Law and Prudence in the Law of Justiciability: The Transformation and Disappearance of the Political Question Doctrine

Abstract

This essay, forthcoming in the North Carolina Law Review, describes the transformation of the political question doctrine and the law of standing from flexible standards, suitable as techniques identified first by Alexander Bickel for the prudent exercise of political judgment by the Supreme Court, into true legal doctrines, whose relative rigidity makes their use as prudential avoidance devices difficult. The essay uses Bush v. Gore to illustrate the fact that doctrinalization has done much to eliminate justiciability concepts as vehicles for exercising prudent judgment, showing that the Court ignored substantial and interesting political question and standing issues in the case. The essay concludes by arguing that justiciability concepts as vehicles for prudent judgment fit well into the historical and political context in which Bickel wrote, and that their disappearance fits equally well with the historical and political context of today's Court and its (and our) acceptance of a strong theory of judicial supremacy.

Note: This is a description of the paper, not the actual abstact.