HONIG, CALIFORNIA SUPERINTENDENT OF PUBLIC INSTRUCTION v. DOE ET AL.
No. 86-728
SUPREME COURT OF THE UNITED STATES
Argued November 9, 1987—Decided January 20, 1988
484 U.S. 305
Asher Rubin, Deputy Attorney General of California, argued the cause for petitioner. With him on the briefs were John K. Van de Kamp, Attorney General, Charlton G. Holland, Assistant Attorney General, and John Davidson, Supervising Deputy Attorney General.
Glen D. Nager argued the cause pro hac vice for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Fried, Assistant Attorney General Reynolds, Deputy Solicitor General Ayer, Deputy Assistant Attorney General Carvin, Walter W. Barnett, Dennis J. Dimsey, and Wendell L. Willkie.
Sheila Brogna argued the cause for respondents. With her on the brief were William J. Taylor and Toby Fishbein Rubin.*
*Briefs of amici curiae urging reversal were filed for the Davis Joint Unified School District et al. by Charles R. Mack; for the National School
Briefs of amici curiae urging affirmance were filed for the American Association on Mental Deficiency et al. by Norman S. Rosenberg and Janet Stotland; for the National Association of Protection and Advocacy Systems et al. by Marilyn Holle; and for the Center for Law and Education, Inc., et al.
Briefs of amici curiae were filed for Senator Chafee et al. by Arlene Brynne Mayerson; and for the Legal Aid Society of the City of New York, Juvenile Rights Division, by Henry S. Weintraub.
JUSTICE BRENNAN delivered the opinion of the Court.
As a condition of federal financial assistance, the Education of the Handicapped Act requires States to ensure a “free appropriate public education” for all disabled children within their jurisdictions. In aid of this goal, the Act establishes a comprehensive system of procedural safeguards designed to ensure parental participation in decisions concerning the education of their disabled children and to provide administrative and judicial review of any decisions with which those parents disagree. Among these safeguards is the so-called “stay-put” provision, which directs that a disabled child “shall remain in [his or her] then current educational placement” pending completion of any review proceedings, unless the parents and state or local educational agencies otherwise agree.
In the Education of the Handicapped Act (EHA or the Act), 84 Stat. 175, as amended,
Although these educational failings resulted in part from funding constraints, Congress recognized that the problem reflected more than a lack of financial resources at the state and local levels. Two federal-court decisions, which the Senate Report characterized as “landmark,” see id., at 6, demonstrated that many disabled children were excluded pursuant to state statutes or local rules and policies, typically without
In responding to these problems, Congress did not content itself with passage of a simple funding statute. Rather, the EHA confers upon disabled students an enforceable substantive right to public education in participating States, see Board of Education of Hendrick Hudson Central School Dist. v. Rowley, 458 U. S. 176 (1982),1 and conditions federal financial assistance upon a State‘s compliance with the substantive and procedural goals of the Act. Accordingly, States seeking to qualify for federal funds must develop policies assuring all disabled children the “right to a free appropriate public education,” and must file with the Secretary of
The primary vehicle for implementing these congressional goals is the “individualized educational program” (IEP), which the EHA mandates for each disabled child. Preрared at meetings between a representative of the local school district, the child‘s teacher, the parents or guardians, and, whenever appropriate, the disabled child, the IEP sets out the child‘s present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives.
Envisioning the IEP as the centerpiece of the statute‘s education delivery system for disabled children, and aware that schools had all too often denied such children appropriate educations without in any way consulting their parents, Congress repeatedly emphasized throughout the Act the importance and indeed the necessity of parental participation in both the development of the IEP and any subsequent assessments of its effectiveness. See
At the conclusion of any such hearing, both the parents and the local educational agency may seek further administrative review and, where that proves unsatisfactory, may file a civil action in any state or federal court.
“During the pendency of any proceedings conducted pursuant to [§ 1415], unless the State or local educational agency and the parents or guardian otherwise agree, the child shall remain in the then current educational placement of such child . . . .”
§ 1415(e)(3) .
