Formal and Discretionary Barriers in Judicial Policy Making 

According to Banks and O’Brien (2008), barriers to access courts are normally imposed at the preliminary stages of a case where the rights of the litigants to file a suit is determined.

Normally, the courts will tackle the preliminary issues of public policy before requiring that the litigants satisfy barriers such as the question of legal standing and mootness and ripeness.

Courts therefore exercises their authority by erecting barriers to determine whether a litigant is in the right with their jurisdiction. Such barriers have been classified into formal and discretionary. Both will herein be discussed independently.

Formal Barriers in Judicial Policy Making 

Formal barriers are those that are provided for under the law. They can be found in the constitution or case law. One of the provisions of the law that erects a barrier against certain types of litigations is Article III of the US Constitution. The said article empowers the courts to dismiss the so-called friendly litigations.

By definition, friendly lawsuits are those lawsuits that present no adverse interests of the parties. In the same regard, courts are not supposed to speculate, that is, offer advice on cases that are merely hypothetical.

A good example of this was seen in the 1973 case when the United States Supreme Court turned down a request by the then Secretary of State to advice the then president, George W. Bush, regarding the interpretation of international law.

On the constitutional avoidance, the best authority is the case of Ashwander v Tennessee Valley Authority (1936). In this case, the Supreme Court developed various principles to act as barriers against responding to certain constitutional questions.

Among the principles include the principle that court will not entertain any lawsuit with respect to the constitutionality of a legislation passed in a friendly as well as none adverse manner. In addition, courts are not supposed to preempt a question of constitutional law before the circumstances necessitating its decision. Moreover, the courts will not broaden the scope of any question of constitutional interpretation beyond the facts to which such interpretation is to apply.

Another principle developed in the case is to ensure that should there be another ground upon which a matter can be dispensed properly with or without the court passing on a constitutional question then that other method will be pursued instead.

These are just but some of the principles of constitutional avoidance that clearly erects barriers against a certain class of lawsuits.

Discretionary Barrier in Judicial Policy Making

The discretionary barriers permit the courts to choose to exercise restraint and refuse to allow any litigant access to the courts if the lawsuit is not justiciable. However, if the case is justiciable and the litigant approaches the court for audience, then he may be allowed access. In such a case, the litigant is said to have properly invoked the court’s jurisdiction.

Some of the discretionary barriers include the law on standing, mootness and ripeness and the political question doctrine. The law on standing demands that before the court can grant the litigant an audience, he/she must prove a personal stake or interest in the outcome of the case.

If they have none, they will be denied access to the courts. As for the case of mootness, a court may dismiss a lawsuit if the controversy behind the suit has ceased from being definite and concrete. In other words, the adverse interests of the parties have since been overtaken by events and there is no more conflict between the disputants.

Closely related is the principle of ripeness. Here, the court may dismiss a lawsuit on grounds that it is either inept- that is, the applicant sues before the occurrence of the expected injury, or the applicant has not yet fully exhausted other avenues to settle the matter.

Finally, the political question doctrine stems from the principle that courts are not there to answer to political questions but to determine the rights of the parties involved.

Therefore, as was established in the case of Marbury v Madison (1803), courts should not be called upon to determine political questions regarding executive or legislative actions which those bodies have discretionary powers to so act but to determine the interests of each party should there be a complaint.

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