In search of lost “political question doctrine”: A Comment on Maimon Schwarzschild’s paper on political questions

Abstract

From Maimon Schwarzschild’s analysis of the political question doctrine and the respective judicial cases’ description, a metatheoretical question immediately arises to my mind: is there truly a political question doctrine or are judges and scholars just talking about already known phenomena? In my commentary, starting from Henkin and Seidman’s analysis and resorting to legal
concepts such as discretion and defeasibility, I will try to briefly address this question by assessing if some of the three possibilities arising from the Supreme Court jurisprudence as well as Ely and Bickel’s ideas can justify an autonomous political question doctrine.