The present dispute grows out of the efforts of certain officials of the San Francisco Unified School District (SFUSD) to expel two emotionally disturbed children from school indefinitely for violent and disruptive conduct related to their disabilities. In November 1980, respondent John Doe assaulted another student at the Louise Lombard School, a developmental center for disabled children. Doe‘s April 1980 IEP identified him as a socially and physically awkward 17-year-old who experienced considerable difficulty controlling his impulses and anger. Among the goals set out in his IEP was “[i]mprovement in [his] ability to relate to [his]
On November 6, 1980, Doe responded to the taunts of a fеllow student in precisely the explosive manner anticipated by his IEP: he choked the student with sufficient force to leave abrasions on the child‘s neck, and kicked out a school window while being escorted to the principal‘s office afterwards. Id., at 208. Doe admitted his misconduct and the school subsequently suspended him for five days. Thereafter, his principal referred the matter to the SFUSD Student Placement Committee (SPC or Committee) with the recommendation that Doe be expelled. On the day the suspension was to end, the SPC notified Doe‘s mother that it was proposing to exclude her child permanently from SFUSD and was therefore extending his suspension until such time as the expulsion proceedings were completed.2 The Committee further advised her that she was entitled to attend the November 25 hearing at which it planned to discuss the proposed expulsion.
After unsuccessfully protesting these actions by letter, Doe brought this suit against a host of local school officials
Respondent Jack Smith was identified as an emotionally disturbed child by the time he entered the second grade in 1976. School records prepared that year indicated that he was unable “to control verbal or physical outburst[s]” and exhibited a “[s]evere disturbance in relationships with peers and adults.” Id., at 123. Further evaluations subsequently revealed that he had been physically and emotionally abused as an infant and young child and that, despite above average intelligence, he experienced academic and social difficulties as a result of extreme hyperactivity and low self-esteem. Id., at 136, 139, 155, 176. Of particular concern was Smith‘s propensity for verbal hostility; one evaluator noted that the child reacted to stress by “attempt[ing] to cover his feelings of low self worth through aggressive behavior[,] . . . primarily verbal provocations.” Id., at 136.
Based on these evaluations, SFUSD placed Smith in a learning center for emotionally disturbed children. His grandparents, however, believed that his needs would be better served in the public school setting and, in Septembеr 1979, the school district acceded to their requests and enrolled him at A. P. Giannini Middle School. His February 1980 IEP recommended placement in a Learning Disability Group, stressing the need for close supervision and a highly structured environment. Id., at 111. Like earlier evalua
At the beginning of the next school year, Smith was assigned to a full-day program; almost immediately thereafter he began misbehaving. School officials met twice with his grandparents in October 1980 to discuss returning him to a half-day program; although the grandparents agreed to the reduction, they apparently were never apprised of their right to challenge the decision through EHA procedures. The school officials also warned them that if the child continued his disruptive behavior—which included stealing, extorting money from fellow students, and making sexual comments to female classmates—they would seek to expel him. On November 14, they made good on this threat, suspending Smith for five days after he made further lewd comments. His principal referred the matter to the SPC, which recommended exclusion from SFUSD. As it did in John Doe‘s case, the Committee scheduled a hearing and extended the suspension indefinitely pending a final disposition in the matter. On November 28, Smith‘s counsel protestеd these actions on grounds essentially identical to those raised by Doe, and the SPC agreed to cancel the hearing and to return Smith to a half-day program at A. P. Giannini or to provide home tutoring. Smith‘s grandparents chose the latter option and the school began home instruction on December 10; on January 6, 1981, an IEP team convened to discuss alternative placements.
After learning of Doe‘s action, Smith sought and obtained leave to intervene in the suit. The District Court subsequently entered summary judgment in favor of respondents on their EHA claims and issued a permanent injunction. In a series of decisions, the District Judge found that the proposed expulsions and indefinite suspensions of respondents for conduct attributable to their disabilities deprived
On appeal, the Court of Appeals for the Ninth Circuit affirmed the orders with slight modifications. Doe v. Maher, 793 F. 2d 1470 (1986). Agreeing with the District Court that an indefinite suspension in aid of expulsion constitutes a prohibited “change in placement” under
Petitioner Bill Honig, California Superintendеnt of Public Instruction,4 sought review in this Court, claiming that the Court of Appeals’ construction of the stay-put provision conflicted with that of several other Courts of Appeals which had recognized a dangerousness exception, compare Doe v. Maher, supra (case below), with Jackson v. Franklin County School Board, 765 F. 2d 535, 538 (CA5 1985); Victoria L. v. District School Bd. of Lee County, Fla., 741 F. 2d 369, 374 (CA11 1984); S-1 v. Turlington, 635 F. 2d 342, 348, n. 9 (CA5), cert. denied, 454 U. S. 1030 (1981), and that the direct services ruling placed an intolerable burden on the State. We granted certiorari to resolve these questions, 479 U. S. 1084 (1987), and now affirm.
