Nebraska Coalition for Educational Equity and Adequacy v. Heineman, 273 Neb. 531, 731 N.w.2d 164 (2007)--the Political Question Doctrine: a Thin Black Line Between Judicial Deference and Judicial Review

• Publication year: 2021

87 Nebraska L. Rev. 793. Nebraska Coalition for Educational Equity and Adequacy v. Heineman, 273 Neb. 531, 731 N.W.2d 164 (2007)--The Political Question Doctrine: A Thin Black Line Between Judicial Deference and Judicial Review

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Note*

Nebraska Coalition for Educational Equity and Adequacy v. Heineman, 273 Neb. 531, 731 N.W.2d 164 (2007)--The Political Question Doctrine: A Thin Black Line Between Judicial Deference and Judicial Review

TABLE OF CONTENTS

I. Introduction ...................................................... 794
II. Historical Background ............................................ 796
A. The Political Question Doctrine ............................... 796
1. Concurrent Rights and Constitutional
Interpretation ............................................. 796
2. The Effect of Marbury v. Madison ........................... 797
3. The Development of Prudential Considerations ............... 798
B. Baker v. Carr: Creating the Criteria .......................... 801
C. Baker's Aftermath ............................................. 802
1. Developing the Baker Criteria .............................. 802
2. The Vitality of the Doctrine After Baker ................... 807
D. The Political Question Doctrine and the Nebraska
Judiciary ..................................................... 810
III. Analysis ........................................................ 812
A. Application of the Baker Criteria--Classical
Factors ...................................................... 813
B. Application of the Baker Criteria--Prudential
Factors ...................................................... 817
IV. Conclusion ....................................................... 820

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[T]he line is often very thin between the cases in which the Court felt compelled to abstain from adjudication because of their "political" nature, and the cases that so frequently arise in applying the concepts of "liberty" and "equality."(fn1)

I. INTRODUCTION

The power to interpret the Constitution is not vested solely in the judicial branch. Although Marbury v. Madison(fn2) has been used to assert the preeminence of judicial review and elevate the judiciary to the status of "ultimate interpreter of the Constitution,"(fn3) the Framers anticipated that all branches would have a "concurrent right to expound the [C]onstitution."(fn4) This decision left room for judicial deference to the political branches. However, the judicial branch wields a potent weapon in the exercise of its authority as the courts alone determine when they should defer to another branch or exercise judicial review. The thin line between judicial deference and judicial review is manned exclusively by the justices of the courts.

The political question doctrine is one of the methods for abstaining from the exercise of judicial review. Like other justiciability doctrines such as standing, ripeness, or mootness, the political question doctrine provides the courts with a means to avoid deciding a case on its merits. Although the doctrine was originally tied exclusively to the text of the Constitution, the current doctrine has evolved into two different strands: the classical version and the prudential version.(fn5) The original, or classical strand, is tied to the determination of whether an issue has been committed to another branch of government or whether an act of another branch exceeds the authority committed to that branch.(fn6) The prudential strand, on the other hand, suggests that the courts should abstain from judicial review in order to protect the courts' legitimacy, to circumvent legitimizing a questionable policy choice by another branch, and to avoid disputes with the political branches.(fn7) The ostensible purpose of both the classical strand and the prudential strand of the doctrine is to provide the courts with methods

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for avoiding a decision on the merits of the case, albeit for different purposes.

Although the political question doctrine was fully explicated by the U.S. Supreme Court in Baker v. Carr(fn8) almost fifty years ago, the Nebraska Supreme Court first made use of the doctrine in Nebraska Coalition for Educational Equity and Adequacy v. Heineman in 2007.(fn9) In Coalition, the Nebraska Supreme Court addressed a constitutional challenge to the adequacy of Nebraska's funding system for education, holding that the challenge was a non-justiciable political question under four of the criteria articulated by the U.S. Supreme Court in Baker.(fn10) In an attempt to avoid a decision on the merits of the case, the Nebraska Supreme Court sought to resurrect the political question doctrine in its entirety.

