Adversity Requirement for Justiciability Under Article III

Just because you sue someone in an American court doesn’t mean the court can actually hear your case. The U.S. Constitution sets up certain “justiciability” requirements for the federal courts. This means that these courts are only allowed to hear and decide on a case if it meets certain conditions. These requirements are mostly rooted in Article III, Section 2 of the Constitution.

Along with standing requirements, which require a federal plaintiff to prove injury in fact, causation connected to the defendant, and redressability by the courts, the adversity requirement ensures that both sides of a lawsuit have an independent stake in the case.

In this article, we’ll discuss what makes parties “adverse” under federal court jurisdiction.

What Is the Adversity Requirement in Article III?

This part of the Constitution says that federal courts can only hear “cases” and “controversies.” But what does that mean? Let’s take a look at the exact text.

Article III, Section 2, Clause 1 states:

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.

The Constitution does not explicitly use the term “adverse parties.” Nor does it directly state that federal courts can only hear cases between adverse parties. But the U.S. Supreme Court (SCOTUS) has read this case or controversy requirement into the Constitution over hundreds of years of court decisions.

In Flast v. Cohen, SCOTUS noted that “uncertainty exists in the doctrine of justiciability because that doctrine has become a blend of constitutional requirements and policy considerations.”

The Court has interpreted the “case and controversies” language of Article III, Section 2 to mean that there must be opposing parties with real, competing interests at stake if a case is to be decided by a federal court.

The U.S. Supreme Court has interpreted four main “justiciability doctrines” from this text. They are:

• Standing

• Ripeness

• Mootness

• Political question doctrine

Another important requirement is that a federal court can only hear actual disputes between genuinely adverse parties. This principle ensures that federal courts operate within the role set by the Constitution, preserving the separation of powers. It also avoids advisory opinions (giving general advice without a concrete case study) and limits federal judicial power.

In other words, it prevents the judicial branch from overstepping into the policy-making domains of the legislative and executive branches. This helps uphold the system of checks and balances that is so important for a healthy democracy.

Keep in mind that these requirements are for federal courts. The federal judiciary has limited jurisdiction and can only hear specific types of cases. State courts, on the other hand, are not governed by Article III. They are courts of “general jurisdiction,” meaning they have the authority to hear a wide range of cases.

Each state can set its own rules for justiciability through its constitution, statutes, or court decisions. Many states have adopted standards similar to the federal doctrines, but may have more flexible rules. Those states may, for example, allow advisory opinions or broader forms of standing.

What Does “Adversity” Mean?

Courts have repeatedly emphasized over hundreds of years that cases must involve parties with real and opposing interests. They’re often called “adverse litigants.”

The parties must have genuinely opposing stakes in the case’s outcome, even if they might agree on some legal principles or policies. Courts focus on whether each side has something real to gain or lose based on how the case is decided, rather than whether they disagree on every aspect of the legal question.

Let’s take a look at some of the cases that have helped to establish the adversity requirement for federal jurisdiction.

Muskrat v. United States

One of the important cases that helped establish the adversity requirement was Muskrat v. United States. There, Congress had passed legislation directing the Court of Claims to hear certain cases involving Cherokee Nation members and their land rights, with appeals going directly to the Supreme Court. But SCOTUS struck down that federal statute.

The Court explained that it does not have the power to decide hypothetical questions or cases where the government has no real stake in the outcome. This is no less true even when Congress explicitly asks it to. It noted:

“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.“

U.S. v. Windsor

Issues about adversity can also come up when the executive branch enforces a law but refuses to defend it in court because it believes the law is unconstitutional. In United States v. Windsor, the SCOTUS was grappling with the Defense of Marriage Act (DOMA). This federal law denied federal benefits to same-sex spouses. The law was challenged by a woman whose wife had died, and who was seeking an exemption to the federal estate tax.

Although the executive branch decided to continue enforcing DOMA, the federal government did not defend the law in court. Instead, the Bipartisan Legal Advisory Group (BLAG) from the House of Representatives stepped in to defend DOMA.

