refers to the ability of a text to take effect as a legal rule or to create legal effects. Any law approved in a legislative body is justiciable. Court rulings are justiciable when they concern legal doctrine. Clearly not all statements contained in legal enactments will be justiciable. Some will be broad statements of intent that are too vague to create legal effects. In civil procedure, a justiciable dispute is one that is appropriate for judicial resolution.
Justiciability in the US
The most comprehensive and influential precedent with respect to justiciability is Justice Louis Brandeis
's 1936 Ashwander rules
. These seven rules dictate, to a large extent, which type of cases US courts consider justiciable. Although separate from questions of jurisdiction
, recent Supreme Court opinions have indicated that certain aspects of justiciability are closely tied to, if not coextensive with, questions of jurisdiction
. See Lewis v. Casey
, 518 U.S. 343
, 347 n.1 (1996); United States v. Hays
, 515 U.S. 737, 742 (1995).
Justiciability is one of several criteria that the United States Supreme Court use to make a judgment granting writ of certiorari (cert.)
In order for an issue to be justiciable by a United States federal court, all of the following conditions must be met:
- The Court cannot grant advisory opinions.
- There must be an actual controversy between the parties - see Muskrat v. United States,
- This means that the parties can not agree to a lawsuit where both parties seek a particular judgment from the court; rather, the parties have to each be seeking a different outcome.
- The plaintiff(s) must have standing to sue - see Allen v. Wright,
- In order to have standing:
- the plaintiff must be a party who has been or will be harmed if no remedy is provided (injury-in-fact)
- the defendant must be a party to whom the harm can be traced (causation); and
- the court must have the ability to provide a remedy that will relieve the harm to the plaintiff (redressability)
- Note that standing is conferred very narrowly when the plaintiff's alleged harm results only from being a taxpayer
- The question must be neither unripe nor moot - see Poe v. Ullman, ; DeFunis v. Odegaard,
- An unripe question is one for which there is not yet at least a threatened injury to the plaintiff.
- A moot question is one for which the potential for an injury to occur has ceased to exist. However, if the case is likely to reoccur and the issue is unlikely to be resolved in the time necessary for a case to reach the court ("capable of repetition, yet evading review"), the court will allow a case that is moot to be litigated - see Roe v. Wade,
- The court must not be asked to resolve a political question - see Nixon v. United States,
- Political questions involve matters where there is
- "a textually demonstrable constitutional commitment of the issue to a coordinate political department" (meaning that the Constitution requires another branch of government to resolve questions regarding the issue); or
- "a lack of judicially discoverable and manageable standards for resolving it"
- Political questions include such things as whether the nation is 'at war' with another country, or whether the U.S. Senate has properly "tried" an impeached federal officer.
If the case fails to meet any one of these requirements, the court cannot hear it.
State courts tend to require a similar set of circumstances, although some states permit their courts to give advisory opinions on questions of law, even though there may be no actual dispute between parties to resolve.