The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Tuesday, the Supreme Court heard oral argument in U.S. v. Vaello-Madero. At one point, Chief Justice Roberts asked if the Guarantee Clause was justiciable. The lawyer for the respondent had no clue. Neither did any of the Justices. Hilarity ensued.
MR. FERRÉ: I --I think the big picture is that the Constitution promised to citizens a republican form of government, and the intention, certainly from the cases that -the Court's early cases, were that the problem of a non-republican form of government in the territories was a temporary one which would be resolved as these territories were populated and organized and then became states. . . . .
CHIEF JUSTICE ROBERTS: Have we ever held that the republican form of government provision is judicially enforceable?
MR. FERRÉ: I --I believe so. I think it's a --it's a --it's a -
CHIEF JUSTICE ROBERTS: What --what case?
MR. FERRÉ: I --I can't --I can't say.
JUSTICE BREYER: Rhode Island? Wasn't there something in Rhode Island or -
CHIEF JUSTICE ROBERTS: There was something. I'm not sure what it -
JUSTICE BREYER: That wasn't the -
CHIEF JUSTICE ROBERTS: Yes.
JUSTICE KAGAN: We'll go back and look.
CHIEF JUSTICE ROBERTS: Something happened in Rhode Island, Justice Breyer and I agree, but I'm not sure what the result of that case was. If if --we'll look.
MR. FERRÉ: It --it's -
CHIEF JUSTICE ROBERTS: It's another small state.
MR. FERRÉ: Right. But it's certainly a basic premise of the Constitution.
CHIEF JUSTICE ROBERTS: Well, I --I don't know that it follows from that that it's judicial --judicially enforceable. But we'll --we'll check.
Did not a single Justice remember that Luther v. Borden held that the Guarantee Clause was not justiciable?
About 5 pages later, Chief Justice Roberts seemed to get the memo:
CHIEF JUSTICE ROBERTS: Thank you, counsel. I feel a little more comfortable now saying that the guarantee clause, which guarantees the Republican form of government, we have said it presents a political question. And I wonder if your --the extent to which you relied on it in one of your prior answers, to what extent is it --is it key to your argument?
MR. FERRÉ: I --I don't --I don't know that it's key to the argument. But I think that the Court should take and the Court has in the past certain --certainly taken into account the fact of an individual or a group's political powerlessness.
Perhaps someone slipped the Chief a citation. I hope no one told Roberts who wrote that majority opinion.
The Justices, or at least their clerks, should check out Tara Grove's excellent article on the topic.