’s appellate jurisdiction (the “Exceptions and Regulations” Clause).

Key Term: Congressional Power to Limit Jurisdiction
Congress may restrict the types of cases federal courts can hear (other than the Supreme Court’s constitutionally fixed original jurisdiction), as long as some Article III court remains available to decide federal questions.

Limits to remember:

• Congress cannot expand federal jurisdiction beyond Article III categories (for example, it cannot authorize federal courts to hear purely state-law disputes between non-diverse parties).
• Congress cannot use jurisdiction-stripping in a way that destroys the Supreme Court’s essential role in maintaining a uniform interpretation of federal law—for example, by eliminating all federal court review of constitutional questions on an entire subject. On the MBE, assume Congress must leave some federal forum open to hear federal constitutional claims.

The Eleventh Amendment and State Sovereign Immunity

The Eleventh Amendment and broader sovereign immunity doctrine restrict when a state can be sued in federal court.

Key Term: State Sovereign Immunity
The principle that states may not be sued by private parties in federal court without their consent, subject to specific constitutional and statutory exceptions.

Key Term: Eleventh Amendment
The constitutional provision often interpreted to bar federal-court suits against a state by citizens of that state or another state, when the state itself is the defendant.

For MBE purposes, remember:

• A private individual generally cannot sue a state for damages in federal court without the state’s consent.
• The Eleventh Amendment does not bar:
  • Suits by the United States against a state.
  • Suits by one state against another.
  • Suits against local governments (cities, counties), which are not “states” for Eleventh Amendment purposes.
  • Suits against state officers for prospective injunctive relief to stop ongoing violations of federal law.

Key Term: Ex parte Young
A doctrine allowing suits against state officials in their official capacity for prospective relief (e.g., injunctions) to stop ongoing violations of federal law, effectively bypassing state sovereign immunity for such relief.

Congress can sometimes override state sovereign immunity:

• Under §5 of the Fourteenth Amendment, Congress may validly authorize private suits against states to enforce the substantive guarantees of that Amendment (e.g., certain civil rights statutes), if the legislation is congruent and proportional to the constitutional violations it targets.

States may also waive immunity explicitly, but waiver is not lightly inferred; it typically must be clear and unequivocal.

The “Case or Controversy” Requirement

Article III limits federal courts to deciding “cases” and “controversies.” This is the constitutional basis for several justiciability doctrines.

Key Term: Case or Controversy
The constitutional requirement that federal courts only decide actual, ongoing disputes between adverse parties, not abstract or hypothetical questions.

Four main sub-doctrines flow from this:

1. Prohibition on Advisory Opinions
   Federal courts will not issue advisory opinions—opinions on the legality of proposed actions where there is no concrete dispute and no binding effect on the parties.
   • There must be adverse parties with a real stake in the outcome.
   • The decision must be capable of having a concrete effect (e.g., enforcement, damages, or injunction).

Key Term: Advisory Opinion
A statement by a court on a legal issue not arising from an actual case, or that cannot result in a binding, concrete judgment; federal courts are constitutionally barred from issuing these.

1. Standing
   Standing determines who can sue.

Key Term: Standing
The requirement that a plaintiff must have a personal, concrete stake in the outcome, shown by injury in fact, causation, and redressability.

The constitutional minimum for standing:

• Injury in fact – a concrete and particularized, actual or imminent injury (not a generalized grievance shared by all citizens).
• Causation – the injury is fairly traceable to the defendant’s conduct.
• Redressability – it is likely (not speculative) that the injury will be redressed by the requested relief.

Additional points often tested:

• Third-party standing – A litigant usually cannot assert the rights of others, unless:
  • The litigant has standing in their own right; and
  • There is a close relationship with the third party; and
  • The third party faces obstacles to suing on their own behalf.
• Organizational standing – An organization may sue on behalf of its members if:
  • Members would have standing individually,
  • The interests at stake are germane to the organization’s purpose, and
  • Neither the claim asserted nor the relief requested requires individual members to participate.
• Federal taxpayer standing – Very limited. Taxpayers generally lack standing to challenge how the government spends tax money, except for narrow Establishment Clause challenges to congressional spending allegedly violating the First Amendment.

