Proposed names for four categories of non-justiciability
(1) "Legal" non-justiciability: This is non-justiciability that is due solely to legal and constitutional considerations. This category includes the following issues: mootness, ripeness, political questions, advisory opinions, committed to agency discretion, Const. Art. III standing (i.e., injury-in-fact, injury traceable to challenged action, injury redressable by courts), state immunity under 11th amendment, "sovereign immunity" (an obsolescent concept), stare decisis, res judicata & collateral estoppel, barred by statute, not authorized by statute, court rules of standing, common law, and general custom. BTW, the rules for Art. III standing are IMO an overly narrow interpretation of the "cases" and "controversies" terms of Art. III -- anything can be a "controversy," including a hypothetical or moot question.
(2) "Intrinsic" (or "inherent" or "absolute") non-justiciability -- this is non-justiciability that is due to unavoidable factors that are intrinsic in the question itself. This category includes the following factors: unanswerable, imponderable, unfathomable, unprovable, unfalsifiable, supernatural, occult, contentious, a matter of opinion, beyond the expertise of judges, insufficient evidence, too much evidence for the court to review, a need to rely on the opinions of biased experts, and -- in general -- arbitrary and subjective decisions are required. The classic example of an intrinsically non-justiciable question is the question of how many angels can dance on the head of a pin. IMO the following questions are also intrinsically non-justiciable: evolution theory, global warming theory, and string theory.
(3) "Prudential" non-justiciability -- this concerns questions where there are no "legal" or "intrinsic" barriers to decisions but where issuing a decision may be unwise because of potential harmful effects. The concept of "prudential" non-justiciability is similar to the idea that freedom of speech does not give anyone the right to shout "fire" in a crowded theatre. Prudential non-justiciability requires the weighing of different costs and benefits. Here is a purely hypothetical example of "prudential" non-justiciability: Suppose that a large majority of the public perceives all criticisms of Darwinism to be religious in nature, and hence banning a particular evolution disclaimer in public schools is justified under the establishment clause (I am ignoring the fact that even religious evolution disclaimers are arguably constitutional under the endorsement test). However, a decision to ban the disclaimer could adversely affect the reputations, careers, and research funding of scientists who are critical of Darwinism. Hence, banning the disclaimer would be the scientific equivalent of shouting "fire" in a crowded theatre.
(4) "Negatable" non-justiciability -- this is where an ostensibly non-justiciable question can be transformed into a justiciable question by means of a special argument, an unrequested decision, or by changing the issue. The classic example is King Solomon's "split the baby" decision. Solomon was faced with a non-justiciable question: deciding which of two claimants was the true mother of a baby (this was before DNA testing). He transformed a non-justiciable question into a justiciable one by proposing to divide the baby into two equal parts. Another example of negatable non-justiciability is the ACSI v. Stearns case, where fundy high schools claimed that the Univ. of California discriminated against them by approving non-Christian textbooks with special viewpoints while rejecting textbooks with Christian viewpoints. This case has many of the characteristics of "intrinsic" non-justiciability described above. However, the case becomes completely justiciable if the courts decide to discriminate against nobody by discriminating against everybody, i.e., ruling that no textbook with a special viewpoint may be used as a sole or main textbook, a ruling that was not suggested by any of the parties in the case. Yet another example of negatable non-justiciability was my federal-court lawsuit against the grossly unconstitutional California "smog impact fee" on incoming out-of-state vehicles. Federal court lawsuits against state taxes are normally barred by the Tax Injunction Act and/or the 11th Amendment. However, I argued that California lost its federal-court tax suit immunity by "leaving the sphere that was exclusively its own" (Parden v. Terminal Railway of the Alabama State Docks Dept.) by basing the fee entirely on the state's special status under federal emissions laws and regulations, and I was vindicated when an expert testified in state court that the fee required the approval of the US Environmental Protection Agency. BTW, as I have frequently pointed out, there were no oral hearings and no opinions at either the district court or appellate levels in my initial lawsuit against the smog impact fee, and that was a crime.
A given question can possess any combination of the above non-justiciabilities. A question can even possess all four kinds of non-justiciability: legal, intrinsic, prudential, and negatable. A question can be non-justiciable in one court but justiciable in another court.
Unfortunately, often a ruling of non-justiciability can have the same effect as a ruling on the merits. The issue of non-justiciability may need to be considered in combination with other factors. Often, the question of justiciability can be avoided entirely by deciding a case on narrow grounds -- e.g., Judge Jones could have based his Kitzmiller v. Dover decision entirely on the religious motivations of the Dover school board members and thus avoided the question of the justiciability of the evolution controversy. IMO these different principles of non-justiciability -- legal, intrinsic, prudential, and negatable -- should be officially recognized by the courts to help in applying these principles where appropriate. IMO the courts are more inclined to apply particular principles where those principles have officially recognized names.
IMO the courts should make more use of this concept of non-justiciability. Judges should have the humility to recognize that their opinions are just a few among many and that even where making a decision requires a lot of legal training, others legal professionals might honestly and fairly reach decisions different from theirs. Also, rulings of non-justiciability could be the basis of compromise decisions and out-of-court settlements.
Labels: ACSI v. Stearns