Questioning the Political Question Doctrine

The Supreme Court has used this doctrine for many years, including in the recent gerrymandering decision. But it still doesn't actually make any sense.



The Supreme Court.

For many decades, the Supreme Court has chosen to avoid addressing some issues by ruling that they are "political questions," and therefore not fit for resolution. Last week, in Rucho v. Common Cause, the Court concluded that political gerrymandering falls within that category. In cases such as Baker v. Carr (1962), the Court has said that political questions are issues that lack "judicially administrable standards" or ones where the decision in question has been left to the "nonjudicial discretion" of another branch of government.

I have been teaching the political question doctrine in introductory constitutional law classes since 2002. But the more I think about it, the less sense it makes. In an excellent recent post at the Originalism Blog inspired by the gerrymandering decision, legal scholar Michael Ramsey outlines some of the flaws of the doctrine:

The Court, per Chief Justice Roberts, held that the constitutionality of political gerrymandering is a "political question" not suitable for judicial resolution, principally because it lacks judicially manageable standards.  Once one grants that at least some consideration of political consequences is acceptable in redistricting decisions, how is one to say when it becomes too much consideration, and hence unconstitutional?

I'm entirely unpersuaded.  Courts routinely draw difficult lines between borderline-acceptable behavior and borderline-unacceptable behavior.  True, this is often messy.  Justice Scalia, for example, famously wanted bright lines and hated balancing tests.  But if the lack of a bright line makes a claim nonjusticiable, federal courts are going to have a great reduction in work load.

To take a couple of examples favored by center-right originalists, it's not so easy to say when a law is sufficiently necessary and proper to the regulation of interstate commerce that it falls within Congress' enumerated powers.  Few people doubt that some federal regulation of local matters is justified due to their connection to interstate commerce, but how much connection is enough?  This question isn't considered a political question, nor should it be.  And to take a very recent case, any re-invigoration of the nondelegation doctrine, as suggested by Gundy v. United States, involves deciding how much policymaking delegation by Congress is too much (it being undoubtedly true that some policymaking delegation is inevitable).  It's true that Justice Scalia thought this was sufficient reason to hold nondelegation claims basically nonjusticiable, but the current Court (including Chief Justice Roberts) seems prepared to reconsider.  In neither of these situations (nor in many others I can think of) does the Constitution say exactly where the line should be drawn.  But, generally speaking, courts still decide these cases, perhaps with a good bit of deference to the government in the gray areas.  As I think a famous Justice said, the existence of twilight does not mean we cannot distinguish day and night.

No one interprets the political questions doctrine as forbidding judicial consideration of all issues that are governed by standards with potentially fuzzy boundaries, as opposed to bright-line rules. Indeed, even the late Justice Scalia often joined decisions applying such standards, despite his commitment to a legal philosophy that stresses the virtues of bright-line rules. But the doctrine simply doesn't tell us how much fuzziness is too much. Thus, judges have little to go on besides their intuition and (in many situations), their ideological predilections.

To put it a different way, the "judicial administrability" prong of the political question doctrine itself isn't judicially administrable.  Alternatively, if judges are capable of applying this incredibly vague standard, after all, then they are also capable of applying pretty much any other mushy standard, including figuring out how much political gerrymandering is too much. In that event, the standard may be judicially administrable, but also unnecessary.

The second standard prong of the political question doctrine—commitment of the issue to another branch of  government –  is more defensible. But, as Ramsey explains, it is also superfluous:

The Court in Rucho does better in noting two points: (1) that founding-era Americans knew about partisan gerrymandering; and (2) that they nonetheless generally gave state legislatures power over districting, subject to oversight by Congress, but not subject to any other express limitations.  One might say that this builds a case for application of the other prong of the political question doctrine—that a constitutional judgment is textually committed to another branch.  But I doubt that approach as well.  The fact that Congress has oversight does not mean the courts do not also have oversight.

Instead, I think the Court's points about the text and history show something different: the Constitution does not limit partisan districting.  At minimum, I would say that the originalist case for a constitutional limit on partisan districting is not proved…  Put this way, districting is a political question, but not because of some arcane doctrine of justiciability.  It is a political question because the Constitution did not address it, and thereby left it (like many other issues) to the political branches.

The courts do not need a special "political question" doctrine to rule that a given law or regulation is constitutional because it falls within the authorized powers of that branch of government and nothing else in the Constitution forbids it. In fact, courts uphold legislation on that basis all the time, usually without any reference to the political question doctrine.

Sometimes, the political question doctrine is defended on the basis that it can be used to keep courts from involving themselves on issues where the legislature or the executive has superior expertise, particularly issues involving immigration, foreign relations, and national security. The problem with that theory is that the political branches of government have superior expertise on nearly all areas of policy, and that immigration and national security are not actually unusual in that regard. The reason for judicial review is not that the judges have superior expertise on policy, but that they have different incentives, and are often more likely to protect long-term constitutional values and enforce minority rights. And, as with the "judicial administrability" issue, the Court has never come up with anything approaching a clear rule or standard for determining how big the gap in expertise has to be to require judges to avoid resolving a given issue.

