You've Got (political) Questions? We've Got No Answers

• Jurisdiction: United States,Federal
• Publication year: 2020
• Citation: Vol. 71 No. 3

You've Got (Political) Questions? We've Got No Answers

Michael R. Dimino

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You've Got (Political) Questions? We've Got No Answers

by Michael R. Dimino^*

I. Introduction

In Rucho v. Common Cause,¹ the Supreme Court of the United States held that partisan-gerrymandering claims present non-justiciable political questions.² The decision seemingly settled a controversy that had existed for decades, during which the Court was simultaneously unwilling to declare partisan-gerrymandering claims non-justiciable and unable to agree on a judicially manageable standard for adjudicating those claims.³ In Rucho, for the first time, a five-Justice majority definitively concluded that there are no judicially manageable standards to determine the constitutionality of partisan gerrymanders, and therefore held that federal courts lacked jurisdiction to hear cases raising such claims.⁴

Although the Court correctly determined that the partisan-gerrymandering claims should be dismissed, the Court should not have based its decision on the political-question doctrine. Rather, the Court should have held simply that the Constitution does not contain a right against excessive partisanship in districting. Rucho

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should have been dismissed for failure to state a claim on which relief could be granted, rather than for lack of jurisdiction.⁵ Resting the decision on the political-question doctrine has led some to suggest that state courts (which are not bound by the Article III case-or-controversy limitations on federal-court jurisdiction) can reach the merits of partisan-gerrymandering claims and hold districting schemes that give too much of an advantage to one party unconstitutional.⁶

My thesis, however, is not simply that the Court should have issued a broader holding than it did. Rather, my thesis is that the Court issued a broader holding than it acknowledged—that what appeared to be a political-question holding was in reality a holding on the merits. Stated differently, the Court's application of the political-question doctrine made it indistinguishable from an analysis of the merits.

Rucho did not hold (in fact, the Court could not have held) that all possible standards for deciding partisan-gerrymandering claims would be unmanageable by the judiciary. In fact, the Court itself suggested that standards contained in state constitutions were judicially manageable.⁷ Rather, the Court's holding was that the Federal Constitution contained no judicially manageable standards for adjudicating partisan-gerrymandering claims, and as a result there was no jurisdiction.⁸

II. Political Questions, Real and Apparent

The federal courts lack authority to decide "[q]uestions, in their nature political"⁹ —questions, that is, that should be decided by the "political branches" and not the courts.¹⁰ Where the political-question doctrine is applicable, it operates as a jurisdictional bar, preventing

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federal courts from intervening even when the government fails to meet its constitutional obligations.¹¹

Political questions, properly limited, are those cases "in which the challenged government action is subject to legal constraint, but, the constraint, for some reason, is not judicially enforceable."¹² Baker v. Carr famously catalogued the kinds of questions that would be considered political:

Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.¹³

Rucho involved the second of these types of political questions: those issues for the resolution of which there is no "judicially discoverable and manageable standard[][.]"¹⁴

When the Constitution contains a standard but the standard is not judicially enforceable, the political-question doctrine should apply and the case should be dismissed for lack of jurisdiction.¹⁵ Where, however, there is no standard in the Constitution for anyone to apply, the Court should dismiss on the merits rather than relying on the political-question doctrine.¹⁶ Those cases are not true political-question cases at all. Rather, they are decisions on the merits that the Constitution does not entitle the challenger to relief.

As Baker indicated, political questions include more than simply those issues lacking judicially discoverable and manageable standards for resolving them; rather, they include a range of issues that should be resolved by the political branches instead of the judiciary. For example, a political question—a question for the political branches—would be presented if the Constitution or other governing law committed the

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resolution of that question to another branch.¹⁷ For example, in Morgan v. United States,¹⁸ the United States Court of Appeals for the District of Columbia Circuit refused to hear a case challenging the House of Representatives' decision as to which candidate had won a disputed election.¹⁹ The court pointed to Article I, § 5, clause 1 of the Constitution,²⁰ which provides that "[e]ach House shall be the Judge of the Elections, Returns, and Qualifications of its own Members."²¹ The standard was readily ascertainable—the candidate with the higher vote total should have been seated—but the matter was not one for the judiciary to resolve.²² Thus, the case presented a political question.²³

Similarly, in Pacific States Telephone and Telegraph Co. v. Oregon,²⁴ the Court refused to decide whether Oregon's constitutional provision authorizing the initiative and referendum violated the portion of the federal Constitution requiring Congress to "guarantee to every State in this Union a Republican Form of Government[.]"²⁵ The Court concluded that the Constitution gave Congress, not the courts, the responsibility to guarantee republican government in the states, and therefore the Supreme Court did not decide for itself whether Oregon's government was "republican" within the meaning of the Constitution.²⁶

As others have pointed out, however, the Supreme Court sometimes invokes the political-question doctrine in another, very different, way. In this second use of the political-question doctrine (which Professor Jonathan Siegal has called a "bogus" use of the doctrine),²⁷ the Court dismisses a case only after determining that the plaintiff should lose on the merits.²⁸ Thus, a plaintiff who files suit alleging that the government acted unconstitutionally might find his or her case dismissed under the political-question doctrine if the court concludes that the government actually had the ability to take the challenged

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action—in other words, the Constitution entrusted the government with the authority to decide whether to act in the challenged way.²⁹

Nixon v. United States provides an example.³⁰ There, the Supreme Court held that it would not decide whether the procedures used in an impeachment proceeding satisfied the Senate's obligation to "try" impeachments.³¹ Part of the Court's analysis rested on the conclusion that the meaning of the word "try" was committed to the Senate, and that the courts had no authority to opine on the question.³² Elsewhere, however, the Court justified its dismissal of the case by saying that the word "try" was broad enough to include the procedure that had been alleged to be unconstitutional.³³ That is, the Court determined that the Constitution had not been violated, and it used that determination to justify its decision to dismiss the case and (paradoxically) to avoid deciding whether the Constitution had been violated.³⁴

Although the Supreme Court has never acknowledged the difference between these two kinds of political questions, there should be a distinction between cases for which there can be no judicially manageable standard and those for which there is no judicially discoverable standard in the law being interpreted. Only the first group should be considered political questions because they represent the core separation-of-powers concern of the political-question doctrine: ensuring that the matter is decided by a branch other than the judiciary.

Indeed, this interpretation permits Baker's second category to be a natural companion to the first and third (albeit with some overlap). There is a political question either when the Constitution's text commits the matter to another branch (as in Morgan);³⁵ or when the text is ambiguous about the branch that should decide a question, but the standards for resolving the matter are not the kind that could be applied by courts;³⁶ or when the resolution of the matter turned on policy determinations "of a kind clearly for nonjudicial discretion."³⁷

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Cases in which the Constitution contains no judicially discoverable limit on the government's discretion, however, are different. Those cases should be decided on the merits—and dismissed because the Constitution does not render the government's action illegal. Indeed, if a court examines the constitutional provision in question and discovers no limit on government action, then the court is already examining the merits of the case. Nothing is gained by characterizing the dismissal as jurisdictional.³⁸

In Rucho, the Court could not find a standard in the Constitution for assessing when partisanship had been too much of a factor in districting.³⁹ What the Court was really saying was that there was no point at which there is an unconstitutionally large amount of partisanship...