The Political Question Doctrine: An Introduction (Part 1)

The Political Question Doctrine: An Introduction (Part 1)

Legal Sidebari

The Political Question Doctrine: An
Introduction (Part 1)
June 14, 2022
This Legal Sidebar is the first in a six-part series that discusses the Supreme Court’s political question
doctrine, which instructs that federal courts should forbear from resolving questions when doing so would
require the judiciary to make policy decisions, exercise discretion beyond its competency, or encroach on
powers the Constitution vests in the legislative or executive branches. By limiting the range of cases
federal courts can consider, the political question doctrine is intended to maintain the separation of
powers and recognize the roles of the legislative and executive branches in interpreting the Constitution.
Understanding the political question doctrine may assist Members of Congress in recognizing when
actions of Congress or the executive branch would not be subject to judicial review. For additional
background on this topic and citations to relevant sources, please see the Constitution of the United
States, Analysis and Interpretation.
The political question doctrine limits the ability of the federal courts to hear constitutional questions even
where other justiciability requirements—such as standing, ripeness, and mootness—are met. The
Supreme Court has stated that, for purposes of Article III of the Constitution, “no justiciable ‘controversy’
exists when parties seek adjudication of a political question.” The term political question is a legal term of
art that on its face gives little indication of what sorts of cases the doctrine bars federal courts from
deciding. The phrase, which has its origins in Chief Justice Marshall’s landmark opinion in Marbury v.
Madison, is potentially misleading, as federal courts deal with political issues, in the sense of
controversial and government-related issues, all the time. Rather than referring generally to any such
political issue, the term political question expresses the principle that some issues are either entrusted
solely to another branch of government or beyond the competence of the judiciary to review. A finding
that a matter qualifies as a political question divests federal courts of jurisdiction, meaning they lack the
power to rule on the matter.
The Supreme Court identified six factors relevant to the political question doctrine in the 1962 case Baker
v. Carr:
Prominent on the surface of any case held to involve a political question is found [1] a textually
demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a
lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of
deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4]
the impossibility of a court’s undertaking independent resolution without expressing lack of the
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respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence
to a political decision already made; or [6] the potentiality of embarrassment from multifarious
pronouncements by various departments on one question.
The variation among the criteria emphasizes the diverse purposes that the doctrine may serve, embodying
both separation-of-powers principles and prudential concerns such as the competency of courts. These six
criteria appear in recent Supreme Court opinions applying the political question doctrine. However,
Justices of the Supreme Court have recognized confusion around the political question doctrine, both
when Baker was decided and subsequently. Among other things, judges have disagreed on how to identify
a political question, as well as on fundamental matters such as whether the political question doctrine
originates in constitutional or prudential principles and what purpose the doctrine allegedly serves.
So far, the Supreme Court has elected not to resolve these disputes in a comprehensive fashion. Instead,
the Court has applied the political question doctrine in some areas of foreign policy, Congress’s internal
governance, and impeachment and in cases involving partisan gerrymandering.
This series of Legal Sidebars traces the development of the political question doctrine from its
foundations in Marbury to its refinement in Baker to its modern applications. The series covers the
historical background of the political question doctrine; the doctrine in the modern era; foreign affairs as a
political question; congressional governance and impeachment as political questions; and the political
process, elections, and gerrymandering.

Author Information

Joanna R. Lampe

Legislative Attorney

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