Leaving the Empty Vessel of 'Republicanism' Unfilled: An Argument for the Continued Non-Justiciability of Guarantee Clause Cases
25 Pages Posted: 7 Mar 2003 Last revised: 25 Jul 2013
Date Written: 2003
Many commentators trace the beginning of the end of the political question doctrine to the Supreme Court's 1962 Baker v. Carr decision. In Baker, as Mark Tushnet has explained, the Court domesticated the doctrine by reducing it from an amorphous prudential doctrine to a set of six legal rules. If the political question doctrine continues to have any vitality, it is in the area of foreign affairs and in cases raising "Guarantee Clause" claims. I ignore the foreign affairs area and focus on the Guarantee Clause. Cases raising Guarantee Clause claims now stand on the cusp of justiciability.
In Part I, I argue that there is good reason to believe that the Court will soon consider claims arising under the Guarantee Clause. First, as a textual matter, the argument for non-justiciability is weak. Second, the prudential rationale offered by the Court in Baker v. Carr for not deciding Guarantee Clause claims - that the Guarantee Clause is "not a repository of judicially manageable standards" - has failed to hold up in the face of the Court's development of manageable standards in other areas of the law. Thus, all that stands in the way of justiciability is weakly-reasoned (though longstanding) precedent.
In Part II of this Chapter, I argue that the Court should nonetheless continue to treat cases raising Guarantee Clause claims as non-justiciable. The most likely claims advanced under the Clause would challenge the initiative process (or particular initiatives) and provide additional arguments for Court intervention in election law, particularly voting rights, disputes. The success of such claims would further entrench courts in political regulation with little benefit and at a great potential cost. It also may have unintended consequences for those who see the clause as the next means of advancing a liberal activist agenda on the Court - it may just as well promote a conservative activist agenda. Thus, the history of the Guarantee Clause could well parallel the history of the Equal Protection Clause from its liberal use in post-Baker cases to more conservative uses in cases like Bush v. Gore. I conclude that both liberal and conservative Court Justices concerned about the over-involvement of the courts in political regulation would do well to keep the political question doctrine on life support, if only to insure that Guarantee Clause claims remain non-justiciable.
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By Mark Tushnet