II
At the outset, we address the suggestion, raised for the first time during oral argument, that this case is moot.5 Under Article III of the Constitution this Court may only adjudicate actual, ongoing controversies. Nebraska Press Assn. v. Stuart, 427 U. S. 539, 546 (1976); Preiser v. Newkirk, 422 U. S. 395, 401 (1975). That the dispute between the parties was very much alive when suit was filed, or at the time the Court of Appeals rendered its judgment, cannot substitute for the actual case or controversy that an exercise of this Court‘s jurisdiction requires. Steffel v. Thompson,
Respondent John Doe is now 24 years old and, accordingly, is no longer entitled to the protections and benefits of the EHA, which limits eligibility to disabled children between the ages of 3 and 21. See
Our cases reveal that, for purposes of assessing the likelihood that state authorities will reinflict a given injury, we generally have been unwilling to assume that the party seeking relief will repeat the type of misconduct that would once again place him or her at risk of that injury. See Los Angeles v. Lyons, 461 U. S. 95, 105-106 (1983) (no threat that party seeking injunction barring police use of chokeholds would be stopped again for traffic violation or other offense, or would resist arrest if stopped); Murphy v. Hunt, supra, at 484 (no reason to believe that party challenging denial of pretrial bail “will once again be in a position to demand bail“); O‘Shea v. Littleton, 414 U. S. 488, 497 (1974) (unlikely that parties challenging discriminatory bond-setting, sentencing, and jury-fee practices would again violate valid criminal laws). No such reluctance, however, is warranted here. It is respondent Smith‘s very inability to conform his conduct to socially acceptable norms that renders him “handicapped” within the meaning of the EHA. See
We think it equally probable that, should he do so, respondent will again be subjected to the same unilateral school action for which he initially sought relief. In this regard, it matters not that Smith no longer resides within the SFUSD. While the actions of SFUSD officials first gave rise to this litigation, the District Judge expressly found that the lack of a state policy governing local school responses to disability-related misconduct had led to, and would continue to result in, EHA violations, and she therefore enjoined the state defendant from authorizing, among other things, unilateral placement changes. App. 247-248. She of course also issued injunctions directed at the local defendants, but they did not seek review of those orders in this Court. Only petitioner, the State Superintendent of Public Instruction, has invoked our jurisdiction, and he now urges us to hold that
We have previously noted that administrative and judicial review under the EHA is often “ponderous,” Burlington School Committee v. Massachusetts Dept. of Education, 471 U. S. 359, 370 (1985), and this case, which has taken seven years to reach us, amply confirms that observation. For obvious reasons, the misconduct of an emotionally disturbed or otherwise disabled child who has not yet reached adolescence typically will not pose such a serious threat to the well-being of other students that school officials can only ensure classroom safety by excluding the child. Yet, the adolescent student improperly disciplined for misconduct that does pose such a threat will often be finished with school or otherwise
III
The language of
Petitioner‘s arguments proceed, he suggests, from a simple, commonsense proposition: Congress could not have intended the stay-put provision to be read literally, for such a construction leads to the clearly unintended, and untenable, result that school districts must return violent or dangerous students to school while the often lengthy EHA proceedings run their course. We think it clear, however, that Congress very much meant to strip schools of the unilateral authority they had traditionally employed to exclude disabled students, particularly emotionally disturbed students, from school. In so doing, Congress did not leave school administrators powerless to deal with dangerous students; it did, however, deny school officials their former right to “self-help,” and directed
As noted above, Congress passed the EHA after finding that school systems across the country had excluded one out of every eight disabled children from classes. In drafting the law, Congress was largely guided by the recent decisions in Mills v. Board of Education of District of Columbia, 348 F. Supp. 866 (1972), and PARC, 343 F. Supp. 279 (1972), both of which involved the exclusion of hard-to-handle disabled students. Mills in particular demonstrated the extent to which schools used disciplinary measures to bar children from the classroom. There, school officials had labeled four of the seven minor plaintiffs “behavioral problems,” and had excluded them from classes without providing any alternative education to them or any notice to their parents. 348 F. Supp., at 869-870. After finding that this practice was not limited to the named plaintiffs but affected in one way or another an estimated class of 12,000 to 18,000 disabled students, id., at 868-869, 875, the District Court enjoined future exclusions, suspensions, or expulsions “on grounds of discipline.” Id., at 880.
