Constitutional Limitations On The Judicial Power: The Political Questions Doctrine

Constitutional Limitations on the Judicial Power:
The Political Questions Doctrine

The Issues: What is a "political question"?
When has a matter of constitutional interpretation been committed
to another branch?
Introduction
The political question doctrine
could be read narrowly or more
broadly. Read narrowly, the
political question doctrine
should be invoked only when the
issue presented to the Court is
one that "has been textually
committed to another branch of
government." That is, if the
framers of the Constitution

made clear their intention that
the judiciary not resolve a
particular question of
constitutional interpretation,
that determination must be
respected. More broadly, the
political question doctrine might
be invoked when there is a lack
of judicially manageable
standards to decide the case on
the merits, when judicial
intervention might show
insufficient respect for other
branches of government, or
when a judicial decision might
threaten the integrity of the
judicial branch.
In Baker v Carr (1962), the Court
concluded that the political
question doctrine did not bar
courts from reaching the merits of
a challenge brought against
Tennessee's system of
apportioning its state legislature.
Although the case was "political" in
Cases
Baker v Carr (1962)
Powell v McCormack (1969)
Nixon v U. S. (1993)
Vieth v Jubelirer (2004)
Key Textual Provisions for Cases:
Article IV, Section 4:

The United States shall guarantee to every
State in this Union a Republican Form of
Government...
Amendment XIV, Section 1
[N]or shall any State...deny to any person
within its jurisdiction the equal protection of
the laws.
(Baker v Carr)
Article I, Section 2:
No Person shall be a Representative who
shall not have attained to the Age of twenty
five Years, and been seven Years a Citizen of
the United States, and who shall not, when
elected, be an Inhabitant of that State in
which he shall be chosen.
Each House shall be the Judge of the
Elections, Returns and Qualifications of its
own Members...
Each House may determine the Rules of its
Proceedings, punish its Members for
disorderly Behaviour, and, with the
Concurrence of two thirds, expel a Member...
(Powell v McCormack)
The Senate shall have the sole Power to try
the sense that it was about politics,

and there were questions about
how courts might grant relief if
Tennessee's apportionment
scheme was declared
unconstitutional, the Court saw
neither as reasons for invocation of
the political question doctrine.
"Prominent on the surface of

any case held to involve a
political question is found:
(1) a textually demonstrable
constitutional commitment of
the issue to a coordinate
political department;
(2) or a lack of judicially
discoverable and manageable
standards for resolving it;
(3) or the impossibility of
deciding without an initial
policy determination of a kind
clearly for nonjudicial
discretion;
(4) or the impossibility of a
court's undertaking
independent resolution without
expressing lack of the respect
due coordinate branches of
government;
(5) or an unusual need for
unquestioning adherence to a
political decision already
made;
(6) or the potentiality of
embarrassment from
multifarious pronouncements
by various departments on one
question."
(Baker v Carr)
Congressman Adam Clayton
all Impeachments.
(Nixon v U.S.)
Questions
1. Which of the following reasons seem to
justify dismissal of a case as "a political
question": (1) textual commitment of a decision
to another branch, (2) presentation of an issue
so momentous that to decide it threatens the
Court as an institution, (3) presentation of an
issue that cannot be decided by "judicial
reasoning," (4) the unavailabilty of effective
judicial means of redressing a legal violation if
one is found, (5) the case raises serious issues
of national security, (6) decision in the case
would likely embarrass another branch of
government, and (7) presentation of an issue
that the court "can't get a handle on"? Which of
the above are the strongest reasons for
dismissing a case?
2. Have Justice Frankfurter's concerns about
the courts involving themselves in matters of
legislative reapportionment (see Baker v Carr)
proven well-founded?
3. How would our state politics be different
today if Baker v Carr had come out the other
way? Would, for example, the Tennessee
legislature still be badly apportioned if the
courts had not intervened?
4. If the Senate were to convict a federal judge
(or the President) after a "trial" in which the
impeached official was denied any opportunity
to present evidence, would the Court still refuse
to review the action on the ground that it was a
political question?
5. What should be made of Justice Kennedy's
concurring opinion in Vieth? Justice Kennedy
clearly is disgusted with the degree of partisan
gerrymandering, but can't yet find a workable
test for deciding when a redistricting plan might
violate the Constitution. Does that mean that he
agrees that these cases present non-justiciable
questions (at least until such a test can be
found)? Note that there are only four clear
votes in Vieth for finding cases challenging
Powell
political discrimination in redistricting plans to

be non-justiciable, so Kennedy's opinion is key.
In Powell v McCormack (1969), the

