Justiciability at the Court’s Discretion—A Brief Comment on County of Santa Clara v. Donald Trump

A federal court recently issued an injunction against Section 9(a) of Executive Order 13768, known as the Sanctuary Cities order. The County of Santa Clara and City and County of San Francisco (“the Counties”) sought the injunction, arguing that the Sanctuary Cities order violates separation of powers by vesting the Executive with congressional spending powers, violates the Tenth Amendment by attempting to commandeer local jurisdictions, and violates the Due Process Clause as it is impermissibly vague. The Counties needed to demonstrate that they would face immediate irreparable harm absent an injunction in order to show constitutional standing for an order by the court enjoining enforcement of the Section 9(a) of the Sanctuary Cities order.

The district court’s opinion relies on the uncertain application of the Sanctuary Cities order, some public statements made by the Trump administration regarding sanctuary cities in California, among them Santa Clara and San Francisco, and the Counties’ claim that they face a present injury in the form of “budgetary uncertainty.” The district court held that the Counties demonstrated a likelihood of success on the merits and that they face immediately irreparable harm absent the injunction.

The Government argued that no credible or direct threat of enforcement against Santa Clara or San Francisco had been issued by the Executive and that “budgetary uncertainty” was too abstract an injury to satisfy the injury in fact requirement to the Counties’ standing to pursue the injunction. The district court was unpersuaded by the Government’s arguments.

Whether and to what extent the district court ruled correctly is up for debate. It is worth noting here that standing remains an elusive judicial concept. Though courts consider standing a constitutional mandate which limits judicial power to adjudicate a matter, courts across the United States inconsistently apply standing, both its constitutional and prudential requirements. The United States Supreme Court once admitted: “We need not mince words when we say that the concept of Art. III standing has not been defined with complete consistency in all of the various cases decided by this Court.” Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464, 475 (1982).

Consider, for example, City of Los Angeles v. Lyons, 461 U.S. 95 (1983). Law enforcement officers pulled Adolph Lyons (a black male) over for a minor traffic violation. During the stop, officers ordered Lyons out of his vehicle and ordered him to his knees with his hands behind his head. After Lyons complied, an officer aggressively grabbed Lyons’ hands, at which point Lyons complained that his car keys were rubbing into his head. The officer then placed Lyons in a choke-hold until Lyons went unconscious. He regained consciousness, spitting up blood and dirt, and found that he had urinated and defecated in his pants. The officers issued him a traffic citation and released let him go.

Lyons sued the City of Los Angeles for constitutional violations, seeking damages, and also sought declaratory and injunctive relief. The evidence demonstrated that LAPD officers were authorized to deploy a choke-hold at their discretion and that officers were trained to maintain the hold until the suspect goes limp, that officers were instructed that a choke-hold could be maintained up to four minutes, but were never told that the choke-hold method could cause death if applied for just two seconds. The evidence also demonstrated that sixteen people had died as a result of LAPD’s choke-hold policy, twelve of whom were black males, and nine of those deaths followed a mere forty second choke-hold. The district court issued a preliminary injunction against LAPD’s choke-hold policy, holding that the use of such choke-holds constitutes “deadly force” and that the city may not constitutionally authorize the use of deadly force “in situations where death or serious bodily injury is not threatened.” The decision was affirmed by the Ninth Circuit Court of Appeals.

In a 5-4 decision, the United States Supreme Court reversed. A litigant is required to show a real and immediate threat of injury, not conjectural or hypothetical. The Court reasoned from precedence that past illegal conduct provides evidence bearing on whether a real and immediate threat of repeated injury exists, but that, in cases such as Lyons, the prospect of future harm is tied to the likelihood that Lyons, personally, would again be subject to the choke-hold policy. In order to show standing, Lyons would have to allege that he would have another encounter with LAPD and “either (1) that all police officers in Los Angeles always choke any citizen with whom they happen to have an encounter, whether for purpose of arrest, issuing a citation, or for questioning, or (2) that the City ordered or authorized police officers to act in such a manner. Even though Lyons alleged that choke-holds were authorized, the Court reasoned that Lyons did not indicate why he, personally, might be realistically threatened by police officers.

The Court placed importance on an assumption from an early and similar case, Oshea v. Littelton. The Court in Oshea held plaintiffs lacked standing to pursue an injunction against illegal bond-setting, sentencing, and jury fee practices in criminal cases in Ciao, Illinois.  When dealing with prospect of future injury, the Court reasoned: “We assume that [the plaintiffs] will conduct their activities within the law and so avoid prosecution and conviction as well as exposure to the challenged course of conduct. . . .” The Lyons Court repeated this assumption.

