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Adversity Requirement for Justiciability

In order for a case to be heard by a federal court, it must be justiciable. One of the requirements for justiciability is adversity, meaning the parties must have real competing interests.

Article III, Section 2, Clause 1:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

What Does It Mean to Be Adverse Litigants?

United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation

The presence of adverse litigants with real interests to contend for is a standard that has been stressed in numerous cases,1 and the requirement implicates a number of complementary factors making up a justiciable suit. The requirement was one of the decisive factors, if not the decisive one, in Muskrat v. United States,2 in which the Court struck down a statute authorizing certain named Cherokee citizens to bring a test suit against the United States to determine the validity of a law affecting the allocation of Cherokee lands. Attorney's fees of both sides were to be paid out of tribal funds deposited in the United States Treasury. "The judicial power," said the Court, ". . . is the right to determine actual controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction. . . . It is true the United States is made a defendant to this action, but it has no interest adverse to the claimants. The object is not to assert a property right as against the government, or to demand compensation for alleged wrongs because of action upon its part. The whole purpose of the law is to determine the constitutional validity of this class of legislation, in a suit not arising between parties concerning a property right necessarily involved in the decision in question, but in a proceeding against the government in its sovereign capacity, and concerning which the only judgment required is to settle the doubtful character of the legislation in question."3

Concerns regarding adversity also arise when the executive branch chooses to enforce, but not defend in court, federal statutes that it has concluded are unconstitutional. In United States v. Windsor,4 the Court considered the Defense of Marriage Act (DOMA), which excludes same-sex partners from the definition of "spouse" as used in federal statutes.5 DOMA was challenged by the surviving member of a same-sex couple (married in Canada), who was seeking to claim a spousal federal estate tax exemption. Although the executive branch continued to deny the exemption, it also declined to defend the statute based on doubts as to whether it would survive scrutiny under the equal protection component of the Fifth Amendment's Due Process Clause. Consequently, the Bipartisan Legal Advisory Group of the House of Representatives (BLAG)6 intervened to defend the statute. The Court held that, despite the decision not to defend, the failure of the United States to provide a refund to the taxpayer constituted an injury sufficient to establish standing, leaving only "prudential" limitations on judicial review at issue.7 The Court concluded that the "prudential" concerns were outweighed by the presence of BLAG to offer an adversarial presentation of the issue, the legal uncertainty that would be caused by dismissing the case, and the concern that the executive branch's assessment of the constitutionality of the statute would be immunized from judicial review.8

The Court applied Windsor in Seila Law, LLC v. Consumer Financial Protection Bureau (CFPB), to conclude that even though the parties agreed "on the merits of the constitutional question," the case did not lack adversity.9 The CFPB, a federal agency, had issued a civil investigative demand asking the petitioners to produce certain information.10 In response, the petitioners argued that the agency's structure violated the Constitution's separation of powers.11 Before the Supreme Court, the federal government agreed that the agency's structure was unconstitutional, but maintained that it could nonetheless enforce the civil investigative demand.12 Viewing the case as akin to Windsor, the Seila Law Court concluded that the decision below upholding the demand "present[ed] real-world consequences" that supported the Court's jurisdiction to resolve the constitutional question.13

Collusive and Feigned Suits

Adverse litigants are lacking in those suits in which two parties have gotten together to bring a friendly suit to settle a question of interest to them. Thus, in Lord v. Veazie,14 the latter had executed a deed to the former warranting that he had certain rights claimed by a third person, and suit was instituted to decide the "dispute." Declaring that "the whole proceeding was in contempt of the court, and highly reprehensible," the Court observed: "The contract set out in the pleadings was made for the purpose of instituting this suit. The plaintiff and defendant are attempting to procure the opinion of this court upon a question of law, in the decision of which they have a common interest opposed to that of other persons, who are not parties to the suit. And their conduct is the more objectionable, because they have brought up the question upon a statement of facts agreed upon between themselves . . . and upon a judgment pro forma entered by their mutual consent, without any actual judicial decision."15 "Whenever," said the Court in another case, "in pursuance of an honest and actual antagonistic assertion of rights by one individual against another, there is presented a question involving the validity of any act of any legislature, State or federal, and the decision necessarily rests on the competency of the legislature to so enact, the court must . . . determine whether the act be constitutional or not; but such an exercise of power is the ultimate and supreme function of courts. It is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act."16 Yet several widely known constitutional decisions have been rendered in cases in which friendly parties contrived to have the actions brought and in which the suits were supervised and financed by one side.17 There are also instances in which there may not be in fact an adverse party at certain stages; that is, instances when the parties do not actually disagree, but where the Supreme Court and the lower courts are empowered to adjudicate.18

