Baker v. Carr.

In Baker v. Carr,697 the Court undertook a major reformulation and rationalization of the political question doctrine, which has considerably narrowed its application. Following Baker, the whole of the apportionment-districting-election restriction controversy previously immune to federal-court adjudication was considered and decided on the merits,698 and the Court’s subsequent rejection of the doctrine in other cases disclosed narrowing in other areas as well.699

According to Justice Brennan, who delivered the opinion of the Court, “it is the relationship between the judiciary and the coordinate branches of the Federal Government, and not the federal judiciary’s relationship to the States, which gives rise to the ‘political question.’ ”700 Thus, the “nonjusticiability of a political question is primarily a function of the separation of powers.”701 “Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution.”702 Following a discussion of several areas in which the doctrine had been used, Justice Brennan continued: “It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, although each has one or more elements which identify it as essentially a function of the separation of powers.”

The Justice went on to list a variety of factors to be considered, noting that “[p]rominent 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.”703

Footnotes

697
369 U.S. 186 (1962). [Back to text]
698
Wesberry v. Sanders, 376 U.S. 1 (1964); Reynolds v. Sims, 377 U.S. 533 (1964); Hadley v. Junior College District, 397 U.S. 50 (1970) (apportionment and districting, congressional, legislative, and local); Gray v. Sanders, 372 U.S. 368 (1963) (county unit system weighing statewide elections); Moore v. Ogilvie, 394 U.S. 814 (1969) (geographic dispersion of persons signing nominating petitions). [Back to text]
699
See, e.g., Powell v. McCormack, 395 U.S. 486 (1969). Nonetheless, the doctrine continues to be sighted. [Back to text]
700
Baker v. Carr, 369 U.S. 186, 210 (1962). This formulation fails to explain cases like Moyer v. Peabody, 212 U.S. 78 (1909), in which the conclusion of the governor of a state that insurrection existed or was imminent justifying suspension of constitutional rights was deemed binding on the Court. Cf. Sterling v. Constantin, 287 U.S. 378 (1932). The political question doctrine was applied in cases challenging the regularity of enactments of territorial legislatures. Harwood v. Wentworth, 162 U.S. 547 (1896); Lyons v. Woods, 153 U.S. 649 (1894); Clough v. Curtis, 134 U.S. 361 (1890). See also In re Sawyer, 124 U.S. 200 (1888); Walton v. House of Representatives, 265 U.S. 487 (1924). [Back to text]
701
369 U.S. at 210. [Back to text]
702
369 U.S. at 211. [Back to text]
703
369 U.S. at 217. It remains unclear after Baker whether the political question doctrine is applicable solely to intrafederal issues or only primarily, so that the existence of one or more of these factors in a case involving, say, a state, might still give rise to nonjusticiability. At one point, id. at 210, Justice Brennan says that nonjusticiability of a political question is “primarily” a function of separation of powers but in the immediately preceding paragraph he states that “it is” the intrafederal aspect “and not the federal judiciary’s relationship to the States” that raises political questions. But subsequently, id. at 226, he balances the present case, which involves a state and not a branch of the Federal Government, against each of the factors listed in the instant quotation and notes that none apply. His discussion of why Guarantee Clause cases are political presents much the same difficulty, id. at 222–26, because he joins the conclusion that the clause commits resolution of such issues to Congress with the assertion that the clause contains no “criteria by which a court could determine which form of government was republican,” id. at 222, a factor not present when the Equal Protection Clause is relied on. Id. at 226. [Back to text]