Cases Without Controversies

"For students of the federal judiciary, the Supreme Court's encounter with the adverse-party requirement in the Defense of Marriage Act (DOMA) case, United States v. Windsor, was disappointing. The Court has rather dogmatically insisted that federal courts can hear only "definite and concrete" controversies that touch upon "the legal relations of parties having adverse legal interests." But the Court has failed to provide a coherent account of the adverse-party requirement or of how such a requirement can co-exist with a variety of clearly non-adverse or ex parte proceedings that have worked their way onto the docket of the federal courts. Since the 1790s, Congress has assigned pension claims, warrant applications, naturalization proceedings, and a surprisingly broad range of other ex parte matters to the federal courts. For example, the Foreign Intelligence Surveillance Act, a subject of recent controversy, requires the government to obtain an ex parte federal court order to conduct certain kinds of electronic surveillance. Aside from a decision nearly one hundred years ago addressing the power of the federal courts to naturalize aliens, and a few relatively uninformative decision