Political Questions

Political Questions are controversies that the U.S. Supreme Court has historically regarded as nonjusticiable and inappropriate for judicial resolution (see Justiciability). Although the Court may have jurisdiction over cases involving such questions, it has often chosen not to decide them, preferring instead to allow them to be resolved by the “political” branches of government.

First Definition.

Chief Justice John Marshall contended that when a case within the Supreme Court's jurisdiction qualifies for review by constitutional standards (for example, it meets the cases and controversies requirement, presents a federal question, etc.), the Court is obligated to decide the case on its merits. In Cohens v. Virginia (1821), he stated in dicta, “[W]e find this tribunal invested with appellate jurisdiction in all cases arising under the constitution and laws of the United States. We find no exception to this grant, and we cannot insert one” (p. 109).

But the Court has realized the impracticality of so rigid an interpretation of the Constitution, especially when a case threatens to propel it into uncharted political waters. Marshall himself perceived this dilemma in Marbury v. Madison (1803), where he wrote, “The province of the court is, solely, to decide on the rights of individuals. … Questions in their nature political … can never be made in this court” (p. 168). It was not long before a new category of cases appeared that involved “nonjusticiable” political questions.

The first major attempt by the Court to define a political question came in Luther v. Borden (1849). Luther had sued Borden for an admitted trespass, arising out of the period of political turmoil in Rhode Island known as the Dorr Rebellion (1842). A group of citizens, long dissatisfied with malapportionment and their disenfranchisement under the existing “charter” government of that state, sought to replace it (see Fair Representation). They called an extralegal constitutional convention, held elections, and proclaimed the formation of a new, more democratic, government with Thomas W. Dorr as governor. The charter government rejected the validity of the Dorr insurgency and sought to retain political control of the state by force. The incumbent governor declared martial law, and many of the leaders of the rebellion, including Dorr, were arrested. The Dorr forces then sought to have the charter government declared unconstitutional under the Guarantee Clause of Article IV. Under that clause, the United States must guarantee to each state a “republican form of government.”

Chief Justice Roger B. Taney's opinion in Luther listed various reasons why the Supreme Court should not decide the case. Taney noted the chaos that would follow a judicial replacement of the existing government with a new one. But primarily he determined that this was an issue for which the Court had no standards to govern its decision; it was a controversy committed by the Constitution to another branch of government. Article IV's guarantee was not a standard that the Supreme Court could or should enforce: it was a nonjusticiable political question.

The irony of this “political questions doctrine” (a misnomer to the extent that it suggests that the Court never decides such questions) is that its existence demonstrates beyond any reasonable doubt the inherently political nature of the judicial process. That the justices should consider, implicitly or explicitly, questions of power and influence, questions affecting the Court's prestige and status, the judiciary's relationship to the other branches of the government, and the pragmatic problem of the Court's ability to decide a particular case effectively, belie any implication that it decides only “nonpolitical” questions.

Thus the political questions doctrine is not a constitutionally mandated dividing line between appropriate and inappropriate issues, but rather a discretionary device to permit the federal courts to avoid deciding certain “inconvenient” questions. Its precise scope and application are difficult to ascertain. Indeed, it was not until more than a century after Luther that the Supreme Court provided any coherent formula for determining what is, and what is not, a political question.

Political Questions and Reapportionment.

Political pressure to have courts decide reapportionment cases prompted the Supreme Court's modern reassessment of the political questions doctrine. In Colegrove v. Green (1946), a challenge to the malapportionment of Illinois' congressional districts, Justice Felix Frankfurter's plurality opinion, announcing the Court's refusal to intervene, implied that all reapportionment issues were nonjusticiable. Later decisions treated that admonition as if it had been the majority opinion of the Court, and therefore a valid precedent. By 1960, however, it had become clear that only judicial intervention could break the logjam of state legislative malapportionment. The Court actually decided such an issue in Gomillion v. Lightfoot (1960). Ironically, the opinion was written by Frankfurter, but since the question in Gomillion was one of racial gerrymandering, Frankfurter skirted the reapportionment issue—his Colegrove precedent—by contending that this was a right‐to‐vote case under the Fifteenth Amendment (see Vote, Right to).

