blogging Fed Courts 3: political questions

The last major set of cases that the Court often refuses to hear, along with those suffering standing or mootness/ripeness problems, are the so-called “political question” cases. Here the issue is not so much that the party hasn’t suffered/isn’t suffering a cognizable harm. Rather, it’s that the separation of powers implied by our constitutional structure suggests that some determinations are simply outside the scope of the judiciary’s power to make.

Sometimes, this is because certain powers are delegated exclusively to the executive or the legislature or both — the power to make treaties, for example, or the power to declare war. And this suggests that the people (whose will, in something of a legal fiction, is presumed to be embodied in the Constitution) don’t want the judiciary mucking around with those decisions. Other times, the Court may find that it cannot work out a coherent legal standard to adjudicate a particular kind of problem, and that it’s best resolved through the workings of popular democratic action. Still other cases might technically be something the Court could resolve, but prudence dictates that it not endeavor to do so, in order to maintain its own legitimacy and gravitas.

So, for example, in the 1970s, a question arose whether the President could unilaterally end treaties without consulting the Senate. The Constitution gives the President the power to “make” treaties, “provided two thirds of the Senators present concur.” But it’s silent on the question of how treaties should be dissolved.

You might think this is the classic situation where a constitutional provision is ambiguous and the courts should resolve the ambiguity. But no. In Goldwater v. Carter, the Court not only declined to answer the question, but vacated a lower court decision purporting to resolve the question. The Justices did not agree among themselves exactly why they were vacating, but the opinion that collected the most signatures was Justice Rehnquist’s, arguing that

[W]e are asked to settle a dispute between coequal branches of our Government, each of which has resources available to protect and assert its interests . . . . Moreover . . . the effect of this action, as far as we can tell, is entirely external to the United States, and falls within the category of foreign affairs.

Rehnquist is identifying, here, two discrete reasons why the Court shouldn’t answer this question. First, the Court is reluctant (to say the least) to intervene in a fight between the two other branches. (You know the metaphor about wrestling with a pig? Imagine getting between two pigs.)

And second, the Court has given a wide berth to interfering in foreign policy, which is, in most situations, the province of the Executive.

So, for both reasons, the Court instructed the lower courts to leave this one alone.

Sometimes, the Court also declines to decide a case because the text of the Constitution explicitly instructs that a particular aspect of governance is the responsibility of just one branch. So, in Nixon v. US, the Court refused to rule on whether a particular procedure used by the Senate in a federal judge’s impeachment trial was constitutional. Justice Rehnquist, this time commanding a majority, emphasized language in the Constitution giving the Senate “the sole Power to try all Impeachments.” This, Rehnquist claimed, was a clear sign to the judiciary: Stop. Stay Out. You Are Not Welcome Here. Only the Senate may “try” impeachments, and that is a grant of power so exclusive that the courts may not even review its work.

Justice White, in a concurring opinion, disagreed, and thought that the word “sole” was meant to distinguish the Senate’s role from that of the House of Representatives, not that of the judiciary. As a matter of textual interpretation, Justice White probably has the better argument. But as a matter of institutional prudence on the part of the Court, Rehnquist was undoubtedly right that the courts should not exercise review over the workings of Senate impeachment trials. Why? Because the impeachment power is one of the few checks the Congress has on otherwise largely invulnerable federal judges. If the judiciary could interfere with and reverse the removal of its own members, the legislature would have essentially no check on the judiciary, and judges would cross the line that separates being insulated from political pressure and simply being unaccountable. To maintain the legitimacy of the federal judiciary, the Court stepped away from interfering in the impeachment process.

That said, there are undoubtedly costs to this hands-off approach, and Justice Souter, also concurring, suggested that

One can, nevertheless, envision different and unusual circumstances that might justify a more searching review of impeachment proceedings. If the Senate were to act in a manner seriously threatening the integrity of its results, convicting, say, upon a coin toss, or upon a summary determination that an officer of the United States was simply “a bad guy,” judicial interference might well be appropriate.

So it may be that in the end institutional self-protection won out. But officially, at least, the idea was that impeachment was “textually committed” to another branch. However, the Court articulated a second reason why it might designate an in issue a “political question” — namely, if it could not come up with a workable judicial standard by which to adjudicate the issue. Rehnquist’s application of this idea in Nixon was less than compelling: he claimed that the Court couldn’t come up with a workable definition of what it means to “try” a case, but, as Justice White pointed out, if the U.S. Supreme Court can’t say what that word means, nobody can. Still, there may well be questions that courts are not well-positioned to answer.

A clear example of this is in political gerrymandering cases. Although the Court has on rare occasions been willing to step into districting fights where voting rights were being denied in a sufficiently egregious manner (see Baker v. Carr), it has generally felt extremely uneasy interfering. Partisanship has a legitimate role to play in American politics, and the Court has never hit upon a satisfactory formula for balancing the legitimate exercise of partisanship with the dangers of gerrymandered districting to individuals and minorities whose votes may be rendered essentially null. In Vieth v. Jubelirer, Justice Scalia declared judicial management of statewide districting an effective impossibility. Among other reasons, he noted that districting was not all — other factors play into elections, and judges could not reliably guarantee that a majority of votes in the state would always result in a majority of seats in the legislature. Moreover, the standard proposed by the appellants required that a plaintiff in a districting case show that the legislators’ “predominant intent” in drawing the districts was to gain political advantage; here, too, Justice Scalia felt that judges could not adequately enforce such a standard.

