Early Adversity Doctrine

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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.

The Supreme Court’s 1850 opinion in Lord v. Veazie is the seminal Supreme Court case establishing the adversity requirement.1 The defendant in Lord, John W. Veazie, wanted the legal right to use the Penobscot River in Maine for transportation and navigation.2 A gentleman named Moor, however, claimed to possess the sole right to navigate the river.3 Veazie therefore tried to obtain a judicial declaration that he, not Moor, had the right to use the river.4 Thus, Veazie and his brother-in-law,5 Nathaniel Lord, entered into a contract warranting that Veazie held “the right to use the waters of the Penobscot River.” 6 Lord then sued Veazie and asked the court to decide whether Veazie or Moor held the rights to the river.7

The Lord Court determined that the federal courts could not—and should not—adjudicate the case.8 The Court first explained that federal courts exist to resolve disputes between adverse parties.9 Manufacturing a lawsuit between non-adverse parties solely to obtain a judicial opinion deciding a legal question, according to the Court, was an abuse of the judicial system.10 Applying that principle to the facts of Lord, the Court observed that there was no true dispute between Lord and Veazie, as they entered into their contract solely to obtain a judicial determination regarding which person held the rights to use the Penobscot River.11 The Court further protested that Lord had not named the true adverse party to that controversy—namely, Moor—as a defendant in the case, and had not even informed Moor of the lawsuit.12 Thus, the case was a collusive suit between two friendly parties that offered Moor no opportunity to defend his interests.13

On various occasions during the remainder of the nineteenth century, the Supreme Court invoked the principles it applied in Lord to evaluate whether litigants were sufficiently adverse.14 It was not until its 1911 opinion in Muskrat v. United States,15 however, that the Court held that the rule against deciding cases between non-adverse parties had a constitutional dimension.16 The plaintiffs in Muskrat sought to invalidate certain federal statutes affecting the allotment of Indian lands.17 Congress passed a law purporting to authorize the plaintiffs—and only those plaintiffs—to challenge those statutes in federal court.18 The plaintiffs, invoking that law, sued the United States to determine whether the allotment statutes were constitutional.19 Even though Congress purported to authorize the plaintiffs to file their lawsuit in federal court,20 the Muskrat Court still concluded that the Judiciary lacked jurisdiction to decide the case.21 The Court, invoking Article III, stated that the judicial power conferred by the Constitution only authorizes the federal courts to decide “cases” and “controversies” 22 between adverse parties.23 The Court determined that the plaintiffs in Muskrat were not asking the courts to determine a controversy between adverse litigants as the Constitution contemplated.24 Although the plaintiffs had named the United States as the defendant in their case, the Court determined that the United States did not have any interest adverse to the plaintiffs.25 According to the Court, the plaintiffs were not trying to assert property rights against the government or obtain compensation for governmental wrongdoing;26 instead, the plaintiffs merely sought a judicial declaration that a federal law was invalid.27 The Supreme Court thus decided that Article III prohibited the federal courts from adjudicating the plaintiffs’ constitutional challenge.28 The Court further determined that the federal law purporting to authorize the plaintiffs to bring their lawsuit in federal court was invalid because it would require the courts to take a nonjudicial action:29 resolving legal issues without an “actual controvers[y] arising between adverse litigants.” 30 The Court therefore ruled that Article III forbade the federal courts from deciding the constitutional issues in Muskrat until they arose in the context of a suit between true adversaries.31

The Supreme Court continued to insist on an adversarial controversy between litigants as a prerequisite to federal jurisdiction on various occasions throughout the mid-twentieth century.32 For instance, in the 1943 case of United States v. Johnson, the Court ruled that the district court should have dismissed a lawsuit as collusive because the plaintiff had “instituted [the proceeding] as a ‘friendly suit’ at [the] appellee’s request” in order to test a statute’s validity.33 The Court ruled in its 1937 opinion in Aetna Life Insurance Co. of Hartford, Connecticut v. Haworth, by contrast, that a particular insurance dispute was justiciable because the insurer and the insured had genuinely adverse interests.34

