The Demise of Hypothetical Jurisdiction in the Federal Courts

It is a basic principle of federal judicial power that an Article III court may not adjudicate a dispute without first verifying its subject matter jurisdiction. By the mid-1990s, however, every federal court of appeals had adopted the practice of hypothetical jurisdiction, which allowed a court to bypass subject matter jurisdiction and enter judgment on the merits, where jurisdiction appeared difficult but the merits could be easily resolved against the party asserting jurisdiction. In 1998, the Supreme Court attempted to repudiate this practice. But the scope of the repudiation was not cleary delineated, and the Court left unresolved a number of issues and left intact several potential means of avoiding the repudiation. In this Article, Professor Idleman not only recounts the life and death of hypothetical jurisdiction, from its emergence and unprincipled expansion in the lower courts to its attempted interment, but also examines what these developments reveal about the nature and character of the federal judiciary. In addition to detailing the circumstances, merits, and possible scope of the practice's repudiation, the Article explains why the practice attracted the judicial following that it did, and why, despite the Court's efforts, the practice may persist in the jurisdictional decisionmaking of the federal courts. In so doing, the Article examines five possible techniques by which these courts may attempt to sidestep the repudiation. The Article also explores the deeper significance of both the doctrine and its repudiation, particularly in terms of the institutional responsibility and jurisprudential methodology of the Supreme Court. I. INTRODUCTION Recent years have witnessed a modest but expanding Supreme Court effort to return the national government to its structural first principles.1 Foremost among these is that federal power, although vast, is neither inherent nor unbounded, but consists only of that granted by the Constitution.2 In 1998, the Court remained steadfast to this precept, thwarting yet another attempt by a federal branch to exceed its limited and enumerated constitutional powers. This time, however, the perpetrator was none other than the Article III judiciary itself. In Steel Co. v. Citizens for a Better Environment,3 the Court formally denounced the federal court practice of assuming the existence of subject-matter jurisdiction solely to reach the merits of, and then rule against, manifestly unworthy claims. Often labeled "hypothetical jurisdiction,"4 the now-repudiated practice had gradually infiltrated the decision making of every circuit court of appeals,5 becoming nothing less than "a familiar tenet"6 or "settled principle"7 of federal appellate jurisprudence.8 Notwithstanding its relative popularity among lower court judges, the doctrine of hypothetical jurisdiction was so clearly deviant from the constitutional mandate that federal judicial power may only be exercised-and indeed only exists-with the presence of subjectmatter jurisdiction that its eventual invalidation by the Supreme Court was all but inevitable.9 The federal courts, after all, are simply one branch of a tripartite government of limited and enumerated powers,10 and it has long been held that their jurisdiction cannot "be expanded by judicial decree"11 and should be "carefully guarded against expansion by judicial interpretation."12 To be sure, the federal judiciary has itself not hesitated to strike down the actions of a coequal branch where that branch defended its exercise of seemingly extraconstitutional power exclusively on hypothetical grounds.13 In this respect, Steel Co. is the judicial equivalent to the watershed 1995 case of United States v. Lopez,14 in which the Court struck down the federal criminalization of gun possession within school zones, in no small part because Congress's interstate commerce power was essentially being exercised on a hypothetical, and not an empirical, basis.15 Despite the outward correctness of the Court's position in Steel Co. …