Back to County of Santa Clara v. Trump. What makes the Counties’ situation distinguishable from Lyons or Oshea’s situations? What about the court’s reasoning in County of Santa Clara marks some distinction in future prospect of harm to the Counties, compared to the prospect of future harm to Lyons or Oshea? These are all questions that will likely play a role on Appeal. These are also questions which jurists must consider generally when considering how standing principles apply to different cases. These are also questions whose answers at time become question-begging due to the elusive nature of standing. 

The order from the United States District Court for the Northern District of California can be found on the court's website: https://www.cand.uscourts.gov/who/sanctuary-litigation

What The Hyper-Partisan Judicial Confirmation Process Tells Us About The “Least Dangerous Branch”

Chief Justice Roberts Speaks About Partisanship in Judicial Nomination Process

Alexander Hamilton famously argued that the judiciary was the “least dangerous branch.” One might have anticipated this argument, seeing as it comes at the tail end (No. 78 of 85) of other pressing issues addressed in The Federalists Papers. Federalist No. 78 addressed life tenure for federal judges. Periodic elections provide some check on the Legislative and Executive branches. But, periodical elections also give rise to electoral pathologies, which stem from a strong desire to minimize electoral competition and retain power. The judiciary, according to Hamilton, needed to be free from these pathologies because it was the branch of government, as Hamilton puts it, that mediated between the will of the people as expressed by their representatives through statutes or regulations and the will of the people as expressed directly through the Constitution—Hopefully Hamilton understood that the Constitution was also part of a legislative process and was also merely an expression of a group of guys who “represented” the people. 

So, life tenure would not be so bad for judges since they would be free from competitive politics, right? Maybe not. Chief Justice John Roberts recently voiced concern over the hyper-partisan judicial nomination process, which, he believes, taints public perception of judicial activity. Judges, according to Roberts, are not engaged in institutional politics. But the public at large might not understand or know this when what people see is a fight to get one or another parties’ nominee confirmed at any and all costs, even stalling, indefinitely if necessary, the nomination process. 

Chief Justice Roberts raises a valid concern, but he understates the problem.  The judicial confirmation process may influence a certain perception about one or another judge’s political persuasion. But that is only a perception. Judicial opinions in many cases confirm or refute those perceptions. These perceptions are more likely confirmed in split-decisions—when the court splits 5-4 with Republican appointees on one side and Democratic appointees on the other, or vice-versa—and more likely refuted in unanimous decisions. 

Cases involving the scope of constitutional rights and weight of societal goals or norms and where deep-seated and intractable disagreements over both persist among citizens—the breadth of Second Amendment rights in the face of a societal goal to quell gun violence; the scope of an individual’s right to Equal Protection under the law in the face of a small business owner’s deeply-held religious belief against that individual’s sexual activity—complicate the matter. Split decisions not only confirm partisan suspicions in the “losing” side, but fuel public distrust in the judiciary and cynicism toward representative government. Unanimous decisions, though perhaps not refuting partisan suspicions in every instance and for every person, also fuel cynicism toward representative government, as the “losing side” is left asking how nine people in robes can have the final say—barring an improbable supermajority overturning the decision by Article V Amendment—in a matter that affects over 300 million people and over which disagreement persists?

The problem with partisanship in the federal nomination process is not merely that it taints public perception of judicial activity, but that it draws attention to the political nature of the judiciary, itself just another branch of government. The public becomes aware of appointment pathologies in the judiciary, which mirror electoral pathologies. The path from attorney to federal district court judge to federal appellate judge to United States Supreme Court justice requires investing in party elites and championing party platforms and these pathologies may play a permanent role in a judge’s judgment. See Daniel R Correa, Taking Democracy Seriously: Toward a Jury-Centered Jurisprudence, 22:2 Va. J. Soc. Pol’y & L. 307, 337-340 (2015); Bruce Cain, Redistricting Commissions: A Better Political Buffer?, 121 YALE L. J. 1808, 1836 (2012) (arguing that empirical evidence exists to support the argument that judges in redistricting cases tend to favor the party that elected or appointed them); see also Randall D. Lloyd, Separating Partisanship from Party in Judicial Research: Reapportionment in the U.S. District Courts, 89 AM. POL. SCI. REV. 413, 417 (1995). 

