Get versed: “Case or controversy”

Posted July 18, 2023


Happy 229th birthday to an important constitutional limitation on the sometimes-frightening power of the federal judiciary! In recent dialogue about the United States Supreme Court’s high-profile decisions impacting civil rights, you may have heard the phrase “case or controversy.”


During the war between England and France in 1793, the just-established United States was presented with the awkward scenario of how to handle English and French ships showing up and arming themselves and such. George Washington’s Cabinet decided to punt this one to Legal. Or in 1793-speak:

it is [the Cabinet’s] opinion that letters be written to the said [English and French] Ministers informing them that the Executive of the U.S., desirous of having done what shall be strictly comformeable to the treaties of the U.S. and the laws respecting the said cases has determined to refer the questions arising therein to persons learned in the laws: that as this reference will occasion some delay… [all those ships] do not depart till the further order of the President.

[and] that letters be addressed to the Judges of the Supreme court of the U.S. requesting … their advice on certain matters of public concern which will be referred to them by the President.

Cabinet Opinion on Foreign Vessels and Consulting the Supreme Court, 12 July 1793 (Source: National Archives Online)

On July 18, 1793, Secretary of State Thomas Jefferson wrote to “The Chief Justice, & Judges of the Supreme court”:

The war which has taken place among the powers of Europe produces frequent transactions within our ports and limits, on which questions arise of considerable difficulty, and of greater importance to the peace of the US. … The President would therefore be much relieved if he found himself free to refer questions of this description to the opinions of the Judges of the supreme court of the US. whose kno[w]le[d]ge of the subject would secure us against errors dangerous to the peace of the US. and their authority ensure the respect of all parties.

(Source: National Archives Online)

On August 8, 1793, the Supreme Court sent a letter responding: “nope.”

“The Lines of Separation drawn by the Constitution between the three Departments of Government—their being in certain Respects checks on each other—and our being Judges of a court in the last Resort—are Considerations which afford strong arguments against the Propriety of our extrajudicially deciding the questions alluded to; especially as the Power given by the Constitution to the President of calling on the Heads of Departments for opinions, seems to have been purposely as well as expressly limited to executive Departments.”

To George Washington from Supreme Court Justices, August 8, 1793 (Source: National Archives Online)

In other words, the Justices had reflected and determined that the Constitution prohibited the Supreme Court from issuing “advisory opinions” like the one Jefferson had requested. That’s, ahem, the Cabinet’s job. (BTW, the justices also “exceedingly regret every Event that may cause Embarrassment to your administration.”)

The key clause is found in Article III, Section 2 of the U.S. Constitution, which states that the federal judicial power extends to “cases” and “controversies.”

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;— between a State and Citizens of another State,—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

United States Constitution, Article III, Section 2

Since that August 8, 1793 letter, this clause has been consistently interpreted to mean that federal courts can only adjudicate actual disputes between actual parties. No hypothetical questions or advisory opinions. Further, this issue is “jurisdictional,” meaning that courts are required to consider it themselves even if the parties do not raise it, and reject cases unless they can assert valid jurisdiction.


Under the common-law system applicable in the United States, judicial opinions on legal issues are binding on all the lower courts who decide that same legal issue in the future. That’s how a lot of law gets made in the U.S., and it’s fairly unique worldwide. (Perhaps we’ll do another blog on stare decisis / binding judicial precedent later.)

The “case or controversy” limitation ensures that the judiciary maintains its proper role in the separation of powers. It prevents the courts from encroaching on the roles of the legislative and executive branches of government by ensuring that they only deal with real, concrete disputes.

This might seem like a technicality, of minimal consequence outside the realm of constitutional law scholars. But without it, unelected judges with lifetime tenure could dictate whatever laws they wanted, the federal courts would be even more backed up than they already are, and there wouldn’t be much anybody could do about the “Judiciocracy,” as it were. (Aside: some state courts are allowed to issue advisory opinions, but let’s stick to separation of powers here and we’ll talk about federalism more another time.)

Who decides what constitutes a valid “case or controversy”? Well, the federal courts.

So we should all care a lot about whether the federal courts take the “case or controversy” requirement seriously as a directive to stay in their lane.

“Case or controversy”…controversy

The Supreme Court’s two recent decisions that have been criticized on ideological grounds have also faced questions about pushing the boundaries of their constitutional authority.

The plaintiff in 303 Creative LLC et al. v. Elenis et al. had not yet been asked to create a wedding website for a same-sex couple, let alone been penalized under the Colorado Anti-Discrimination Act for refusing that request. Instead, she preemptively sought a ruling on the constitutionality of the law as it might apply to her in the future, what is called a “pre-enforcement” challenge.

In an intriguing twist to the case, an affidavit filed by Smith’s lawyers in 2017 claimed that she had received a request to design a wedding website for a same-sex couple. The request was allegedly made by a man who, upon investigation, turned out to be already married to a woman and was himself a web designer. This individual stated that he had never submitted such a request. This revelation raised questions about the legitimacy of the case, as it suggested that the dispute was based on a hypothetical situation rather than an actual controversy.

The Alliance Defending Freedom (ADF), representing Smith, stated that they believed the request was submitted to Smith’s website by a third party or a troll using the man’s personal details. But neither the ADF nor their client attempted to verify the requester’s identity. This situation further underscored the criticism that the Supreme Court may have issued what is essentially an advisory opinion, a practice generally prohibited under the “case or controversy” requirement.

Justice Sotomayor, in her dissenting opinion, criticized the majority for deciding this pre-enforcement challenge, stating that the Court’s decision was akin to an impermissible advisory opinion. The majority opinion, delivered by Justice Gorsuch, rejected this criticism, arguing that the plaintiff had a legitimate fear of enforcement that was sufficient to establish a controversy.

Likewise in Students for Fair Admissions, Inc., Petitioner v. President and Fellows of Harvard College, the plaintiff, Students for Fair Admissions (SFFA), is an organization representing a group of anonymous Asian American students who applied for admission to Harvard and were denied. The case was brought forward on the basis that Harvard’s admissions process, which considers race as one of many factors, discriminates against Asian American applicants. Even so, no individual Asian American student testified that they had personally experienced discrimination in Harvard’s admissions process. Though the Court rejected the defendants’ “case or controversy” arguments in striking down the colleges’ admissions processes, the lack of any aggrieved party vindicated by the result in this case invites legitimate discussion about constitutional principles.

Donor-funded ideological advocacy organizations like SFFA and ADF are much more prevalent now than in, say, 1793. These organizations proactively seek to make law through the judicial branch. There are, of course, organizations like these from opposing ideologies seeking to make the opposite law through the judicial branch. But the existence of opposing political forces does little to assuage concerns about legislating from the bench.

Employers: what comes next

The system being what it is, the Supreme Court’s assertion of jurisdiction in these two cases is the law of the land, with downstream effects. The main one: non-profits may be emboldened to make more pre-enforcement challenges to laws infringing on a party’s freedoms.

But if we pay attention to the actual procedure rather than the ideology (which, remember, is not what judges are ever supposed to be deciding based on), what this means for private employers is that they can feel safer to take the risks they want to take. That is, in fact, exactly what the logic in the Elenis decision does when it holds that private companies can refuse business from a customer who holds views they find repugnant, despite a state law that prohibits them from doing so.

Properly read, these decisions and the attendant erosion of the “case or controversy” limitation on judicial power continues the march toward privatizing justice. This is a reality that must be considered, regardless of how we feel about it. The answer for employers, is to take that mantle on, not to run from it.

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