The Political Question Doctrine in the Lower Courts
August 8, 2022
Curt Bradley and Eric Posner have posted to SSRN a fascinating new paper about the political question doctrine. In The Real Political Question Doctrine, they take an empirical look at cases applying the doctrine in the lower federal courts since the Supreme Court’s 1962 decision in Baker v. Carr. Among other things, they find that the lower courts regularly apply the political question doctrine, particularly in foreign affairs cases, despite Supreme Court decisions appearing to discourage its use. Here is the 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.
The article has a somewhat Panglossian tone—that a world in which lower courts regularly apply the political doctrine, and the Supreme Court does not, is the best of all possible worlds. As the abstract indicates, Bradley and Posner explain the difference as reflecting differences in institutional capacity between the lower courts and the Supreme Court to resolve politically sensitive disputes. Or as they put it near the end of their draft, “[w]hat is prudent for the Supreme Court may not be prudent for a lower court” (p. 52).
Really the Merits?
A common critique of the political question doctrine is that a decision to abstain on this ground is functionally equivalent to a decision on the merits in favor of the party whose action is being challenged. The authors repeatedly acknowledge this point. Commenting on a lower court decision applying the doctrine in a case challenging the President’s decision to extend diplomatic recognition to the Vatican, for example, they note that “[t]he court could just have well said that the President has a plenary recognition power” (p. 25).
In foreign affairs cases, it is often the President whose actions are being challenged. “As a practical matter,” Bradley and Posner note, “the refusal of courts to review the presidential action typically means that the president prevails” (p. 27). And although they “make no claim that the lower courts have applied the doctrine correctly in all instances” (p. 54), the authors generally seem content with the results of the cases they discuss. In prior work, both Bradley and Posner have argued for judicial deference to the executive in foreign affairs.
With the Supreme Court’s Blessing?
The authors also suggest that the Supreme Court seems content with a world in which the lower courts apply the political question doctrine more aggressively than the Court itself does.
Normally, the lower courts are supposed to decide cases in a manner consistent with Supreme Court precedent. But an equilibrium seems to have arisen, apparently based on a tacit understanding, in which the lower courts apply the political question doctrine in cases in which the Supreme Court would likely decide on the merits, and the Supreme Court maintains this equilibrium by denying certiorari rather than taking cases and reversing the lower courts (p. 4).
There is, however, a less benign interpretation: lower courts may simply be more inclined to abstain from deciding foreign relations cases and may be ignoring the Supreme Court’s precedents to reach that result.
This interpretation is consistent with what one observes with other doctrines of transnational litigation. With the act of state doctrine, for example, the Supreme Court clearly and unanimously held in W.S. Kirkpatrick & Co., Inc. v. Environmental Tectonics Corp., International (1990) that the act of state doctrine applies only if a U.S. court would have to question the validity of a foreign act of state. But in a series of cases, lower courts ignored this limitation and applied the doctrine to bar antitrust claims that were based in part on foreign government acts but did not question the validity of those acts. Lower courts have also invented a number of doctrines of international comity abstention that seem inconsistent with the Supreme Court’s precedents.
The fact that the Supreme Court denies cert in most political question cases does not necessarily imply approval of the status quo. There will often be no circuit split in these cases, particularly because challenges to the President’s actions in foreign affairs are generally brought in the D.C. Circuit. The Solicitor General, defending the executive branch, will typically oppose cert. And the Supreme Court may simply not want to spend its limited resources hearing these cases.
But whether the lower courts are aggressively applying the political question doctrine in foreign affairs cases with the Supreme Court’s implicit blessing or not, Bradley and Posner have made an important contribution by showing what the lower courts are actually doing. Their article is well worth reading.