POLITICAL QUESTION DOCTRINE

As early as marbury v. madison (1803) the Supreme Court recognized that decisions on some governmental questions lie entirely within the discretion of the "political" branches of the national government—the President and Congress—and thus outside the proper scope of judicial review. Today such questions are called "political questions."

Among the clauses of the federal Constitution held to involve political questions, the one most frequently cited has been Article IV, section 4, under which the federal government "shall guarantee to every State in this Union a republican form of government." Federal courts, and particularly the Supreme Court, have argued that as the definition of "republican" is at the heart of the American political system, only the "political branches," which are accountable to the sovereign people, can make that definition. The electorate can ratify or reject the definition by reelecting or defeating their representatives at the next election. The choice of definition, Justice felix frankfurter said, dissenting in baker v. carr (1962), entails choosing "among competing theories of political philosophy," which is not a proper judicial function.

Thus the Supreme Court has refused to review political decisions in cases involving two governments, each claiming to be the legitimate one of a state (luther v. borden, 1849); the question whether the post-civil war reconstruction governments in southern states were republican (Georgia v. Stanton and mississippi v. johnson, 1867); the "republican" nature of the initiative and referendum (Pacific Telephone & Telegraph Co. v. Oregon, 1912; Hawke v. Smith, 1920); lack of reapportionment by state legislatures (colegrove v. green, 1946); contested elections (Taylor & Marshall v. Beckham, 1900); certain presidential actions (Mississippi v. Johnson, 1867); certain cases arising in Indian territory (cherokee indian cases, 1831–1832); and foreign affairs (Foster v. Neilson, 1829; Charlton v. Kelly, 1913).

The Supreme Court has never successfully differentiated those questions proper for judicial interpretation from those that are reserved to the "political" branches. A plurality of the Justices having held in Colegrove v. Green (1946) that a state legislature's failure to reapportion itself after the decennial federal census was a political question, for example, the Court in Baker v. Carr decided that such inaction raised a question under the equal protection clause of the fourteenth amendment rather than the guarantee clause, and therefore raised an issue proper for judicial decision. After having handed down a line of cases holding that contested elections were matters in which the final decision could come only from the relevant legislative body, the Court overturned the refusal by the house of representatives (powell v. mccormack, 1969) to seat a member who, in the Court's view, had been excluded unconstitutionally.

The Court has been relatively consistent in holding various foreign relations issues to constitute political questions, because of the necessity for the country to speak with one voice, the inability of courts to develop a body of principles to govern such issues, and what Justice Frankfurter described in Perez v. Brownell (1958) as the "constitutional allocation of governmental function" concerning foreign affairs to the President and Congress. Matters such as the existence of a state of war, the relevance of a treaty, the boundaries of the nation, and the credentials of foreign diplomats have been left to congressional and presidential diplomats. But the Court stated in reid v. covert (1957) that even the provisions of a treaty or executive agreement are reviewable if citizens assert violations of their rights. And, in the face of government claims that the travel of Americans abroad raises diplomatic issues fit only for executive discretion, the Court has enunciated the right to travel abroad and has made substantive rulings for and against claims of that right (kent v. dulles, 1958; aptheker v. secretary of state, 1964; zemel v. rusk, 1965).

The Supreme Court's variable commitment to the political question doctrine may be explained by reasons that are nondoctrinal. The Court appears to resort to the doctrine when only two substantive judgments are possible, the first being unacceptable to the Court because it would likely go unenforced and the second being equally unacceptable because it would violate a major tenet of American political ideology. In Colegrove v. Green, for example, the plurality suggested that the Illinois legislation might ignore a holding that the legislature's refusal to redesign badly malapportioned congressional districts was unconstitutional—and the House of Representatives might take no action. Yet upholding such a malapportionment, which gave some citizens a vote of far greater weight than that of others, would have run contrary to the American belief that all citizens are equal in the electoral process. Similarly, the Court in Mississippi v. Johnson had the choice of deciding that the Reconstruction state governments were illegitimate, a ruling that the President and Congress surely would have ignored; or that the governments, which had been imposed by the federal government on citizens denied the right to participate in the election process, were legitimate—which would have offended the basic American idea of sovereignty of the people. In both cases the Court invoked the political question doctrine and left decision in the hands of the "political branches."

The very notion of "political branches," however, is untenable. Article III of the Constitution makes the federal judiciary indirectly accountable insofar as it may enable the people's representatives in Congress to strip the courts of jurisdiction over matters the people believe the courts to have mishandled. Federal judges, too, are liable to impeachment—although this resource has never been taken for purely political purposes since the earliest days of the nineteenth century.

Court decisions necessarily affect power. The decision in plessy v. ferguson (1896) legitimizing separate but equal railroad cars for black and white passengers encouraged southern states to establish racially segregated schools; the holding of brown v. board of education (1954) that "separate but equal" schools violated the equal protection clause stripped the states of that power, transferring the power to define segregation and integration to the federal courts, the Congress, and, in some cases, to the President. The Court's upholding of economic regulation affecting wages, hours, unionization, social security, job safety, and competition shifted power from employers to state and federal legislatures, executives, and regulatory agencies, as well as to unions, and enabled the United States to consolidate a system of welfare capitalism under which privately owned property is systematically regulated by governmental bodies.

The Court nonetheless insists that the judicial branch is apolitical, because its own institutional power depends on the electorate's belief that the Court is above politics. as james madison pointed out in the federalist #51, the Court possesses neither the power of the purse nor that of the sword. It is entirely dependent for the enforcement of its decisions on the willingness of the population and public officials to carry them out. Were the Court's decisions to be ignored, the Court's prestige would suffer; in a circular fashion, the loss of prestige would increase the possibility that subsequent decisions would go unheeded.

The Court's decisions find ready compliance when the decisions reflect a societal consensus. The difference between the Court's 1946 Colegrove decision that malapportionment was a political question and its contrary 1962 Baker decision can be linked to the large-scale movement of population to urban areas underrepresented in the legislatures. By 1962 a majority of the nation's population could be expected to concur in a decision that enhanced its political power. Promise of additional support from the President was implicit in the appearance of Attorney General robert f. kennedy before the Court to argue as amicus curiae for reapportionment, for Kennedy was, of course, the brother of President john f. kennedy, who owed his office to urban votes.

The political question device derives its legitimacy from the necessity to preserve an independent judiciary in the American political system. The device is justifiable because it enables the judiciary to maintain its independence by withdrawing from no-win situations. In addition, it prevents the courts from usurping the role of the ballot box. The Supreme Court, declaring the presence of a political question, tacitly admits that it cannot find and therefore cannot ratify a social consensus that does not violate basic American beliefs. The Court has no moral right to impose rules upon a country not yet ready for them. The political question doctrine, which permits the Court to restrain itself from precipitating impossible situations that might tear the social fabric, gives the electorate and its representatives time to work out their own rules, which can ultimately be translated into constitutional doctrine through judicial decision. The doctrine of political questions is more than a self-saving mechanism for the Court; it is also an affirmation of a governmental system based on popular sovereignty.

Philippa Strum
(1986)