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 -

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 -


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.

NEXT: Panel Discussion on Qualified Immunity Next Week

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  1. How quickly they forget. But, then, hmmm... I seem to recall something else. Perhaps just a nuance (and certainly not a penumbra).

  2. Written by Chief Justice Roger Taney in 1849.

    1. Yes, Blackman definitely gives the impression that Roberts was contradicting one of his own opinions, but...

      1. I take that back. I don't know why I got that impression when the article was read to me by the computer. (I have the excuse that I was doing something else at the time.) And, yes, the who "who wrote that majority opinion" was Taney. Whether its validity is also afftected by the subsequent passage of the 14A, etc., is perhaps a different question.

      2. Actually I had the same first reaction, that Blackman was hinting it was a Roberts decision.

  3. But, isn't it a happy day when the Justices forget that their predecessors had decided to blow off enforcing part of the Constitution, and maybe put it back into force?

    1. On the contrary, it's a happy day when the Justices recognize ANY of the historic limits on their powers, even if they can't remember where those limts came from.

      1. It's a common law system. The only limits on the courts are political (eg court packing) and the limits that the Supreme Court itself recognises.

  4. Luther v. Borden? I bet Borden wins. Luther was a successful religious activist and a talented composer, but I don't see him winning against a healthy, motivated woman armed with an axe.

  5. "Well, now that the exam is over I can safely forget that stuff about the Guarantee Clause. I mean, who needs to know that stuff except law professors and Supreme Court justices?"

  6. If it's a political question, does that mean the federal government can pass and enforce a law to tell the states what is, and is not, a republican form of government? Looking forward to a new voting rights act, safeguarded from SCOTUS, under the political questions doctrine. Or would that be overturned by the court, under the, "Republicans win the political questions," doctrine?

    1. The Luther decision was that the Federal government, or at least its courts, had no say in whether Rhode Island could have a property quaification for voting. I'm pretty sure SCOTUS doesn't think that now.

    2. In Pcific Telephone and Telegraph v. Oregon (2012), the Supreme Court refused to decide whether ballot propositions are consistent with a republican form of government, reiterating that thr Guarantee Clause is committed to Congress for its enforcement and is not justiciable.

      In New York vs. United States (1992), the Supreme Court opened a potential crack in the door by assuming without deciding that a state could sue the United States to invalidate a federal statute. Under this theory, when Congress itself passes a statute purportedly stripping a state legislature of its constitutional powers, the stste might be able to sue to invalidate the statute under the Guarantee Clause. The Supreme Court decided that although the statute violated the 10th Amendment, it was not so egregious as to strip New York of its republican form of government and hence did not violate the Guarantee Clause.

      In doing so, it created a exception to the non-justiciability of the Guarantee Clause. When Congress itself strips a state of a republican form of government, it can be sued for violating its constitutional responsibility under the Clause.

      Given the merits outcome in New York v. United States, however, it seems doubtful that there would be a case where an act of Congress would be a dereliction of its guarantee obligations, yet not violate a state’s 10th Amendment powers, so that the Guarantee Clause would provide an independent basis for a lawsuit under this theory.

      1. The real question is what happens when Congress decides to act on it's guarantee clause obligation, and starts ordering a state around in regards to its internal affairs on the premise that the state doesn't have a republican form of government unless it complies.

        That is, when the duty gets transformed into an excuse to exercise power.

        What level of scrutiny would the Court apply to such legislation?

        1. New York v. US would tend to suggest that federal courts could adjudicate a state’s claim that Congress exceeded its Guarantee Clause powers and violated the state’s 10th Amendment rights.

  7. It's almost as if deciding important legal issues using a pop quiz oral examination isn't such a good idea.

    1. Didn't they decide The People of a state, creating a redistricting commission independent of the legislature, to do a thing the Federal constititution guaranteed to the republiform states, counted as a republican form of government?

      No problem there.

    2. Yeah, if only they first gave the participants months to research the issues and draft extensive written responses, then gave them more months of notice of the day the "pop quiz" would be sprung, and the people involved could be the ones who decided the issues that were going to be raised. Then everyone could have a reasoned, intelligent debate on the laws at issue and how they apply. That would definitely be a better system.

      1. Ask questions in writing, send the answers in writing. Or, just for a laugh, the Justices could get their clerks to look up the answers to these kinds of questions.

    3. It's almost as if you don't actually know how it works.

  8. The Administration’s argument in the case seemed essentially a Hollywood defense. It downplayed the arguments most directly favoring treating territories differently - the Territory Clause, the Insular Cases, previous cases specifically upholding benefit differences in federal benefits between states and territories and Puerto Rico specifically - and advanced in their place a broad argument that all federal taxing and spending programs are subject to rational basis and essentially anything goes, a theory I suspect was calculated to get the Court to reject. On questioning, they specifically admitted that inder their theory, Congress could decide to exclude Mississipi from SSI if it determined it had too many poor people and would be too expensive.

