For many decades, the Supreme Court has chosen to avoid addressing some issues by ruling that they are “political questions,” and therefore not fit for resolution. Last week, in Rucho v. Common Cause, the Court concluded that political gerrymandering falls within that category. In cases such as Baker v. Carr (1962), the Court has said that political questions are issues that lack “judicially administrable standards” or ones where the decision in question has been left to the “nonjudicial discretion” of another branch of government.
I have been teaching the political question doctrine in introductory constitutional law classes since 2002. But the more I think about it, the less sense it makes. In an excellent recent post at the Originalism Blog inspired by the gerrymandering decision, legal scholar Michael Ramsey outlines some of the flaws of the doctrine:
The Court, per Chief Justice Roberts, held that the constitutionality of political gerrymandering is a “political question” not suitable for judicial resolution, principally because it lacks judicially manageable standards. Once one grants that at least some consideration of political consequences is acceptable in redistricting decisions, how is one to say when it becomes too much consideration, and hence unconstitutional?
I’m entirely unpersuaded. Courts routinely draw difficult lines between borderline-acceptable behavior and borderline-unacceptable behavior. True, this is often messy. Justice Scalia, for example, famously wanted bright lines and hated balancing tests. But if the lack of a bright line makes a claim nonjusticiable, federal courts are going to have a great reduction in work load.
To take a couple of examples favored by center-right originalists, it’s not so easy to say when a law is sufficiently necessary and proper to the regulation of interstate commerce that it falls within Congress’ enumerated powers. Few people doubt that some federal regulation of local matters is justified due to their connection to interstate commerce, but how much connection is enough? This question isn’t considered a political question, nor should it be. And to take a very recent case, any re-invigoration of the nondelegation doctrine, as suggested by Gundy v. United States, involves deciding how much policymaking delegation by Congress is too much (it being undoubtedly true that some policymaking delegation is inevitable). It’s true that Justice Scalia thought this was sufficient reason to hold nondelegation claims basically nonjusticiable, but the current Court (including Chief Justice Roberts) seems prepared to reconsider. In neither of these situations (nor in many others I can think of) does the Constitution say exactly where the line should be drawn. But, generally speaking, courts still decide these cases, perhaps with a good bit of deference to the government in the gray areas. As I think a famous Justice said, the existence of twilight does not mean we cannot distinguish day and night.
No one interprets the political questions doctrine as forbidding judicial consideration of all issues that are governed by standards with potentially fuzzy boundaries, as opposed to bright-line rules. Indeed, even the late Justice Scalia often joined decisions applying such standards, despite his commitment to a legal philosophy that stresses the virtues of bright-line rules. But the doctrine simply doesn’t tell us how much fuzziness is too much. Thus, judges have little to go on besides their intuition and (in many situations), their ideological predilections.
To put it a different way, the “judicial administrability” prong of the political question doctrine itself isn’t judicially administrable. Alternatively, if judges are capable of applying this incredibly vague standard, after all, then they are also capable of applying pretty much any other mushy standard, including figuring out how much political gerrymandering is too much. In that event, the standard may be judicially administrable, but also unnecessary.
The second standard prong of the political question doctrine—commitment of the issue to another branch of government – is more defensible. But, as Ramsey explains, it is also superfluous:
The Court in Rucho does better in noting two points: (1) that founding-era Americans knew about partisan gerrymandering; and (2) that they nonetheless generally gave state legislatures power over districting, subject to oversight by Congress, but not subject to any other express limitations. One might say that this builds a case for application of the other prong of the political question doctrine—that a constitutional judgment is textually committed to another branch. But I doubt that approach as well. The fact that Congress has oversight does not mean the courts do not also have oversight.
Instead, I think the Court’s points about the text and history show something different: the Constitution does not limit partisan districting. At minimum, I would say that the originalist case for a constitutional limit on partisan districting is not proved… Put this way, districting is a political question, but not because of some arcane doctrine of justiciability. It is a political question because the Constitution did not address it, and thereby left it (like many other issues) to the political branches.
The courts do not need a special “political question” doctrine to rule that a given law or regulation is constitutional because it falls within the authorized powers of that branch of government and nothing else in the Constitution forbids it. In fact, courts uphold legislation on that basis all the time, usually without any reference to the political question doctrine.
Sometimes, the political question doctrine is defended on the basis that it can be used to keep courts from involving themselves on issues where the legislature or the executive has superior expertise, particularly issues involving immigration, foreign relations, and national security. The problem with that theory is that the political branches of government have superior expertise on nearly all areas of policy, and that immigration and national security are not actually unusual in that regard. The reason for judicial review is not that the judges have superior expertise on policy, but that they have different incentives, and are often more likely to protect long-term constitutional values and enforce minority rights. And, as with the “judicial administrability” issue, the Court has never come up with anything approaching a clear rule or standard for determining how big the gap in expertise has to be to require judges to avoid resolving a given issue.
On most constitutional questions—including most that involve fuzzy standards and issues where the political branches have superior expertise—courts resolve the relevant cases without even mentioning the political question doctrine. Every once in a while, however, the Supreme Court will take it out for a spin in order to justify sidestepping some issue the majority would prefer to avoid. When that happens, those who like the result applaud, while dissenters argue that the doctrine has not been properly applied (as Justice Elena Kagan does in her forceful dissent in the gerrymandering case).
Both sides assume that the political question doctrine is a useful tool for guiding judicial decision-making, or at least that it can potentially serve that role. The truth, however, is that it is an emperor walking around with no clothes. One of its main prongs is useless, while the other is superfluous.
There are, in my view, good constitutional arguments both for and against judicial policing of gerrymandering. Roberts and Kagan cover many of them in their respective opinions.
I am, perhaps, unusual in considering the issue to be a close question. Almost every other legal commentator seems to think it is a slam dunk, even as they vehemently differ over the issue of which side it’s a slam dunk for! Be that as it may, the political question doctrine adds little of value to this debate—or any other.
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