ripeness.
mootness.
political questions.cases where the congress should review the issue, not the court
justicability doctrines (keeping adjudication low) vs. merit questions (adjudicating questions) - justiciability is court created for court discretion.
political question doctrine has developed to make it less of an obstacle
baker v. carr - the case that made justice whittaker resign
the facts: tenn has not had a reapportionment of voting districts in 60 years. baker is a rep in memphis (shelby county), and his district has almost 10x the population than the rural districts, which still had more voting power. carr is the sec of st in tenn, and baker sues him ex officio. baker argues that the disproportionment has caused him to fail to receive the equal protection guaranteed under the 14th amd't. tenn argued that this was a political question for the legislature to decide.
the issue: is the challenge to the reapportionment of the tn legislature a political question barred by the justiciability limits on the court, or is it an equal protection question, which is well within the justiciability rights of the court?
the reasoning: Just b/c a suit seeks protection of a political right does not mean that it presents a political question. Nonjusticiability of a political question is primarily a function of the separation of powers and must be argued on a case by case basis.
Foreign relations: precedent says all foreign relations questions are political questions, but this is not true. It has been said that if there has been no conclusive governmental action then a court can construe a treaty and may find it provides the answer.
Dates of duration of hostilities: when there needs to be definable clarification for a decision, the political question barrier falls away.
Validity of enactments: with political questions, come the need to clarify policy, determine initial policy, to settle what is judicially discoverable and manageable standards to answering it. Unless one of these issues is undeniably tied into the case-at-bar, then there should be no dismissal for nonjusticiability on the ground of a political question's presence.
It's argued that this is a case which has not yet been considered: those which involve the Guaranty Clause and the guaranty of a republican form of gov't, which involves a political question.
Justice Brennan established the contours of the PQD in Baker v. Carr: (6 potential factors)
Prominent on the surface of any case held to involve a political question is found:
(1) a textually demonstrable commitment of the issue to a coordinate political department;
(2) or a lack of judicially discoverable and manageable standards for resolving it;
(3) or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion;
(4) or the impossibility of a court's undertaking independent resolution without expressing lack of respect due coordinate branches of government;
(5) or an unusual need for unquestioning adherence to a political decision already made;
(6) or the potentiality of embarrassment to the gov't from multifarious pronouncements by various departments on one question.
the holding: The “political question” doctrine is based in the separation of powers and whether a case is justiciable is determined on a case by cases basis. In regards to foreign relations, if there has been no conclusive governmental action regarding an issue then a court can construe a treaty and decide a case. Regarding the dates of the duration of hostilities, when there needs to be definable clarification for a decision, the court may be able to decide the case.
The court held that this case was justiciable and did not present a political question. The case did not present an issue to be decided by another branch of the government. The court noted that judicial standards under the Equal Protection Clause were well developed and familiar, and it had been open to courts since the enactment of the Fourteenth Amendment to determine if an act is arbitrary and capricious and reflects no policy. When a question is enmeshed with any of the other two branches of the government, it presents a political question and the Court will not answer it without further clarification from the other branches.
Guaranty Clause argument: the majority says that this is not guaranty clause. the dissent says that it is. they lose. who's right and how should we argue? we should make a strong argument for both sides -- the case is decided 5/4 with awfully long and brutal thunkulating on the US' part. so practice making the arguments of both sides of the opinion.
takeaway: baker v. carr is not meant to tie 14th amd't to guaranty clause, nor to say that one will/will not always trump the other.
SIGNPOST! if you see a PQ, apply art I s. V: got to look at it to see if congress has the power to govern the issue presented.
what's nixon's constitutional complaint? the language says that the senate will review and hear the matter. senate is a bright line thing -- 100 guys with seats looking at his case -- and nixon claims he didn't get this right to a fair trial (BOR 6)
what does the model of deliberation matter? (maj.)you got a senate moment because art. I s 3, cl. 6 says "senate shall have *sole* power to try all Impeachments" and this is not a run of the mill trial, it's an impeachment. "try" should mean that the senate can choose its subcommittee. if the issue had never reached the senate, then it wouldn't have had review, but it has been reviewed. (conc.) seperation of power is different from supremacy of an actor. there's a merit's question to the political question here: the senate has the textual authoritative power over Impeachment. this power can be abused unless there's a check point, and that check should be the judicial branch.
did the court need to put it's nose back into this issue?
would it have been impossible to live with a messier alternative i.e., hayes election?
breyer argues that this is a prudential question, not a political one.
clinton, in the aftermath, has called this case the modern dred scott.
"subtle wounds" for legal community: we don't need to know who would have won from florida, but the partisan affiliation of the 9 on the supreme court that they are 9 politicians with life appointments...
however, sandra day o'connor says, "It was a hard decision to make. But I do know this: there were at least three separate recounts of the votes, the ballots, in the four counties where it was challenged and not in one of the recounts would the election have changed. So I don't worry."
"political question is a doctrine to remind justices that sometimes, they have to lean away from their political bend"
why value the states? what's the rationale, beyond 10th amd't?
11th amd't (won't be tested on it)
chisholm v. GA (you have the right as a non-citizen to sue a state)
however, state sovereignty has regrown and 11th amd't has been inserted:
hans v. LA (can't sue the state) and ex parte young (but can sue employees of state gov'ts)
seminole tribe (congress can't abrogate 11th amd't/state sovereign immunity under art.I)
alden v. ME (ME can't be hauld into its own court as a party)
theory: federalism doctrine question went on hiatus after renquist's death. however, the war and the national security put this as a secondary issue.
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