Week 13 - Advisory Opinions and Political Questions

What does Article III, Section 2 explain?

It explains the jurisdiction of federal courts, including the types of cases they can hear and outlines the concept of advisory opinions.

What types of cases can federal courts hear?

• cases about the Constitution, federal laws, and treaties,

• cases involving ambassadors,

• admiralty/maritime cases,

• cases where the United States is a party,

• disputes between states,

• disputes between citizens of different states,

• and some disputes involving foreign states or citizens.

What do federal courts not provide?

no advisory opinions

• Federal courts do not give legal advice just because the President or Congress asks.

• They only decide issues in a real case or controversy.

Why Justices refused to give advice to other branches?

• The Constitution separates the three branches of government.

• The Court said giving advice outside an actual case would blur those lines.

• They also noted that the Constitution lets the President ask executive department heads for advice, not the Justices

Some states are…

allowed to give advisory opinions

What is the political question doctrine?

• If the Constitution gives a matter to the political branches — the President or Congress — courts may stay out of it.

• If an issue is committed by the Constitution to another branch, courts may treat it as a political question and refuse to decide it.

How does Marshall explain the polical question dcotrine?

• The President has some powers that are political and discretionary.

• When the President uses those powers, courts generally cannot control or second-guess those decisions.

• Those matters concern the nation as a whole, not individual legal rights.

The political question dcotrine however is…

not absolute

• Courts are often reluctant to decide political questions.

• Still, in some cases, they do step in.

What is the guarantee clause?

• Article IV, Section 4 says the United States must guarantee every state a “republican form of government.”

• It also says the United States must protect states against invasion and, in some situations, domestic violence.

What is the issue and question that arose due to the phrase “republican form of government” within the guarantee clause?

• Problem: the Constitution does not define what a “republican form of government” means.

• It also does not clearly say what happens if a state fails to have one.

• That creates a big question:

  • Can courts decide whether a state government is “republican” enough?

  • Or is that a political question for Congress and the President?

What did Luther v. Borden suggest about the the Courts power over Guarantee claims?

often treated as nonjusticiable — not proper for courts.

Despite having political issues, why did the Court rule that federal could rule over Baker v. Carr?

Issue(s):

• Did Tennessee’s failure to reapportion legislative districts after major population shifts violate the Equal Protection Clause?

• Was the claim a nonjusticiable political question, meaning the federal courts could not hear it?

Facts (include arguments):

• Tennessee had not redrawn legislative districts since 1901, even though population changes made some districts far more populated than others.

• Charles Baker, a voter from Shelby County, argued this malapportionment diluted his vote and denied him equal protection.

• The state argued that apportionment was a political question, especially because similar claims under the Guarantee Clause had often been treated as nonjusticiable.

Procedural posture:

• The lower court dismissed the case as a political question.

• The Supreme Court reversed and remanded for further proceedings.

Judgment:

• The Court held that Baker’s Equal Protection Clause claim was justiciable and could be heard by federal courts.

Applicable Rules and Precedent:

• A case may present a political question when there is, for example, a textually demonstrable commitment of the issue to another branch, a lack of judicially manageable standards, or a serious risk of disrespect, policy intrusion, or conflicting government pronouncements.

• Luther v. Borden treated Guarantee Clause claims as nonjusticiable because they lacked manageable standards and implicated decisions committed to the political branches.

Holding:

• Equal Protection challenges to legislative apportionment are not automatically political questions.

• Baker’s claim could proceed because courts have manageable standards under the Fourteenth Amendment.

Reasoning:

• The Court said the doctrine concerns the judiciary’s relationship with the federal political branches, not simply any case involving politics.

• Brennan listed six common markers of a political question and said none controlled here.

• Unlike a pure Guarantee Clause claim, this case rested on equal protection, where courts already had workable legal standards to judge arbitrary discrimination.

Rule of Law:

• A case is not nonjusticiable just because it involves politics; courts must ask whether the issue is actually committed to another branch or lacks judicially manageable standards.

Key takeaway:

• Baker v. Carr opened the door for federal courts to review legislative apportionment under the Equal Protection Clause, making malapportionment claims justiciable even if related Guarantee Clause theories were not.

Why did Justice Frankfurter believe the courts could not decide Baker v. Carr?

• Some disputes do not have clear legal standards for judges to use.

• Those disputes should be left to the political process, not courts.

• Why courts should not decide this kind of case:

  • Legislative apportionment is too complex.

  • It involves many policy choices, such as:

    • population,

    • geography,

    • local interests,

    • political traditions,

    • community ties,

    • and practical election concerns.

  • Judges are not trained to balance all of those things.

• Foreign affairs analogy:

  • Frankfurter said courts often avoid foreign affairs cases because they require political judgment, not legal judgment.

  • He thought apportionment problems are similar in that way.

• State government concern:

  • Courts have traditionally been very cautious about interfering with the structure of state governments.

  • Frankfurter thought redistricting falls into that sensitive area.

• Exception for racial discrimination cases:

  • He said cases about denying Black citizens the right to vote are different.

  • In those cases, the Constitution gives a clear command against discrimination.

  • So courts can act there.

• This case is really about political power:

  • He believed the plaintiffs were not just complaining about a personal legal injury.

  • They were really challenging the way the whole state political system was organized.

  • That kind of issue, he said, belongs in elections and legislatures, not courtrooms.

• Guarantee Clause point:

  • Frankfurter thought this was basically a Guarantee Clause case in disguise.