Court also rejected an argument
that the case ought to be dismissed
as presenting a political question.
The Court concluded, in a case
involving the refusal of the House
of Representatives to seat Adam
Clayton Powell, that the decision to
exclude members was not textually
committed to the House--with the
exception of criteria identified in
Article I, Section 5 relating to age,
citizenship, and state residency.
Since the refusal to seat Powell
was based on a determination that
Powell had acted unethically prior
to his election, the Court found the
exclusion not authorized by Article
I and ordered Powell's seating.
A political question?
The Texas reapportionment scheme devised in
2003 to eliminate
Democratic members of Congress. (Austin
Chronicle).
Link to close up of central Texas (boxed
portion of map).
In 2006, the Supreme Court, in League of Latin

American Citizens v Perry, revisited the issue
of the legality of Tom DeLay's plan for
reapportioning Texas. The Court remained
Judge Walter Nixon
unconvinced that a meaningful standard for
judging partisan gerrymandering existed--thus
In Nixon v United States (`1993), the
Court found a textual commitment seemingly giving the greenlight to partisan
map-drawing whenever one party controls both
to the Senate of the manner in
which it might "try" a federal officer state houses and the governorship. The Court
for impeachment. Judge Walter
did, however, find that one of the redrawn
Nixon, convicted in an
districts discriminated against Latino voters in
impeachment proceeding for
accepting a bribe, argued that the violation of the Voting Rights Act and ordered
Senate proceeding violated the

Constitution because under Senate
impeachment rules he was allowed
to bring certain evidence only
before a Senate Committee, not the
full Senate. The Court refused to
interpret the word "try," concluding
that the framers reserved that
question for the Senate itself to
answer.
Finally, in Vieth v Jubelirer

(2004) considered whether cases
involving claims of partisan
gerrymandering are
constitutional. The Court
divided 4-1-4 in Vieth on the
issue of whether judicially
manageable standards existed
that could be used to decide such
cases. Four justices saw claims
of partisan gerrymandering as
presenting a non-justiciable
political question, four justices
believed that standards existed
or could be developed to decide
such cases, and one justice
(Kennedy) stood in the middle,
writing a concurring opinion
that suggested he had doubts
about the ability of the Court to
develop judicially-manageable
standards, but was unwilling to
rule out the possibility
completely. (Interestingly,
Kennedy hinted that gross cases
of partisan gerrymandering
might violate the First
Amendment, not the Equal
Protection Clause, as most other
justices see as the better basis for
challenging such laws.) Kennedy
presumably voted with the
majority in a subsequent case
challenging a reapportionment
scheme in Texas pushed by
that district lines be redrawn to restore Latino

voting power to its pre-existing state.
Republican House Majority

Leader Tom DeLay, designed to
eliminate as many as possible
House Democrats from Texas.
The Court ordered the case sent
back to the lower courts to
determine whether the Texas
reapportionment plan violated
the Constitution.
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Constitutional Limitations on the Judicial Power:

The Political Questions Doctrine

framers of the Constitution

Article IV, Section 4:

the sense that it was about politics,

"Prominent on the surface of

Congressman Adam Clayton

political discrimination in redistricting plans to

In Powell v McCormack (1969), the

In 2006, the Supreme Court, in League of Latin

Senate proceeding violated the

Finally, in Vieth v Jubelirer

that district lines be redrawn to restore Latino

Republican House Majority

Exploring Constitutional Conflicts Homepage

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