CJ Roberts Cites CJ Jay and Correspondences of Justices

January 20th, 2016

One of the issues in Campbell-Ewald v. Gomez, an otherwise mundane Telephone Consumer Protection Act, was whether the Court retained jurisdiction after a settlement offer that made the plaintiff whole. The Court split 6-3 on the issue, with RBG writing the majority opinion. Writing a rare dissent was Chief Justice Roberts, joined by Justices Scalia and Alito.

With some flourish, Roberts cited a number of constitutional decisions to drive home the point that when the Court lacks standing, there is no case or controversy, and the case must be dismissed.

The problem for Gomez is that the federal courts exist to resolve real disputes, not to rule on a plaintiff’s entitle- ment to relief already there for the taking. As this Court has said, “[n]o principle is more fundamental to the judici- ary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Raines v. Byrd, 521 U. S. 811, 818 (1997) (quoting Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26, 37 (1976)). If there is no actual case or controversy, the lawsuit is moot, and the power of the federal courts to declare the law has come to an end.

Chief Justice Roberts also cited the seminal letter from Chief Justice Jay to President Washington, explaining that the courts would not offer advisory opinions.

In 1793, President George Washington sent a letter to Chief Justice John Jay and the Associate Justices of the Supreme Court, asking for the opinion of the Court on the rights and obligations of the United States with respect to the war between Great Britain and France. The Supreme Court politely—but firmly—refused the request, concluding that “the lines of separation drawn by the Constitution between the three departments of the government” prohibit the federal courts from issuing such advisory opinions. 3 Correspondence and Public Papers of John Jay 486–489 (H. Johnston ed. 1890–1893).

Here is the full correspondence from Chief Justice Jay to President Washington:


We have considered the previous question stated in a letter written by your direction to us by the Secretary of State [Thomas Jefferson] on the 18th of last month, [regarding] the lines of separation drawn by the Constitution between the three departments of the government. These being in certain respects checks upon each other, and our being judges of a court of the last resort, are considerations which afford strong arguments against the propriety of our extra-judicially 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 united to the executive departments.

We exceedingly regret every event that may cause embarrassment to your administration, but we derive consolation from the reflection that your judgment will discern what is right, and that your usual prudence, decision, and firmness will surmount every obstacle to the preservation of the rights, peace, and dignity of the United States.

We have the honour to be, with perfect respect, sir, your most obedient and most humble servants.

Roberts traces this directly from the “case” or “controversy” requirement, and cites Marbury. (Roberts never passes up the opportunity to cite his mancrush John Marshall):

That prohibition has remained “the oldest and most consistent thread in the federal law of justiciability.” Flast v. Cohen, 392 U. S. 83, 96 (1968) (internal quotation marks omitted). And for good reason. It is derived from Article III of the Constitution, which limits the authority of the federal courts to the adjudication of “Cases” or “Controversies.” U. S. Const., Art. III, §2. The case or controversy requirement is at once an important check on the powers of the Federal Judiciary and the source of those powers. In Marbury v. Madison, 1 Cranch 137, 177 (1803), Chief Justice Marshall established that it is “the province and duty of the judicial department to say what the law is.” Not because there is a provision in the Consti- tution that says so—there isn’t. Instead, the federal courts wield that power because they have to decide cases and controversies, and “[t]hose who apply [a] rule to par- ticular cases, must of necessity expound and interpret that rule.” Ibid.

Justice Alito has an interesting dissent on mootness.

And Justice Thomas, well he explores the common law roots of “tenders.”

The Court correctly concludes that an offer of complete relief on a claim does not render that claim moot. But, in my view, the Court does not advance a sound basis for this conclusion. The Court rests its conclusion on modern contract law principles and a recent dissent concerning Federal Rule of Civil Procedure 68. See ante, at 6–9. I would rest instead on the common-law history of tenders. That history—which led to Rule 68—demonstrates that a mere offer of the sum owed is insufficient to eliminate a court’s jurisdiction to decide the case to which the offer related. …

Modern settlement procedure has its origins in the law of tenders, as refined in the 18th and 19th centuries. As with much of the early common law, the law of tenders had many rigid formalities. These formalities make clear that, around the time of the framing, a mere offer of relief was insufficient to deprive a court of jurisdiction. …

This history demonstrates that, at common law, a de- fendant or prospective defendant had to furnish far more than a mere offer of settlement to end a case. This history also demonstrates that courts at common law would not have understood a mere offer to strip them of jurisdiction.

I have absolutely no basis to offer any commentary on the law of tenders, but I hope some scholars can opine.