Matters not frequently brought before the Supreme Court because they are considered nonjusticiable and not amenable to judicial resolution.

Article III, section 2, of the U.S. Constitution presents the categories of federal jurisdiction by outlining fully the types of cases and controversies the Supreme Court may adjudicate. This definitive statement has led the Court to an interpretation that it should hear only “justiciable” cases, that is, cases that are likely to result in a suitable judicial outcome.

The judicial branch of government, although political in many ways, is the least political of the three major governmental branches. Because its justices are appointed rather than elected and serve “during good behavior,” which generally means that their tenure is for life, the nine people who serve in this capacity enjoy far greater independence than most public servants do.

The first case that forced the Court to define a political question was Luther v. Borden[case]Luther v. Borden[Luther v. Borden](1849), in which the plaintiff sued the defendant for trespass during the Dorr Rebellion in Rhode Island. Citizens of the state, rankling over unjust apportionment and barriers to voting under the state’s government, called a constitutional convention of their own and established a new, democratic government with Thomas W. Dorr as governor. When several members of the rebellion, including Thomas Dorr, were arrested under martial law, some of the dissidents attempted to have the charter government declared unconstitutional by citing the clause in Article IV of the Constitution that guarantees a republican form of government to each state. Justice Roger Brooke Taney, writing for the Court, enumerated reasons that the Court could not hear the case and, in this opinion, essentially defined the concept of political questions.

Taney’s main concern was that the Court lacked standards on which to base a judgment on the issue posed in Luther. He contended that this was a controversy that the Constitution, in Article IV, delegates to other branches of government, thereby removing it from the Court’s primary jurisdiction. Taney noted the devastating effect on the entire nation were the judicial branch to replace a legal and existing government with a dissident government. He noted that the Court could not enforce the guarantee of a republican form of government as promised in Article IV, making the matter, in the eyes of the law, a nonjusticiable political question.

Long before Luther, Justice John Marshall’s opinion in Marbury v. Madison[case]Marbury v. Madison[Marbury v. Madison] (1803) set the groundwork for dealing with nonjusticiable political questions. He wrote, “The province of the court is, solely, to decide on the rights of individuals.…Questions in their nature political…can never be made in this Court.” This statement represented a major step toward addressing the issue of political questions and nonjudiciability.

Despite the seeming attempt to elevate the Court above purely political issues, the Court ultimately has total jurisdiction over what cases it will hear. Its deciding to hear or not to hear cases that involve political questions becomes, in itself, a political decision. Its ability to accept or reject petitions to hear cases involving power and influence, its relation to other branches of government as in Luther, and its prestige and legal position are inherently political. The decision not to hear Luther had as strong political implications as a decision in favor of hearing the case would have had.

The grounds for deciding nonjudiciability of political questions were never precisely drawn. Decisions regarding them were judgment calls, with the Court exercising complete discretion in deciding what cases to hear. It could quite legitimately reject cases that did not suit its convenience or the adjudication of which might cast it in an undesirable light.

More than a century after the Luther case, the Court tightened its definition of the political question principle. This principle was articulated in a minority opinion Justice Felix Frankfurter wrote in the case of Colegrove v. Green[case]Colegrove v. Green[Colegrove v. Green] (1946), which challenged apportionment in the congressional districts of Illinois, contending that the Court’s refusal to involve itself in Colegrove suggested that reapportionment issues were nonjusticiable.

Although a minority opinion, Frankfurter’s observations kept the Court out of reapportionment cases until 1960, when it made a decision in the case of Gomillion v. Lightfoot[case]Gomillion v. Lightfoot[Gomillion v. Lightfoot] (1960). It was virtually forced into doing so because of the nightmare that reapportionment had become, particularly in the southern states, where concerted efforts were afoot to discourage African AmericansAfrican Americans;voting rights[voting rights] from voting by redrawing the lines of their districts. Ironically, Frankfurter wrote the opinion in Gomillion, which involved gerrymandering for racial purposes. Frankfurter avoided the seeming contradiction between this opinion and his 1946 statement by declaring that Gomillion was a Fifteenth Amendment right-to-vote case rather than a reapportionment case. As such, it was justiciable.

Two years after Gomillion, in Baker v. Carr[case]Baker v. Carr[Baker v. Carr] (1962), a case involving apportionment of the Tennessee legislature, Justice William J. Brennan, Jr., addressed the political question issue and suggested a new method for deciding matters involving it. Because of Frankfurter’s minority opinion in Colegrove, the Court considered Baker under the equal protection clause of the Constitution. Brennan pointed out, however, that because the case involved no issues regarding separation of powers, it met his new guidelines for justiciability. Brennan’s redefinition of the political issues doctrine calls for comity, or jurisdictional courtesy among branches of government, for “adherence to a political decision already made,” and for a sensitivity to “the potentiality of embarrassment from multifarious pronouncements by various departments on one question.”

Justice Frankfurter, who retired from the Court shortly after the Baker decision, made his final dissent in regard to it, refuting Brennan’s redefinition in the matter of political questions. In his bitter dissent, he reiterated his arguments in Colegrove, where he had stated that for the Court to hear reapportionment cases “would cut very deep into the very being of Congress. Courts ought not to enter this political thicket.” He now admonished the Court to avoid an entanglement that he considered a violation of the doctrine of judicial self-restraint. Despite his admonitions, Frankfurter’s opinions essentially were overruled, largely because of the racial implications of reapportionment.

Two years later, in Reynolds v. Sims[case]Reynolds v. Sims[Reynolds v. Sims] (1964), the Court reviewed the remedies available in apportionment cases. Where equal protection violations occurred, federal judges were urged to move slowly enough to permit states the opportunity to correct their problem.

