In the concluding part of the Balkinization symposium on James Pfander's book Cases Without Controversies: Uncontested Adjudication in Article III Courts (Oxford University Press, 2021), Professor Pfander has two posts responding to the symposium commentators:
Cases Without Controversies: An Author Responds (With Gratitude) (I)
Cases Without Controversies: An Author Responds (With Gratitude) (II)
Fro the first post:
I was struck by the response to the book’s account of the historical prevalence of uncontested adjudication. That history, when coupled with the textual distinction between cases and controversies, puts pressure on the Court, which continues as [Amanda] Tyler noted to gesture to the past in restating its injury and adverse party rules. In the actual past, after all, nineteenth-century jurists viewed an application for naturalization as a “case” within Article III — an uncontested claim of right in the form prescribed by law — even though such cases did not feature injuries or opposing parties. How then, reviewers wondered, could the modern Court continue to insist on such injuries in cases like TransUnion [LLC v. Ramirez, 141 S. Ct. 2190 (2021)] and why was the book less assertive about urging the Court to admit the error of its ways?
Much may depend on one’s theory of constitutional interpretation and how much weight to ascribe to what sorts of history in crafting constitutional doctrine. For some readers, including perhaps [Robert] Pushaw and [Kevin] Walsh, the history itself may prove dispositive, combining as it does both a proposed reading of the text and a set of practices under that text that help to liquidate its meaning. For [Tara] Grove and [Amanda] Tyler, history may count in constitutional interpretation, even though original meanings may not always deserve controlling weight. For [Fred] Smith and [Diego] Zambrano, and of course for all of us, history may serve alongside other substantive commitments in giving content to constitutional guarantees.
My goal was to persuade readers with different approaches to constitutional discourse that Article III distinguishes between cases and controversies. That’s why I proposed to take account both of the rise of uncontested litigation in the first one hundred years after the Constitution was ratified (litigation that continues in different forms today), and of the modern case-or-controversy rule, which began slowly in the Gilded Age but can now claim its own 100-year history on an otherwise divided Supreme Court. How to make a place for uncontested litigation in a federal judicial system headed by a Court that repeatedly restates and applies the injury and adverse-party rules? Scholars understand that no-injury litigation had proceeded on federal dockets, in the form of prerogative writ claims to enforce public norms and private informer or qui tam suits to collect bounties from wrongdoers. The Court grudgingly accepted qui tam in Vermont Agency (2000) but did so without suggesting that history alone could dislodge its case-or-controversy rule.
My suggestion was to emphasize a concept, the litigable interest, broad enough to contain both uncontested claims and contested disputes over issues of federal law. And to suggest that the Court might administer the litigable interest concept differently in uncontested and contested situations (much the way its rules of standing vary by claim and claimant). I came to this synthesis on recognizing that however much I might disagree with the Court’s case-or-controversy dispensation, a catalog of uncontested practices from the past might fail to persuade the Court to confess error. Naturalization was shifted to an agency more than one hundred years ago and privateering disappeared after the War of 1812, ending much private uncontested prize litigation in admiralty. Zambrano rightly asks how one should weigh such proceedings in the interpretive process, now that they no longer occupy federal dockets.
Rather than offer a detailed account of constitutional interpretation or specify a set of constitutional particulars to guide future adjudication, the book proposed a form of constructive constitutionalism in an effort to start a conversation about the meaning of Article III and the place of uncontested litigation on federal court dockets. If the ideas in the book take hold, then others may join the discussion. Perhaps adverseness has a more important role to play in constitutional litigation; that’s where the adverse-party rule emerged, as progressives sought to ward off contrived challenges to federal law. Perhaps injury and redressability concepts continue to have value as the Court declines the invitation to rule on some of the policy detritus of the Trump years, such as the attempt to exclude non-citizens from the census count or the attack on Obamacare. The litigable interest concept could make room for uncontested litigation and, at the same time, preserve a role for continued application of some justiciability rules in contested matters.
Posted at 6:08 AM