Political Question Doctrine: Overview

Article III, Section 2, Clause 1:

The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In some cases, a court will refuse to adjudicate a case despite the fact that it presents all the qualifications that we have considered to make it a justiciable controversy; it is in its jurisdiction, presented by parties with standing, and it is a case in which adverseness and ripeness exist. Such are cases that present a “political question.” Although the Court has referred to the political question doctrine as “one of the rules basic to the federal system and this Court’s appropriate place within that structure,” 1 it has also been remarked that “[i]t is, measured by any of the normal responsibilities of a phrase of definition, one of the least satisfactory terms known to the law. The origin, scope, and purpose of the concept have eluded all attempts at precise statements.” 2

It has been suggested that it may be more useful to itemize the categories of questions that have been labeled political rather than to attempt to isolate the factors that a court will consider to identify such cases.3 The Court has to some extent agreed, noting that the criteria applied by the Court in political questions cases can vary depending on the issue involved.4 Regardless of which approach is taken, however, the Court's narrowing of the rationale for political questions in Baker v. Carr,5 discussed below, appears to have changed the nature of the inquiry radically.

Footnotes

1

Rescue Army v. Municipal Court, 331 U.S. 549, 570 (1947); cf. Baker v. Carr, 369 U.S. 186, 278 (1962) (Justice Frankfurter dissenting). The most successful effort at conceptualization of the doctrine is Scharpf, Judicial Review and the Political Question: A Functional Analysis, 75 Yale L.J. 517 (1966). See Hart & Wechsler (6th ed.), supra at 222-248.

2

Frank, Political Questions, in Supreme Court and Supreme Law (E. Cahn, ed., 1954), at 36.

3

The concept of political question is “more amenable to description by infinite itemization than by generalization” Id.

4

Baker v. Carr , 369 U.S. 186, 217 (1962).

5

369 U.S. at 208–232.