On most constitutional questions—including most that involve fuzzy standards and issues where the political branches have superior expertise—courts resolve the relevant cases without even mentioning the political question doctrine. Every once in a while, however, the Supreme Court will take it out for a spin in order to justify sidestepping some issue the majority would prefer to avoid. When that happens, those who like the result applaud, while dissenters argue that the doctrine has not been properly applied (as Justice Elena Kagan does in her forceful dissent in the gerrymandering case).

Both sides assume that the political question doctrine is a useful tool for guiding judicial decision-making, or at least that it can potentially serve that role. The truth, however, is that it is an emperor walking around with no clothes. One of its main prongs is useless, while the other is superfluous.

There are, in my view, good constitutional arguments both for and against judicial policing of gerrymandering. Roberts and Kagan cover many of them in their respective opinions.

I am, perhaps, unusual in considering the issue to be a close question. Almost every other legal commentator seems to think it is a slam dunk, even as  they vehemently differ over the issue of which side it's a slam dunk for! Be that as it may, the political question doctrine adds little of value to this debate—or any other.

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  1. What about “sole powers,” designated in the Constitution to be exercised by specific political branches? Surely the Court has no say over those, right? Or is this just an argument on behalf of Court supremacy over everything?

    1. That’s what it reads like to me. Frankly, I’m glad for a little judicial humility. Even leftists like Mark Tushnet have talked lately about “taking the constitution away from the courts.” Expect a flip, where as conservatism gets judicially entrenched due to McConnel and Trump packing the courts to where liberals are now suddenly for taming the courts the way Republicans and conservatives wanted to in the era of Warren and Burger.

      1. Dear ESL Speaker,

        Packing the courts means “creating new judicial positions for the purpose of filling them with persons expected to be amenable to the views of the creators”.

        If no new judicial positions have been created, there is no case of packing the courts.

        And please, don’t be disheartened by this error! Remember, you can’t improve your grasp of English unless you practice, and practice means making mistakes.

        1. Software needs update.

          V2.0 has been modified to more fully cope with user needs. “Court packing,” now includes illegitimately delaying appointments to vacant seats, in order later to fill those seats with persons expected to be amenable to the views of would-be court packers.

          The update committee will decide shortly whether in Version 3.0 the term should be further expanded. The suggestion is to include as court packing the practice of timing judicial retirements to afford enhanced opportunities for filling seats with persons expected to be amenable to the views of would-be court packers.

          In general, the improved algorithm recognizes as court packing any combination of purposeful action to systematize appointments in defiance of happenstance, plus appointments amenable to the views of court packers. These changes better account for the full spectrum of political activity the algorithm is designed to recognize.

          To avoid erratic and unpredictable operation, please update your software.

          1. At least 50% witty, but really beside the point. Yes, we’re all aware that the left now defines “court packing” as meaning, “We don’t control the courts”. It’s part and parcel of the left’s refusal to admit any institution or power center it doesn’t control can be “legitimate”.

            Nobody else defines it that way.

            1. >the left now defines “court packing” as meaning, “We don’t control >the courts”.

              *slow golf clap*

            2. the left’s refusal to admit any institution or power center it doesn’t control can be “legitimate”

              This is utterly hilarious coming from you.

          2. Dear ESL Speaker,

            Thank you for your concern about the definitions used by Language Assistance Bot. Please be advised that Language Assistance Bot definitions are based on the actual meaning of English terms, rather than what random persons think the terms “should” mean. If you wish to use a language where terms mean what they “should” mean, the Newspeak Dictionary, Eleventh Edition Revised and Updated, is available from Oberlin College.

          3. If your “judges” weren’t holding that the 14th Amendment protected killing babies and buttsex, we wouldn’t need to check judicial appointments as carefully.

            1. Why are we having a semantic argument about what “court-packing” means?

              Here is the issue, IMO. Is it OK for either party to use all legal means to tilt the makeup of the federal courts to reflect its own ideology, and be more favorably disposed towards its preferences?

              If so, then adding seats to accomplish this is no different than McConnell’s blocking of a Garland vote. You can’t say one is mysteriously bad because it’s “court-packing” while the other is just fine.

              How do you distinguish which legal strategies are allowed and which aren’t?

              1. I’m not super concerned about legality anymore. If it were up to me, Democrats would be declared enemies of the West and dealt with accordingly.

              2. Court packing isn’t “illegal”, nobody is saying it is. But it’s still a different not illegal thing from what the Republicans did.

                1. But it’s still a different not illegal thing from what the Republicans did.

                  OK. But does that make it worse in some way, which seems to be the right’s opinion. Maybe it’s not yours. I don’t know.

                  I do recall that McConnell’s defenders argued mostly from the Senate’s power to advise and consent. Court-packers will argue from Congress’ right to determine the size of the court. I don’t see any great difference here.

          4. “illegitimately delaying appointments to vacant seats”

            Illegitimately in this phrase is doing about 5 orders of magnitude too much work.

            Cite constitutional text that clearly and explicitly defines a timeline upon which the Senate MUST act on an appointment, and explicitly defines what actions the Senate is required to take on said appointment.

            1. I question whether it is forthright to attack a centuries-old norm, and when challenged resort to, “Cite constitutional text . . . ” No constitutional text stood against FDR’s court packing scheme. That did not prevent that scheme from becoming a durable byword used in both major parties to imply abuse of government process.

          5. No, it doesn’t. Court packing has a specific meaning that does Not include the duly elected POTUS nominating to fill open positions and the duly elected Senate confirming said appointments.

    2. For once I agree with Stephen Lathrop.

      The PQ doctrine is nothing more than “certain decisions are committed to other branches”. It’s why a court won’t enjoin a war. It’s why the Congress is supposed to decide contested presidential elections. It’s why courts can’t review pardons.

      You can agree or disagree with its application to gerrymandering, but it is clear that some decisions are committed to other branches of government with no judicial review.

    3. The article literally argues that this is a more defensible defense of the outcome than PQ doctrine, eg, they should have ruled on the merits this was left to political branches.

  2. I can see an argument for non-judiciability, as you say, in the case of powers expressly granted to the other branches.

    Further, while the judiciary rules in law AND equity, its primary responsibility is enforcement of written rules originated outside itself. There’s certainly a strong argument that, to rule in law, there must be a law to base the ruling on.

    But if there IS an issue of law, it’s rank cowardice for the Court to declare that it’s not going to rule. A good example of this would be the ‘enrolled bill’ doctrine, where the Court simply refuses to take cases where somebody alleges that a law wasn’t actually enacted pursuant to the Constitution.

  3. I for one welcome our new judicial masters.

    The court last week when faced with the Michigan redistricting case, where the voters in Michigan have already set up a non-partisan redistricting commission to start work in 2020 for the 2022, but that wasn’t good enough for the 3 judge panel, which not only threw out the districts but ordered special elections that effectively shortened many legislators 4 year terms to 2 year terms. And with no clarification of how to apply the Michigan term limits law, which limits legislators to 2 terms.

    1. You can be sure that any such ruling is going to be by liberals to try to help Democraps.

    2. Wait a minute. I thought all this districting stuff was off the Court’s docket—strictly for the states to decide, according to methods the state’s citizens choose. Get that redistricting commission going now, and draw up some new districts for 2020.

      Also, time for some recalls in Michigan, and for a state initiative to get off the recall process the handcuffs the legislature imposed.

  4. […] […]

  5. “But if the lack of a bright line makes a claim nonjusticiable, federal courts are going to have a great reduction in work load.”

    Where in the Constitution is it required that the federal courts be kept busy?

  6. “This question isn’t considered a political question, nor should it be.”

    Why not?

  7. The primary premise upon which the PQ doctrine relies is LOL loony tunes. Who, in their right mind, would seriously advance the proposition that a politician or a bureaucrat has “superior expertise?” If an attorney made such an argument in my court, she would be sanctioned as such an argument is the very quintessence of frivolity.

    1. Why would a court have any expertise on policy issues? Are the Supreme Court Justices better able to determine how to defend the country than POTUS? Whether a fetus has the same moral rights as an adult?

      1. But 97% of Climate Judges agree that we will be burned to death in 11 years

      2. 1. Rule by “experts” is a logical fallacy.

        2. Arguing that a bureaucrat or a politician is expert is mendacious nonsense.

        3. A Supreme Court justice may or may not be better able to determine how to defend the country, but draft dodgers and deferral artists who become POTUS do not have any special expertise in defending the country.

        4. Pentagon lifers do not necessarily have any special expertise in defending the country – after all, they are public sector lifers who, by definition, are less than.

        5. There is no constitutional provision empowering courts to create the PQ doctrine or to punt upon the basis of the PQ doctrine.

        6. The PQ doctrine is alien to a free society in which individual liberty and private property are paramount to two wolves and a sheep deciding how much of the sheep shall be sheared.

  8. Here’s a defense of something like the political question doctrine. Even though the political question doctrine is itself a kind of mushy rule it’s the kind of rule that, in the long term, doesn’t allow the same degree of direct judicial interference in partisan politics.

    For instance, even though currently the choice not to intervene in gerrymandering favors one party over another in the long term a rule that judges won’t interfere doesn’t allow judges to tailor their rulings to favor the party of their choice, eg, be more inclined to overturn gerrymandering by one party. While I don’t think this is the right call here ( could have chosen a specific mathematical cutoff) in general it seems there is grounds for the judiciary to sometimes judge that a topic is so hard to rule on without creating an appearance of partiality that it is better to stay out of it.

  9. It’s clear that Somin is a typical libertarian — only libertarian when it suits his purposes.

  10. […] a couple of recent blog posts, Michael Ramsey and Ilya Somin raise doubts about the political question doctrine. Between them I think they make a pretty good […]

  11. […] stop state-based, citizen-led efforts to give map-drawing power to the people.” At Reason’s Volokh Conspiracy blog, Ilya Somin suggests that the political-question doctrine, on which the court relied in Rucho, […]

  12. only libertarian when it suits his purposes.

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