1. Ripeness
   Ripeness concerns the timing of a suit. A case is unripe if it is filed too early, before a real dispute has developed.

Courts ask:

• Is the issue fit for judicial decision (often a pure legal issue, with a developed record)?
• Will withholding review impose hardship on the parties (e.g., forcing them to choose between compliance and serious penalties)?

Pre-enforcement challenges to regulations often turn on ripeness.

1. Mootness
   A case is moot if events after filing end the controversy so that the court can no longer grant effective relief.

Examples:

• The plaintiff receives all requested relief.
• The challenged law is repealed and there is no reasonable likelihood of reenactment.

Exceptions:

• Capable of repetition, yet evading review – e.g., challenges to pregnancy-related regulations or short elections cycles.
• Voluntary cessation – A defendant who voluntarily stops the challenged conduct bears a heavy burden to show the behavior will not reasonably recur.
• Class actions – The case may continue even if the named plaintiff’s claim becomes moot, as long as other class members have live claims.

Adequate and Independent State Grounds

A critical limit on the Supreme Court’s review of state court judgments is the doctrine of adequate and independent state grounds.

Key Term: Adequate and Independent State Ground
A state law basis for a judgment that is sufficient on its own and not dependent on federal law, preventing Supreme Court review of the case.

If a state supreme court decision:

• Rests on both federal law and state law, and
• The state law ground is adequate (fully supports the judgment regardless of federal law), and
• Independent of federal law (not constrained by or intertwined with the federal interpretation),

then the U.S. Supreme Court cannot review the case. Review would be advisory, because even if the Court changed the federal-law ruling, the state-law ground would keep the same result in place.

If it is unclear whether the state-law ground is independent, the Court may presume that it has jurisdiction unless the state court clearly states that its decision rests on adequate and independent state grounds.

The Political Question Doctrine

Some constitutional questions are considered non-justiciable “political questions,” meaning they are committed to the political branches and lack judicially manageable standards.

Key Term: Political Question Doctrine
The principle that certain constitutional questions are not suitable for judicial resolution because they are textually committed to another branch or lack judicially discoverable and manageable standards.

Factors from Baker v. Carr (you do not need to memorize the case name, but you should know the ideas):

• A textually demonstrable constitutional commitment of the issue to another branch (e.g., impeachment power to Congress).
• A lack of judicially manageable standards for resolving the issue.
• The impossibility of deciding without an initial policy determination clearly for nonjudicial discretion.
• The potential for embarrassment from multifarious pronouncements by different branches on one question.

Classic examples of political questions:

• Challenges to the Senate’s conduct of impeachment trials.
• Questions about the recognition of foreign governments.
• Certain Guarantee Clause claims (e.g., whether a state has a “republican form of government”).
• Partisan gerrymandering claims, under current Supreme Court doctrine, are generally treated as non-justiciable in federal court.

By contrast, many election-law and reapportionment cases (e.g., “one person, one vote” equal protection challenges) are justiciable and do not implicate the political question doctrine.

Worked Example 1.1

A state supreme court upholds a state law on both state constitutional and federal constitutional grounds. The state ground is sufficient to support the judgment. The losing party petitions the U.S. Supreme Court for review. Can the Supreme Court hear the case?

Answer:
No. If the state court’s judgment rests on an adequate and independent state ground, the Supreme Court lacks jurisdiction to review the case, even if a federal issue is present. Because the state constitutional holding alone fully supports the result, any Supreme Court ruling on the federal question would not change the outcome and would amount to an advisory opinion.

Worked Example 1.2

Congress passes a law removing the Supreme Court’s appellate jurisdiction over a specific type of federal case. Is this constitutional?

