Sen. Cornyn's Daily Question for Judge Sotomayor

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Sen. Cornyn's Daily Question for Judge Sotomayor
Question 2: Monday, June 15, 2009

What is the power of a federal court to interpret the law absent a "Case" or "Controversy"?

Explanation: Article III of the Constitution limits the power of the federal courts to resolving "Cases" and "Controversies." Under this limit, a federal court has no power to enter a decision unless an actual dispute exists that requires judicial resolution. See Marbury v. Madison, 5 U.S. 137, 177 (1803). The Supreme Court has described this limit as "the threshold question in every federal case" that is critical to ensuring the proper narrow role of the courts. Warth v. Seldin, 422 U.S. 490, 498 (1975).

In a 2003 case, however, Judge Sotomayor issued an advisory opinion when no case or controversy existed. See In re Subpoena Issued to Dennis Friedman, 350 F.3d 65 (2d Cir. 2003). The opinion involved the rules for when an attorney can be deposed in a civil dispute. Judge Sotomayor authored an extensive opinion on the subject despite acknowledging that the attorney had consented to the deposition and the appeal was therefore moot. Judge Sotomayor's opinion ultimately did dismiss the appeal as moot. However, it did so only after first articulating an approach to the mooted legal issue that expressly disagreed with precedents from both the U.S. Court of Appeals for the Eighth Circuit and the U.S Court of Appeals for the Sixth Circuit.

Judge Wesley pointed out the difficulty with Judge Sotomayor's opinion in a separate concurrence. He wrote:

Because the jurisdictional requirement of an actual case or controversy under Article III, § 2, cl. 1 has eluded us here, I concur in result only. This appeal has been properly dismissed as moot and therefore no adjudication of the rights of the parties is necessary or proper. The majority produces an odd result -- a careful discussion of an issue that would have resolved a dispute but for the fact that it no longer exists. I cannot agree that this now-mooted appeal warrants a writing on its former merits. This Court no longer has jurisdiction to consider the matter.

350 F.3d at 72-73 (Wesley, J., concurring in result only) (internal citation omitted).

In a footnote, Judge Sotomayor responded to Judge Wesley. She recognized that the mootness of the appeal deprived the court of appellate jurisdiction. See id. at 72 n.4. She contended that her opinion's advice was justified nonetheless because it would "hopefully serve the useful purpose of cautioning about the limits of our prior rulings on a frequently litigated issue and perhaps avoid some needless appeals." Id.

Although this case may at first seem only a technical dispute, I think it raises important questions. One of the critical issues raised by any Supreme Court nomination is whether the nominee acknowledges and abides by the Constitution's limitations on the scope of judicial power. The case or controversy requirement is one of those important limitations. Ever since Marbury v. Madison, it has been recognized as a critical way that the Constitution provides for a narrow judicial role. In light of Judge Sotomayor's opinion, I hope she can elaborate on the proper role of a federal court to interpret the law when no case or controversy exists.

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