PastPaperHero | The nature of judicial review - Judicial review in operation

Learning Outcomes

This article explains the operation of judicial review in United States constitutional law for purposes of the MBE exam, including:

how the Article III "case or controversy" requirement structures federal judicial power, requiring real disputes, adverse parties, and decisions that produce binding, non‑advisory judgments rather than abstract legal advice
how to evaluate standing on the MBE, including injury in fact, causation, redressability, prudential limits, and specialized rules for taxpayer, third‑party, and organizational standing
how the prohibition on advisory opinions interacts with ripeness and mootness to control the timing of federal litigation, and how key exceptions prevent dismissal of important recurring controversies
how to recognize non‑justiciable political questions, distinguishing issues textually committed to other branches or lacking judicially manageable standards from ordinary constitutional disputes that courts routinely decide
how the adequate and independent state grounds doctrine limits Supreme Court review of state judgments and signals when federal questions cannot change the result on bar‑style hypotheticals
how sovereign immunity and the Eleventh Amendment constrain federal jurisdiction over suits against states, and when Ex parte Young–style actions for prospective relief remain available to enforce federal rights

MBE Syllabus

For the MBE, you are required to understand the principles governing the operation of judicial review in federal courts, with a focus on the following syllabus points:

The Article III "case or controversy" requirement and its components: standing, ripeness, mootness, and the prohibition on advisory opinions
The concept of justiciability and the political question doctrine
The doctrine of adequate and independent state grounds as a limit on Supreme Court review of state court judgments
Other limits on federal judicial power, including sovereign immunity and the Eleventh Amendment (introductory level)

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.

Which of the following is NOT a requirement for standing in federal court?
1. The plaintiff must have suffered an injury in fact.
2. The plaintiff's injury must be traceable to the defendant's conduct.
3. The plaintiff must be a US citizen.
4. The court must be able to redress the injury.
Which doctrine prevents federal courts from issuing decisions when the dispute is no longer active or the parties' interests have disappeared?
1. Ripeness
2. Mootness
3. Standing
4. Advisory opinion
Which of the following is most likely to be dismissed as a non-justiciable political question?
1. A challenge to the constitutionality of a federal tax.
2. A dispute over the impeachment procedures of the Senate.
3. A claim that a state law violates equal protection.
4. A suit for damages against a state official.
The Supreme Court will NOT review a state court judgment if:
1. The state court relied on an adequate and independent state ground.
2. The state court decided a federal constitutional issue.
3. The state court's decision conflicts with federal law.
4. The state court's decision is final.

Introduction

Judicial review is the power of federal courts to determine the constitutionality of acts by Congress, the President, and the states. But that power is confined by the Constitution itself: Article III authorizes federal courts to decide only actual "cases" and "controversies." Courts are not free to give legal advice, to decide hypothetical disputes, or to referee political fights that the Constitution assigns to other branches.

Understanding these limits on judicial power is essential on the MBE. Many Constitutional Law questions can be answered correctly without ever reaching the merits if you recognize that the case is non-justiciable.

Key Term: Judicial Review
The authority of federal courts to determine whether acts of government are consistent with the Constitution and to invalidate those that are not.

The "Case or Controversy" Requirement and Justiciability

Federal courts may only hear disputes that qualify as a "case" or "controversy" under Article III. This is often described in terms of justiciability: whether a dispute is appropriate for judicial resolution.

Key Term: Case or Controversy
A real, live dispute between parties with adverse legal interests, required for federal court jurisdiction.

Key Term: Justiciability
A set of doctrines (standing, advisory opinions, ripeness, mootness, political question, and related limits) that determine whether a federal court may hear and decide a case.

At a minimum, justiciability requires:

adverse parties
a concrete dispute, not a request for legal advice
an issue that is fit for judicial resolution and not committed to another branch

The main justiciability doctrines tested on the MBE are standing, the bar on advisory opinions, ripeness, mootness, and the political question doctrine.

Standing

Standing asks: is this person the right party to bring this case in federal court?

A plaintiff must show three constitutional elements:

an injury in fact
causation
redressability

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

Key Term: Injury in Fact
A concrete, particularized harm that is actual or imminent, not conjectural or generalized. The plaintiff must be personally affected, even if only by a small amount.

Generalized grievances shared equally by all citizens (for example, "the government is not following the Constitution") usually do not qualify as injury in fact.

Key Term: Causation (Standing)
The injury must be fairly traceable to the challenged action of the defendant, not the result of independent actions by third parties or mere background conditions.

Key Term: Redressability
It must be likely (not speculative) that a favorable court decision will remedy the injury, at least in part.