By contrast, where the legislature has engaged in racial gerrymandering, the Court has had much less difficulty finding a judicially-manageable standard. (See, e.g., Miller V. Johnson, where the Court struck down a districting scheme that would have “join[ed] metropolitan black neighborhoods together with the poor black populace of coastal areas 260 miles away.”) Why? As Justice Scalia explains,

The Constitution clearly contemplates districting by political entities, see Article I, §4, and unsurprisingly that turns out to be root-and-branch a matter of politics . . . . By contrast, the purpose of segregating voters on the basis of race is not a lawful one, and is much more rarely encountered. Determining whether the shape of a particular district is so substantially affected by the presence of a rare and constitutionally suspect motive as to invalidate it is quite different from determining whether it is so substantially affected by the excess of an ordinary and lawful motive as to invalidate it.

In other words, the more-or-less absolute illegality of segregating voters by race makes the inquiry a simple one: a misshapen, implausible voter district that is essentially a map of black voters in the state is itself a prima facie case for racial gerrymandering. The same cannot be said of a district similarly distorted by political concerns, because that distortion may be the result of a perfectly legitimate partisan compromise.

The fact that a particular concept may not lend itself to judicially manageable standards does not always result in the determination that the whole issue is a “political question.” In Garcia v. San Antonio Transit Auth., for example, the Court was faced with the inadequacies of its own attempts to exempt state governments from federal regulation, at least where the state government was engaged in “traditional governmental functions.” Justice Blackmun, writing for a five-member majority, despaired of finding a meaningful boundary for that concept. Is running a metropolitan transit system a “traditional governmental function”? Arguably, it is not — it’s not “traditional” because there were no transit systems of that kind until fairly recently, and it doesn’t look that much like a “government function” because the transit authority necessarily behaves in many ways like a commercial entity. One can make arguments in the other direction, of course, but the Court felt, in surveying the case law, that its previous attempts to distinguish between “traditional government functions” and other functions was largely ad hoc and arbitrary. Any attempt to draw a bright line around what a state government “ought” to be doing as a government required judges to make that decision for the people and the legislature of the State in question:

[T]he States must be equally free to engage in any activity that their citizens choose for the common weal, no matter how unorthodox or unnecessary anyone else — including the judiciary — deems state involvement to be. Any rule of state immunity that looks to the “traditional,” “integral,” or “necessary” nature of governmental functions inevitably invites an unelected federal judiciary to make decisions about which state policies it favors and which ones it dislikes.

This the Court declined to do any longer. Instead it ruled that all federal regulation of state governments was constitutional. (That is, subjecting them to things like federal minimum wage and environmental standards was constitutional — Congress may not regulate the content of the State’s activity or commandeer the state’s legislature for its own purposes.) The States had substantial power to protect their interests through their Senators; that kind of political power, the Court ruled, would have to suffice to protect state sovereignty from federal intrusion.

But note that the Court here did reach a holding. It did not declare federal regulation of state governments to be a “political question.” This may just reflect the political makeup of the Court at the time; Garcia was decided in 1985, shortly before Justices Scalia and Thomas joined the Court and began to push it back in the direction of more solicitude toward states and greater suspicion of federal power. But it may be that the Court is less worried about weighing in on conflicts between the federal government and the state governments that in conflicts between the other branches. (Presumably, the Court doesn’t have as much stake in the outcome of the federal/state fight, because its own power is not implicated as directly. So there is less of a concern about an inappropriate conflict of interest.)

Of course, the political gerrymandering cases also involved state government. But whereas in Garcia the Court was able to simply throw it back to the States to protect their own interests against federal encroachment, in Vieth and Baker the Court was being asked to directly overrule the state legislature. The latter seems like a much greater threat to the State’s interest in its own autonomy, which might also explain why the Court is more willing to deem issues of political gerrymandering to be “political questions.”


This is a messy area, and the Court itself has not always applied “political question” doctrine in the most consistent way. However, in Baker v. Carr (and again in Vieth, the Court articulated “six independent tests” that, together, constitute the main reasons a question might be deemed “political” (and hence not “justiciable” by the federal courts):

  1. a textually demonstrable constitutional commitment of the issue to a coordinate political department
  2. a lack of judicially discoverable and manageable standards for resolving it
  3. the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion
  4. the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of the government
  5. an unusual need for unquestioning adherence to a political decision already made
  6. the potentiality of embarrassment from multifarious pronouncements by various departments on one question
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2 Responses to blogging Fed Courts 3: political questions

  1. Pingback: blogging Fed Courts 3.5: justiciability outline | The Handsome Camel

  2. Pingback: “Doctor… always do the right thing.” | The Handsome Camel

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