The nature of judicial review - Political questions and just...

Learning Outcomes

This article explains the nature of judicial review and justiciability on the MBE, including:

• How to identify when Article III’s “case or controversy” requirement is satisfied or violated, and how that determination controls federal subject-matter jurisdiction.
• How to analyze standing by breaking questions into injury, causation, and redressability, and by spotting third-party, organizational, and taxpayer standing issues that commonly appear in multiple-choice fact patterns.
• How ripeness and mootness limit federal court review over time, including recognizing premature challenges, post-relief disputes, and the main exceptions that keep a seemingly “over” case alive.
• Why federal courts refuse to issue advisory opinions, how declaratory judgment actions can still be justiciable, and how to distinguish the two under exam pressure.
• How and when the political question doctrine bars judicial review, with emphasis on impeachment, Guarantee Clause claims, partisan gerrymandering, and certain foreign-affairs disputes.
• How the adequate and independent state grounds doctrine restricts Supreme Court review of state-court decisions and turns some federal issues into effectively advisory questions.
• How to quickly apply these doctrines to common MBE-style fact patterns so you can eliminate distractor answers and reach the correct outcome efficiently.

MBE Syllabus

For the MBE, you are required to understand limits on federal judicial power and justiciability, with a focus on the following syllabus points:

• The Article III “case or controversy” requirement.
• The doctrines of standing, ripeness, and mootness.
• The prohibition on advisory opinions and the role of declaratory judgments.
• The political question doctrine and classic political question categories.
• The adequate and independent state grounds doctrine for Supreme Court review.
• How these doctrines restrict federal court jurisdiction and shape judicial review.

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 most likely to be dismissed as a nonjusticiable political question?
   1. A challenge to a state tax as violating the Commerce Clause.
   2. A suit seeking review of the Senate’s procedures for impeachment trials.
   3. A challenge to a city ordinance as violating the First Amendment.
   4. A claim that a state law is preempted by federal law.
2. Which of the following best describes the "case or controversy" requirement?
   1. Federal courts may issue advisory opinions.
   2. Federal courts may decide hypothetical disputes.
   3. Federal courts may only decide actual, ongoing disputes between adverse parties.
   4. Federal courts may rule on any legal question presented by Congress.
3. Which of the following is NOT a recognized justiciability doctrine?
   1. Standing
   2. Ripeness
   3. Mootness
   4. Judicial immunity
4. The Supreme Court will decline to hear a case if:
   1. The issue is a political question committed to another branch.
   2. The plaintiff lacks standing.
   3. The case is moot.
   4. All of the above.

Introduction

Federal courts are courts of limited jurisdiction. Article III of the U.S. Constitution restricts federal judicial power to "cases" and "controversies." This means federal courts may only decide actual disputes between adverse parties and cannot issue advisory opinions or decide hypothetical questions. The doctrines of justiciability—including standing, ripeness, mootness, and the political question doctrine—define the boundaries of federal judicial power and are frequently tested on the MBE.

Key Term: Justiciability
The set of doctrines determining whether a court can properly hear and decide a case, including standing, ripeness, mootness, and the political question doctrine.

These doctrines are often outcome-determinative: if a case is nonjusticiable, the federal court must dismiss it without ever reaching the merits. On MBE questions, you are expected to spot these threshold problems quickly.

The "Case or Controversy" Requirement

Federal courts may only decide cases that present an actual, ongoing dispute between parties with adverse legal interests. This is known as the "case or controversy" requirement.

Key Term: Case or Controversy
A constitutional requirement that federal courts only decide real, live disputes, not hypothetical or abstract questions.

Two practical implications:

• There must be adversarial parties with genuinely conflicting legal interests.
• The court’s decision must be capable of affecting the parties’ rights in a concrete way (not a purely academic ruling).

Congress cannot waive this requirement by statute; nor can the parties stipulate around it. If it is missing, the case must be dismissed for lack of subject-matter jurisdiction.

The Doctrines of Justiciability

Federal courts apply several doctrines to determine whether a case is justiciable. These doctrines overlap and often appear together on the MBE.