On the MBE, be suspicious of plaintiffs who:

assert only ideological or policy disagreements
complain merely as "citizens" or "taxpayers"
cannot link their injury to the defendant’s conduct

Citizenship by itself never satisfies standing. That is why option (c) in Question 1 is incorrect.

Third-Party and Organizational Standing

The usual rule is that a plaintiff may assert only his or her own rights, not the rights of others. Two important exceptions appear on the MBE.

Key Term: Third-Party Standing
A plaintiff may assert the rights of a third party when (1) the plaintiff has a close relationship with the rights-holder, and (2) there is some obstacle to the rights-holder asserting their own rights.

Typical examples:

doctors raising the rights of their patients in abortion litigation
vendors asserting the rights of customers whose constitutional rights are chilled

Key Term: Organizational Standing
An organization has standing to sue on behalf of its members when: (1) its members would have standing in their own right; (2) the interests at stake are germane to the organization’s purpose; and (3) neither the claim nor the relief requested requires participation of individual members.

Watch for organizations that seek only injunctive or declaratory relief; that usually satisfies the third requirement.

Taxpayer Standing

Most taxpayer suits fail for lack of standing. Merely being a federal taxpayer does not constitute injury in fact.

Key Term: Taxpayer Standing
A narrow exception allowing federal taxpayers to challenge congressional taxing and spending measures that allegedly violate the Establishment Clause.

Under the Flast framework, a federal taxpayer has standing only if:

the challenge is to a congressional exercise of the taxing and spending power, and
the expenditure allegedly violates a specific constitutional limitation, such as the Establishment Clause.

The exception does not apply to:

challenges to executive branch expenditures from general discretionary funds
challenges to tax credits rather than direct appropriations
challenges under constitutional provisions other than the Establishment Clause

So in a suit attacking an executive office funded out of the President’s general discretionary appropriation, a taxpayer lacks standing because the link to a specific taxing-and-spending enactment is missing.

Prudential Standing Limits

In addition to these constitutional elements, courts apply prudential limits, including:

no generalized grievances solely as citizens
no assertion of third-party rights absent an exception
plaintiff must be within the "zone of interests" protected by the statute or constitutional provision

These are less frequently tested, but they explain why “concerned citizens” or legislators often lack standing simply to challenge laws they dislike.

Prohibition on Advisory Opinions

Federal courts may not issue advisory opinions. They decide concrete disputes, not hypothetical questions or abstract reviews of proposed action.

Key Term: Advisory Opinion
A statement by a court on the legality of a proposed action, issued outside the context of an actual case—prohibited in federal courts.

Two features must be present for a federal court decision to be non-advisory:

there are genuinely adverse parties with conflicting legal interests
the decision will have a binding effect on the parties (not just recommend conduct to another branch)

Declaratory judgment actions are permitted so long as these requirements are met. A plaintiff may ask a federal court to "declare" a statute unconstitutional when the statute has already been enacted and poses a real and immediate threat of enforcement.

By contrast, challenges to a bill that has not yet been enacted, or to a hypothetical future enforcement policy, are usually advisory and therefore barred.

Ripeness and Mootness

The timing of federal judicial review is controlled by two related doctrines: ripeness (too early) and mootness (too late).

Key Term: Ripeness
The requirement that a case involve a present or imminent injury, not a hypothetical future dispute.

Key Term: Mootness
The doctrine that a case must be dismissed if events after filing eliminate the actual controversy between the parties.

Ripeness

A case is unripe when the plaintiff seeks review of a law or policy before it has been applied in a way that causes, or clearly threatens, concrete injury.

Courts often look at two considerations in pre-enforcement challenges:

Hardship to the parties of withholding review: Is the plaintiff forced to choose now between complying at great cost or risking serious sanctions?
Fitness of the issues for judicial decision: Are the issues purely legal, or do they depend on further factual development?

Examples of unripe disputes include:

a potential candidate challenging ballot-access rules before actually filing candidacy papers or being denied access
a business attacking regulations that might never be enforced against it

At the same time, a pre-enforcement First Amendment challenge may be considered ripe if the plaintiff faces a credible threat of enforcement that chills speech.

Mootness

Even if a case is ripe when filed, later events can extinguish the controversy. When that happens, the case is moot and must be dismissed.

Common examples:

the plaintiff dies and the claim is strictly personal
the challenged law is repealed and there is no reasonable likelihood of reenactment
the plaintiff receives complete relief and no ongoing effects remain

There are several key exceptions, heavily tested on the MBE.

Key Term: Exception—Capable of Repetition, Yet Evading Review
An exception to mootness for disputes that are likely to recur as to the same plaintiff, but typically become moot before full appellate review is possible (e.g., pregnancy and most election cases).