    I think thst, while nominally defending Congress, they wanted to provoke a ruling that would force extension of federal benefits to all territories. Congress’ position never really got defended by any party. When conservative justices kept bringing up cases and arguments favoring it, the United States kept finding ways to swat them down, not formally reputiating them but diminishing them. At one point Justice Gorsuch asked what the United States’ position on the Insular Cases was, should they be overruled or not, and the answer was you don’t have to overrule them because they aren’t relevant to our argument.

  9. Isn't the guarantee clause being a political question obvious nonsense? I mean, if a state decided, fuck it, monarchy, that would be an obvious violation? Granted there were pretty excessive delegations of power during Covid ...

    I thought political questions apply when intrabranch issues come up, such as say, congressional procedure (outside that mentioned in the constitution). Not with the states.

    There were some cases for this clause that certainly seem political questiony ... to an extent, states have the right to determine how their government works, even if it is stupid (there was a case about NY Supreme Court system 10 years ago on this point where pretty much all 9 of the justices agreed that its stupid but oh well).

    There are also cases sort of using the guarantee clause (in the form of "due process") where the court went to far, such as holding state senate districts must be equal population. Which is dumb, because the actual senate isn't.

    But to outright not acknowledge its existence seems ... wrong to me. It does have a point. Historically, the federal system was far from democratic. Senators where choosen by legislatures. The whole idea was that the state governments would be democratic. The federal system is thereby insulated, but not removed, from the democratic process. That is the idea from my understanding. Straight up refusing to enforce state democracy seems wrong.

    1. I think the most sensible way to interpret the guanrantee clause in light of New York v. United States is that to the extent it is justiciable it is specifically a state’s right. If Congress tried to impose a monarchy on a state, the state could sue under New York v. US.

      I think, however, that individual rights would most likely be addressed by some other constitutional provision. If a state decided ro do a monarchy on its own, it obviously wouldn’t be suing anybody over it, and in your hypothetical Congress wouldn’t be doing anything either, so individuals would be doing any suing. I suspect it would violate anything from the Title of Nobility clause for a ceremonial monarchy to the voting rights amendments, the 9th Amendment, etc. for an actual autocracy.

  10. IANAL but from Wiki

    The ruling established that the "republican form of government" clause of Article Four was non-justiciable, a ruling that still holds today. However, two decades after Luther v. Borden was decided, the Fourteenth Amendment, which included the Equal Protection Clause, was added to the Constitution. Baker v. Carr, in which the Court found that the Court could examine Tennessee's apportionment of legislative districts, was based on the Equal Protection Clause, and many subsequent cases that covered much of the same ground as Luther v. Borden followed suit.

    A Supreme Court case that held that federal courts could hear cases that claimed that malapportionment of state legislatures violated the Equal Protection Clause of the Constitution. By holding that such cases were justiciable, the Supreme Court paved the way for federal courts (and not just state courts) to hear and decide on reapportionment issues.

  11. I believe Robert Bork suggested that the Court could have made the Guarantee Clause justiciable in order to undo the extreme malapportionment of the Tennessee legislature - without imposing the "extreme" remedy of districts with exactly-equal population.

  12. The Guaranty Clause certainly is a political question, and this shouldn't be controversial. What the hell is a "Republican form of Government"? Does this mean California can't have ballot propositions? Does this mean that aggressive judicial review (which gives the courts quasi-legislative power) is unconstitutional?

    And what the hell does it mean for the federal government to "guaranty" it? Does this require Congress to pass laws to prohibit state practices? Does it grant Congress the power to do so? Can Congress override sovereign immunity to do it?

    The Constitution has several provisions saying what state governments can and can't do with respect to democracy, there are laws (such as the Voting Rights Act) that cover the same subject, and, of course, state governments, quite on their own, have representative democracies. That's enough. The Guaranty Clause is inoperative in court and should remain so.

    1. See New York v. US (1992) where the Supreme Court entertained a state’s claim that Congress violated the Guarantee Clause.

      1. That's really a Tenth Amendment case though.

  13. I like to think that I'm reasonably well-informed about both constitutional law and 19th century American history, but I have to admit that I had never heard of this case (we certainly didn't read it in my law school), and I don't think I knew about the rebellion in Rhode Island that it arose from. From Westlaw, it looks like Luther has only been cited 432 times in the last 170 years, and it's only been cited in Supreme Court opinions 53 times, most recently in 2012. So pace Prof. Blackman, I'm actually impressed that Roberts and Blackman remembered enough about the case and the context to make it even as far as they did in that colloquy.

    1. We definitely covered it in Con Law at my law school

    2. I remember the case about the 2 Rhode Island governments an the Guarantee Clause, but could not tell you it's name.

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