Congress attacked such exclusionary practices in a variety of ways. It required participating States to educate all disabled children, regardless of the severity оf their disabilities,
Our conclusion that
Petitioner contends, however, that the availability of judicial relief is more illusory than real, because a party seeking review under
IV
We believe the courts below properly construed and applied
Affirmed.
CHIEF JUSTICE REHNQUIST, concurring.
I write separately on the mootness issue in this case to explain why I have joined Part II of the Court‘s opinion, and why I think reconsideration of our mootness jurisprudence may be in order when dealing with cases decided by this Court.
The present rule in federal cases is that an actual controversy must exist at all stages of appellate review, not merely at the time the complaint is filed. This doctrine was clearly articulated in United States v. Munsingwear, Inc., 340 U. S. 36 (1950), in which Justice Douglas noted that “[t]he established practice of the Court in dealing with a civil case from a court in the federal system which has become moot while on its way here or pending our decision on the merits is to reverse or vacate the judgment below and remand with a direction to dismiss.” Id., at 39. The rule has been followed fairly consistently over the last 30 years. See, e. g., Preiser v. Newkirk, 422 U. S. 395 (1975); SEC v. Medical Committee for Human Rights, 404 U. S. 403 (1972).
All agree that this case was “very much alive,” ante, at 317, when the action was filed in the District Court, and very probably when the Court of Appeals decided the case. It is supervening events since the decision of the Court of Appeals which have caused the dispute between the majority and the dissent over whether this case is moot. Therefоre, all that the Court actually holds is that these supervening events do
The Court implies in its opinion, and the dissent expressly states, that the mootness doctrine is based upon Art. III of the Constitution. There is no doubt that our recent cases have taken that position. See Nebraska Press Assn. v. Stuart, 427 U. S. 539, 546 (1976); Preiser v. Newkirk, supra, at 401; Sibron v. New York, 392 U. S. 40, 57 (1968); Liner v. Jafco, Inc., 375 U. S. 301, 306, n. 3 (1964). But it seems very doubtful that the earliest case I have found discussing mootness, Mills v. Green, 159 U. S. 651 (1895), was premised on constitutional constraints; Justice Gray‘s opinion in that case nowhere mentions Art. III.
If it were indeed Art. III which—by reason of its requirement of a case or controversy for the exercise of federal judicial power—underlies the mootness doctrine, the “capable of repetition, yet evading review” exception relied upon by the Court in this case would be incomprehensible.
The exception to mootness for cases which are “capable of repetition, yet evading review,” was first stated by this Court in Southern Pacific Terminal Co. v. ICC, 219 U. S. 498 (1911). There the Court enunciated the exception in the light of obvious pragmatic considerations, with no mention of
“The questions involved in the orders of the Interstate Commerce Commission are usually continuing (as are manifestly those in the case at bar) and their consideration ought not to be, as they might be, defeated, by short term orders, capable of repetition, yet evading review, and at one time the Government and at another time the carriers have their rights determined by the Commission without a chance of redress.” Id., at 515.
The exception was explained again in Moore v. Ogilvie, 394 U. S. 814, 816 (1969):
“The problem is therefore ‘capable of repetition, yet evading review.’ The need for its resolution thus reflects a continuing controversy in the federal-state area where our ‘one man, one vote’ decisions have thrust” (citation omitted).
It is also worth noting that Moore v. Ogilvie involved a question which had been mooted by an election, just as did Mills v. Green some 74 years earlier. But at the time of Mills, the case originally enunciating the mootness doctrine, there was no thought of any exception for cases which were “capable of reрetition, yet evading review.”
The logical conclusion to be drawn from these cases, and from the historical development of the principle of mootness, is that while an unwillingness to decide moot cases may be connected to the case or controversy requirement of
JUSTICE SCALIA, with whom JUSTICE O‘CONNOR joins, dissenting.
Without expressing any views on the merits of this case, I respectfully dissent because in my opinion we have no authority to decide it. I think the controversy is moot.
