Linda Sandstrom Simard * | 23.4 | Article | Citation: Linda S. Simard, Partisan Gerrymander Claims, the Political Question Doctrine, and Judicial Prudence, 23 U. Pa. J. Const. L. 853 (2021).

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Read Prof. Seidman’s companion piece on Rucho v. Common Cause.

The Supreme Court developed the political question doctrine as a technique to avoid judicial review of an otherwise properly filed case when a judicial decision in the case would be inappropriate or imprudent. It is only when a case is otherwise properly filed that the technique is instrumental in declining judicial review. The irony of the Court’s invocation of the political question doctrine in partisan gerrymander cases is that it relieves the courts from adjudicating issues that most demand independent judicial review.

Indeed, the independence that is ensured by Article III of the Constitution is intended to protect federal courts when they are called upon to decide sensitive issues that might raise a risk of retaliation, particularly by a co-equal branch of the government. These protections ensure that federal judges shoulder the constitutional duty of judicial review without fear of reprisal. Yet, in Rucho v. Common Cause, the majority refused to adjudicate claims of unconstitutional partisan gerrymandering, instead suggesting that any available remedy lies in the hands of the entrenched political bodies accused of wrongdoing.

This result is troubling, not only because of the futility of expecting the legislative bodies that are responsible for the districting map to police their own alleged misconduct, but also because it sends a signal that the political question doctrine might be utilized as a convenient escape hatch to avoid adjudication of other sensitive issues of our day. Indeed, what is to stop the Court from closing the courthouse doors on large swaths of public law litigation by declaring these cases to be nonjusticiable political questions?

So what should courts do with cases that involve sensitive “political” questions? In most cases, the answer is simple: courts should treat them like every other dispute by relying upon traditional tools of adjudication to resolve the questions presented. When ordinary constitutional interpretation suggests there is no constitutional violation that is remediable by the courts, there is no need to invoke the political question doctrine because courts may rely upon traditional procedural safeguards that test the adequacy of a complaint—lack of standing or failure to state claim. If there are extraordinary situations that raise a legitimate reason for courts to avoid judicial review of an otherwise properly filed case, the political question doctrine should be narrowly tailored to satisfy clear legal principles that ensure courts shoulder the hard work of judicial review in all but the most extraordinary circumstances.

As the next section illustrates, the criteria that define the modern political question doctrine are not narrowly tailored or clearly defined.

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* Professor Linda Sandstrom Simard, Suffolk University Law School. I want to thank the University of Pennsylvania Journal of Constitutional Law for sponsoring a timely and provocative conference.