Political Questions and Judicial Power in the United States

Abstract

When one considers the extraordinary power of the American courts over American society and public policy – judicial power that until recently was virtually unique to America, but now is increasingly an international phenomenon – it might seem surprising that there is an American judicial doctrine that political questions must not be adjudicated by the courts. Yet there is such a doctrine. It dates to the early years of the American republic, and it has been invoked intermittently both in the 19th and in the 20th century when the courts decline to decide certain cases.
There are a handful of topics, and at least one Constitutional provision, that are said to raise political questions which the courts will not adjudicate. Whilst the courts sometimes invoke the political question doctrine to avoid adjudication, or to adjudicate in favour of whatever the elected government has done, the doctrine imposes little real restraint on the courts’ power, even on the limited range of questions to which the doctrine is said to apply. The “political questions” of the doctrine, anyhow, are not necessarily the questions with the most importance to the social and political character of American life. American courts have taken on an increasingly political role, deciding social controversies that would otherwise be up to democratically accountable legislatures. The article explains the “political question doctrine” as the American courts actually apply it, showing how the doctrine coexists with growing judicial activism.