The issue would not go away, however, and the appointments to the Court of Byron White and Arthur Goldberg in 1961 and 1962 provided the votes needed to bypass Colegrove. In Baker v. Carr (1962), a case challenging the apportionment of the Tennessee legislature, Justice William J. Brennan, writing for a 6 to 2 majority, reviewed the political questions doctrine and articulated a new, more stringent, formula for identifying nonjusticiable issues:
Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government, or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. (p. 217)

Brennan conceded that Guarantee Clause questions are nonjusticiable (and they remain so). But he noted that Baker had also been brought under the Equal Protection Clause, that it involved no separation of powers issues, and that it met his newly formulated test of justiciability. Reapportionment cases were now justiciable. Frankfurter's bitter dissent—his last—repeated his Colegrove arguments that it was unwise for courts to enter this political thicket of reapportionment and that to do so was a violation of the principles of judicial self‐restraint. Baker was a landmark decision, not only for judicializing the reapportionment issue, but also for limiting the scope of the political questions doctrine. It also became an important symbol of the Warren Court's activist philosophy.

In Powell v. McCormick (1969), the Court further demonstrated its determination to narrow the political questions doctrine. In November 1966, Adam Clayton Powell, Jr., a flamboyant black preacher and political leader, was reelected to Congress by the Harlem constituency he had served since 1942. Because of allegations about improper use of congressional funds and other political misbehavior, the House of Representatives did not permit Powell to take his seat at the beginning of the Ninetieth Congress in January 1967, and eventually voted to exclude him. Powell and some of his supporters filed suit in a federal district court, claiming that the House could exclude him only if he failed to meet the requirements of age, citizenship, and residence described in Article I, section 2, of the Constitution, which he clearly met. On appeal the Supreme Court agreed. It held that exclusion for reasons other than those prescribed in the Constitution did not present a nonjusticiable political question. The Court then held that Powell had been unlawfully excluded.

After Baker and Powell, some legal scholars believed that there was little force left in the political questions doctrine. For example, in his well‐known book Impeachment (1973), Raoul Berger argued compellingly that these two cases undermined the political questions doctrine to such an extent that the hypothetical question of judicial review of Senate conviction on impeachment charges, long thought to have been settled in the negative, would have to be reopened. Berger claimed that the Article II, section 2 categories of exclusion from Congress are much clearer than those defining impeachment (treason, bribery, and high crimes and misdemeanors—especially the last); and thus that impeachment could no longer be considered a nonjusticiable political question under the first Baker test. Furthermore, he argued that it is factual questions, such as those in Luther v. Borden, that properly implicate the political questions doctrine, not just determining “constitutional boundaries.”

Powell, Berger argued, stands for the broad proposition that the Supreme Court may inquire into any governmental action in excess of jurisdiction or any alleged usurpation of power. He claimed that the Constitution implies the general principle that all arbitrary power must be condemned and therefore that all constitutional limits are subject to judicial enforcement. Berger's views, however, though widely discussed, clearly exaggerated the force of Baker and Powell; the political questions doctrine did not disappear.

Political Questions and the Separation of Powers.

Although the Baker test at least suggested that separation of powers questions were off limits, or close to the limits, of justiciability, both Powell and later cases clearly did not go so far. For example, in Immigration and Naturalization Service v. Chadha (1983), which invalidated the legislative veto, the Court held that a separation of powers issue was (only) sometimes nonjusticiable. Similarly, in Goldwater v. Carter (1979) only four justices held that unilateral presidential termination of a treaty was a nonjusticiable political question, even though, even prior to Baker and Powell, the President's foreign affairs authority would have been regarded as virtually nonjusticiable (see Foreign Affairs and Foreign Policy).

War powers cases, traditionally decided with great deference to the executive, offered the Court yet another opportunity to develop the Baker doctrine The Vietnam War created many opportunities for the courts to consider constitutional questions raised by the conduct of that war. In Holtzman v. Schlesinger (1973), Orlando v. Laird (1971), and Mora v. McNamara (1967), however, lower courts determined that the war's constitutionality was nonjusticiable. And, much to the consternation of war opponents, the Supreme Court avoided these cases by denying certiorari, even though, as in Mora, and later in Massachusetts v. Laird (1970), some justices dissented on the ground that the Court at least should have openly faced the question of justiciability—as well as the broader one of judicial responsibility in times of crisis.

Similarly, a number of cases in the 1980s, involving the constitutionality of U.S. military involvement in Latin America, were dismissed by lower courts. For example, in Crockett v. Reagan (1982), the U.S. Court of Appeals for the District of Columbia affirmed the dismissal of a suit by twenty‐nine member of Congress that challenged the legality of the American presence in El Salvador. They claimed that introduction of military personnel into a situation likely to involve imminent hostilities, as well as the president's failure to report to Congress, violated both the War Powers Act (1973) and the War Powers clause of Article I of the Constitution. The plaintiffs asked the district court to order the withdrawal of American forces. The court refused, grounding its dismissal on the political questions doctrine. The Court of Appeals affirmed, and the Supreme Court denied certiorari.

