The Supreme Court and Political Questions

The Constitution does not address whether the Supreme Court can hear cases dealing with political issues. However, the Supreme Court has developed the political question doctrine to deal with issues of separation of powers. Because the Court is an apolitical body, it should not hear politically charged cases where Congress or a state legislature would be better able to address the issue.

What Is the Political Question Doctrine?

United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation

The political question doctrine limits the ability of the federal courts to hear constitutional questions even where other justiciability requirements, such as standing, ripeness, and mootness, would otherwise be met.1 The Supreme Court has stated that, for purposes of Article III of the Constitution,2 "no justiciable 'controversy' exists when parties seek adjudication of a political question."3 But the term political question is a legal term of art that on its face gives little indication of what sorts of cases the doctrine bars federal courts from deciding. The phrase, which has its origins in Chief Justice Marshall's landmark opinion in Marbury v. Madison,4 is potentially misleading, as federal courts deal with political issues, in the sense of controversial and government-related issues, all the time.5 Rather than referring generally to any such political issue, the term "political question" expresses the principle that some issues are either entrusted solely to another branch of government or are beyond the competence of the judiciary to review. Finding that a matter qualifies as a political question divests federal courts of jurisdiction, meaning they lack the power to rule on the matter.6

The Supreme Court identified six factors relevant to the political question doctrine in the 1962 case Baker v. Carr:

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; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.7

The variation among the criteria emphasizes the diverse purposes that the doctrine is said to serve, embodying both separation-of-powers principles8 and prudential concerns such as the competency of courts.9 These six criteria appear in recent Supreme Court opinions applying the political question doctrine.10 However, Justices of the Supreme Court have recognized confusion around the political question doctrine, both when Baker was decided and subsequently.11 Among other things, judges have disagreed on how to identify a political question, as well as on fundamental matters such as whether the political question doctrine originates in constitutional or prudential principles or what purpose the doctrine allegedly serves.12

So far, the Supreme Court has elected not to resolve these disputes in a comprehensive fashion. Despite these uncertainties, the doctrine remains alive and well today,13 even if, as one treatise has stated, "the category of political questions 'is more amenable to description by infinite itemization than by generalization.'"14 Following that pattern of itemization, the Court has applied the political question doctrine in some areas of foreign policy, Congress's internal governance, impeachment, and in cases involving partisan gerrymandering. This essay explores all of these issues, tracing the development of the political question doctrine from its foundations in Marbury to its refinement in Baker to its modern applications.

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Elections and Gerrymandering

The Court in the modern era has applied the political question doctrine to some aspects of legislative regulation of elections,15 particularly in the area of partisan gerrymandering. Partisan gerrymandering is "the practice of dividing a geographic area into electoral districts, often of highly irregular shape, to give one political party an unfair advantage by diluting the opposition's voting strength."16 Government officials seeking to draw legislative districts to affect election results may adopt several different tactics. For instance, they may create districts containing different numbers of voters, effectively diluting the votes of individuals in more populous districts.17 In the alternative, legislators may create districts that contain equal numbers of voters, but where boundaries are drawn to manipulate the concentration of voters in each district based on characteristics such as voters' race or their political affiliation. The Supreme Court has held that Equal Protection challenges to race-based gerrymandering and one-person-one-vote claims based on unequal districts are justiciable.18 However, for decades the Court was unable to agree on an approach to challenges to partisan gerrymandering.

Unlike one-person-one-vote cases, a partisan gerrymandering case typically involves a voter in a district that is not malapportioned based on population, but rather has been drawn to disadvantage one political party. In the words of the Supreme Court, in a political gerrymander, voters affiliated with a disfavored party are either (1) "packed" into a few districts-in effect conceding those districts by large margins and "wasting" votes that could help the disfavored party compete in other areas-or (2) "cracked" into small groups and spread across multiple districts so that they cannot achieve a majority in any one district.19 In these circumstances, plaintiffs cannot argue that their votes are inherently worth less than that of any other voter-rather, they must argue that the creation of a district that disfavors a particular political party violates the Constitution for other reasons.20

