The Real Political Question Doctrine.

• Author: Bradley, Curtis A.

Table of Contents Introduction I. Background A. The Political Question Doctrine in the Supreme Court B. Scholarly Commentary C. Common Assumptions in the Literature II. Empirics A. A Quantitative Assessment B. A Qualitative Assessment of the Foreign Affairs Cases 1. Treating nonjudicial determinations as conclusive 2. Refusing to direct certain exercises of governmental discretion 3. Abstention from deciding certain separation-of-powers disputes 4. Claims concerning actions of the U.S. government abroad 5. Claims concerning actions by private companies abroad 6. The rights and liabilities of foreign nations III. Theory A. Observations from Lower Court Practice B. The Political Question Doctrine and Judicial Capacity 1. Three steps 2. Similar doctrines 3. Foreign affairs C. Disparity Between the Supreme Court and the Lower Courts Conclusion Introduction

Under the political question doctrine, some issues are deemed to be inappropriate for judicial resolution. The Supreme Court adverted to this possibility in Marbury v. Madison, when it observed that "[questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court." (1) The modern version of the doctrine is typically traced to the Supreme Court's 1962 decision in Baker v. Carr, in which the Court listed six reasons why a question might be deemed to be political. (2)

There have long been debates about the nature, scope, and legitimacy of the political question doctrine. (3) Some scholars contend that the doctrine is entirely illegitimate--an abdication of the judicial duty to apply the law. Others believe, in what is sometimes called the "classical" view, that application of the doctrine is appropriate only when the Constitution itself requires the courts to accept a nonjudicial determination, either completely or within a band of discretion. Under a broader "functional" view of the doctrine, judicial abstention is also appropriate when the courts lack sufficient information or expertise to make a reasoned legal decision--or at least a decision that is likely to be any better than the one made by the political branches. Finally, under the broadest "prudential" view, the doctrine is also a means by which courts can manage their resources, protect their political capital, and abstain when providing a judicial answer might do more harm than good. Regardless of which view of the doctrine is advocated, commentators often observe that the contours of and justifications for the doctrine are murky and confused. (4)

Despite the differing views reflected in these accounts, the scholarly commentary has one thing in common: It is focused almost entirely on the Supreme Court. (5) The Court, however, rarely applies the doctrine: In the sixty years since Baker, it has applied the doctrine as a basis for dismissal in only three majority decisions. (6) By contrast, the doctrine is a recurring feature of lower court practice. Most scholars discussing the doctrine say nothing about this lower court practice, make only a passing reference to it, or evaluate only a handful of cases in particular contexts.

In this Article, we provide the first empirical account of how the doctrine has operated in the lower courts since Baker. Our account is based on both a quantitative and qualitative analysis of the cases and is primarily descriptive rather than normative. What we find is a political question doctrine that is substantially different from the one described in the scholarship in five respects.

First, the doctrine is more vibrant than is commonly assumed. The lower courts apply it regularly, even after the Supreme Court has signaled a lack of enthusiasm for it. Second, the application of the doctrine is concentrated in the foreign affairs area, a finding that has been suggested by some commentators (7) but that until now has not been documented through a close study of lower court practice. Third, even though the academic literature on the political question doctrine is almost entirely focused on constitutional adjudication, lower courts often apply the doctrine in nonconstitutional cases--that is, cases involving claims brought under federal statutes, state law, or international law. Fourth, the doctrine as applied in the lower courts is more prudential in its orientation than one would expect just by reading the post-Baker Supreme Court decisions.

Finally, our empirical study reveals a fundamental feature of the doctrine that has been missed in the literature. Contrary to what has been assumed (and which is a key part of the "judicial abdication" critique), we show that the political question doctrine does not typically have the effect of permanently disallowing adjudication of an issue. Instead, declarations by the courts that an issue is political simply mean that the courts will not exercise their own judgment until the legal materials become clearer, something that can typically be accomplished by Congress through statute. This is obviously true in nonconstitutional cases, in which Congress can simply legislate a clear rule of decision, but it is true in most constitutional cases as well. This conclusion strengthens the argument for the doctrine's legitimacy and sheds light on doctrinal debates about the relationship of the doctrine to Article III of the Constitution and to the state courts.

After setting forth this empirical account, we offer a theory of the political question doctrine's functions. The doctrine is relevant, we argue, in settings in which a court faces a dispute for which there is no clear source of law and questions arise as to whether a court is the proper institution for resolving the dispute. In these situations, the political question doctrine, like a variety of other doctrines, is a way for courts to determine whether they have the capacity to resolve the dispute. Capacity refers both to issues of competence--such as a court's ability to gather facts, interpret the law, and predict the consequences of its decisions--and to the court's political standing or legitimacy. Courts frequently presume that they have this capacity, so express reference to this question is often omitted.

This theory explains why the political question doctrine is more vibrant in the lower courts than in the Supreme Court. The Supreme Court has much more discretion over its docket than the lower courts do over theirs. It also has more authority than the lower courts, both as a constitutional and a practical matter. As application of the political question doctrine typically avoids a confrontation with the executive branch (and sometimes Congress), the lower courts have greater need for it than does the Supreme Court. Despite its general pronouncements about the doctrine, the Supreme Court accepts that the lower courts should decide for themselves whether they have the capacity to decide a dispute. This creates a somewhat anomalous situation. Normally, the lower courts are supposed to decide cases in a manner consistent with Supreme Court precedent. But an equilibrium has arisen, apparently based on a tacit understanding, in which the lower courts apply the political question doctrine in cases that the Supreme Court would likely decide on the merits. The Supreme Court then maintains this equilibrium by denying certiorari rather than taking cases and reversing the lower courts. Because commentators have focused on the Supreme Court's decisions on the merits, they have overlooked this phenomenon.

Part I of this Article describes the Supreme Court's application of the doctrine, as well as the longstanding academic debates that the doctrine has generated. Part II provides an empirical account of the doctrine. Part III offers a theory of the functions that the doctrine serves and an account of why the doctrine is more robust in the lower courts than in the Supreme Court. Part IV concludes.

1. Background

   This Part provides the background for the empirical analysis that will follow. It describes the Supreme Court's treatment of the political question doctrine, and it points out some questionable assumptions in the literature that stem from the literature's almost-exclusive focus on the Court.

   1. The Political Question Doctrine in the Supreme Court

      Throughout the nineteenth and early twentieth centuries, the Supreme Court declared a variety of issues to be political and thus inappropriate for judicial resolution. Many of these issues related to foreign affairs, concerning matters such as the application of treaties, the extent of the United States' and other countries' sovereign territory, and whether to recognize particular foreign governments. (8)

      In domestic affairs, the Court's most noteworthy nineteenth-century decision declaring an issue to be political was Luther v. Borden, in which the Court declined to adjudicate whether Rhode Island's charter form of government violated the Guarantee Clause of the Constitution. (9) The Court explained that, under the clause, "it rests with Congress to decide what government is the established one in a State" and that "[Congress's] decision is binding on every other department of the government, and could not be questioned in a judicial tribunal." (10) Many years later, in Pacific States Telephone & Telegraph Co. v. Oregon, the Court stated more categorically that whether a state government violates the Guarantee Clause "has long since been determined by this court ... to be political in character, and therefore not cognizable by the judicial power, but solely committed by the Constitution to the judgment of Congress." (11)

      In Coleman v. Miller, the Supreme Court concluded that the validity of Kansas's ratification of a proposed child labor amendment to the U.S. Constitution was a political question, emphasizing the lack of specific constitutional or statutory materials that a court could use to resolve the case. (12) Reflecting more generally on the nature of...