Political Thicket

Political Thicket, phrase that originated in Justice Felix Frankfurter's opinion for the Court, although he spoke only for two other justices, in Colegrove v. Green (1946), in which he argued that federal courts should not hear legislative reapportionment disputes. His precise words were: “To sustain this action [a declaratory judgment that the Illinois statutes apportioning congressional districts were unconstitutional] would cut very deep into the very being of Congress. Courts ought not to enter this political thicket” (p. 556).

Justice Frankfurter's words took on a life of their own, became widely quoted, and are instantly recognized as the warning against judicial review of questions relating to the nature of representation in governmental bodies. He was giving voice to the political questions doctrine first announced by Chief Justice Roger B. Taney in Luther v. Borden (1849). Yet it is hard to support the contention that many justiciable issues, such as the constitutionality of governmentally imposed racial segregation, are any less likely to involve courts in political thickets (see Justiciability). Questions of how best to secure “fair and effective representation” do, however, involve clashes between political parties somewhat more sharply than most other constitutional issues (see Fair Representation). It was perhaps to this aspect that Justice Frankfurter's phrase drew attention.

Some sixteen years later in Baker v. Carr (1962), the Supreme Court ignored Frankfurter's warning and opened the federal courts to reapportionment lawsuits. Two years later, in Reynolds v. Sims (1964), the Court adopted the simplistic but easy‐to‐apply standard of mathematical equality among districts (see Reapportionment Cases). In Davis v. Bandemer (1986), the Court ventured further into the political thicket by ruling justiciable claims of partisan gerrymandering, even though it could not muster a majority behind devising any formula for determining when such gerrymandering is unconstitutional. The lack of judicial consensus has not stopped the Court from also outlawing racial gerrymandering, as it did in Shaw v. Reno (1993).

The judiciary continue to enter the political thicket in other campaign and election cases. In Buckley v. Valeo (1976) the Supreme Court invoked the First Amendment to draw an ambiguous line in campaign finance jurisprudence by generally upholding regulation over political contributions but rejecting it regarding legislation that limits political spending. With Elrod v. Burns (1976) and O'Hare Truck Service, Inc. v. City of Northlake (1996), the Court restricted the practice of patronage by political parties because it threatened the associational rights of public employees or independent contractors. In rejecting Colorado's claim to regulate the manner in which signatures are gathered for ballot initiatives, the Court in Buckley v. American Constitutional Law Foundation (1999) proved ready to manage closely the integrity of the democratic process. The Court ran headfirst into the political thicket by halting, on equal protection grounds, the recount of Florida ballots in the 2000 presidential election in Bush v. Gore (2000). The dissent argued the case was a nonjusticiable political question. The Court was also sharply divided on whether it was advisable to stop the contested Florida recount without issuing a remand to the state supreme court for the purpose of giving instructions on how to fix the equal protection violation accompanying the standardless recount. The Court's intervention in Bush may be evidence that the political question doctrine is dead, and that the Court is willing to use its judicial power to superintend all facets of the electoral process.

Bibliography

David M. O'Brien , Constitutional Law and Politics: Struggles for Power and Governmental Accountability, 5th ed. (2002), vol. 1, pp. 791–799, 867–873.
Christopher P. Banks and John C. Green, eds., Superintending Democracy: The Courts and the Political Process (2001).

J. W. Peltason; as revised by and Christopher P. Banks