The "Political Question" doctrine reflects a similar recognition of institutional real politik. It suggests against resolving contests where any decision would erode the Court's legitimacy by appearing political, rather than principled. In 1962, Baker v. Carr elucidated the doctrine while limiting it, holding that despite the seemingly political nature of legal challenges to legislative districts and voter representation, voters held a justiciable right to representation in the House of Representatives on a numerically equal basis as voters in other districts. The principle was later enshrined in Reynolds v. Sims — which Chief Justice Earl Warren considered the most important decision of his storied career — as "one man, one vote." The Justices who limited voting rights in Crawford could learn something from their predecessors who decided Reynolds.
Ultimately, the Political Question doctrine aims to defend the distinction between law (which Courts should address, given their expertise) and politics (in which judicial intervention is illegitimate since life tenure insulates judges from electoral accountability). Put simply, "the goal of a judicial resolution is click here nonpartisan decision dictated by law, not by the partisan or ideological preferences of the particular judges who happen to hear the case."
Judicial Aggrandizement vs. Democracy
In 2005, four years after installing the Bush-Cheney regime in office, the Supreme Court insulated it from popular accountability by upholding unprecedented executive secrecy in the Energy Task Force case. The concerns raised by advocates seeking mere disclosure (of government contacts with oil & gas executives over the course of some 40 meetings that crafted the Bush Administration's energy policy) have proven prescient in the wake of debacles in Iraq and energy policy.
But the White House weathered an absent political storm, protected by the Court's activism on its behalf. According to Pulitzer Prize-winning journalist Charlie Savage, the Energy Task Force case presented the Bush administration's assault on the Separation of Powers with the "first battleground...the fight over whether Cheney would have to comply with open-government laws that mandated that he tell Congress and the public whom his energy task force had met with."
Some observers point to the detainee rights cases as demonstrating the Court's ongoing willingness to check executive power. While several such cases (including Hamdi, Padilla, Hamdan and, most recently, Boumediene) have vindicated some minimal procedural rights in specific contexts, however, they offer little comfort. First, they offer insight only into Justice Kennedy's thinking, as his vote with the moderate bloc is the only margin protecting this line of cases from the politicization apparent in cases where he votes with his conservative cohort. That Justice Kennedy's deference to the executive knows some bounds is a relief, but a limited one given his participation in the various other cases championing conservative interests. Moreover, the Court's willingness to vindicate habeas corpus, a bedrock right that has stood since the 13th century, represents no triumph. The most striking facet of the Court's decisions with respect to detainee rights is that, despite vindicating so central and longstanding a principle, they command so slim a majority.
Cases citing the political question doctrine, much like Bush v. Gore, the Energy Task Force case, or Crawford v. Marion County, present few principles on which a decision can be based. Rather than a jurisprudential judgment based on the application of previously articulated principles to their specific facts, each of these cases call instead for an essentially political resolution. Like the other election law cases, social rights cases like Parents Involved and Carhart, and the corporate power cases, these decisions reflect a Court undeterred from imposing on the country the political views of the Court's majority.
Part III of this series will explore the failures of traditional checks on the Court, as well as ethical lapses by some Justices, suggesting intervention by the other branches. Part IV will present a specific proposal through which Congress and the incoming Administration could balance the Court and restore the Separation of Powers.
[1] See John Hart Ely, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 7 (1980) (observing that, "[e]xcluding the 18th and 21st Amendments...six of our last ten constitutional amendments have been concerned precisely with increasing popular control of our government."); Reynolds v. Sims, 377 U.S. 533, 555 n.28 (1964) (observing that "The Fifteenth, Seventeenth, Nineteenth, Twenty-third and Twenty-fourth Amendments to the Federal Constitution all involve expansions of the right of suffrage.").
[2] Justice Stevens voted with the majority in Davis, in a seemingly surprising vote explored at length in Part I of this series.