I
The Court correctly acknowledges that wе have no power under
Jurisdiction on the basis that a dispute is “capable of repetition, yet evading review” is limited to the “exceptional situatio[n],” Los Angeles v. Lyons, 461 U. S. 95, 109 (1983), where the following two circumstances simultaneously occur: “(1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party would be subjected to the same action again.” Murphy v. Hunt, 455 U. S. 478, 482 (1982) (per curiam), quoting Weinstein v. Bradford, 423 U. S. 147, 149 (1975) (per curiam). The second of these requirements is not met in this case.
For there to be a “reasonable expectation” that Smith will be subjected to the same action again, that event must be a “demonstrated probability.” Murphy v. Hunt, supra, at 482, 483; Weinstein v. Bradford, supra, at 149. I am surprisеd by the Court‘s contention, fraught with potential for future mischief, that “reasonable expectation” is satisfied by something less than “demonstrated probability.” Ante, at 318-319, n. 6. No one expects that to happen which he does not think probable; and his expectation cannot be shown to be reasonable unless the probability is demonstrated. Thus, as the Court notes, our cases recite the two descriptions side by
The prior holdings cited by the Court in a footnote, see ante, at 319, n. 6, offer no support for the novel proposition that less than a probability of recurrence is sufficient to avoid mootness. In Burlington Northern R. Co. v. Maintenance of Way Employes, 481 U. S. 429, 436, n. 4 (1987), we found
In Roe v. Wade, 410 U. S. 113, 125 (1973), we found that the “human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete,” so that “pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied.” Roe, at least one other abortion case, see Doe v. Bolton, 410 U. S. 179, 187 (1973), and some of our election law decisions, see Rosario v. Rockefeller, 410 U. S. 752, 756, n. 5 (1973); Dunn v. Blumstein, 405 U. S. 330, 333, n. 2 (1972), differ from the body of our mootness jurisprudence not in accepting less than a probability that the issue will recur, in a manner evading review, between the same parties; but in dispensing with the same-party requirement entirely, focusing instead upon the great likelihood that the issue will recur between the defendant and the other members
II
If our established mode of analysis were followed, the conclusion that a live controversy exists in the present case would require a demonstrated probability that all of the following events will occur: (1) Smith will return to public school; (2) he will be placed in an educational setting that is unable to tolerate his dangerous behavior; (3) he will again engage in dangerous behavior; and (4) local school officials will again attempt unilaterally to change his placement and the state defendants will fail to prevent such action. The Court spends considerable time establishing that the last two of these events are likely to recur, but relegates to a footnote its discussion of the first event, upon which all others depend, and only briefly alludes to the second. Neither the facts in
With respect to whether Smith will return to school, at oral argument Smith‘s counsel forthrightly conceded that she “cannot represent whether in fact either of these students will ask for further education from the Petitioners.” Tr. of Oral Arg. 23. Rather, she observed, respondents would “look to [our decision in this case] to find out what will happen after that.” Id., at 23-24. When pressed, the most counsel would say was that, in her view, the 20-year-old Smith could seek to return to public school because he has not graduated, he is handicapped, and he has a right to an education. Id., at 27. I do not perceive the principle that would enable us to leap from the proposition that Smith could reenter public school to the conclusion that it is a demonstrated probability he will do so.
