Political Question Doctrine (Update 1)

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Is the constitutionality of clandestine American involvement in Nicaragua an issue that the federal judiciary may decide? If the legislatures of two-thirds of the states apply to Congress to call a convention for proposing amendments and Congress ignores their application, should a federal court entertain an action by the states against Congress? Should the decision of the Republican National Committee not to seat a group of delegates at the party's national convention be subjected to federal court challenges?

All of these questions, in one way or another, implicate the political question doctrine. This doctrine counsels the judiciary to refrain from deciding constitutional questions involving subject matters or issues appropriate for resolution only by the national political branches—Congress and the executive. In effect, the doctrine aims to divide "politics" from the "law," which is the proper sphere of judicial interpretation.

The Supreme Court has long considered the identification of political questions necessary to national separation of powers. As early as marbury v. madison (1803), the Court recognized that although federal courts are obliged to enforce the mandatory requirements of the Constitution, a life-tenured, unelected, and politically unaccountable judiciary must reserve discretionary policymaking for the elected representatives of the American people.

Not until baker v. carr (1962), however, did the Court articulate doctrinal standards for distinguishing a political question. Several of the Baker criteria call directly for judicial interpretation of the meaning and force of the Constitution's language; for example, does the text commit an issue to determination by the national political branches, and does the text lend itself to judicially manageable standards for resolving the issue? Other criteria require judges to assess realistically and pragmatically the political effects of a decision, such as asking if there is a significant potential for embarrassing or showing disrespect for Congress or the executive or whether the finality of a prior political decision is more important than its legality. Applying these standards, the Baker Court held that the Tennessee state legislature's failure to reapportion electoral districts after substantial migration of rural populations to urban centers raised a question of unconstitutional vote dilution and that the federal judiciary was competent to develop manageable standards for the vote dilution issue; it further held that the text of the fourteenth amendment did not commit an equal protection claim to the Congress or executive for decision and that the federal political branches had taken no action that required finality and respect.

Judges and scholars have launched serious attacks on the Baker approach to the definition of political questions. As the Constitution does not even provide expressly for the federal judiciary's review powers, it is difficult to argue that the text discriminates between those provisions enforceable by the judiciary and those consigned to Congress or the executive for construction. In addition, the individual-rights doctrines most fully developed by the judiciary are based on language in the bill of rights and the Fourteenth Amendment that is cryptic and open-ended, embodying no apparent and manageable judicial standards. Moreover, the Court may undermine the legitimacy of its own constitutional decisions by relying on pragmatic claims of institutional incompetence to supervise the policy decision making of administrative experts.

Nevertheless, the Supreme Court has shown no inclination to rethink the political question doctrine. In the most controversial political question ruling over the past five years, a solid majority of the Court expressly declined an invitation to modify or abandon the Baker standards. When several Indiana Democrats sued to invalidate a state legislative reapportionment plan for gerrymandering election district lines so as to disadvantage Democratic candidates, the Court applied the Baker criteria point by point and concluded that a political group's claim to fair representation does not present a political question. The opinion of Justice byron r. white in Davis v. Bandemer (1986) declared that the Constitution does not generally dedicate vote dilution issues to the Congress or President for resolution and that the courts are institutionally competent to formulate workable rules for deciding such claims, even though they had not yet devised a precise method for identifying an unconstitutional political gerrymander.

Several reasons may explain the Court's reluctance to reexamine the functionality of the political question doctrine. First, the judiciary has relied increasingly on other devices to limit its intervention in federal administrative policymaking, including the Supreme Court's rulings on standing, state action, sovereign immunity, and constraints on equitable remedies. These alternatives have certain tactical and ideological advantages over the traditional political question doctrine: they apply to constitutional challenges against state and municipal, as well as federal, government violations, and without overruling the political question standards established during the warren court's expansive enforcement of civil rights, the burger court and rehnquist court have exploited these relatively fluid devices to impose more severe restrictions on judicial regulation of government operations.

A second reason the Court may be unwilling to reexamine the doctrine is that scholarly criticism has challenged the integrity of a conceptual division of politics and law. Surely there can be no definitive and principled distinction between a political decision and a legal one in terms of their real-world consequences. A legal decision will have political effects, just as any political decision might. For example, deciding whether federal minimum-wage standards for state employees unduly interfere with the sovereign authority of state government or whether federal restrictions on political campaign contributions violate a contributor's freedom of speech rights requires the judiciary either to approve the current balance of powers and rights struck by Congress or to disapprove it and redistribute the balance by imposing constitutional restraints on Congress. In another and less obvious sense, many constitutional decisions will turn on questions that are not essentially legal. Thus, some questions—for example, whether the state's interest in the preservation of fetal life during a woman's pregnancy is any less compelling before the point of viability than after it and whether a political party has been disadvantaged enough by a political gerrymander to claim unconstitutional vote dilution—may be legal because they are framed in intellectual ways familiar to lawyers and the federal judiciary assumes power to decide them. But the same questions are political in the sense that they cannot be answered except by reference to some theory of value which is inherently political (in the examples, a theory underlying a right of reproductive choice or a right to an undiluted vote). The stronger the system of judicial supervision of governmental policymaking, the more likely it is that a legal question will implicate political considerations and consequences.

Reasonably, the Court may be loath to recognize a collapse of the formal distinction between politics and law, for the merger of political and legal questions muddles the role of the federal judiciary in the tripartite national governmental system. If the questions underlying most constitutional claims involve obvious political considerations, what justifies the federal judiciary in second-guessing the policy decisions of the political branches? Ultimately, the analytical flaws of the political question doctrine threaten to unseat the Court as the primary interpreter of the Constitution.

David M. Skover

(see also: Campaign Finance; Constitutional Interpretation; Equity; Judicial Policymaking.)


Bickel, Alexander 1962 The Least Dangerous Branch: The Supreme Court at the Bar of Politics. Indianapolis, Ind.: Bobbs-Merrill.

Komesar, Neil 1984 Taking Institutions Seriously: Introduction to a Strategy for Constitutional Analysis. University of Chicago Law Review 56:366–446.

Nagel, Robert 1989 Political Law, Legalistic Politics: A Recent History of the Political Question Doctrine. University of Chicago Law Review 56:643–669.

Redish, Martin 1985 Judicial Review and the "Political Question." Northwestern University Law Review 79:1031–1061.

Scharpf, Fritz 1966 Judicial Review and the Political Question: A Functional Analysis. Yale Law Journal 75:517–597.

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Political Question Doctrine (Update 1)

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