Standing

A plaintiff must have standing to sue. This requires three constitutional elements:

1. Injury in fact – a concrete, particularized harm (or imminent harm), not a mere ideological or generalized grievance.
2. Causation – the injury must be fairly traceable to the defendant’s challenged conduct, not the independent action of a third party.
3. Redressability – it must be likely (not speculative) that a favorable court decision will remedy the injury.

Key Term: Standing
The requirement that a plaintiff have a concrete, personal stake in the outcome of a case.

Details that matter on the MBE:

• Injury in fact

  • Can be economic (lost money), physical (injury), or noneconomic (e.g., denial of equal treatment).
  • Must be concrete and particularized (affecting this plaintiff personally), and actual or imminent, not hypothetical.

• Causation

  • Skip questions where the injury is caused by independent actors not before the court—standing will often fail on causation.

• Redressability

  • If the court’s decision cannot realistically help the plaintiff (e.g., challenging a law that has no effect on them), standing fails.

Third-Party and Organizational Standing

Sometimes a plaintiff seeks to assert the rights of others.

Key Term: Third-Party Standing
A doctrine allowing a litigant to assert the rights of someone else when the litigant has standing, a close relationship with the third party, and there is some obstacle to the third party suing on their own behalf.

Typical MBE patterns:

• A doctor challenging abortion restrictions on behalf of patients.
• A vendor asserting customers’ First Amendment rights.

The requirements:

• The plaintiff themselves has standing (injury, causation, redressability).
• Close relationship with the third party (e.g., doctor–patient, vendor–customer).
• Some hindrance or obstacle to the third party’s ability to sue.

Key Term: Organizational Standing
The ability of an association to sue on behalf of its members if (1) members would have standing individually, (2) the interests are germane to the organization’s purpose, and (3) neither the claim nor the relief requires individual members’ participation.

An environmental group, for example, can challenge an agency action harming members’ recreational use of a river.

Taxpayer Standing and Generalized Grievances

Key Term: Taxpayer Standing
A narrow doctrine under which federal taxpayers usually lack standing to challenge how tax dollars are spent, except for certain Establishment Clause challenges to congressional taxing and spending measures.

General rule: no standing as a taxpayer merely to complain about government spending or policy. Exception:

• A federal taxpayer can challenge a congressional taxing and spending measure that allegedly violates the Establishment Clause (e.g., federal funds granted to support religious instruction).
• This exception is very narrow; it does not apply to executive-branch actions, property-based expenditures, or tax credits.

Be alert for generalized grievances (e.g., “as a citizen and taxpayer, I dislike this policy”). Those usually fail for lack of injury in fact.

Ripeness

A case must be ripe for review. Courts will not decide cases based on speculative future harm; the plaintiff must show a present or imminent injury.

Key Term: Ripeness
The requirement that a case involve a real, immediate dispute, not a hypothetical or premature claim.

Typical ripeness scenario: a plaintiff asks for pre-enforcement review of a statute or regulation.

Courts look at two main considerations:

• Hardship to the parties if review is denied now.
  • If the plaintiff faces serious, immediate consequences (e.g., must comply with costly regulations or risk sanctions), the case is more likely ripe.
• Fitness of the issues for judicial decision.
  • Purely legal issues that do not depend on further factual development are more likely ripe.

On the MBE, if the law is only proposed, or enforcement is speculative, expect a ripeness problem.

Mootness

A case is moot if events after filing eliminate the plaintiff’s personal stake in the outcome. When the dispute is no longer “live,” federal courts generally must dismiss.

Key Term: Mootness
The doctrine that a court will not decide a case if the original dispute has been resolved or is no longer live.

Classic example: the plaintiff gets the relief sought (e.g., a permit), or circumstances change so the law no longer applies to them.

Mootness Exceptions

Certain categories remain justiciable despite apparent mootness:

1. Capable of repetition, yet evading review

   • The challenged action is too short in duration to be fully litigated before it ends, and
   • There is a reasonable expectation that the same plaintiff will be subject to the same harm again.
   • Examples: pregnancy-related restrictions; certain election law disputes.

