Alexander Bickel, The Supreme Court 1960 Term Foreword: The Passive Virtues, 75 HARV. L.

REV 40 (1961)

- He emphasized the choices open to the Court in deciding whether, when, and how much to adjudicate (devices, tools, or techniques in
avoiding constitutional adjudication on the merits), which he termed as “Passive virtues” for the limitation of judicial review

-He said that there is a need for justiciability doctrines, to avoid hard and divisive constitutional questions.

-This is also to allow the Court to preserve its political capital for essential cases; Avoid unnecessary entanglement in controversial and sensitive
constitutional and political issues, protecting the judiciary from potential backlash by the political branches and preserving the Court’s role as
the protector of established constitutional principles.

- For the context, the case or controversy requirement rooted from when Pres. George Washington requested the court for guidance as to how
best to maintain neutrality, during an outbreak of hostilities between England and France, consistent with international law and treaties to which
the United States was a party.

Article III, Section 2:

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.

- Chief Justice Jay said that the Constitution authorized the Court to interpret the law only in the context of a real case or controversy; it had no
power to render an advisory opinion about the law.

- At that time, this view was not shared by many state supreme courts, which often do issue advisory opinions.

CASE OR CONTROVERSY

-Expounding on the case or controversy requirement, he cited what Judge Marshall said in Marbury vs Madison case, if judiciary's power to
construe and enforce the Constitution against the other departments is to be deduced from the obligation of the courts to decide cases
conformably to law, which may sometimes be the Constitution, then that the power may be exercised only in a case.

-Hence, court should make no pronouncements in the large and in the abstract, by way of opinions advising the other departments upon
request; should not decide cases which are not adversary situations and such advisory opinion do not result any immediate consequence to the
parties.

(Isagani Cruz: Actual case or controversy involves conflict of legal rights, assertion of opposing legal claims, susceptible of judicial resolution; Must
not be moot or academic; Must show contrariety oof legal rights that can be interpreted and enforces on the basis of existing law and
jurisprudence; Not hypothetical or abstract; Counseling by courts or the issuance of advisory opinion is contrary to the doctrine of separation of
powers)

Elements: Standing, Ripeness, Mootness, Political Question

STANDING

- He cited the case that gave rise to the concept of “no case, Ashwander v. TVA, where a shareholder sought to enjoin the corporation from
carrying out a contract with the allegedly unconstitutional Tennessee Valley Authority.

-Court said that Tthere was no showing of financial loss, the shareholder stood neither to lose nor to gain from the suit. Although he may have
had an abstract interest. There was no injury, either material or to a right independently created by law or by the Constitution.

-(Isagani Cruz: Proper party-sustained or in immediate danger of sustaining an injury as a result of the act complained of)

RIPENESS

-A question is ripe for adjudication when the act being challenged has had a direct adverse effect on the individual challenging it.

-He cited the Poe vs Ullman 1961 case challenging the Connecticut law banning the sale, dissemination, and use of contraceptive, the Court on a 5
to 4 vote dismissed the action for lack of a case or controversy. It was because there was no pending prosecution under the challenged law, that
only one prosecution had ever been brought under the law, and that contraceptives were openly sold in Connecticut drugstores.

- Hence, the Court (Justice Frankfurter) concluded that the plaintiffs failed to show the real threat of prosecution necessary to have their case
heard.

-Also citing Tileston vs Ullmann, where the physician questioned the constitutionality of the law prohibiting the use of contraceptives, but the
Court held that it was the patients and not him who was the proper party.

MOOTNESS

- Moot when a question that once affected the rights of litigants, no longer does, therefores, non-justiciable.
- Ex.: Challenges to convictions after the convict has died; Legality of a war that has ended, Restrictions placed on a business that has since closed

(A case or issue is considered moot and academic  when it ceases to present a justiciable controversy by virtue of supervening events, so that an
adjudication of the case or a declaration on the issue would be of no practical value or use)

(Isagani Cruz: Courts will decide cases otherwise moot and academic, if 1) Grave violation of Consti; 2) Exceptional character of case and paramount
public interest is involved; 3) Requires formulation of controlling principles; 4) Capable of repetition yet evading review)

POLITICAL QUESTION

-The political-question doctrine is potentially the widest and most radical avenue of escape from adjudication.

- Discretionary category

(-to those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the legislative or executive branch of the government. It is concerned with issues dependent upon the
wisdom, not the legality of a particular measure.")