Beating Around the Bush

Reforming the Political Question Doctrine and Creating a Necessity-Based Exception

By Chris Stevens

Chris Stevens, a third-year student at Albany Law School, the Law Review's Executive Editor for Business and Technology, and Co-Executive Director of the Center, explores the political question doctrine under the Supreme Court's modern precedents. He argues for the creation of a necessity-based exception to save the doctrine from an eventual demise.
 

Modern Supreme Court precedent led one of the oldest and most critical justiciability constraints, the political question doctrine to the brink of extinction.  A major factor in the demise of the doctrine was the Court's perception of a need to involve itself in disputes with significant constitutional implications, despite the fact that the political question doctrine, traditionally construed, would preclude their involvement.  Rather than allow this constraint to stop them from reaching the merits of these important cases, the Court found its way around it on several occasions.  In doing so, over time, the Court seemed to silently apply, and thus implicitly create, a 'necessity-based exception' to the political question doctrine.  By failing to openly acknowledge this exception's existence, the Court also necessarily failed to delineate its boundaries.  As a result, it gradually expanded and developed into a device that, in many instances, allowed the Court to substitute its judgement for that of the so-called 'political' branches of government.

In attempting to shed light on these truths, this Comment calls for the rebirth of a more refined political question doctrine--one with much more clearly defined boundaries.  To revive the doctrine, however, requires reform.  In order to eliminate the confusion between the doctrines' classical and prudential strains--which is a contributing factor to the erosion of the political question doctrine as a whole--unification of the two branches of the doctrine is essential to meaningful reform.  By keeping in mind the purpose of the political question doctrine--to protect the constitutional separation of powers--while fashioning this reform, it is possible to restore the political question doctrine to its original prominence in Supreme Court jurisprudence.
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Read the entire paper here.