Supreme Court jurisprudence related to partisan gerrymandering has evolved over time. In fractured opinions in the 1986 case Davis v. Bandemer, six Justices of the Court concluded that political gerrymandering claims were justiciable.21 However, subsequent Supreme Court decisions cast doubt on Bandemer's holding. Justice O'Connor concurred in the judgment in Bandemer but disputed that the issue presented was justiciable. She argued that "[t]he Equal Protection Clause does not supply judicially manageable standards for resolving purely political gerrymandering claims,"22 and that the case before the Court required "precisely the sort of 'initial policy determination of a kind clearly for nonjudicial discretion' that Baker v. Carr recognized as characteristic of political questions."23 Justice O'Connor concluded that "the legislative business of apportionment is fundamentally a political affair, and challenges to the manner in which an apportionment has been carried out . . . present a political question in the truest sense of the term."24

In the years following Bandemer, multiple Justices of the Supreme Court concluded in non-binding opinions that challenges to partisan gerrymandering are nonjusticiable.25 Like Justice O'Connor in Bandemer, those Justices focused primarily on the second and third Baker factors: the "lack of judicially discoverable and manageable standards for resolving" these cases and "the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion."26 For instance, in 2004, in Vieth v. Jubelirer,27 a plurality of four Justices voted to overturn Bandemer and concluded that political gerrymandering claims were not justiciable due to the lack of such standards.28 Justice Kennedy, concurring in the judgment, wrote separately to express his view that, while no standards existed at the time, they might "emerge in the future."29 Thus, five Justices concluded that the specific political gerrymandering claims at issue in Vieth were nonjusticiable, but a majority of the Court left open the possibility of exercising jurisdiction over some future partisan gerrymandering claims. In other cases, the Court divided on or otherwise declined to reach the merits of cases involving partisan gerrymandering.30

A majority of the Court addressed the justiciability of partisan gerrymandering claims in the 2019 case Rucho v. Common Cause. In that case, voters in North Carolina and Maryland challenged the partisan gerrymandering of their districts under the First Amendment, the Equal Protection Clause, the Elections Clause, and Article I, Section 2 of the Constitution.31 The Supreme Court, in a five-to-four decision, held that partisan gerrymandering claims are not justiciable. Chief Justice Roberts's majority opinion described districting as an inherently political process, which the Constitution entrusts to state legislatures and Congress.32 The Court further explained that the Constitution imposes no absolute right to proportionate political representation.33 Absent a right to strict proportional representation, the Court opined, courts deciding partisan gerrymandering cases would inevitably need to "make their own political judgment about how much representation particular political parties deserve-based on the votes of their supporters-and to rearrange the challenged districts to achieve that end."34 Thus, unlike claims alleging racial gerrymandering (which is always unconstitutional) or malapportionment (which is "relatively easy to administer as a matter of math"), the Rucho Court recognized that the inherently political nature of redistricting would require courts adjudicating partisan gerrymandering claims to adjudicate when partisanship has gone "too far" in influencing the redistricting process.35

Quoting Justice Kennedy's concurrence in Vieth, the Court stated that any appropriate standard for resolving partisan gerrymandering claims "must be grounded in a 'limited and precise rationale' and be 'clear, manageable, and politically neutral.'"36 However, after looking to the text of the Constitution and to various tests proposed by the parties, the Rucho Court concluded that it could identify no "limited and precise standard that is judicially discernable and manageable" for evaluating when partisan activity goes too far.37 Explaining that "federal courts are not equipped to apportion political power as a matter of fairness,"38 the Court emphasized that, by intervening in disputes over partisan redistricting, federal courts would "inject [themselves] into the most heated partisan issues,"39 and "would risk assuming political, not legal, responsibility for a process that often produces ill will and distrust."40 The Court thus concluded that "partisan gerrymandering claims present political questions beyond the reach of the federal courts" because "[f]ederal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions."41 While acknowledging that "[e]xcessive partisanship in districting leads to results that reasonably seem unjust," the Rucho majority rejected the notion that "this Court can address the problem of partisan gerrymandering because it must."42 Rather, the Court asserted, state courts, state legislatures, and Congress all have authority to address partisan gerrymandering.43

