An Examination of the Political Question Doctrine

By Nicholas Williams
Nicholas Williams is a freshman in the College of Arts and Sciences planning on majoring in Political Science.

In Federalist No. 78, Alexander Hamilton declared the judicial branch to be the weakest of the three branches of government [1]. He also wrote that the judiciary must remain “truly distinct” from the legislative and executive branches so as to not encroach upon the general liberty of the people. The Supreme Court has thus historically stayed clear of any issues that fall under the purview of the legislative and executive branches; more generally, the Court will not hear cases which it determines present political questions. It will also refuse to hear cases that do not present a clear judicially-manageable, non-political standard of deciding the case on its merits. These two instances wherein the Court refuses to hear a case are collectively known as the political question doctrine. What constitutes a political question is not always clear, and the doctrine has led to some contentious cases. However, the doctrine also has significant implications for the current legal and political climate.

One of the first cases involving the political question doctrine was Luther v. Borden (1849). The case involved whether Rhode Island truly had a republican form of government, a requirement for all states under the Constitution [2]. Several groups opposed Rhode Island’s government, as it had been created under a royal charter in 1663 and had antidemocratic features, including very narrow suffrage. These groups asked the Court to declare Rhode Island’s government void because it was not sufficiently republican, and instead recognize a government created by these dissident groups. The Supreme Court ruled that whether a state government was constitutional was a political question that the federal courts could not answer. Only Congress and the president, the Court held, could determine whether the structure of a state government is constitutional. These branches did not act, though, thus keeping in place Rhode Island’s original government.

In 2019, the Supreme Court once again employed the political question doctrine, this time in Rucho v. Common Cause. In that case, a group of North Carolina voters challenged the state’s congressional maps, claiming that they had been gerrymandered so much that they were unconstitutional [3]. The Court, in a narrow 5-4 decision, held that gerrymandering was a political question that federal courts could not solve. Specifically, Chief Justice John Roberts wrote that the Constitution empowered state legislatures to draw their own legislative maps and that Congress has the sole authority to oversee this process.

Two previous Court cases involving the political question doctrine could have implications for today’s politics. In Nixon v. United States (1993), a federal judge, Walter Nixon, was impeached by the House of Representatives [4]. The Senate appointed a committee to hear the House’s evidence against Nixon, and the Senate subsequently voted to remove Nixon from office. Nixon challenged the actions of the committee, saying it violated the Constitution’s requirement that the Senate has “the sole power to try all impeachments,” because the full Senate did not hear the evidence. The Supreme Court ruled that the courts have no say in the impeachment process, thus denying Nixon’s claim.

This could have implications for the current impeachment process. President Donald Trump has said that, if the House of Representatives were to impeach him, he would ask the Supreme Court to intervene [5]. As the Supreme Court has ruled that impeachment is an inherently political question that the Court cannot review, Trump would probably receive no relief from the Supreme Court if he were to be impeached.

Furthermore, the case of Coleman v. Miller (1939) could have implications on the passage of the Equal Rights Amendment. In that case, a group of Kansas legislators challenged whether the state’s ratification of an amendment banning child labor was legitimate [6]. The Supreme Court ruled that ratification of constitutional amendments is a political question and that Congress has full authority over the ratification process, thus denying the Kansas legislators’ challenge.

The Equal Rights Amendment initially failed to reach the 38 states required to ratify an amendment [7]. The original amendment included a seven-year window for ratification, and even though this window was extended by three years, the amendment was never ratified. The amendment is now one state away from receiving the required 38 states, but it is unclear what would happen if a 38th state were to ratify. Congress may simply be able to extend the deadline, thus guaranteeing the amendment’s ratification. Whatever happens, though, under current Supreme Court precedent, the federal courts will not be able to rule on any disputes.

It is easy to assume that the Supreme Court will be able to solve the various disputes that have arisen from the current politically-charged times in which we are living. However, people must remember that many of the Founders thought that the judiciary should not infringe upon the political powers of the other two branches. Even though our government is very divided, it is up to the political branches of government, Congress and the president, to resolve political questions. 

The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.

Citations:

[1] “The Federalist Papers : No. 78.” The Avalon Project, Yale Law School. Accessed November 17, 2019. https://avalon.law.yale.edu/18th_century/fed78.asp

[2] "Luther v. Borden." Oyez. Accessed November 17, 2019. https://www.oyez.org/cases/1789-1850/48us1.

[3] "Rucho v. Common Cause." Oyez. Accessed November 17, 2019. https://www.oyez.org/cases/2018/18-422.

[4] "Nixon v. United States." Oyez. Accessed November 17, 2019. https://www.oyez.org/cases/1992/91-740.

[5] Trump, Donald (@realDonaldTrump). “If the partisan Dems ever tried to Impeach, I would first head to the U.S. Supreme Court.” Twitter, Tweet, April 24, 2019, 8:10 AM. https://twitter.com/realDonaldTrump/status/1121023509029892096

[6] "Coleman v. Miller." Oyez. Accessed November 17, 2019. https://www.oyez.org/cases/1900-1940/307us433.

[7] Woodward-Burns, Robinson. “The Equal Rights Amendment is one state from ratification. Now what?” Washington Post. June 20, 2018. https://www.washingtonpost.com/news/monkey-cage/wp/2018/06/20/the-equal-rights-amendment-is-one-state-from-ratification-now-what/