  • He said calling it an Equal Protection case does not solve the problem.

  • In his view, the Court still had no workable standard to decide what fair representation means.

• Equal Protection is not enough by itself:

  • He argued that to decide whether representation is “equal,” a court first has to decide what kind of representation a republican government is supposed to provide.

  • That is a political theory question, not a legal one.

How did Nixon v. United States restrict the courts power over impeachment cases?

Issue(s):

• Can the federal courts review whether the Senate used proper procedures when it tried an impeachment?

• Did Senate Rule XI violate the Constitution by letting a committee hear evidence instead of the full Senate?

Facts (include arguments):

• Walter Nixon, a federal district judge, was convicted of making false statements to a grand jury.

• The House impeached him, and the Senate used Rule XI, allowing a committee of Senators to take evidence and report to the full Senate.

• Nixon argued that the Senate did not truly “try” him as required by the Impeachment Trial Clause.

Procedural posture:

• Nixon sued after the Senate convicted and removed him.

• Lower courts rejected his claim.

• The Supreme Court affirmed.

Judgment:

• The case was nonjusticiable.

• Courts cannot review the Senate’s procedures for conducting impeachment trials.

Applicable Rules and Precedent:

• Under Baker v. Carr, a case may be a political question if there is:

  • a textually demonstrable constitutional commitment to another branch, or

  • a lack of judicially manageable standards.

• Article I says the Senate has the “sole Power to try all Impeachments.”

Holding:

• Challenges to the Senate’s impeachment trial procedures present a political question.

• The Constitution commits impeachment trials to the Senate alone, not the courts.

Reasoning:

• The word “sole” strongly suggests the Senate alone has authority over impeachment trials.

• There are no clear judicial standards for deciding what counts as a proper Senate “trial.”

• The Framers deliberately chose the Senate, not the judiciary, to handle impeachments.

• Judicial review would undermine impeachment as a check on the Judiciary.

• Allowing review could create major uncertainty and chaos, especially in presidential impeachments.

Rule of Law:

• The federal courts will not review the Senate’s procedures for trying impeachments because the issue is constitutionally committed to the Senate and is a political question.

Key takeaway:

• Impeachment trials are for the Senate, not the courts; once the Senate acts, its procedures are generally beyond judicial review.

What did the Court say on whether a case involving foreign affairs could still be decided in court in Zivotofsky ex rel. Zivotofsky v. Clinton?

Issue(s):

• Did the case present a nonjusticiable political question because it touched on Jerusalem and foreign policy?

• Could courts decide whether Congress’s passport statute requiring “Israel” to be listed for some Jerusalem-born citizens was constitutional?

Facts (include arguments):

• Congress passed a law allowing U.S. citizens born in Jerusalem to request that their passport list “Israel” as their place of birth.

• The State Department refused to follow the law, relying on a longstanding policy of not taking a position on Jerusalem’s political status.

• Zivotofsky sued to enforce the statute and have his passport say “Jerusalem, Israel.”

• The Secretary of State argued that the case raised a political question because it implicated the President’s foreign affairs and recognition powers.

Procedural posture:

• The lower courts dismissed the case as a political question.

• The Supreme Court vacated and remanded.

Judgment:

• The case was justiciable.

• The political question doctrine did not bar the courts from deciding it.

Applicable Rules and Precedent:

• Under Baker v. Carr, a case may be nonjusticiable if it is textually committed to another branch or lacks judicially manageable standards.

• Marbury v. Madison says it is the duty of the judiciary to decide whether a statute conflicts with the Constitution.

Holding:

• Courts may decide whether §214(d) is constitutional.

• A dispute does not become a political question just because it has foreign policy implications.

Reasoning:

• The lower courts framed the issue too broadly as deciding the political status of Jerusalem.

• The real issue was narrower: whether a specific federal statute is valid and enforceable.

• Deciding the constitutionality of a statute is a classic judicial function.

• Courts had manageable standards because the case turned on ordinary constitutional interpretation of Congress’s and the President’s powers.

Rule of Law:

• The political question doctrine does not bar judicial review when the courts are asked to decide the constitutionality of a statute, even in an area touching foreign affairs.

Key takeaway:

• Foreign policy implications alone do not make a case nonjusticiable; if the issue is whether a statute is constitutional, courts generally must decide it.

Why did Justice Breyer dissent believe the political question doctrine should apply in Zivotofsky v. Clinton?

• Main reason: foreign affairs

  • Foreign policy is mainly handled by the President and Congress, not courts.

  • These decisions are often delicate, complex, and political.

  • They may depend on information judges do not have.

• Courts might have to judge foreign policy itself

  • To decide the case, courts might have to weigh the foreign policy consequences of listing “Israel” on passports for people born in Jerusalem.

  • Breyer thought that kind of judgment is not a proper judicial task.

• The U.S. should speak with one voice

  • In foreign affairs, it is important for the Nation to present a single clear position.

  • Judicial involvement could create mixed signals and complicate diplomacy.

• The individual interest here was not especially strong

  • Breyer said Zivotofsky was not claiming a classic personal right like property, bodily liberty, or a core constitutional freedom.

  • He viewed the claimed injury as closer to an ideological or symbolic interest.

• Political branches can work it out themselves

  • Congress and the President have many ways to resolve disagreements:

    • legislation,

    • funding,

    • hearings,

    • confirmations,

    • and negotiation.

  • