Why Justiciability?

The following post is based on Prof. Brilmayer's law review article on Justiciability (93 Harv. L.Rev. 297 (1979)):

The justiciability doctrine often seems difficult to understand.  Why should judicial review be limited to actual cases or controversies?  Why shouldn’t the Court decide constitutional questions whenever they are asked to do so?

    I think two principles can help us understand justiciability as a coherent constitutional doctrine.

    First, judicial restraint in this area is based on the relationship among courts over time.  Stare decisis insures that future courts will not be too quick to substitute their legal views and policy choices for those of present courts. Justiciability insures that present courts will not be too quick to reach and decide cases before their time.  Stare decisis restrains future courts.  Justiciability restrains present courts.

To allow a court to settle any matter it wished to address would give precedence to the preferences of earlier courts, who [through stare decisis] are able to tie the hands of subsequent ones.  There is a clear need for some mechanism to allocate decisionmaking responsibility among successive courts, by specifying the point at which an issue may be addressed. (93 Harv. at 304.)

    How do you suppose a future court would view stare decisis if it believed that an earlier court had reached out to decide issues before they had become justiciable?

    They might choose to ignore stare decisis and overrule many of the earlier cases.  This harms the integrity of the Court and weakens the force of judicial decisions.

    Think of justiciability and stare decisis as a covenant among past, present, and future courts – each court decides only the actual cases which arise during its time and respects the decisions of earlier courts. As the  Gallo Brothers like to say – "we will sell no wine before its time."

    A second principle that explains the justiciability doctrine is what Prof. Brilmayer calls the “representation perspective.”  That is, since constitutional decisions bind future generations, courts should only decide constitutional questions in the context of a real, concrete case brought by a real party with a real injury.  We do not want the court to decide abstract principles of constitutional law which will establish a precedent and thereby affect the rights of persons who are harmed by the challenged governmental law or policy.

    Suppose I challenge military regulations which keep women out of combat.  I lose.  Later a woman directly affected by the rules sues.  The decision in my case is an adverse precedent against her, and she may believe that I was not the best party to litigate her interests.

    Also, separation of powers issues are present. The judicial power exists only to decide real litigation between actual adverse parties, not to issue advisory opinions or to serve as a body of overseers of the actions of Congress or the states.