2. Voluntary cessation by the defendant

   • If the defendant voluntarily stops the challenged conduct but is free to resume it at any time, the case is not moot unless it is absolutely clear the behavior cannot reasonably be expected to recur.

3. Class actions

   • If the named plaintiff’s claim becomes moot after the class has been certified, the case can continue on behalf of the remaining class members.

4. Collateral consequences

   • In criminal cases, completion of the sentence does not moot challenges to the conviction, because collateral consequences (e.g., loss of voting rights) persist.

MBE tip: when you see a case “over” but repeating harms (or strategic cessation by the defendant), think exception to mootness, not automatic dismissal.

Advisory Opinions

Federal courts cannot issue advisory opinions. There must be an actual dispute and a likelihood that the court’s decision will affect the parties’ rights.

Key Term: Advisory Opinion
A statement by a court on a legal issue when there is no actual dispute between parties; prohibited in federal courts.

Two recurring features of an advisory opinion:

• No adverse parties; or
• The court’s decision will have no binding legal effect on the parties.

By contrast, a properly framed declaratory judgment action is generally justiciable if there is a real, immediate controversy.

Key Term: Declaratory Judgment
A judicial declaration of the parties’ rights or legal status in an actual controversy, used to resolve uncertainty before further injury occurs.

Thus, Congress may authorize federal courts to grant declaratory relief, but only where a genuine case or controversy exists.

Political Question Doctrine

Some constitutional questions are "political questions" that federal courts will not decide. These are issues constitutionally committed to another branch or lacking judicially manageable standards.

Key Term: Political Question
An issue that the Constitution assigns to another branch of government or that is not suitable for judicial resolution.

Key indicators of a political question include:

• A textually demonstrable commitment of the issue to another branch.
• A lack of judicially manageable standards for resolving it.
• The impossibility of deciding without making nonjudicial policy determinations.
• Potential disrespect for coordinate branches, or unusual need for adherence to a political decision already made.

Not every “political” topic is a political question. Courts regularly decide cases involving elections, war powers, and foreign affairs when they can apply legal standards.

Key Term: Adequate and Independent State Grounds
A doctrine under which the Supreme Court will not review a state court judgment if it rests on state law grounds sufficient to support the result, regardless of federal law.

This doctrine is sometimes tested alongside political questions as another limit on Supreme Court review: if the state law ground is adequate and independent, the federal issue is effectively advisory, so review is declined.

Application of the Political Question Doctrine

Federal courts will decline to decide cases presenting political questions. Classic examples include:

• Impeachment procedures – The Constitution gives the Senate the “sole power to try all impeachments.” Challenges to the Senate’s procedures are nonjusticiable.
• Guarantee Clause claims – The clause guaranteeing each state a “republican form of government” has been treated as nonjusticiable; there are no judicially manageable standards.
• Partisan gerrymandering – Claims that districts are too partisan, without more, have been held to lack manageable standards at the federal level.
• Certain foreign affairs decisions – For example, recognition of foreign governments, diplomatic recognition, and some war termination questions.

By contrast, not all apportionment cases are political questions: equal-protection challenges to malapportionment in state legislatures are justiciable because courts can apply manageable equality standards.

Worked Example 1.1

A group of citizens sues Congress, claiming that a federal statute violates the Guarantee Clause by failing to provide a republican form of government. Should the federal court hear the case?

Answer:
No. Claims under the Guarantee Clause are classic political questions and are nonjusticiable. The Constitution assigns this issue to the political branches, and there are no judicially manageable standards for deciding what constitutes a "republican form of government."

Worked Example 1.2

A senator is impeached and removed from office. She sues in federal court, arguing that the Senate’s procedures violated due process. Is this claim justiciable?

Answer:
No. The Constitution gives the Senate the "sole power to try all impeachments." The Supreme Court has held that impeachment procedures are political questions not subject to judicial review, so the federal courts must dismiss.

Worked Example 1.3

A state court strikes down a state law on both state and federal constitutional grounds. The losing party seeks review in the U.S. Supreme Court. The state law ground is sufficient to support the judgment. Will the Supreme Court hear the case?

