Two Questions About Political Questions

In my essay on this blog on Monday, I criticized Justice Alito's statement during the oral argument in Louisiana v. Callais characterizing Rucho v. Common Cause as holding that political gerrymandering is constitutionally permissible. Rucho, I noted, held that constitutional challenges to political gerrymandering present nonjusticiable political questions, but this does not mean that there are no constitutional constraints on political gerrymandering. It means only that legislators--either state legislators or members of Congress if it chooses to exercise its power under Article I, Section 4 of the Constitution to modify the manner of conducting congressional elections--are the actors who have the responsibility to determine when political gerrymandering goes too far and is thus unconstitutional.

I begin each class in my constitutional law course with a 5-to-10-minute segment I call "Con law in the news." On Monday during Con law in the news, we discussed the Callais oral argument. Students who had read my blog post raised two interesting questions that I address below. 

Question 1: A student asked whether there is a meaningful difference between saying that Rucho permits political gerrymandering versus saying that it commits the matter to the political branches. In answering this objection, I distinguished two versions of it. Under a strongly legal realist version, there is no difference because law exists only when there is some external authority to enforce the law. Oliver Wendell Holmes, Jr. encapsulated this view in this statement in The Path of the Law: "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law." Under this view, where there is no justiciability, there is no law.

To my mind, the Holmesian view is useful for a lawyer advising a client contemplating litigation but unhelpful here. There are, of course, circumstances in which assigning authority to some actor other than a judge to resolve a legal question means that the legal question will not be taken seriously, but that is hardly true of all such circumstances. A leading example that I discussed briefly in Monday's essay concerns Senate impeachment trials. In Nixon v. United States, the Supreme Court held that an impeached judge presented a nonjusticiable political question when he argued that his hearing before the Senate Judiciary Committee followed by arguments in the full Senate did not comply with the constitutional provision assigning to the Senate the power to try all impeachments. What counts as an impeachment trial, the Court held, is committed to the Senate. Does that mean that anything goes? Hardly.

Even though members of Congress voted on the merits more or less along party lines in the Clinton and both Trump impeachment proceedings, the procedures used were not especially controversial. The Senate didn't flip a coin or conduct trial by ordeal or do anything that strayed far from what everyone would concede is recognizable as trial-like. Why? Because there are constraints from public opinion and the Senators' own self-conception. It is simply wrong to say that where there is no external check, there is necessarily no law.

There is another version of the objection, however. It doesn't assert the Holmesian proposition as a universal truth. Rather, it claims that with respect to political gerrymandering, committing the constitutional question to political judgment is tantamount to saying anything goes. I think that's more or less true of state legislators at all times. Their incentive to engage in self-dealing is simply too great. I think it's not necessarily true of Congress (which, again, can override state political gerrymandering through Art I, Sec 4 legislation) at all times but is true these days, when party loyalty (especially on the Republican side) in matters of elections appears to dominate all other considerations.

Nonetheless, I still think Justice Alito was technically wrong to say that Rucho approves of political gerrymandering. State and federal legislators may put party loyalty over their obligations to the Constitution, but we shouldn't reward them for that betrayal by describing what they're doing as legitimate.

Question 2: One student who had read my blog post hypothesized a federal statute, enacted pursuant to the Art I, Sec 4 power to alter the manner of elections, that banned either "political gerrymandering" or "excessive consideration of politics in districting." He then asked whether the Court would deem the statute--which sets out a standard no more determinate than what the respondents in Rucho were proposing--justiciable. I think the answer is currently indeterminate.

Baker v. Carr sets out the canonical test for a PQ. The first factor probably couldn't arise under a statute. It asks is whether there is "a textually demonstrable constitutional commitment of the issue to a coordinate political department." That would typically mean a constitutional commitment of a constitutional issue. However, the next factor--and the one that was critical in Rucho--is whether there is "a lack of judicially discoverable and manageable standards for resolving" the question. If vague language in the Constitution does not give rise to such standards, there is no reason in principle why equally vague language in a statute would give rise to them. Likewise, all of the other Baker factors could apply in principle in statutory cases as well as constitutional ones. And the Baker factors are connected by a string of ors, not ands, so any single factor could make a case nonjusticiable. Accordingly, it ought to be possible for a statutory issue to present a PQ.