In States like Texas where judges are elected at every level, the matter is further complicated. Elected judges are directly subject to electoral pathologies. Still, the judiciary and legal practitioners expect or hope that people will believe that judges are completely immune to partisanship. So long as all judges are human beings, they are not immune.

Partisanship fuels American government as much today as in the past; however, inquiries into partisanship ills most often center on the Legislative and Executive branches, where the effects of partisanship are clearly visible. In a tripartite government, the manifestations and negative effects of partisanship must be thoroughly examined in every branch. The investigation, in fact, may be more pressing in the judiciary, where partisanship is not always visibly manifested, either due to a conscious effort by the judiciary or the legal profession, or both, to mask judicial partisanship, or an unconscious and unwarranted belief in the superhuman capacity of judges to be free of partisanship. 

In Federalist No. 10, James Madison located the root cause of partisanship in human nature: “As long as [human] reason . . . continues fallible, and [people are] at liberty to exercise it, different opinions will be formed. As long as the connections subsists between [each person’s] reason and his [or her] self-love, [each person’s] opinions and . . . passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves. . . . The latent causes of faction are thus sown in [human] nature . . . and we see them every where brought into different degrees of activity, according to the different circumstances of civil society.” Judicial activity is obviously included here, but Madison’s focus was on the Legislative branch.  

Madison argued in Federalist No. 10 that the negative effects of factions would be mitigated by “expanding the sphere” of representation. With a large representative pool in the National Government, Madison argued, it would be extremely difficult for any localized faction to garner permanent majority support: “Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discovery their own strength, and to act in unison with each other. . . The influence of factious leaders may kindle a flame within their particular states, but will be unable to spread a general conflagration through the other states. . . .”

Whatever the merits of Madison’s observations, Chief Justice Roberts made abundantly clear: “It’s not our job to represent the people of the United States. Our job is to interpret the law to the best of our ability.” (As an aside, Chief Justice Roberts’ observation concerning the non-representative nature of judges probably invoked a cry of “taxation without representation” in opponents of his Affordable Care Act opinion in National Federation of Independent Business v. Sebelius.) What should citizens make of Roberts’ statement? 

Let’s assume Madison is right about expanded representation, i.e., that it remedies baneful effects of partisanship or faction. Let’s also assume Roberts is right that the judiciary does not represent people, a position held by other jurists. See e.g., Alexander Bickel, The Least Dangerous Branch 24 (Yale Univ. Press, 2d ed. 1986); Erwin Chemerinski, Evaluating Judicial Candidates, 61 S. Cal. L. Rev. 1985, 1988 (1988) (judges represent the law); Wells v. Edwards, 347 F. Supp. 453, summarily aff’d, 409 U.S. 1095 (1973) (judges are servants rather than representatives of people) (affirming district court ruling that the principle of one-person, one-vote arose out of democratic concerns to “preserve truly representative government,” which is not relevant to judiciary makeup). Accepting that partisanship is a permanent part of American politics, deeply infused in every branch of government, what can be done to control the effects of partisanship in the judiciary?  

This question, I submit, is under-investigated or over-neglected and is perhaps one of the most important in a democratic society. This question is not easily brushed aside, as some like to image, by charging that the United States is a Republic, not a Democracy. Madison tried to distinguish between what he considered a “pure democracy,” by which he meant direct democracy, and a Republic, by which he meant a scheme of representative government, i.e., representative democracy. See Federalist No. 10. The difference Madison identified is largely procedural. “In its original Greek form (dēmokratia), democracy meant that ‘the capacity to act in order to effect change’ (kratos) lay with a public (dēmos) composed of many choice making individuals.” See Josiah Ober, Democracy and Knowledge: Innovation and Learning in Classical Athens 12 (Princeton Univ. Press 2008). The “many choice making individuals” did not require direct participation in law making. In fact, Ancient Athens relied on representative bodies—the jury in the People’s Court and the citizen Assembly. Douglas M. MacDowell, The Law in Classical Athens 33–35 (Cornell Univ. Press 1978); Mogens Herman Hansen, The Athenian Democracy in the Age of Demosthenes 181–86 (J.A. Crook trans., Univ. of Oklahoma Press 1999). As Robert Dahl once noted, the difference between “Democracy” and “Republic” is language, the latter Latin term bears little substantive difference from the former Greek term. See Robert Dahl, Democracy and Its Critics (Yale Univ. Press 1989).

