Article III and Alternative Holdings

Abstract

Often federal courts, especially district courts, will provide both a central reason for why one party loses and an additional reason, too. So-called “alternative holdings” are thought to “reverse-proof” a judgment—that is, provide a reviewing court with multiple reasons to affirm the decision below. There is no question that when alternative holdings concern solely non-jurisdictional issues, they can serve as valuable tools of judicial administration. Problems arise, however, when a federal court concludes that it lacks Article III jurisdiction yet holds in the alternative that even if it possessed Article III jurisdiction the plaintiff’s claim would still fail on the merits.

Article III of the federal Constitution permits federal courts to decide only “Cases” and “Controversies.” Without Article III jurisdiction, a federal court has a singular duty to dismiss the action. Defying that duty may result in the court issuing a prohibited advisory opinion—adjudicating the merits of a claim where the court lacks jurisdiction to entertain the claim in the first place. Despite the constitutional prohibition on issuing advisory opinions, federal courts have seen fit to provide an alternative non-jurisdictional holding warranting dismissal even after concluding that no Article III jurisdiction exists. Indeed, as this Article demonstrates, federal district courts engage in this practice with frequency.

In response to this frequent practice, this Article contends that federal courts overstep their constitutional bounds when they conclude that no Article III jurisdiction exists but then proceed to provide an alternative non-jurisdictional holding. A federal court, in other words, issues a prohibited advisory opinion when it concludes that it lacks Article III jurisdiction but then provides in the alternative that the plaintiff loses for a non-jurisdictional reason, too. This Article argues that a federal court should halt all discussion of non-jurisdictional matters as soon as the court concludes that it lacks Article III jurisdiction. Formalistic as this rule may seem, failure to respect it can result in courts exercising judicial power not granted by Article III.