Nonetheless, no SCOTUS case has ever found that a statutory interpretation question presented a PQ. And the Court has come close to saying that this is impossible. Consider Japan Whaling Ass'n v. American Cetacean Society (1986). Congress passed a statute to better implement an international treaty limiting whaling and also pursuant to its power to regulate foreign commerce. The case in the Supreme Court turned on the question whether allowing contested whaling by Japan would "diminish the effectiveness" of the treaty. The respondents argued that that statutory phrase was not fit for adjudication and thus that the case presented a political question. The Supreme Court disagreed in language that suggests that a question of statutory interpretation can never give rise to a political question. Justice White wrote for the majority:

As Baker plainly held, . . . the courts have the authority to construe treaties and executive agreements, and it goes without saying that interpreting congressional legislation is a recurring and accepted task for the federal courts. It is also evident that the challenge to the Secretary's decision not to certify Japan for harvesting whales in excess of IWC quotas presents a purely legal question of statutory interpretation. 

The Japan Whaling Court split 5-4 on the merits (with the majority, regrettably, siding with the Japanese whalers), but there was no dissent from the proposition that the case did not present a political question. Other cases have also contained similar language, although no SCOTUS case categorically holds that a statutory interpretation question can never give rise to a political question.

If we take the Japan Whaling language for all it's worth, we have the puzzle my student raised. How can some legal question be unanswerable via judicially discoverable and manageable standards if it arises as a matter of constitutional interpretation, while the identical question, if posed as a matter of statutory interpretation, can be answered by such standards?

The Supreme Court has never addressed this issue. And yet, cases going beyond Japan Whaling suggest that the Court takes the view that putting a standard in a statute settles the matter. Consider Employment Division v. Smith. As I explained in an essay on SCOTUSblog in 2014:

Justice Scalia’s opinion in the Smith case offered a number of grounds for the conclusion that the Free Exercise Clause does not entitle religious objectors to exceptions from neutral laws of general application, but one crucial piece of his argument for the Court was that judges are simply not competent to make the sorts of judgments needed to administer an exceptions regime. The clearest expression of this view appears in footnote 5, in which he states, in response to an argument offered by Justice O’Connor in her concurrence in the judgment: “it is horrible to contemplate that federal judges will regularly balance against the importance of general laws the significance of religious practice.” But the point is also plain enough in the text of the Smith opinion, where Justice Scalia states that it is simply not “appropriate for judges to determine the ‘centrality’ of religious beliefs.”

And yet, as I noted further in that essay, the Supreme Court, including Justice Scalia, had no objection to applying roughly the same test it rejected in Smith when interpreting the Religious Freedom Restoration Act (RFRA). To be clear, Smith did not hold that the plaintiffs' claims presented a nonjusticiable political question. However, it did reject them in part on grounds that are quite similar to the lack-of-judicially-discoverable-and-manageable-standards branch of the political question doctrine. And yet such standards were available to the Court under RFRA. That move parallels the suggestion in Japan Whaling that language that might be too vague for adjudication when it appears in the Constitution is nonetheless categorically subject to judicial interpretation if embodied in a statute.

Is that sound? In my SCOTUSblog essay, I offered a number of possible methods by which the Court's approach in Smith could be reconciled with its willing application of RFRA. Some of those don't generalize beyond religion cases. In any event, in the PQ context, the best answer would probably go something like this: The essence of a determination that a case presents a political question is a determination that an issue is committed to the political branches. If the political branches conclude that the issue should be resolved by the judiciary by embodying it in a statute, then the political question concern dissolves.

I haven't fully developed the foregoing line of reasoning, and I'm not sure that it's persuasive. I am sure that insofar as the Supreme Court's cases suggest that statutory interpretation cases can never present a political question, the Court has not itself given an adequate justification for that suggestion.

--Michael C. Dorf