Plant Chewers Unite!

I've given a good deal of attention here at The Purrdict to Constitutional jurisprudence, but I've yet to explain how one gets a case before the Supreme Court.

Some people are under the impression that the Supreme Court can (and should) rule on any law that a certain person or group of people finds objectionable. If this were the case, the Supreme Court would be even more backlogged than it already is. I've been threatening a post on jurisdiction for some time now, and I will get to it, but not today. Suffice it to say, for now, that the Supreme Court only has jurisdiction over certain issues, among them the Constitutionality of Federal Law.

But even that isn't enough. Under what is generally termed the “cases and controversies” clause of the United States Constitution, there are certain bars to an otherwise valid challenge to a federal law which serve to prevent the Court from speculating or legislating. The Court's purpose is to settle disputes and to redress wrongs. Ideally, the Court is not to serve as an academic body, dealing in abstract issues, but instead to settle actual disputes.

As an example, imagine a federal environmental protection law that prohibits the destruction of a certain species of bamboo. I happen to be a card-carrying member of the House-Plant Chewers Appreciation Club. My club consists of members from across the country, who all share a love of chewing house-plants. (Side note: how can Human Female, a vegetarian, object to my nibbling a leaf here and there?) The HPCAC's message board has been very active lately, with concerns that the new law will prevent members from nibbling on bamboo kept as house-plants. They appoint me legal counsel to challenge the statute in the Federal Courts on First Amendment grounds. (We express ourselves through our chewing of plants! I chew, therefore I am!)

The first challenge that I would have to overcome is that of standing. No, I don't mean that I'm not tall enough to see over the podium, (although that is why Human Female always wears heels to court). Standing refers to the requirement that the plaintiffs in a case before the federal courts have a “personal stake in the outcome of the controversy.” Baker v. Carr, 369 U.S. 186, 204 (1962). The goal is that “the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution.” Flast v. Cohen, 392 U.S. 83, 101 (1968). I have to establish that the plaintiffs in the case, the members of the HPCAC, are actually affected by the law; they are not just concerned by-standers.

I must not make the mistake of the plaintiffs' counsel in Sierra Club v. Morton, 405 U.S. 727 (1972), (although, to be fair, it's an important case dealing with standing, and the attorneys probably didn't know of the trap they stepped into). Sierra Club dealt with a highway to be built through Sequoia National Park. Id. The Sierra Club challenged the plan on the basis that it would cause irreparable harm to the park. Id. Fair enough, but unfortunately, the Sierra Club failed to state in its pleadings that its members actually used the park. See id. That is, the Court held that it wasn't enough that the park would be harmed, and that the Sierra Club members were committed to preventing harm to parks, but instead, the Club had to show that its individual members would be harmed by the action. Id.

In my pleadings, I must state that members of the HPCAC actually chew bamboo, that the law will prevent us from so doing, and that therefore the law causes, or will cause us, concrete harm.

Think of it this way. Imagine the Court is a high school chemistry teacher, and your sister comes home with a bad grade on a test. If you march yourself into the classroom protesting the grade, the teacher is going to look at you over the Bunsen burners and say, “Who the helium are you?” He's going to tell you that if your sister has a concern about her grade, she should be the one to talk to him. The point of the Courts is to avoid authorizing “judicial review at the behest of organizations or individuals who seek to do no more than vindicate their own value preferences through the judicial process.” Id. The Court is there to settle disputes, not rule on ideologies.

My next trap to avoid is mootness. It's a silly word with devastating consequences. It prevents the Court from hearing cases brought by plaintiffs who had standing who, for one reason or another, are no longer, and can no longer be, affected by the law. The issue commonly comes up in cases involving students, because there is a set period of time during which they can be effected by the school's action (i.e. while they are in school), and litigation can often take years, during which the plaintiffs may have graduated. For example, in Cook v. Colgate University, 992 F.2d 17 (2d Cir. 1993), a group of female ice hockey players challenged the school's refusal to create a female varsity ice hockey team under Title IX of the Education Amendments of 1972 (which deals with gender discrimination in an educational setting). The problem was that the group of women who brought the case had either graduated by the time the Court of Appeals heard the case, or would graduate before the beginning of the next ice hockey season. Id. Their claim was moot, since there was no way for the Court to redress the wrong done to them. See id. A claim is moot “when it becomes impossible for the Courts, through the exercise of their remedial powers, to do anything to redress the injury.” Alexander v. Yale, 631 F.2d 178, 183 (2d Cir. 1980). Instituting a women's hockey team would not help the plaintiffs. The fact that it would benefit younger students was, well, moot. The case would have had to have included some of those younger students in order for the Court to hear the case.

I can't sustain a case that I bring on behalf of past bamboo chewers; my group of plaintiffs must include current bamboo chewers. If, through a sustained chewing binge, the group has decimated the house-plant bamboo population, and bamboo is not available as a house-plant, then we risk our case being found moot, because we'd be complaining that the law prevents us from doing something we can't do anyway. We'd really just be wasting the Court's time.

This leads us to the third trap: ripeness. This has nothing to do with the greenness of the tasty bamboo. It refers to the actual harm sustained by the plaintiffs, that they “[have] been or inevitably will be subjected to [the unconstitutional law].” Thomas v. Union Carbide, 473 U.S. 568 (1985). It's very close to mootness, but deals with the future, rather than the past.

For example, in Thomas, a group of agricultural companies challenged a provision of the Federal Insecticide, Fungicide and Rodenticide Act, or “FIFRA,” 7 U.S.C. 136 that required arbitration to settle complaints about mandated sharing of health and safety aspects of pesticides. The Court had previously faced a similar complaint in Ruckelhaus v. Monsanto Co., 467 U.S. 986, but dismissed it on the grounds that the plaintiffs' claim was not yet ripe. The provisions of the law hadn't yet gone into effect at the time was brought, so those plaintiffs were speculating as to potential harm to them. They hadn't suffered any harm, and there was no indication that they would suffer harm. However, by the time the Court heard, there actually were disputes ready for arbitration, and the companies had made the required disclosures about the pesticides. That claim, therefore, was ripe.

HPCAC can't challenge a law that hasn't been passed yet; our claim isn't ripe until our chewing activities are actually hindered, not just in danger. Let's say that the law prevents the sale of bamboos to homes with known chewers, but specifically permits us to chew plants already in our possession. In that case, our claim isn't ripe until the law actually prevents us from obtaining bamboo to chew. The Court can't redress a harm it doesn't know has actually happened or is about to happen. For all anyone knows, the household bamboo pipeline will not be interrupted. We'd just be a group of howling cats.

And with that, I leave you for now. All this talk of bamboo has given me a craving. A craving that can only be satisfied by

LEAF CHEWING!