Footnotes

  1. Baker v. Carr, 369 U.S. 186, 198–99 (1962) (discussing difference between jurisdiction and appropriateness of the subject matter for judicial consideration, known as justiciability).
  2. U.S. Const. art. III, § 2.
  3. Massachusetts v. EPA, 549 U.S. 497, 516 (2007)See also DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2005) ("The doctrines of mootness, ripeness, and political question all originate in Article III's 'case' or 'controversy' language, no less than standing does."); Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 215 (1974) ("[T]he presence of a political question suffices to prevent the power of the federal judiciary from being invoked by the complaining party.").
  4. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 165–66 (1803) ("By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. . . . He is the mere organ by whom that will is communicated. The acts of such an officer, as an officer, can never be examinable by the courts.").
  5. See, e.g., Erwin Chemerinsky, Federal Jurisdiction § 2.6.1 (6th ed. 2012). Cf. Nixon v. Herndon, 273 U.S. 536, 540 (1927) (sustaining claim against judges of elections in Texas for refusing to allow a citizen to vote in violation of the Fifteenth Amendment and noting that "[t]he objection that the subject-matter of the suit is political is little more than a play upon words").
  6. Zivotofsky v. Clinton, 566 U.S. 189, 195 (2012) (holding that courts lack authority to decide political questions when there is a commitment of the issue to another department or where there is a lack of judicially discoverable and manageable standards for resolving them) (citing Baker, 369 U.S. at 217).
  7. Baker, 369 U.S. at 217.
  8. Id. (describing political questions as including cases involving "a textually demonstrable constitutional commitment of the issue to a coordinate political department or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government").
  9. Id. (describing political questions as including cases involving "a lack of judicially discoverable and manageable standards for resolving it").
  10. See, e.g.Zivotofsky, 566 U.S. at 195–97. Despite the frequency with which courts cite the Baker criteria, a notable commentator has dismissed them as "useless in identifying what constitutes a political question." Chemerinsky, supra note 5, at § 2.6. See also id. ("The Constitution does not mention judicial review, much less limit it by creating 'textually demonstrable commitments' to other branches. Similarly, the most important constitutional provision . . . certainly do not include 'judicially discoverable and manageable standards.'"). That commentator is hardly alone in this sentiment. One treatise on justiciability notes that "application of the political-question tests of Baker v. Carr is so highly individualized as to suggest that there is no political question doctrine at all, but only a number of discrete questions that have been characterized as political." 13C Charles Alan Wright & Arthur R. Miller et al., Federal Practice and Procedure § 3534 (3d ed. Oct. 2020 Update). The same treatise concludes that "there is no workable definition of characteristics that might be found to distinguish political questions from judicial questions." Id.
  11. See, e.g.Baker, 369 U.S. at 210 (stating that the political question doctrine has caused "[m]uch confusion."); Zivotofsky, 566 U.S. at 202 (Sotomayor, J., concurring in part and concurring in the judgment) (noting that "the proper application of Baker's six factors has generated substantial confusion in the lower courts").
  12. See Martin H. Redish, Judicial Review and the "Political Question," 79 Nw. U. L. Rev. 1031, 1039–43 (1985) (comparing "classical" interpretation of the political question doctrine, in which jurisdiction is withheld because the Constitution has textually committed the issue to another agency, and the "prudential" interpretation of the doctrine, in which rationales other than the text of the Constitution are used to justify judicial abdication). Compare Schlesinger, 418 U.S. at 215 ("[T]he concept of justiciability, which expresses the jurisdictional limitations imposed upon federal courts by the 'case or controversy' requirement of Art[icle] III, embodies both the standing and political question doctrines upon which petitioners in part rely."); Baker, 369 U.S. at 198–99 (court's determination that the case presented no political question "settles the only possible doubt that it is a case or controversy"); Id. at 210 ("The nonjusticiability of a political question is primarily a function of the separation of powers."), with id. at 217 (noting that political questions may involve prudential concerns such as a "lack of judicially discoverable and manageable standards or the potentiality of embarrassment from multifarious pronouncements by various departments on one question").
