A Case Study of the Political Question Doctrine: Bush v. Gore

1. A Case Study of the Political Question Doctrine: Bush v. Gore Art. II, Section 1, clause 2: state legislators appoint electors for President. Florida set up an election procedure, including manual recounts, using an �intent of the voter� standard. The 12th Amendment gives the House of Representatives power to choose the President if no candidate has a majority of electors. Should the Court have invoked the political question doctrine in Bush v. Gore?

2. The Test for �Political Questions� (is it really separate from the merits?) Baker v. Carr factors (p.1197): Lack of satisfactory criteria for a court to decide �a textually demonstrable commitment of the issue� to another branch �a lack of judicially discoverable and manageable standards� �the impossibility of deciding without an initial policy determination� AND Avoid clash with political branches impossibility of the court deciding without showing a �lack of respect� for other branches of government Unusual need for finality, �unquestioning adherence� to another branch�s decision avoid potential �embarrassment� from multiple pronouncements Which of these factors are independent of the merits? (Is the political question doctrine really just a way of saying there is no violation of law? Would the Court ever apply the doctrine to a case where it believed that there was a law violation on the merits?)

3. Applying the Key Precedents Is Bush v. Gore more like Baker v. Carr (adjudicating the constitutionality of Tennessee�s apportionment scheme), with no political question? Or is it more like U.S. v. [Judge] Nixon (the validity of the Senate�s impeachment trial by committee was nonjusticiable), where there was a political question?

4. Congress� Power to Check the Court Art. III, Section 2, clause 2: specifies certain types of cases for original jurisdiction, then appellate jurisdiction for all other cases, �with such Exceptions, and under such Regulations as the Congress shall make.� And remember Marbury: Congress cannot expand the Court�s original jurisdiction beyond the types of cases listed in Art. III. Does that mean that Congress can subtract certain types of cases completely out of appellate jurisdiction, taking them completely away from the Supreme Court? Art. III, Section 1: vests the judicial Power in one supreme Court, �and in such inferior courts as the Congress may from time to time ordain and establish� Does the power to create the lower courts include the lesser power of limiting their jurisdiction? Even if Congress restricts jurisdiction as a way to stop the Court from making decisions that Congress does not like?

5. Case Study on the Guantanamo Detentions Congress recently passed a statute that purports to eliminate federal court jurisdiction to hear cases brought by detainees in Guantanamo challenging their detention. Is this restriction on federal court jurisdiction constitutional?

6. Key Principles (1) Congress can change the underlying substantive law (statutory law, not constitutional law), but cannot review the correctness of court decisions Plaut v. Spendthrift Farm (1996): striking down Securities Act amendment reinstating securities fraud suits that were commenced before unfavorable Supreme Court decision on statute of limitations, but dismissed as time-barred based on that decision. U.S. v. Klein (1872): holding unconstitutional a statute requiring courts to treat pardons as proof of disloyalty (contrary to prior Supreme Court decision treating them as proof of loyalty) in suits by southerners to reclaim confiscated property, and stripping the Supreme Court of jurisdiction over court of claims decisions finding in favor of claimants based on proof other than that specified, and requiring lower courts to dismiss claimants� petitions on remand.

7. Key Principles, cont. (2) Art. III gives Congress power to regulate federal court jurisdiction Ex parte McCardle (1869): dismissing habeas claim under congressional statute, enacted shortly after oral argument, repealing the statute granting appellate jurisdiction in the Supreme Court for habeas claims. But is there any limit to Congress power here? What if Congress carves out a set of cases from federal court jurisdiction as a way of correcting or preventing �bad� court decisions?