Central to both direct and representative government schemes is the substantive notion that people should be governed by laws they choose. Since the United States is a Constitutional Democracy, there are obvious limits to legislative power—the people cannot choose laws that abrogate constitutionally protected rights, although a supermajority can amend the constitution to abrogate rights. “Tyranny of the majority” is often the rallying cry in favor of judicial review of legislation. But this charge is often unwarranted because its proponent’s often fail to account for the judiciary being infected with the same prejudices or irrational passions of the majority or pathological loyalty to party platforms or to political elites. There are also other problems with the “tyranny of the majority” mantra. See Daniel R. Correa, Taking Democracy Seriously: Toward a Jury Centered Jurisprudence, 22:2 Va. J. Soc. Pol’y & the Law 307 (2015).

Contemporary American Jurisprudence must focus on how to mitigate the effects of partisanship in the judiciary, whether judges are appointed or elected, perhaps especially if they are elected. Citizen jury panels provide a great starting point. How can we better utilize jury panels, as representatives of their respective communities, to temper the effects of judicial partisanship? 

  

It is also important to look at the power of judicial review. There are alternatives to strong-judicial review—a practice whereby the judiciary reviews legislation with an option to decline to apply it and invalidate it. Other legislation review procedures closely hewn to democratic norms may replace strong-judicial review, even a weaker form of judicial review, a form of review designed to make a legislative body aware that some legislation may not conform to individual rights without judicial power to invalidate the legislation. 

If anything good comes from hyper-partisanship in the federal judicial nomination process, it is that people pay attention to the judiciary.  This time is as good as any to place the judiciary under a microscope and consider institutional changes.

The Implications of Subject-Matter Jurisdiction—Engelman Irrigation District v. Shields Brothers, Inc.

Link to the Engelman Opinion

            Subject-matter jurisdiction speaks to a court’s statutory or constitutional power to adjudicate a case. Various justiciability doctrines lie under the subject-matter jurisdiction umbrella, such as standing, mootness, ripeness, the political question doctrine, and prohibition against advisory opinions. Stated another way, these various justiciability doctrines implicate subject-matter jurisdiction. 

            The Texas Supreme Court recently brought into question the very nature of subject-matter jurisdiction, perhaps inadvertently, in Engelman Irrigation District v. Shields Brothers, Inc. There the Court held, in part, “Sovereign immunity implicates a court’s subject matter jurisdiction, but their contours are not coextensive.” There is a lot more to the court’s holding, but this brief article focuses on (1) what the court means by “sovereign immunity implicates a court’s subject matter jurisdiction," and (2) how the answer to this question informs subject-matter jurisdiction's scope and contours. Fortunately, the Court’s ultimate holding and conclusion do not intimately depend on its standing analysis. The res judicata doctrine resolved this case.

            The following theme drives the analysis herein: subject-matter jurisdiction concerns constitutional limits to judicial power; res judicata concerns judicial power necessary to act within constitutional limits.

            Engelman Irrigation District v. Shields Brothers, Inc.

                        Background Facts

            In 2010, Engelman Irrigation District (EID) brought suit against Shields Brothers, Inc., seeking a judgment declaring void a final judgment from a 1992 suit by Shields Brothers, Inc. against Engelman Irrigation District.  EID raised a governmental immunity defense in the 1992 suit. The trial court denied the immunity defense and the court of appeals affirmed the denial. The Texas Supreme Court denied review in 1998. EID sought bankruptcy relief in 1999, but was ultimately denied authorization to file.

            While EID funneled through the bankruptcy process, the Texas Supreme Court decided Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006), overruling an earlier opinion relied on by the trial court in the 1992 action, and by the court of appeals, wherein the Court held that statutory “sue and be sued” language waived sovereign immunity. See Missouri Pacific Railroad Co. v. Brownsville Navigation District, 453 S.W.2d 812, 813 (Tex. 1970). After Tooke, “sue and be sued,” or “plead and be impleaded” language in a statute alone does not waive governmental immunity. The Tooke decision applied retroactively.

            EID’s 2010 declaratory action relied on the retroactive applicability of Tooke. Though a final judgment had been entered in the 1992 action, EID took the position that its collateral attack against the final judgment was not precluded by the res judicata doctrine because res judicata does not apply when the initial court lacked subject-matter jurisdiction. 

            The Court’s Analysis (with intermittent counter-analysis and criticism)

            The Texas Supreme Court set forth the following issue: “Must courts equate sovereign immunity with a lack of subject-matter jurisdiction for all purposes? More specifically, does our decision in Tooke v. City of Mexia . . . apply narrowly only to judgments still being challenged on direct appeal or broadly to all prior judgments, thus permitting collateral attack of long-ago final judgments?” 

