Luther V. Borden - Guaranty clause non-justiciable

• Holding. It is not SC’s job to decide which is lawful government of Rhode Island; Congress has that power. This is a question of policy. It would create anarchy for court to overrule president’s decision to militarily intervene. [USC, Article 4 – “U.S. shall guarantee to every State in this Union a Republican Form of Government.”]

• AK. Are the arguments persuasive?

• Always ask in political question case: is this case like Luther v. Borden?

Why is there a political question doctrine?

• Judicial review is undemocratic. Redish. Maybe this is right, but it does not distinguish political questions from any other questions that might be presented for judicial review. In a constitutional regime, a majority may not be permitted to do everything it wants to do.

• It is hard to resolve some questions in a principled way. Redish. Again, there are some quite difficult questions, such as the meaning of “due process” or “equal protection,” that SCt has little reluctance to take on if it thinks the job worth doing. Some questions are matters of discretion, but these are clearly identified in the text. “When USC’s framers intended that one of the political branches has discretion to act without principles, the document effectively says so, by vesting decision making power in those branches without simultaneously indicating how that power must be exercised. But if the document provides, for example, that it is Congress’ province to declare war, one may ask why it is appropriate for the courts, interpreting and enforcing the document, to overrule USC’s allocation of power by concluding that the conduct of military affairs, even to the point of waging war, must lie in the executive’s uncontrolled discretion.”

• Judges are not politicians, and cannot understand the broader political situation in which their decisions operate, so they should defer to those who can assess the practical consequences of their decisions. Redish. This, once more, proves too much. “If the constitutional limitations on majoritarian power are to mean anything, at some point the judiciary must be able to question the political branches’ assertion of factual necessity.”

• Court orders might be ignored by the political branches. Redish. But this is not a real danger in many of the political question cases, and even when it is, it is not clear that the judiciary enhances its authority by slinking away before the confrontation has a chance to occur.

Davis V. Bandemer - Unconstitutional gerrymandering justiciable

• White 1986. SCt held that claims of unconstitutional gerrymandering are justiciable. SCt found that there were indeed “judicially discernible and manageable standards by which political gerrymander cases [may] be decided.” Such claims involve the adequacy of representation and are therefore no different in a general sense from claims involving population apportionment, found to be justiciable in the Reynolds “one man one vote” decision.

Nixon V. United States - Impeachment non-justiciable

• Rehnquist 1993. This case strongly indicates that most controversies relating to impeachment will be found to fall within the “committed to other branches” category and thus to be non-justiciable political questions.

• Facts. After Judge Nixon was convicted of making a false statement to a federal grand jury, he was impeached by the House. Instead of trying him before the entire Senate, however, Senate referred the articles of impeachment to a committee, which then reported to the full Senate, which did not itself take any evidence. Nixon was convicted by the full Senate, and sought judicial review of the manner in which the Senate tried him.

• Argument. Nixon argued that the Senate, by having a committee rather than the full Senate hear the evidence, violated the requirement of Article I, §3, Clause 6 that the Senate “try all impeachments.”

• Held non-justiciable. But the SCt held that Nixon’s argument presented a non-justiciable political question. SCt’s argument seemed to be that, because impeachment is a check on the judiciary, the judiciary ought not to review it.

• SCt relied mainly on the plain text of the Senate Impeachment Clause, which provides that “the Senate shall have the sole Power to try all Impeachments.” SCt interpreted this reference to “sole Power,” along with the history behind the provision, to mean that the Senate, not the courts, should determine what procedures could validly constitute a “trial.”

• The SCt also reasoned that a “lack of finality” problem dictated that the courts not hear Nixon’s claim: “Opening the door of judicial review to the procedures used by the Senate in trying impeachments would ‘expose the political life of the country to months, or perhaps years of chaos,’” especially if it were the President who was being impeached.

• Concurrence.

• White. Thought the matter was jusiticiable, but that Nixon lost on the merits.

• Souter. Also concurred, but thought that in an extreme case judicial interference might be appropriate.