The Court decided that having BLAG involved provided a real adversarial argument; the government’s refusal to pay the refund was still enough of an injury to allow the case to proceed. The Court also noted that dismissing the case would create legal confusion and let the executive branch avoid judicial review.

SCOTUS applied the Windsor precedent to a later case, Seila Law, LLC v. Consumer Financial Protection Bureau (CFPB). There, both parties agreed that the structure of the CFPB was unconstitutional. But, they still had adverse interests. One wanted to avoid the federal agency‘s enforcement action while the agency wanted to proceed with it.

The Court concluded that the case still presented sufficient adversity, even though the parties agreed “on the merits of the constitutional question.”

“Friendly” or “Feigned” Lawsuits

Adversity is missing when two sides work together to bring a “friendly” lawsuit just to get a legal question answered. The 1850 case of Lord v. Veazie is an important example of this, and it may be the first U.S. case to make the adversity requirement clear.

In this case, Lord and Veazie filed a “friendly suit” to get the court’s opinion about some steamboat operating rights. Both sides actually wanted the same result and were working together. Veazie had given some rights to Lord, and the “dispute” was really just set up to test those rights against what a third party claimed.

Chief Justice Roger Taney, writing for the whole Court, strongly criticized this. He said the suit was “a collusive attempt to obtain an opinion of this court upon a question of law, not involved in an actual and adversary litigation.”

The Court explained that its job under Article III of the Constitution is to decide real “Cases” and “Controversies,” not to give advice or settle fake arguments. Taney wrote:

“It is the duty of a court to decline jurisdiction in such a case, although the parties concerned may desire to have the judicial opinion.”

He made clear that when there is no real disagreement, the court cannot decide the case, and it would be a “fraud upon the court” to do so.

Still, some famous constitutional decisions have come from cases where the parties were friendly and set up the lawsuit, sometimes even with one side paying for both. There are also cases where the disagreement seems to fade, like when one side stops defending a law.

In these situations, courts may still hear the case if another party with a real interest joins in (like BLAG in Windsor), or if the case started with a real disagreement and there are still real-world effects. This allows the Supreme Court and lower courts to decide the case.

The crucial factor is whether the parties have something concrete to gain or lose based on the court‘s decision, not whether they are personally antagonistic toward each other.

Stockholder Lawsuits

Courts have often found real disagreements sufficient for the adversity requirement in cases where stockholders sue their own companies to challenge whether a law or government action is constitutional. This happens even when the people suing and the companies they’re suing seem to have similar interests.

For example, in Pollock v. Farmers’ Loan & Trust Co. (1895), the Court allowed a case to proceed in federal district court where a stockholder sued to stop his company from paying income tax. The court stopped the company from paying the tax, even though federal law at the time said no court could hear cases trying to block tax collection.

Later, the Court allowed two other types of stockholder cases:

• One where a stockholder wanted to stop his company from investing money in farm loan bonds issued by federal land banks (Smith v. Kansas City Title)

• A different case where preferred stockholders sued a utility company and the Tennessee Valley Authority to stop them from carrying out their contracts. They argued that the law creating the TVA was unconstitutional (Ashwander v. TVA)

The most famous case might be Carter v. Carter Coal Co. In this case, the company president sued his own company and its officials—including his own father, who was a vice president. Despite the familial ties and what appeared to be a suspect situation, the Court nonetheless heard the suit and decided the case on the merits.

So, next time you think about marching into federal court with your hypothetical grievances or friendly lawsuits, remember that the Constitution wants a real fight!

Only genuinely adverse parties with a true stake in the outcome can sue. It’s all part of keeping the courts busy with actual controversies—and, just maybe, giving the rest of us a ringside seat to some truly interesting legal battles.

For more cases that illustrate the adversity requirement, see:

• 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)

• United States v. Johnson, 319 U.S. 302 (1943)

• Moore v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 47 (1971)