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 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.
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.
In Nixon
v
United
States (`1993), the Court found a
textual commitment to the
Senate of the manner in which it might "try" a
federal officer for
impeachment.
Judge Walter Nixon, convicted in an
impeachment proceeding for
accepting
a bribe, argued that the 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. 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
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.
Rucho v Common Cause (2019) is one of the Court's most significant decisions in decades. By a vote of 5 to 4, the Court finally answered the question left open in Vieth: whether any judicially manageable standard could be found to determine which gerrymanders were so partisan as to violate either the Equal Protection Clause or the First Amendment. Writing for the Court, Chief Justice Roberts, while deploring the practice of partisan gerrymandering, concluded that no judicially manageable standards existed that could be applied by the federal courts. Justice Kagan, writing for four dissenters argued that the lower courts (two district courts, one in North Carolina considered a Republican gerrymander and one in Maryland considering a Democratic gerrymander) have done an admirable job separating the typical run-of-the-mill partisan gerrymander (which Kagan and the dissenters suggest would be constitutional) from the extreme gerrymanders (using new technological tools that allow parties to maximize their political advantage) that the dissenters contend violate both the Equal Protection Clause and the First Amendment. Rucho leaves modern politics in a mess. The beneficiaries of gerrymandering have zero incentive to adopt more neutral redistricting approaches and Congress is too polarized to act. |
Cases
Powell v McCormack (1969) Nixon v U. S. (1993) Vieth v Jubelirer (2004) Rucho v Common Cause (2019) Key Textual Provisions for Cases:
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 political discrimination in redistricting plans to be non-justiciable, so Kennedy's opinion is key. 6. After Rucho, is there any realistic hope for limitations being placed on extreme political gerrymandering? If so, how could that happen? 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 unconvinced that a meaningful
standard for judging
partisan gerrymandering existed--thus seemingly
giving the greenlight
to partisan map-drawing whenever one party
controls both state houses
and the governorship. The Court did,
however, find that one of
the redrawn districts discriminated against Latino
voters in violation
of the Voting Rights Act and ordered that district
lines be redrawn to
restore Latino voting power to its pre-existing
state.
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