012306 03_CHOPER .DOC 2/6/2006 10:19 AM THE POLITICAL QUESTION DOCTRINE: SUGGESTED CRITERIA JESSE H. CHOPER† ABSTRACT Whether there should be a political question doctrine and, if so, how it should be implemented continue to be contentious and controversial issues, both within and outside the Court. This Article urges that the Justices should reformulate the detailed definition that they have utilized (at least formally) since 1962, and adopt four criteria to be applied in future cases. The least disputed—textual commitment—is the initial factor listed in Baker v. Carr. The other three are based on functional considerations rather than constitutional language or original understanding. The first of these—structural issues: federalism and separation of powers—has been advanced and developed at length in my earlier work. It is based on a comparative advantage of the political process over the Court in sound constitutional decisionmaking respecting the relevant issues, as well as the trustworthiness respecting fundamental values of the national legislative/executive branches in doing so. The remaining two criteria involve removing questions of individual rights from the judiciary's realm, something that would (and should) occur very infrequently. The manageable standards test recognizes that there may be constitutional provisions for which the Court lacks the capacity to develop clear and coherent principles. The generalized grievance guide is similar in many ways to structural issues in that it is also grounded in matters of comparative advantage and trustworthiness of results. Copyright © 2005 Jesse H. Choper. † Earl Warren Professor of Public Law, University of California, Berkeley (Boalt Hall). I wish to express appreciation to Katherine Florey, Boalt ‘04, for her exceptionally able assistance in preparing this Article , to my colleagues Daniel A. Farber, Philip P. Frickey, Goodwin Liu, Paul J. Mishkin, and John C. Yoo for helpful comments on an early draft, and to my casebook collaborator Richard H. Fallon, Jr., for an invaluable review of the final manuscript. Of course, none are responsible for the policy judgments on which the Article is based. 012306 03_CHOPER .DOC 2/6/2006 10:19 AM 1458 DUKE LAW JOURNAL [Vol. 54:1457 TABLE OF CONTENTS Introduction ................................................................................... 1458 I. Definition of Political Question................................................. 1461 A. Textual Commitment......................................................... 1463 B. Federalism/Separation of Powers vs. Individual Rights..... 1465 C. Judicially Manageable Standards....................................... 1469 D. Generalized Grievance ...................................................... 1472 II. Prudential Approach................................................................ 1476 III. Application to Specific Topics ................................................ 1479 A. Guarantee Clause .............................................................. 1479 B. Electoral Process................................................................ 1486 1. Gerrymanders................................................................ 1486 2. Textual Commitment: Article I, Section 2..................... 1492 3. Electoral College ........................................................... 1494 C. Foreign Affairs................................................................... 1497 1. War Powers. .................................................................. 1497 2. Act of State Doctrine..................................................... 1499 3. Other “Nonconstitutional” Matters............................... 1502 D. Congressional Rules and Procedures................................. 1505 1. In General..................................................................... 1505 2. Individual Rights........................................................... 1507 3. Membership Qualifications ........................................... 1508 E. Constitutional Amendments.............................................. 1511 F. Separation of National and State Authority ...................... 1516 G. Impeachment..................................................................... 1518 Conclusion ..................................................................................... 1523 INTRODUCTION With roots tracing to Marbury v. Madison,1 the political question doctrine—that courts should abstain from resolving constitutional issues that are better left to other departments of government, mainly the national political branches2—has been most ambitiously, and authoritatively, defined by the Supreme Court in Baker v. Carr:3 Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional 1. 5 U.S. (1 Cranch) 137 (1803). 2. Id. at 165–66. 3. 369 U.S. 186 (1962). 012306 03_CHOPER .DOC 2/6/2006 10:19 AM 2005] POLITICAL QUESTION DOCTRINE 1459 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.4 But despite these carefully developed (and seemingly readily applicable)5 criteria, the doctrine has rarely served as a meaningful restraint on the Supreme Court’s authority. Now, catalyzed by the Court’s decision in Bush v. Gore,6 in which the Justices voted 5 to 4 to resolve a presidential election dispute without so much as mentioning the doctrine, scholars have concluded that political questions are in serious decline, if not fully expired, because they are clearly at odds with the notion of judicial supremacy adopted by the Court in recent years.7 Moreover, within the past fifteen years, the Court has raised the possibility that the Guarantee Clause may again become part of the judiciary’s repertoire.8 But other decisions over the past three decades suggest that reports of the political question’s demise are premature. Two rulings, each authored by the Court’s then-Chief Justice, specifically invoked the doctrine in refusing to subject to judicial review either “the composition, training, equipping, and control” of the National Guard9 or the congressional impeachment 4. Id. at 217. 5. For intense criticism of the Baker specifications as being “useless,” “confusing and unsatisfactory,” see ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 129–30 (2d ed. 2002). See also infra note 13 and accompanying text. 6. 531 U.S. 98 (2000) (per curiam). 7. See, e.g., Rachel E. Barkow, More Supreme than Court? The Fall of the Political Question Doctrine and the Rise of Judicial Supremacy, 102 COLUM. L. REV. 237, 240 (2002) (“[T]he demise of the political question doctrine is of recent vintage, and it correlates with the ascendancy of a novel theory of judicial supremacy.”); Mark Tushnet, Law and Prudence in the Law of Justiciability: The Transformation and Disappearance of the Political Question Doctrine, 80 N.C. L. REV. 1203, 1233 (2002) (contrasting the Warren Court’s assertion of judicial supremacy and use of prudential decisionmaking with that of the Rehnquist Court). 8. See New York v. United States, 505 U.S. 144, 184–85 (1992) (noting that both a 1964 Court decision and constitutional scholars suggest that not all Guarantee Clause claims present nonjusticiable political questions). 9. Gilligan v. Morgan, 413 U.S. 1, 10 (1973) (Burger, C.J.). 012306 03_CHOPER .DOC 2/6/2006 10:19 AM 1460 DUKE LAW JOURNAL [Vol. 54:1457 process.10 Indeed, just two Terms ago, four members of the Court urged its application to partisan political gerrymandering, one deferred consideration of the matter, and none of the remaining Justices even suggested that nonjusticiability was no longer a viable approach.11 Thus, it continues to be true that “whether or not a political question doctrine should be recognized as purely a normative matter, . the modern Court has adopted such a doctrine, both in theory and practice.”12 Consequently, it appears to be an appropriate occasion to ask both what remains of the political question doctrine and what role it should play in the future. A significant part of my thinking and writing over the years has focused on the political question issue, particularly in connection with my proposals that the Court should not decide structural constitutional questions—those concerning the authority of the national government vis-à-vis the states or the respective powers of Congress and the president.13 Although it has been recently said that “the effort to make the political que stion problem into a ‘doctrine’— to bound it by a rule of law—is a fool’s errand,”14 this Article expands on my prior work and attempts to paint a fuller picture of the reach of the political question principle. In setting out a series of fairly specific criteria to guide the determination of a political question, my goal has been to avoid the legitimate criticism of the Baker formulation as depending “almost entirely on the discretion of the majority of the Justices, untethered to any legal principles rooted in the Constitution’s