Answer:
No. If the state court’s decision rests on an adequate and independent state ground, the Supreme Court will not review the case, even if a federal issue is present. Any decision on the federal issue would be advisory because the state-law ground alone sustains the judgment.

Worked Example 1.4

A voter sues her state alleging that her legislative district has ten times the population of another district, diluting her vote in violation of equal protection. The state argues that legislative apportionment is a political question. How should the court respond?

Answer:
The court should reject the political question argument. Although apportionment has political implications, equal-protection challenges to grossly malapportioned districts are justiciable because courts can apply judicially manageable standards (one-person, one-vote). This is not a barred political question.

Worked Example 1.5

Congress passes a law authorizing the President to recognize a particular group as the legitimate government of a foreign nation. Citizens sue alleging the recognition violates separation of powers. Is this likely justiciable?

Answer:
Likely not. Decisions about which foreign governments to recognize are committed to the political branches and are treated as political questions. Federal courts will usually refuse to review such recognition decisions.

Additional Standing, Ripeness, and Mootness Issues

To perform well on the MBE, you must be able to sort out which justiciability doctrine is in play.

• Standing is about who is bringing the suit.
• Ripeness asks when the suit is being brought (too early?).
• Mootness asks whether the controversy still exists (too late?).
• Political questions and adequate and independent state grounds ask whether courts should decide this kind of issue at all.

Worked Example 1.6

Congress passes a statute authorizing a new licensing regime, effective in three years. A business owner sues immediately, claiming the law is unconstitutional. No implementing regulations have been issued, and no enforcement is possible yet. Is the case ripe?

Answer:
Probably not. The business owner has not shown an immediate hardship; the law will not be enforced for years, and critical details may be supplied by future regulations. The claim is premature and likely unripe.

Worked Example 1.7

A pregnant woman challenges a state abortion restriction. While the case is pending, she gives birth. The state argues the case is moot. How should the court rule?

Answer:
The court should hold the case is not moot under the “capable of repetition, yet evading review” exception. Pregnancy is too short to allow full litigation before it ends, and there is a reasonable expectation that the plaintiff (or similarly situated women) could become pregnant again and face the same restriction.

Exam Warning

The MBE often tests your ability to spot political questions and other justiciability defects before you begin substantive constitutional analysis. If the Constitution assigns the issue to another branch, if there are no judicial standards, or if the plaintiff lacks a concrete, redressable injury, the court will dismiss the case without reaching the merits.

Revision Tip

If a question asks whether a federal court can decide a case, always check for: (1) standing, including any third-party or taxpayer issues; (2) ripeness; (3) mootness and its exceptions; (4) advisory opinion problems; (5) political question issues; and (6) adequate and independent state grounds before analyzing any substantive constitutional claim.

Key Point Checklist

This article has covered the following key knowledge points:

• Article III limits federal courts to deciding actual "cases or controversies."
• Standing requires injury in fact, causation, and redressability; special rules govern third-party, organizational, and taxpayer standing.
• Ripeness bars suits brought too early, before an injury is sufficiently concrete or imminent.
• Mootness bars suits brought too late, subject to important exceptions such as harms capable of repetition yet evading review, voluntary cessation, class actions, and collateral consequences.
• Federal courts may not issue advisory opinions; declaratory judgments are permitted only when an actual controversy exists.
• The political question doctrine bars judicial review of issues committed to other branches or lacking judicially manageable standards, such as impeachment procedures and Guarantee Clause claims.
• The adequate and independent state grounds doctrine prevents Supreme Court review of state judgments resting on sufficient state-law grounds.
• On the MBE, justiciability is a frequent threshold issue that can resolve a question before any merits analysis.

Key Terms and Concepts

• Justiciability
• Case or Controversy
• Standing
• Third-Party Standing
• Organizational Standing
• Taxpayer Standing
• Ripeness
• Mootness
• Advisory Opinion
• Declaratory Judgment
• Political Question
• Adequate and Independent State Grounds