Note, A Dialogue on the Political Question Doctrine

Legal scholars have generally discussed the political question doctrine as part of the larger debate over the legitimacy of judicial review. Points of discordance aside, scholars have agreed that the doctrine is “a classic technique of judicial avoidance, a way of allowing a governmental decision to stand without involving the Court in supporting its legitimacy.” Thus, debate over the objectives, legitimacy and scope of the doctrine has traditionally proceeded from the unquestioned assumption that there exists a body of law which justifies judicial abstention from deciding some types of issues. In recent years, however, some scholars have challenged the assumption that complete abstention from deciding constitutional issues is justified either historically or logically. Accordingly, it has been argued that invocation of the political question doctrine is a needless step in a journey to a ruling on the merits of a case, an unfortunate confusion between justiciability and “want of equity,” or a summary—and therefore shallow—determination of the merits under the guise of a ruling on justiciability. Thus, the “modern” doctrine that would grant the Supreme Court discretion to decline to decide cases is rejected as being unfounded in history and inconsistent with the Court’s role. In this article, the author discusses the merits of these arguments and their implications for a theory of the political question.