The Court nevertheless concludes that “there is at the very least a reasonable expectation” that Smith will return to school. Ante, at 319, n. 6. I cannot possibly dispute that on the basis of the Court‘s terminology. Once it is accepted that a “reasonable expectation” can exist without a demonstrable probability that the event in question will occur, the phrase has been deprived of all meaning, and the Court can give it whatever application it wishes without fear of effective contradiction. It is worth pointing out, however, how slim are the reeds upon which this conclusion of “reasonable expectation” (whatever that means) rests. The Court bases its determination on three observations from the record and oral argument. First, it notes that Smith has been pressing this lawsuit since 1980. It suffices to observe that the equivalent argument can be made in every case that remains active and pending; we have hitherto avoided equating the existence of a case or controversy with the existence of a lawsuit. Second, the Court observes that Smith has “as great a need of a high school education and diploma as any of his peers.” Ibid. While this is undoubtedly good advice, it hardly estab
The conclusion that the case is moot is reinforced, moreover, when one considers that, even if Smith does return to public school, the controversy will still not recur unless he is again placed in an educational setting that is unable to tolerate his behavior. It seems to me not only not demonstrably probable, but indeed quite unlikely, given what is now known about Smith‘s behavioral problems, that local school authorities would again place him in an educational setting that could not control his dangerous conduct, causing a suspension that would replicate the legal issues in this suit. The majority dismisses this further contingency by noting that the school authorities have an obligation under the EHA to provide an “appropriate” education in “the least restrictive environment.” Ante, at 321. This means, however, the least restrictive environment appropriate for the particular child. The Court observes that “the preparation of an [individualized educational placement]” is “an inexact science at best,” ibid., thereby implying that the school authorities are likely to get it wrong. Even accepting this assumption, which seems to me contrary to the premises of the Act, I see no reason further to assume that they will get it wrong by making the same mistake they did last time—assigning Smith to too unrestrictive an environment, from which he will thereafter be suspended—rather than by assigning him to too restrictive an environment. The latter, which seems to me more likely than the former (though both combined are much less likely than a correct placement), might produce a law
III
THE CHIEF JUSTICE joins the majority opinion on the ground, not that this case is not moot, but that where the events giving rise to the mootness have occurred after we have granted certiorari we may disregard them, since mootness is only a prudential doctrine and not part of the “case or controversy” requirement of
THE CHIEF JUSTICE relies upon the fact that an 1895 case discussing mootness, Mills v. Green, 159 U. S. 651, makes no mention of the Constitution. But there is little doubt that the Court believed the doctrine called into question the Court‘s power and not merely its prudence, for (in an opinion by the same Justice who wrote Mills) it had said two years earlier:
“[T]he court is not empowered to decide moot questions or abstract propositions, or to declare . . . principles or rules of law which cannot affect the result as to the thing in issue in the case before it. No stipulation of рarties or counsel . . . can enlarge the power, or affect the duty, of the court in this regard.” California v. San Pablo & Tulare R. Co., 149 U. S. 308, 314 (1893) (Gray, J.) (emphasis added).
If it seems peculiar to the modern lawyer that our 19th-century mootness cases make no explicit mention of
“Considerations of propriety, as well as long-established practice, demand that we refrain from passing upon the constitutionality of an act of Congress unless obliged to do so in the proper performance of our judicial function, when the question is raised by a party whose interests entitle him to raise it.” Blair v. United States, 250 U. S. 273, 279.
See also, e. g., Standard Stock Food Co. v. Wright, 225 U. S. 540, 550 (1912); Southern R. Co. v. King, 217 U. S. 524, 534 (1910); Turpin v. Lemon, 187 U. S. 51, 60-61 (1902); Tyler v. Judges of Court of Registration, 179 U. S. 405, 409 (1900). The same is also true of our early cases dismissing actions lacking truly adverse parties, that is, collusive actions. See, e. g., Cleveland v. Chamberlain, 1 Black 419, 425-426 (1862); Lord v. Veazie, 8 How. 251, 254-256 (1850). The explanation for this ellipsis is that the courts simply chose to refer directly to the traditional, fundamental limitations upon the powers of common-law courts, rather than referring to
“By cases and controversies are intended the claims of litigants brought before the courts for determination by such regular proceedings as are established by law or custom for the protection оr enforcement of rights, or the prevention, redress, or punishment of wrongs. Whenever the claim of a party under the constitution, laws, or treaties of the United States takes such a form that the judicial power is capable of acting upon it, then it has become a case.” In re Pacific Railway Comm‘n, 32 F. 241, 255 (CC ND Cal. 1887).
“Docr. Johnson moved to insert the words ‘this Constitution and the’ before the word ‘laws.’
“Mr. Madison doubted whether it was not going too far to extend the jurisdiction of the Court generally to cases arising Under the Constitution, & whether it ought not to be limited to cases of a Judiciary Nature. The right of expounding the Constitution in cases not of this nature ought not to be given to that Department.
“The motion of Docr. Johnson was agreed to nem: con: it being generally supposed that the jurisdiction given was constructively limited to cases of a Judiciary nature.”
In sum, I cannot believe that it is only our prudence, and nothing inherent in the understood nature of “The judicial Power,”
It is assuredly frustrating to find that a jurisdictional impediment prevents us from reaching the important merits