The Volokh Conspiracy

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The Justices Struggle To Remember Luther v. Borden

A surreal colloquy from U.S. v. Vaello-Madero.


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 –


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 –


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.