Other important exceptions:

Voluntary cessation by the defendant: If the defendant stops the challenged behavior but is free to resume it, the case is not moot unless it is clear the behavior cannot reasonably be expected to recur.
Class actions: The mooting of the named plaintiff’s individual claim does not moot the class claims once the class has been certified.
Collateral consequences: A case is not moot if there are continuing collateral consequences of the challenged action (for example, a criminal conviction’s lingering effects, such as loss of voting rights).

Political Question Doctrine

Even when a dispute is otherwise justiciable, federal courts will not decide certain issues deemed "political questions."

Key Term: Political Question
A dispute that the federal courts will not decide because it is constitutionally committed to another branch or lacks judicially manageable standards for resolution.

Two core indicators of a political question, drawn from Supreme Court doctrine, are:

a "textually demonstrable constitutional commitment" of the issue to another branch (e.g., impeachment procedures to Congress), or
a lack of judicially manageable standards to decide the question.

Classic political questions include:

challenges to the Senate’s procedures in impeachment trials
claims that a state’s government is not "republican" in form (Guarantee Clause challenges)
partisan gerrymandering challenges (as to political fairness of district lines)

Note the distinction between partisan and racial gerrymandering: partisan gerrymandering has been treated as a political question, while racial gerrymandering claims under equal protection remain justiciable.

By contrast, many issues with political overtones are still fully justiciable, such as:

whether a statute violates equal protection or due process
whether a specific executive action exceeds statutory or constitutional authority
challenges to voting rights and malapportionment under the Equal Protection Clause

Do not treat a case as a political question merely because it involves politics or controversial policy.

Adequate and Independent State Grounds

The Supreme Court is a court of last resort on questions of federal law, not a general court of error for state law. The doctrine of adequate and independent state grounds limits Supreme Court review of state court judgments.

Key Term: Adequate and Independent State Ground
A state law basis for a judgment that is sufficient to support the result regardless of federal law, preventing Supreme Court review.

A state court judgment rests on adequate and independent state grounds when:

the state law ground alone fully supports the result (adequate), and
the state law ground does not depend on the meaning of federal law (independent).

If a state supreme court holds that a state statute violates both the state constitution and the US Constitution, and the state ground would invalidate the law even if the federal ruling were reversed, the Supreme Court lacks jurisdiction: its decision could not change the outcome.

When it is unclear whether the state court relied on independent state grounds, the Supreme Court may either:

dismiss for lack of jurisdiction if the state court clearly indicates an independent state basis, or
assume it can review the federal question if the opinion appears to rest primarily on federal law or intertwines state and federal analysis.

On the MBE, if the state court expressly says the decision would be the same under state law even if the federal rule is different, that is a signal that adequate and independent state grounds bar Supreme Court review.

Sovereign Immunity and the Eleventh Amendment (Brief Overview)

Another important limit on federal judicial power, often grouped with justiciability, is sovereign immunity.

Key Term: Sovereign Immunity
The principle that governments, particularly states, are generally immune from suits for money damages without their consent.

Key Term: Eleventh Amendment
A constitutional provision interpreted to bar federal courts from hearing suits for money damages against a state by citizens of that state or another state, absent consent or valid congressional abrogation.

Key points for the MBE:

States are generally immune from suits for money damages in federal court brought by private individuals.
Exceptions include:
- state consent (waiver)
- suits by the United States or by other states
- suits against state officers for prospective injunctive relief (to stop ongoing violations of federal law) or for damages from their own pockets
- congressional abrogation when Congress clearly authorizes suits under its enforcement power in § 5 of the Fourteenth Amendment

Counties and cities do not share Eleventh Amendment immunity, and the federal government’s immunity operates under slightly different rules. Questions framed as justiciability often hinge on recognizing that a state itself cannot be sued for damages in federal court.

Worked Example 1.1

A taxpayer files suit in federal court challenging a federal spending program, claiming it is unconstitutional. The taxpayer alleges no personal injury other than being a taxpayer.

Answer:
The court will dismiss the case for lack of standing. Taxpayers generally do not have standing to challenge government spending simply by virtue of paying taxes. The narrow taxpayer-standing exception applies only to challenges to congressional exercises of the taxing and spending power that allegedly violate the Establishment Clause. The problem does not invoke the Establishment Clause, and the taxpayer has alleged no personal, concrete injury.

Worked Example 1.2

A state court finds a state law unconstitutional under both the state constitution and the US Constitution. The losing party seeks review in the US Supreme Court.

Answer:
The Supreme Court will not review the case if the state court's decision rests on an adequate and independent state ground. Here, the state constitutional holding alone invalidates the law; that ground is adequate to support the judgment and independent of federal law. Even if the Supreme Court were to uphold the statute under the US Constitution, the law would remain invalid under the state constitution, so the Court lacks jurisdiction.