1: 49 U.S. (8 How.) 251 (1850).
2: Id. at 252.
3: Id. at 251.
4: See id. at 252.
5: Id. at 253 ( “[T]he plaintiff in error is the son-in-law, and the defendant in error is the son, of said Samuel Veazie.” ).
6: Id. at 252.
7: Id.
8: See id. at 256 (holding that the judgment issued by the lower court was “a nullity and void” ).
9: See id. at 255 ( “It is the office of courts of justice to decide the rights of persons and of property, when the persons interested cannot adjust them by agreement between themselves,—and to do this upon the full hearing of both parties.” ).
10: See id. ( “[A]ny attempt, by a mere colorable dispute, to obtain the opinion of the court upon a question of law which a party desires to know for his own interest or his own purposes, when there is no real and substantial controversy between those who appear as adverse parties to the suit, is an abuse which courts of justice have always reprehended, and treated as a punishable contempt of court.” ).
11: See id. at 254 ( “The court is satisfied . . . that the contract set out in the pleadings was made for the purpose of instituting this suit, and that there is no real dispute between the plaintiff and defendant. On the contrary, it is evident that their interest in the question brought here for decision is one and the same, and not adverse; and that in these proceedings the plaintiff and defendant are attempting to procure the opinion of this court upon a question of law.” ).
12: See id. ( “[T]he 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 as opposed to that of other persons, who are not parties to this suit, who had no knowledge of it while it was pending in the Circuit Court, and no opportunity of being heard there in defence of their rights.” ).
13: See id. ( “[T]heir conduct is the more objectionable, because they have brought up the question upon a statement of facts agreed on between themselves, without the knowledge of the parties with whom they were in truth in dispute.” ).
14: Compare, e.g., Chicago & Grand Trunk Ry. v. Wellman, 143 U.S. 339, 345 (1892) ( “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 [a] legislative act.” ); Cleveland v. Chamberlain, 66 U.S. 419, 425–26 (1861) ( “This appeal must be dismissed. Selah Chamberlain is, in fact, both appellant and appellee. . . . There is no material difference between this case and that of Lord vs. Veazie[.] . . . It is plain that this is no adversary proceeding, no controversy between the appellant and the nominal appellee.” ), with, e.g., Pollock v. Farmers’ Loan & Tr. Co., 15 S. Ct. 673, 674–75, 679 (1895) (determining that a particular lawsuit between a company and its stockholders “was not a collusive one” ), vacated, 158 U.S. 601 (1895).
15: 219 U.S. 346 (1911).
16: See Martin H. Redish & Andrianna D. Kastanek, Settlement Class Actions, The Case-or-Controversy Requirement, and the Nature of the Adjudicatory Process, 73 U. Chi. L. Rev. 545, 567 (2006) (describing Muskrat as “[t]he leading decision” for the proposition “that the case-or-controversy language of Article III mandates litigant adverseness” ).
17: 219 U.S. at 348–49.
18: Id. at 350–51, 361–62.
19: Id. at 348–50.
20: Id. at 360.
21: Id. at 363.
22: Id. at 351, 361 (quoting U.S. Const. art. III, § 2).
23: Id. at 361.
24: Id.
25: Id.
26: Id.
27: See id. at 361–62 (explaining that the plaintiffs sought “to determine the constitutional validity of [a] 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” ).
28: Id.
29: Id. at 362.
30: Id. at 361.
31: Id. at 362 ( “The questions involved in this proceeding as to the validity of the legislation may arise in suits between individuals, and when they do and are properly brought before this [C]ourt for consideration they, of course, must be determined in the exercise of its judicial functions.” ). That is not to say, however, that Article III categorically precludes plaintiffs from filing lawsuits to challenge a statute’s constitutionality. See, e.g., MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 129 (2007) (explaining that Article III does not forbid plaintiffs from “seek[ing] a declaratory judgment regarding the constitutionality of a . . . statute” ) (citing Steffel v. Thompson, 415 U.S. 452, 458–60 (1974)). See also Judgment, Black’s Law Dictionary (11th ed. 2019) (defining a “declaratory judgment” as “a binding adjudication that establishes the rights and other legal relations of the parties” ).
32: See, e.g., Flast v. Cohen, 392 U.S. 83, 100 (1968) (noting “the rule that federal courts will not entertain friendly suits or those which are feigned or collusive in nature” ) (internal citation omitted); Poe v. Ullman, 367 U.S. 497, 505 (1961) (Frankfurter, J.) (discussing “the Court’s refusal to entertain cases which disclosed a want of a truly adversary contest, of a collision of actively asserted and differing claims” ).
33: 319 U.S. 302, 303–05 (1943).
34: See 300 U.S. 227, 242 (1937) ( “There is here a dispute between parties who face each other in an adversary proceeding. The dispute relates to legal rights and obligations arising from the contracts of insurance. . . . Prior to this suit, the parties had taken adverse positions with respect to their existing obligations. Their contentions concerned the disability benefits which were to be payable upon prescribed conditions. On the one side, the insured claimed that he had become totally and permanently disabled and hence was relieved of the obligation to continue the payment of premiums and was entitled to the stipulated disability benefits. . . . On the other side, the company made an equally definite claim that the alleged basic fact did not exist, that the insured was not totally and permanently disabled and had not been relieved of the duty to continue the payment of premiums[.] . . . Such a dispute is manifestly susceptible of judicial determination.” ). See also ArtIII.S2.C1.4.1 Overview of Advisory Opinions (discussing other aspects of Aetna's holding).