In 1990, fifty‐three representatives and one senator filed a lawsuit to enjoin President George H. W. Bush from using military force in the Persian Gulf without prior authorization from Congress. The administration responded that such action, if it occurred, would not be a “war” requiring a declaration of war or some other supporting act of Congress. It claimed that, under the separation of powers, this was not a matter for the courts (see Presidential Emergency Powers). The district court rejected this latter argument, saying that it “put Congress' constitutional authority at the mercy of a semantic decision by the President,” and that judicial deference would evade the plain language of the Constitution that only Congress can declare war. But Judge Harold Greene also refused to issue the requested injunction. The case, he said, did not possess the ripeness required for judicial decision; it would become so only if and when a majority of both houses of Congress made clear—either by a joint resolution or by joining the lawsuit—that Congress was asking the federal courts to prohibit the president's actions.

Political Questions and Impeachment.

Impeachment issues also implicate the political questions doctrine. The resignation of President Richard M. Nixon in 1974 foreclosed any immediate opportunity for the Supreme Court then to review a presidential conviction by the Senate on impeachment charges. Likewise, the Senate's acquittal of President Bill Clinton on impeachment charges in 1999 prevented impeachment issues from reaching the judiciary.

However, the Supreme Court finally decided an impeachment case—its first—in Nixon v. United States (1993). Retreating somewhat from the Baker trajectory, it reaffirmed many of the basic restraints of the traditional political questions doctrine. Judge Walter Nixon had been convicted of making false statements to a grand jury, and sentenced to prison. When he refused to resign his judicial commission he was impeached by the House of Representatives, and then convicted by the Senate and removed from office. Nixon alleged, however, that the Senate's decentralized procedure of allowing a committee to hear evidence and then reporting that evidence to the full Senate, violated the Impeachment Clause of Article I, which provides that the “Senate shall have the sole right to try all impeachments.”

Chief Justice William Rehnquist, speaking for the majority, held that the word “try” was sufficiently imprecise to permit the Senate procedure (for all impeachments except that of the president), that the word “sole” did not imply that the Senate could only act in unison, and that, in any case, there were no “judicially discoverable and manageable standards” by which to evaluate the Senate's action. And he further held that there was no constitutional provision for judicial review in impeachment trials—that the word “sole” barred any review by the courts, and that, in any case, impeachment in the Constitution is a “textually demonstrable commitment … to a coordinate branch of government”—making it nonjusticiable.

Rehnquist's opinion does not explicitly repudiate Baker and Powell—indeed it relies on them in part—but there can be no gainsaying that the bolder and more activist impulses of those Warren Court cases were replaced by a more traditional view. Or so it seemed until the Court decided Bush v. Gore (2000). That decision demonstrates that a majority of the present Court is willing to adjudicate a question even in the face of Baker’s “textually demonstrable commitment” standard. In Bush, this commitment is the Twelfth Amendment's assignment of the counting of presidential electoral votes to “The President of the Senate,” who “shall, in the presence of the Senate and the House of Representatives, open all certificates and the votes shall then be counted.” And this counting process is regulated in great detail in Title III of the United States Code, which charges Congress, not the Supreme Court, with resolving disputes about who won a state's electoral votes.” The majority opinion largely ignores this issue, which was the view of the dissenters in that historic case.

However that may be, the need for courts sometimes to avoid contentious issues remains, and the political questions doctrine—whatever its specific boundaries—is an expedient solution. Of course, the Supreme Court's now nearly complete discretion in its certiorari jurisdiction gives it maximum flexibility to take or reject cases—without any explanation. Federal district courts do not have that discretion, so for them the doctrine may be important. It would appear that the political questions doctrine is useful to the Supreme Court primarily as an occasional opportunity to remind the public and the lower courts of the need to show restraint, respect for constitutional boundaries, and the need for prudence in exercising the judicial power of the United States. Continuing arguments that the doctrine is unconstitutional and should be eliminated, and that the Court cannot refuse to decide an otherwise appropriate case merely because it would be imprudent to do so, appear not to have gained much currency.

Bibliography

Raoul Berger , Impeachment: The Constitutional Problems (1973).
J. Peter Mulhern , In Defense of the Political Questions Doctrine, University of Pennsylvania Law Review 137 (1988): 97–176.
Martin Redish , Judicial Review and the Political Question, Northwestern University Law Review 79 (1985): 1031–1061.

Joel B. Grossman and and T. J. Donahue