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.
To get the Volokh Conspiracy Daily e-mail, please sign up here.