晴天ー磯野波平に追いつくー

2017年05月02日 13:59 5月2日(火曜日)
















Second, conceptual connections aside, judges notoriously uphold standing with greater frequency when they sympathize with claims on the merits than when they do not. One commentator has gone so far as to assert that lawyers can predict standing decisions “with much greater accuracy if they ignore doctrine and rely entirely on a simple description of the law of standing that is rooted in political science: judges provide access to the courts to individuals who seek to further the political and ideological agendas of judges.”23 Regardless of whether this claim is strictly correct, there is little doubtthat sympathies regarding the merits sometimes influence standing determinations.24 Links between justiciability and the merits also occur within the political question doctrine. In finding that a case presents a nonjusticiable question, courts sometimes rule that a particular constitutional provision confers judicially unreviewable discretion on another branch of government.25 A decision to this effect is in substance a ruling that the Constitution gives the plaintiff no judicially enforceable right.26 Commentators have also detected a penetration of merits concerns into jurisdictional determinations of whether a case is ripe for decision.27 The contrast between cases presenting facial challenges to statutes under the First Amendment overbreadth doctrine and suits asserting “takings” claims is illustrative: [W]hile the first amendment allows citizens to attack regulations that may inhibit their speech even before such regulations have been enforced, the takings clause demands a showing by the challenger that the regulating authority has foreclosed all economically viable options. It is obviously more difficult, therefore, to present a ripe takings claim than a ripe first amendment challenge.28

Because ripeness determinations have an explicitly discretionary element,29 it also seems likely that judges’ readiness to find a dispute ripe may partly reflect their sympathy toward plaintiffs’ substantive claims. Whereas some commentators have persuasively linked justiciability determinations to merits considerations, others have argued that concerns involving acceptable and unacceptable remedies sometimes drive purportedly antecedent judgments about substantive rights. Professor Daryl Levinson has developed the latter thesis with abundant illustrative detail.30 Among his examples is the Supreme Court’s decision in Washington v. Davis, which held that racially discriminatory effects do not violate the Equal Protection Clause in the absence of racially discriminatory intent.31 Levinson writes: “By taking a process-oriented, colorblindness approach to racial equality, the Court has been able to avoid confronting substantive racial inequality and its terribly difficult remedial implications.”32 Although Levinson’s thesis is rich and provocative in its details, at its heart it states a proposition that many would regard as little more than common sense: In determining which claims to uphold on the merits, courts will almost irresistibly tend to peek ahead at the remedial consequences and weigh their acceptability.33 When Levinson’s arguments are juxtaposed with those of commentators who believe that justiciability rulings are influenced by merits judgments, the result can be portrayed in schematic terms: Whereas numerous commentators argue that decisions at the second (merits) stage influence first-stage rulings on justiciability, Levinson maintains that decisions at the third (remedial) stage affect second-stage judgments on the merits. But the emerging portrait still leaves third-stage judgments about appropriate remedies generally disconnected from first-stage determinations concerning justiciability.