The Real Political Question Doctrine

Abstract

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 in only three cases. 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 analysis of a sample of these decisions and on a qualitative review of these and other 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 the Supreme Court that explains the lower courts’ heavier reliance on the doctrine.

Keywords: political questions, lower courts, governmental immunity, foreign affairs, Baker v. Carr