Answer:
Yes, in principle. Congress has authority under Article III to make exceptions to the Supreme Court’s appellate jurisdiction. However, Congress may not expand or contract the Court’s original jurisdiction, and it may not strip jurisdiction so completely that no federal court can hear core federal constitutional questions. On the MBE, assume Congress may narrow appellate jurisdiction as long as some Article III court remains available to decide federal questions.

Worked Example 1.3

A private plaintiff sues a state in federal court for money damages under a federal statute enacted under Congress’s Commerce Clause power. The state moves to dismiss based on sovereign immunity. How should the court rule?

Answer:
The court should grant the motion. The Eleventh Amendment and state sovereign immunity bar private suits for damages against an unconsenting state in federal court, and Congress’s Article I powers (such as the Commerce Clause) do not authorize abrogation of that immunity. Unless the state has clearly consented, or Congress validly abrogated immunity under §5 of the Fourteenth Amendment, the suit is barred.

Worked Example 1.4

A voter sues in federal court, alleging that partisan gerrymandering in her state violates the Constitution and asking the court to redraw district lines. The state moves to dismiss, arguing that the claim presents a political question. How should the court rule?

Answer:
The court should dismiss under the political question doctrine. Under current Supreme Court precedent, claims of unconstitutional partisan gerrymandering are treated as non-justiciable in federal court because there are no judicially manageable standards for deciding when partisan influence goes too far. The issue is committed to the political process.

Worked Example 1.5

A federal agency asks a federal court to issue an advisory opinion on whether a proposed regulation would be constitutional if adopted. No one has yet been affected by the regulation. Does the federal court have jurisdiction?

Answer:
No. Federal courts may not issue advisory opinions. There is no concrete dispute between adverse parties and no actual or imminent injury. Until the regulation is adopted and applied in a way that injures someone who then brings suit, the “case or controversy” requirement is not satisfied.

Revision Tip

When analyzing Supreme Court review of state court decisions, always check:

• Is there a final judgment from the highest state court that can hear the case?
• Does the judgment rest on an adequate and independent state ground?

If the answer to the second question is “yes,” Supreme Court review is barred.

Key Point Checklist

This article has covered the following key knowledge points:

• The federal and state court systems operate in parallel: federal courts are courts of limited jurisdiction; state courts are generally courts of general jurisdiction and often hear federal claims.
• The Supreme Court has original jurisdiction over a narrow set of cases involving states and diplomats, which Congress cannot alter, and appellate jurisdiction over other cases, subject to congressional exceptions and regulations.
• Congress may create and abolish lower federal courts and may limit federal jurisdiction within Article III bounds, but cannot expand jurisdiction beyond Article III or entirely eliminate all federal forums for core federal questions.
• The Eleventh Amendment and state sovereign immunity generally bar private suits for damages against states in federal court, subject to waiver, valid Fourteenth Amendment abrogation, and Ex parte Young–type suits for prospective relief against state officials.
• Article III’s “case or controversy” requirement bars advisory opinions and requires standing, ripeness, and the absence of mootness, subject to limited mootness exceptions.
• The Supreme Court cannot review state court judgments resting on an adequate and independent state law ground, even if a federal question is also decided.
• The political question doctrine bars federal courts from deciding certain issues committed to other branches or lacking judicially manageable standards, such as impeachment procedures and partisan gerrymandering claims.
• Federal–state court interaction is shaped by full faith and credit, limits on federal injunctions against state proceedings, and the Supreme Court’s role in ensuring uniform federal law.

Key Terms and Concepts

• Federal Question Jurisdiction
• Diversity Jurisdiction
• Concurrent Jurisdiction
• Original Jurisdiction
• Appellate Jurisdiction
• Certiorari
• Final Judgment Rule
• Congressional Power to Limit Jurisdiction
• State Sovereign Immunity
• Eleventh Amendment
• Ex parte Young
• Case or Controversy
• Standing
• Advisory Opinion
• Adequate and Independent State Ground
• Political Question Doctrine