By FindLaw Staff | Legally reviewed by Renee Guolee, J.D. | Last updated July 15, 2022
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.
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.
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
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