Monday, December 04, 2006

One more thought on abstract versus concrete judicial review

In my column today on FindLaw's Writ, I argue that denying standing to the plaintiffs in the global warming case, while arguably warranted under existing doctrine, would only expose the perversity of that doctrine. Although I have some hope that the Supreme Court will actually reach the merits, I think there is virtually no chance that the Court would modify its standing doctrine in the ways that I suggest would be both beneficial and more consistent with Article III. I would add here that the Supreme Court's narrow view of standing and similar doctrines ostensibly rooted in the case-or-controversy requirement is virtually unique among constitutional democracies. It's worth contrasting the German case that Alon discussed over the weekend with the standing doctrine in the U.S. Because the German Constitutional Court has the authority to hear abstract (what we here would call "advisory") cases, it was able to rule, in advance, on the constitutionality of shooting down a hijacked plane containing innocent passengers. In the U.S., it is hard to imagine a federal court finding standing, because no plaintiff would be able to show that he or she was sufficiently likely to be a passenger on a hijacked plane. The Court ruled in Los Angeles v. Lyons that a past victim of an allegedly unconstitutional chokehold lacked standing to seek an injunction against the LAPD's continued use of chokeholds, on the ground that he hadn't demonstrated a sufficient likelihood that he would be subject to another chokehold, so what are the odds that it would approve standing where a random prospective passenger alleges that he or she might be shot out of the sky?

In the extraordinarily unlikely event that the Constitution were amended to permit the federal courts to hear abstract cases, we would have to decide whether to give the power only to the U.S. Supreme Court or to permit abstract cases to be filed in any federal district court. European and other constitutional courts that permit abstract judicial review tend to require that cases be filed only in the constitutional court itself, but these courts operate on the "Austrian" model, in which the constitutional court is not exactly seen as part of the judiciary itself. In theory, abstract judicial review could be decentralized, with further review by writ of certiorari (or even by mandatory appellate jurisdiction) in the Supreme Court. I'll explore these issues at length in my chapter for Vik Amar's and Mark Tushnet's comparative constitutional law reader.