            The Court starts its analysis by pointing out that the res judicata doctrine generally bars relitigating issues that have been finally resolved by a judgment when the losing party exhausted all direct appeals. This is true even when a subsequent judicial opinion, if applied retroactively to the final judgment, would yield a different result on a finally-resolved issue. The res judicata doctrine underwrites “the stability of court decisions,” decisions which rely on the authority of courts to bind and make final, which both bolsters public confidence in the judiciary and enables courts to exercise their constitutional powers. See Permian Oil Co. v. Smith, 107 S.W.2d 564, 567 (Tex. 1937) (“Lacking this anchorage of finality a judicial system would be little more than a rule of fiat. . . . It must be borne in mind that the purpose of the law remains constant to prevent the failure of justice as a result of permitting the retrial between the same parties or their privies of a cause of action or of an issue which has been finally disposed of.”).

            The Court then turns its attention to subject-matter jurisdiction. Res judicata applies to a final judgment rendered by a “court of competent jurisdiction.” Since subject-matter jurisdiction is necessary to a court’s power to adjudicate, res judicata does not generally apply to a final judgment rendered by a  court that lacks subject matter jurisdiction.

            Texas has long recognized that “sovereign immunity deprives a trial court of subject matter jurisdiction.” See Texas Department of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). The Court points out, though, that recent case law recasts the relationship between sovereign immunity and subject-matter jurisdiction: “We stated in these cases, quite deliberately, that sovereign immunity ‘implicates’ the trial court’s subject-matter jurisdiction. We did not hold that sovereign immunity equates to a lack of subject matter jurisdiction for all purposes or that sovereign immunity so implicates subject-matter jurisdiction that it allows collateral attack on a final judgment.” See e.g., Houston Belt & Terminal Railway Co. v. City of Houston, 487 S.W.3d 154 (Tex. 2016); Manbeck v. Austin Independent School District, 381 S.W.3d 528 (Tex. 2012); Rusk State Hospital v. Black, 392 S.W.3d 88 (Tex. 2012).

 

            Interestingly, the Court contextualizes these recent cases in a manner that actually supports the opposite of the Court’s conclusion. Both Houston Belt and Miranda held that a plea to the jurisdiction is the proper procedural vehicle through which to raise sovereign immunity, because it is a jurisdictional issue. And, the Court held in Manbeck and Rusk that a governmental body may raise sovereign immunity for the first time on appeal because it “sufficiently implicates subject matter jurisdiction.” Manbeck, 381 S.W.3d at 530.

            The Court makes too much of “implicates.” “Implicate” means that someone or something is involved in or affected by someone or something else. To say that sovereign immunity “implicates” subject-matter jurisdiction means that sovereign immunity involves or affects the court’s subject matter jurisdiction. The United States Supreme Court has also used the phrase “implicate subject-matter jurisdiction, i.e., the courts’ statutory or constitutional power to adjudicate the case.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998). Unless “implicates” is a legal magic word in Texas that is capable of transforming the nature of subject-matter jurisdiction, the Engelman Court’s analysis is incredible.  

            But, according to the Court, to implicate subject-matter jurisdiction is not to equate to subject matter jurisdiction for all purposes. For one thing, the Court points out, sovereign immunity does not only concern subject-matter jurisdiction, but also personal jurisdiction, so it is not perfectly identical to subject-matter jurisdiction. For another, as then-Justice Hecht points out in his concurrence in Rusk, immunity from suit differs from lack of subject matter jurisdiction in some respect. For example, government can waive immunity from suit, but not subject-matter jurisdiction; and, a court may raise subject matter jurisdiction on its own, but no precedence supports a court raising immunity on its own.