The decision in Coalition emphasized that the political question doctrine, in its current diminished state, rarely shields the courts from determining the merits of the case. The status of the doctrine can be attributed to three factors. First, since Baker, the use of the doctrine by the U.S. Supreme Court has steadily declined.(fn11) The Court has found a political question in only three cases and has limited its discussion of the doctrine to the first two Baker criteria.(fn12) Second, the first two criteria, which have been tied principally to the classical strand of the doctrine, have been criticized as a thinly veiled attempt to mask the Court's decision on the merits of the case. Although the remaining prudential considerations stated in Coalition do present viable arguments for finding a non-justiciable political question, the use of prudential considerations after a decision has been made on the merits of the case is superfluous given that the purpose of the doctrine is already thwarted. Third, the courts are increasingly more confident in asserting judicial authority in regard to interpretation of a variety of issues, to the detriment of the doctrine.

In order to explain the manner in which the political question doctrine produced a decision on the merits in Coalition, this Note proceeds in three stages. Part II provides the historical background of the political question doctrine, the creation of the Baker criteria, and the aftermath of the Baker decision. Part III analyzes the Nebraska Supreme Court's decision in Coalition and evaluates the utilization of the classical and prudential versions of the doctrine. Part IV con

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cludes the preceding analysis with a brief discussion on the prospects for future usage of the political question doctrine.

II. HISTORICAL BACKGROUND

A. The Political Question Doctrine

The political question doctrine rests on the premise that some constitutional questions are outside the scope of judicial review. Similar to other justiciability doctrines, such as standing, mootness, or ripe-ness,(fn13) the doctrine allows the judicial branch to avoid a substantive decision on the merits of the case.(fn14) In determining whether a political question exists, the courts make a threshold determination of whether a matter has been constitutionally committed to another branch, or whether an action by a coordinate branch surpasses the authority committed to that branch.(fn15) Thus, the court's decision does not address whether there has been a violation of the constitution-- which is a substantive decision--but acknowledges that a constitutional provision may be "entrusted exclusively and finally to the political branches of government for `self-monitoring'"--which is a procedural decision.(fn16) This distinction between substantive and procedural decisions can be traced back to the constitutional foundations of the United States.

1. Concurrent Rights and Constitutional Interpretation

In arguing for the ratification of the Constitution, James Madison wrote that all departments--the branches of government--had a "concurrent right to expound the [C]onstitution"(fn17) and were coequal in "their respective powers."(fn18) However, Madison recognized that "the exposition of the laws and Constitution devolves upon the Judiciary."(fn19) Madison's acquiescence was based, in part, on the assumption that constitutional review would be rare and that the judiciary would

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serve as a check against "unwise and unjust measures" and the "tendency in the [l]egislature to absorb all power into its vortex."(fn20) Alexander Hamilton posited a more distinct argument in regard to judicial review, contending that the courts would serve as an intermediary between the people and the legislature in order to "keep the latter within the limits assigned to their authority."(fn21) The "natural presumption" was that the legislature could not determine its own power unless there was a particular constitutional provision specifying otherwise.(fn22) Hamilton's argument hit upon the distinction central to the classical political question doctrine--that "[t]he interpretation of the laws is the proper and peculiar province of the courts."(fn23) The rule is preempted only if a provision of the Constitution grants otherwise.

2. The Effect of Marbury v. Madison

Although Marbury v. Madison(fn24) has come to represent the inception of judicial review, Chief Justice Marshall also advanced the far more pedestrian proposition that political questions are different from legal questions.(fn25) Marshall argued that political questions "respect the nation, not individual rights."(fn26) Therefore, political questions, not surprisingly, should be examined politically. However, an individual may resort to the courts for satisfaction in instances "where a specific duty is assigned by law, and individual rights depend upon the performance of that duty."(fn27) This distinction emphasized the idea that some questions are not proper for judicial review as well as the growing assumption that laws pertaining to individual rights "belonged exclusively to the courts."(fn28) Although Marshall could not articulate where the distinction lay...