Journal Article

The real political question doctrine

Eric A Posner, Curtis A Bradley

2023

Overview

There have long been debates about the nature, scope, and legitimacy of the political question doctrine, the modern version of which originates with the Supreme Court's 1962 decision in 'Baker v Carr'. Despite the differing views, the scholarly commentary has one thing in common: it is focused almost entirely on the Supreme Court. In the sixty years since 'Baker', however, the Court has applied the doctrine as a basis for dismissal in only three majority decisions. By contrast, during this period, the lower courts have applied the doctrine as a basis for dismissal in hundreds of cases. We provide the first empirical account of how the doctrine has operated in the lower courts since 'Baker'. Our account is based on both a quantitative and qualitative analysis of a sample of these decisions. This account reveals a political question doctrine that is substantially different from the one described in most scholarship: It is more vibrant, heavily focused on foreign affairs, often applied in non-constitutional cases, more prudential, and not a permanent disallowance of judicial review. The lower courts use the doctrine to evaluate their own institutional capacity to resolve politically sensitive disputes. It is the lower courts' more limited capacity compared to that of the Supreme Court, combined with their non-discretionary docket, that explains the lower courts' heavier reliance on the doctrine.

• Publisher: Stanford Law School,Stanford University, Stanford Law School
• Subject: Analysis / Constitutional law / Court decisions / Dismissal and nonsuit / Evaluation / Executive power / Government regulation / Judicial process / Judicial review / Judicial reviews / Jurisprudence / Laws, regulations and rules / Legislative power / Legitimacy / Political questions and judicial power / Politics / Politics and government / Separation of powers / State courts / United States foreign relations / United States. Supreme Court