            These “differences,” however, are illusory. Sovereign immunity may raise both subject matter jurisdiction and personal jurisdiction concerns, and may not be identical to either in that regard, but the same is true with respect to core constitutional elements to standing, and standing also implicates subject-matter jurisdiction. The standing requirement that an injury be “fairly traceable” to the defendant’s conduct may raise both subject-matter jurisdiction and personal jurisdiction concerns—the same conduct by a defendant may bear directly on how fairly traceable that conduct was to the purported injury as it may bear directly on how minimal the defendant’s contacts were with the forum. In that regard, the “fairly traceable” element may be identical to neither subject matter or personal jurisdiction in terms of analysis, but identical to both in terms of results—if a court lacks either subject matter or personal jurisdiction, it lacks power to bind the party to a judgment. Perhaps most important, trying to "equate" sovereign immunity to personal jurisdiction is odd when considering personal jurisdiction speaks to a sovereign's power over persons within or affecting its territorial jurisdiction. That the sovereign has power over itself within its own territory is obvious, and the judiciary is part of that sovereign. But it is not at all odd to "equate," if by "equate" the Court means to draw a meaningful comparison," sovereign immunity to subject-matter jurisdiction, because each branch of government is limited to its specific spheres of power. A court lacks the power to order the executive branch or legislative branches to an accounting absent subject-matter jurisdiction over an action involving the sovereign. And a sovereign cannot be sued, that is, a court cannot redress a wrong by a governmental entity absent the sovereign's consent to be sued.

            As for then-Justice Hecht’s “distinction,” while it is true that a party may not waive subject-matter jurisdiction, and, generally, a party may waive an immunity defense, sovereign immunity is quite different. Government may waive immunity from suit only when Government consents to be sued by statute or some other act of consent. If, but only if, Government consents to be sued, it has waived immunity from suit. Unlike non-government parties, however, as the Court held in Rusk, a government does not waive sovereign immunity by failing to raise it below as an affirmative defense.

            Also, while it is true that a court is obligated to raise subject matter jurisdiction on its own but will not raise an immunity defense on its own when the government is sued, the comparison does not necessarily support a difference between sovereign immunity and lack of subject-matter jurisdiction. The court must remain impartial between parties and should avoid any appearance of impropriety. Since the judiciary constitutes another branch of government, a court’s impartiality would be impugned if it voluntarily and on its own came to the aid of Government every time a governmental entity was sued, especially since the court must be mindful of the sovereign’s absolute right to consent to suit, which the governmental body may do by allowing the litigation to move forward without objection.

            The real reason driving the Court’s analysis and conclusion is found in Justice Lehrmann’s concurring opinion in Rusk: “If sovereign immunity deprives the courts of subject matter jurisdiction, governmental entitles could attack years-old judgments by asserting sovereign immunity because without subject matter jurisdiction, the judgments would be void.” 381 S.W.3d at 108. Relying on the Restatement (Second) of Judgments, the Engelman Court adopted the general rule that a final judgment, especially from a general jurisdiction court, precludes any party from litigating the original tribunal’s subject matter jurisdiction in subsequent litigation. Restatement (Second) of Judgments § 12. EID’s collateral attack against the final judgment issued by the trial court in the 1992 action, as a result, could not stand.  

            Conclusion 

            Judicial decision-making implicates a rational process, but it is not equal to a rational process for all purposes. The Engleman decision should dispel any belief to the contrary. Though the court’s subject-matter jurisdiction analysis is logically deficient, whether an opinion is logical or not does not alone determine whether the conclusion is right or wrong. As Judge Richard Posner puts it, “logic the destroyer is not logic the creator.” The Engelman Court reached the right conclusion. If the opinion only included the res judicata analysis, the conclusion would have been supported by ample and sound reason. 

            The Engelman Court’s subject-matter jurisdiction analysis complicates jurisdictional analyses generally. Sovereign immunity is just one justiciability doctrine among many. Each of the other justiciability doctrines implicates a court's subject-matter jurisdiction. The question now is, "to what degree is the court's subject matter jurisdiction affected?" It appears the answer to that will turn on the purposes that underlie the justiciability doctrine itself, rather than on the constitutional mandate behind subject-matter jurisdiction (a result Justice Lehrmann desired in  the Rusk case). To use the Court's terminology, does standing equate to subject-matter jurisdiction for all purposes? How about mootness? Ripeness? The political question doctrine? The prohibition against advisory opinions? When the Court adopted the general rule in the Restatement (Second) of Judgment section 12, did it intend to adopt that rule to apply to all justiciability doctrines subject-matter jurisdiction is implicated?

            Engelman, in other words, threatens to turn subject-matter jurisdiction on its head. The result would not be stated so drastically had the Court created constitutionally imposed jurisdictional requirements and prudential jurisdictional concerns. This is something that courts have done with respect to “standing.” The distinction between jurisdictional and prudential requirements is not without its own problems. See Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464, 475 (1982) (“We need not mince words when we say that the concept of Art. III standing has not been defined with complete consistency in all of the various cases decided by this Court.”). But the distinction would have the virtue of supporting the conclusion with some reason other than reaching a desired result.