Article III, Section 2, Clause 1:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

The political question doctrine limits the ability of the federal courts to hear constitutional questions even where other justiciability requirements, such as standing, ripeness, and mootness, would otherwise be met.1 The Supreme Court has stated that, for purposes of Article III of the Constitution,2 “no justiciable ‘controversy’ exists when parties seek adjudication of a political question.” 3 But the term “political question” is a legal term of art that on its face gives little indication of what sorts of cases the doctrine bars federal courts from deciding. The phrase, which has its origins in Chief Justice John Marshall’s landmark opinion in Marbury v. Madison,4 is potentially misleading, as federal courts deal with political issues, in the sense of controversial and government-related issues, all the time.5 Rather than referring generally to any such political issue, the term “political question” expresses the principle that some issues are either entrusted solely to another branch of government or are beyond the competence of the Judiciary to review. Finding that a matter qualifies as a political question divests federal courts of jurisdiction, meaning they lack the power to rule on the matter.6

The Supreme Court identified six factors relevant to the political question doctrine in the 1962 case Baker v. Carr:

The variation among the criteria emphasizes the diverse purposes that the doctrine is said to serve, embodying both separation of powers principles8 and prudential concerns such as the competency of courts.9 These six criteria appear in recent Supreme Court opinions applying the political question doctrine.10 However, Justices of the Supreme Court have recognized confusion around the political question doctrine, both when Baker was decided and subsequently.11 Among other things, judges have disagreed on how to identify a political question, as well as on fundamental matters such as whether the political question doctrine originates in constitutional or prudential principles or what purpose the doctrine allegedly serves.12

So far, the Supreme Court has elected not to resolve these disputes in a comprehensive fashion. Despite these uncertainties, the doctrine remains alive and well today,13 even if, as one treatise has stated, “the category of political questions ‘is more amenable to description by infinite itemization than by generalization.’” 14 Following that pattern of itemization, the Court has applied the political question doctrine in some areas of foreign policy, Congress’s internal governance, impeachment, and in cases involving partisan gerrymandering.15 This essay explores all of these issues, tracing the development of the political question doctrine from its foundations in Marbury to its refinement in Baker to its modern applications.

Footnotes

1

Baker v. Carr, 369 U.S. 186, 198–99 (1962) (discussing difference between jurisdiction and “appropriateness of the subject matter for judicial consideration,” known as “justiciability” ).

2

U.S. Const. art. III, § 2.

3

Massachusetts v. EPA, 549 U.S. 497, 516 (2007). See also DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2005) ( “The doctrines of mootness, ripeness, and political question all originate in Article III’s ‘case’ or ‘controversy’ language, no less than standing does.” ); Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 215 (1974) ( “[T]he presence of a political question suffices to prevent the power of the federal judiciary from being invoked by the complaining party.” ).

4

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 165–66 (1803) ( “By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. . . . He is the mere organ by whom that will is communicated. The acts of such an officer, as an officer, can never be examinable by the courts.” ).

5

See, e.g., Erwin Chemerinsky, Federal Jurisdiction § 2.6.1 (6th ed. 2012). Cf. Nixon v. Herndon, 273 U.S. 536, 540 (1927) (sustaining claim against judges of elections in Texas for refusing to allow a citizen to vote in violation of the Fifteenth Amendment and noting that “[t]he objection that the subject-matter of the suit is political is little more than a play upon words” ).

6

Zivotofsky v. Clinton, 566 U.S. 189, 195 (2012) (holding that courts lack authority to decide political questions when there is a commitment of the issue to another department or where there is a lack of judicially discoverable and manageable standards for resolving them) (citing Baker, 369 U.S. at 217).

7

Baker, 369 U.S. at 217.

8

Id. (describing political questions as including cases involving “a textually demonstrable constitutional commitment of the issue to a coordinate political department” or “the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government” ).

9

Id. (describing political questions as including cases involving “a lack of judicially discoverable and manageable standards for resolving it” ).

10

See, e.g., Zivotofsky, 566 U.S. at 195–97. Despite the frequency with which courts cite the Baker criteria, a notable commentator has dismissed them as “useless in identifying what constitutes a political question.” Chemerinsky, supra note 5, at § 2.6. See also id. ( “The Constitution does not mention judicial review, much less limit it by creating ‘textually demonstrable commitments’ to other branches. Similarly, the most important constitutional provision . . . certainly do not include ‘judicially discoverable and manageable standards.’” ). That commentator is hardly alone in this sentiment. One treatise on justiciability notes that “application of the political-question tests of Baker v. Carr is so highly individualized as to suggest that there is no political question doctrine at all, but only a number of discrete questions that have been characterized as political.” 13C Charles Alan Wright & Arthur R. Miller et al., Federal Practice and Procedure § 3534 (3d ed. Oct. 2020 Update). The same treatise concludes that “there is no workable definition of characteristics that might be found to distinguish political questions from judicial questions.” Id.

11

See, e.g., Baker, 369 U.S. at 210 (stating that the political question doctrine has caused “[m]uch confusion.” ); Zivotofsky, 566 U.S. at 202 (Sotomayor, J., concurring in part and concurring in the judgment) (noting that “the proper application of Baker's six factors has generated substantial confusion in the lower courts” ).

12

See Martin H. Redish, Judicial Review and the “Political Question” , 79 Nw. U. L. Rev. 1031, 1039–43 (1985) (comparing “classical” interpretation of the political question doctrine, in which jurisdiction is withheld because the Constitution has textually committed the issue to another agency, and the “prudential” interpretation of the doctrine, in which rationales other than the text of the Constitution are used to justify judicial abdication). Compare Schlesinger, 418 U.S. at 215 ( “[T]he concept of justiciability, which expresses the jurisdictional limitations imposed upon federal courts by the ‘case or controversy’ requirement of Art[icle] III, embodies both the standing and political question doctrines upon which petitioners in part rely.” ); Baker, 369 U.S. at 198–99 (court’s determination that the case presented no political question “settles the only possible doubt that it is a case or controversy” ); Id. at 210 ( “The nonjusticiability of a political question is primarily a function of the separation of powers.” ), with id. at 217 (noting that political questions may involve prudential concerns such as a “lack of judicially discoverable and manageable standards” or “the potentiality of embarrassment from multifarious pronouncements by various departments on one question” ).

13

See, e.g., Zivotofsky, 566 U.S. at 201 (reversing the lower court’s conclusion that the case presented a political question and remanding to decide case on the merits).

14

Wright & Miller, supra note 10, at § 3534.

15

See ArtIII.S2.C1.9.5 Modern Political Question Doctrine, ArtIII.S2.C1.9.6 Foreign Affairs as a Political Question, and ArtIII.S2.C1.9.7 Congressional Governance as a Political Question.