  13. See, e.g.Zivotofsky, 566 U.S. at 201 (reversing the lower court's conclusion that the case presented a political question and remanding to decide case on the merits).
  14. Wright & Miller, supra 10, at § 3534.
  15. The Court appears to have applied the political-question doctrine, without explicitly identifying the doctrine, in the election context but outside the gerrymandering context in O'Brien v. Brown, 409 U.S. 1 (1972) (per curiam). In O'Brien, the Court addressed an application to stay an order of the U.S. Court of Appeals for the District of Columbia, which had held that the action of the Democratic Party's National Convention's Credentials Committee in refusing to seat certain delegates was unconstitutional. Id. at 2. The Court granted the stay, noting that "[w]e must also consider the absence of authority supporting the action of the Court of Appeals in intervening in the internal determinations of a national political party, on the eve of its convention, regarding the seating of delegates. . . . Judicial intervention in this area has traditionally been approached with great caution and restraint." Id. at 4 (citing Luther v. Borden, 48 U.S. (7 How.) 1 (1849)).
  16. Black's Law Dictionary 696 (7th ed. 1999). See also Rucho v. Common Cause, No. 18-422, slip op. at 8 (U.S. June 27, 2019)("In 1812, Governor of Massachusetts and future Vice President Elbridge Gerry notoriously approved congressional districts that the legislature had drawn to aid the Democratic-Republican Party. The moniker 'gerrymander' was born when an outraged Federalist newspaper observed that one of the misshapen districts resembled a salamander.").
  17. Unequal districting, also known as malapportionment, was at issue in Baker v. CarrSee supra CONAN 16.2.
  18. Shaw v. Reno, 509 U.S. 630 (1993).
  19. See Rucho, No. 18-422, slip op. at 4.
  20. See Vieth v. Jubelirer, 541 U.S. 267, 305 (2004) (explaining potential theories for how gerrymandering could represent a constitutional violation).
  21. 478 U.S. 109 (1986). Although six Justices found the claim in Bandemer to be justiciable, they were unable to agree on a standard for evaluating political gerrymandering claims. Compare id. at 132 (in opinion for four Justices, concluding that "unconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistently degrade a voter's or a group of voters' influence on the political process as a whole") (White, J.), with id. at 173–75 (in opinion for two Justices, considering number of factors a court should look at concerning the fairness and constitutionality of a redistricting plan) (Powell, J., concurring in part and dissenting in part).
  22. Id. at 147 (O'Connor, J., concurring in the judgment).
  23. Id. at 155
  24. Id. at 145.
  25. See infra.
  26. Baker v. Carr, 369 U.S. 186, 217 (1962).
  27. 541 U.S. 267 (2004).
  28. Id. at 305–06.
  29. Id. at 311–12 (Kennedy, J., concurring in the judgment).
  30. See, e.g.League of United Latin Am. Citizens v. Perry (LULAC), 548 U.S. 399, 447 (2006) (although unable to agree on a full opinion, agreeing that constitutional challenge to partisan gerrymandering claim should be dismissed); Gill v. Whitford, No. 16-1161, slip op. at 13 (U.S. June 18, 2018) ("Our considerable efforts in GaffneyBandemerVieth, and LULAC leave unresolved whether such claims may be brought in cases involving allegations of partisan gerrymandering. In particular, two threshold questions remain: what is necessary to show standing in a case of this sort, and whether those claims are justiciable. Here we do not decide the latter question because the plaintiffs in this case have not shown standing under the theory upon which they based their claims for relief.").
  31. Rucho v. Common Cause, No. 18-422, slip op. at 1 (U.S. June 27, 2019)See also U.S. Const. art. I, § 2, cl. 1 (The House of Representatives shall be composed of Members chosen every second Year by the People of the several States.).
  32. Rucho, No. 18-422, slip op. at 8-9.
  33. Id. at 16 ("Our cases, however, clearly foreclose any claim that the Constitution requires proportional representation or that legislatures in reapportioning must draw district lines to come as near as possible to allocating seats to the contending parties in proportion to what their anticipated statewide vote will be.") (quoting Davis v. Bandemer, 478 U.S. 109, 130 (1986)).
  34. Id. at 17.
  35. Id. at 20.
  36. Id. at 15 (quoting Vieth v. Jubelirer, 541 U.S. 267, 306–08 (2004) (Kennedy, J., concurring in the judgment)).
  37. Id. at 22.
  38. Id. at 17.
  39. Id. at 15 (quoting Bandemer, 478 U.S. at 145 (O'Connor, J., concurring in the judgment)) (brackets in original).
  40. Id. (quoting Vieth, 541 U.S. at 307 (Kennedy, J., concurring in the judgment)).
  41. Id. at 30.
  42. Id. at 30–31 (quoting Gill v. Whitford, No. 16-1161, slip op. at 12–13 (U.S. June 18, 2018)).
  43. Id. at 31–33.

 

 

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