Worked Example 1.3

A plaintiff sues in federal court, seeking a declaration that a proposed law, not yet enacted, would be unconstitutional if passed.

Answer:
The court will dismiss the case as an advisory opinion. There is no enacted statute, no current or imminent enforcement, and thus no concrete injury. Any declaration about the constitutionality of a hypothetical future law would be legal advice, not a binding resolution of a real case or controversy.

Worked Example 1.4

A potential candidate for city council announces that, if he runs, he wants to appear on the ballot as the nominee of multiple parties. The city’s election commissioner publicly states that if he tries to “appear under every party label,” he will be kept off the ballot. The potential candidate sues in federal court now, before filing any paperwork or being denied a place on the ballot.

Answer:
The case is not ripe and likely seeks an advisory opinion. The candidate has not yet taken any legally significant steps, and no official denial has occurred. The threat is conditional and may never materialize. Without an actual or imminent injury—such as a filed candidacy and an actual refusal to place him on the ballot—the court will dismiss for lack of ripeness and as an improper request for an advisory opinion.

Worked Example 1.5

A woman challenges a state statute that restricts abortions, bringing a federal suit while she is pregnant. Before the case is finally resolved on appeal, she gives birth. The state argues the case is now moot.

Answer:
The case is not moot under the "capable of repetition, yet evading review" exception. Pregnancy is too short in duration to allow full judicial review before it ends, and the same plaintiff could become pregnant again and face the same restriction. Because the issue is capable of repetition as to this plaintiff yet typically evades review, the federal courts may continue to hear the case.

Worked Example 1.6

Voters sue in federal court challenging extreme partisan gerrymandering in their state’s congressional map, claiming it violates the Constitution because it unfairly favors one political party.

Answer:
The suit will likely be dismissed as presenting a non-justiciable political question. Challenges to partisan gerrymandering have been treated as lacking judicially manageable standards: there is no clear constitutional baseline for "too much" partisanship in drawing districts. Unlike racial gerrymandering claims, which rely on manageable equal protection standards, partisan fairness challenges are generally deemed political questions beyond the competence of federal courts to resolve.

Exam Warning

Always analyze justiciability before analyzing the merits. For any federal court or Supreme Court question, ask in this order:

Is there a case or controversy, or is the plaintiff seeking an advisory opinion?
Does the plaintiff have standing (injury, causation, redressability; no barred generalized grievance)?
Is the case ripe, and has it become moot, with any exception?
Is the issue a political question committed to another branch?
In Supreme Court review of state decisions, is there an adequate and independent state ground?
Is the defendant a state entitled to Eleventh Amendment immunity?

If the answer to any of these is "no justiciability," the federal court must dismiss without reaching the constitutional merits.

Revision Tip

When confronted with a Constitutional Law MBE question involving a federal court:

Identify the plaintiff and the defendant.
Test standing carefully, including special doctrines like taxpayer, third-party, and organizational standing.
Check for advisory opinions, ripeness, and mootness (including exceptions).
Consider whether the claim is a political question or barred by sovereign immunity.
For Supreme Court review of state cases, ask whether an adequate and independent state ground supports the judgment.

Practicing this sequence will allow you to eliminate many distractor answers without getting lost in the substantive constitutional doctrine.

Key Point Checklist

This article has covered the following key knowledge points:

Federal courts may only decide actual "cases" and "controversies"—not hypothetical disputes or advisory opinions.
Standing requires injury in fact, causation, and redressability; generalized grievances and bare taxpayer status are usually insufficient.
Third-party and organizational standing are allowed only when specific conditions are met; federal taxpayer standing exists only in a narrow Establishment Clause context.
Advisory opinions are prohibited; declaratory judgments are permitted only when there is a real and immediate dispute between adverse parties.
Ripeness bars premature cases; mootness bars cases where the dispute has been resolved, subject to exceptions such as issues capable of repetition yet evading review, voluntary cessation, class actions, and collateral consequences.
The political question doctrine excludes from judicial review issues textually committed to other branches or lacking judicially manageable standards, such as impeachment procedures and partisan gerrymandering.
The Supreme Court will not review state court judgments resting on adequate and independent state grounds.
Sovereign immunity and the Eleventh Amendment limit suits against states in federal court, especially actions seeking money damages.

Key Terms and Concepts

Judicial Review
Case or Controversy
Justiciability
Standing
Injury in Fact
Causation (Standing)
Redressability
Third-Party Standing
Organizational Standing
Taxpayer Standing
Advisory Opinion
Ripeness
Mootness
Exception—Capable of Repetition, Yet Evading Review
Political Question
Adequate and Independent State Ground
Sovereign Immunity
Eleventh Amendment

The nature of judicial review - Judicial review in operation