Frankfurter’s retirement marked the passing of an old guard that served from the New Deal of the 1930’s into the 1960’s. The appointment of justices Byron R. White in 1961 and Arthur J. Goldberg in 1962 marked a turning point in the Court’s history. The social activism of the Court under Chief Justice Earl Warren,Warren, Earl evidenced in such landmark decisions as Baker, became increasingly apparent. In this judicial climate, political questions, which were at the forefront of the social dynamism of the Warren Court, could not be disregarded.

In 1969 the Court agreed to hear a case that, perhaps more than any other that had come before it, involved the doctrine of political questions. In Powell v. McCormick[case]Powell v. McCormick[Powell v. MacCormick] (1969), Adam Clayton Powell, Jr., sued to regain the seat in the House of Representatives to which he had been duly and legally elected by the citizens of his congressional district in New York City’s Harlem. Powell was reelected to Congress in 1966 by a constituency he had served since 1942. Powell, a flamboyant public official and a lightning rod for public criticism, was accused of misusing congressional funds and other transgressions. The Ninetieth Congress that convened in January, 1967, hearing these unsubstantiated accusations, denied Powell his congressional seat.

Had Powell petitioned the Court for a hearing a decade earlier, his petition would surely have been denied. Matters of comity and the issue of the nonjusticiability of political questions would almost automatically have precluded such a case from being heard. Following Justice Brennan’s reconsideration and redefinition in the matter of political questions, however, the Court agreed to hear Powell, another landmark case that made clear that the only requirements a legally elected member of Congress must meet under the U.S. Constitution are those of age, citizenship, and residence, all of which Powell had met. The Court found in Powell’s favor. Further, while this case was pending and while Powell was still being denied his seat, his constituents in 1968 elected him to another term.

The landmark decisions in Baker and Powell cast such doubt on the political questions doctrine that the question of judicial review in impeachment convictions by the Senate, usually considered to be settled negatively, required reconsideration. In the light of these decisions, it became clear that all arbitrary power, such as that which Congress attempted to exercise against Powell, was inimical to constitutional protection. Intrusions by other branches of government in this area, despite the general acceptance of comity, are subject to judicial intervention and decision.

Had President Richard M. Nixon not resigned in 1974, he would probably have been found guilty by the Senate in an impeachment trial. Had this occurred, the question of the nonjudiciability of political questions would have arisen. In all likelihood, a judicial review of his conviction by the Senate would have taken place under the new guidelines regarding political questions.

War powersDuring the late 1960’s and early 1970’s, under Chief Justice Warren E. Burger, the Court became less activist than it had been under Earl Warren. As the Vietnam War dragged on, several suits were filed to test the constitutionality of U.S. involvement in that conflict. In three test cases, Mora v. McNamara[case]Mora v. McNamara[Mora v. McNamara] (1967), Orlando v. Laird[case]Orlando v. Laird[Orlando v. Laird] (1971), and Holtzman v. Schlesinger[case]Holtzman v. Schlesinger[Holtzman v. Schlesinger] (1973), lower courts declined to consider the constitutionality of the war, citing the nonjusticiability of political questions or finding these cases unacceptable on other grounds.

In these cases, despite the objections of some justices who claimed the Court should consider the technical question of justiciability as well as the more encompassing question of judicial responsibility, the Court declined to grant hearings. Later, it avoided hearing other such cases, including one brought against President George Bush in 1990 questioning his right to engage the United States in military action in the Persian Gulf.

• One of the best sources for the Court’s decisions on the political controversy doctrine and related issues is David M. O’Brien’s Constitutional Law and Politics, Volume One: Struggles for Poswer and Governmental Accountability (6th ed. New York: W. W. Norton, 2006). In her Politics and the Courts: Toward a General Theory of Public Law (Westport, Conn.: Greenwood Press, 1992), Barbara M. Yarnold offers thorough coverage of the doctrine of political questions, as does John Bell in Policy Arguments in Judicial Decisions (New York: Oxford University Press, 1983), which provides detailed information about test cases of the 1960’s and 1970’s. Two intriguing books deal in part with how judicial change occurs and with the crucial questions of what determines justificability and of how the concept of political questions is defined. They are Kenneth M. Holland’s Judicial Activism in Comparative Perspective (New York: St. Martin’s Press, 1991) and Susan R. Burgess’s Contest for Constitutional Authority: The Abortion and War Powers Debates (Lawrence: University Press of Kansas, 1992). Burgess’s discussion of the war powers debates are of particular interest in showing how the Court can opt to sidestep potentially awkward political issues. In The Transformation of the Supreme Court’s Agenda: From the New Deal to the Reagan Administration (San Diego, Calif.: Westview, 1991), Richard L. Pacelle, Jr., traces the course of the Court from a relatively conservative branch of government to one that became notably activist and then again retrenched to a more conservative stand. Superintending Democracy: The Courts and the Political Process, edited by Christopher P. Banks and John Clifford Green (Akron, Ohio: University of Akron Press, 2001), is a collection of scholarly essays examining a variety of issues relating to the Court’s involvement in politics. The Court’s intervention in the 2000 presidential election raised many political questions, which are the subject of David K. Ryden’s The U.S. Supreme Court and the Electoral Process (2d ed. Washington, D.C.: Georgetown University Press, 2002) and Alan M. Dershowitz’s Supreme Injustice: How the High Court Hijacked Election 2000 (New York: Oxford University Press, 2002).

Baker v. Carr

Brennan, William J., Jr.

Colegrove v. Green

Comity clause

Congress, qualifications for

Equal protection clause

Frankfurter, Felix

Gomillion v. Lightfoot

Luther v. Borden

Powell v. McCormick

War powers