Stockholder Suits

Moreover, adversity in parties has often been found in suits by stockholders against their corporation in which the constitutionality of a statute or a government action is drawn in question, even though one may suspect that the interests of plaintiffs and defendant are not all that dissimilar. Thus, in Pollock v. Farmers' Loan & Trust Co.,19 the Court sustained the jurisdiction of a district court that had enjoined the company from paying an income tax even though the suit was brought by a stockholder against the company, thereby circumventing a statute that forbade the maintenance in any court of a suit to restrain the collection of any tax.20 Subsequently, the Court sustained jurisdiction in cases brought by a stockholder to restrain a company from investing its funds in farm loan bonds issued by federal land banks21 and by preferred stockholders against a utility company and the TVA to enjoin the performance of contracts between the company and TVA on the ground that the statute creating it was unconstitutional.22 Perhaps most notorious was Carter v. Carter Coal Co.,23 in which the president of the company brought suit against the company and its officials, among whom was Carter's father, a vice president of the company, and in which the Court entertained the suit and decided the case on the merits.24


  1. Lord v. Veazie, 49 U.S. (8 How.) 251 (1850)Chicago & Grand Trunk Ry. v. Wellman, 143 U.S. 339 (1892)South Spring Hill Gold Mining Co. v. Amador Medean Gold Mining Co., 145 U.S. 300 (1892)California v. San Pablo & T.R.R., 149 U.S. 308 (1893)Tregea v. Modesto Irrigation District, 164 U.S. 179 (1896)Lampasas v. Bell, 180 U.S. 276 (1901)Smith v. Indiana, 191 U.S. 138 (1903)Braxton County Court v. West Virginia, 208 U.S. 192 (1908)Muskrat v. United States, 219 U.S. 346 (1911)United States v. Johnson, 319 U.S. 302 (1943)Moore v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 47 (1971).
  2. 219 U.S. 346 (1911).
  3. 219 U.S. at 361–62. The plaintiffs in that case obtained the sought-after decision the following year by the simple expedient of suing to enjoin the Secretary of the Interior from enforcing the disputed statute. Gritts v. Fisher, 224 U.S. 640 (1912). Other cases have involved similar problems, but they resulted in decisions on the merits. E.g.Cherokee Intermarriage Cases, 203 U.S. 76 (1906)La Abra Silver Mining Co. v. United States, 175 U.S. 423, 455–463 (1899)South Carolina v. Katzenbach, 383 U.S. 301, 335 (1966)but see id. at 357 (Justice Black dissenting). The principal effect of Muskrat was to put in doubt for several years the validity of any sort of declaratory judgment provision in federal law.
  4. 570 U.S. 744 (2013).
  5. Pub. L. No. 104-199, § 3, 110 Stat. 2419, 1 U.S.C. § 7.
  6. The BLAG is a standing body of the House, created by rule, consisting of members of the House Leadership and authorized to direct the House Office of the General Counsel to file suit on its behalf in state or federal court.
  7. Windsor, slip op. at 6–7.
  8. Id. at 10–13.
  9. Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2196–97 (2020).
  10. Id. at 2194.
  11. Id.
  12. Id. at 2196.
  13. Id.
  14. 49 U.S. (8 How.) 251 (1850).
  15. 49 U.S. at 254–55.
  16. Chicago & G.T. Ry. v. Wellman, 143 U.S. 339, 345 (1892).
  17. E.g.Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796)Fletcher v. Peck, 10 U.S. (6 Cr.) 87 (1810)Scott v. Sandford, 60 U.S. (19 How.) 393 (1857)cf. 1 C. Warren, supra at 147, 392–95; 2 id. at 279–82. In Powell v. Texas, 392 U.S. 514 (1968), the Court adjudicated on the merits a challenge to the constitutionality of criminal treatment of chronic alcoholics although the findings of the trial court, agreed to by the parties, appeared rather to be "the premises of a syllogism transparently designed to bring this case" within the confines of an earlier enunciated constitutional principle. But adversity arguably still existed.
  18. Examples are naturalization cases, Tutun v. United States, 270 U.S. 568 (1926), entry of judgment by default or on a plea of guilty, In re Metropolitan Ry. Receivership, 208 U.S. 90 (1908), and consideration by the Court of cases in which the Solicitor General confesses error below. Cf. Young v. United States, 315 U.S. 257, 258–259 (1942)Casey v. United States, 343 U.S. 808 (1952)Rosengart v. Laird, 404 U.S. 908 (1972) (Justice White dissenting). See also Sibron v. New York, 392 U.S. 40, 58–59 (1968).
  19. 157 U.S. 429 (1895). The first injunction suit by a stockholder to restrain a corporation from paying a tax was apparently Dodge v. Woolsey, 59 U.S. (18 How.) 331 (1856)See also Brushaber v. Union Pac. R.R., 240 U.S. 1 (1916).
  20. Cf. Cheatham v. United States, 92 U.S. 85 (1875)Snyder v. Marks, 109 U.S. 189 (1883).
  21. Smith v. Kansas City Title & Trust Co., 255 U.S. 180 (1921).
  22. Ashwander v. TVA, 297 U.S. 288 (1936)See id. at 341 (Justice Brandeis dissenting in part).
  23. 298 U.S. 238 (1936).
  24. Stern, The Commerce Clause and the National Economy, 59 Harv. L. Rev. 645, 667–668 (1948) (detailing the framing of the suit).



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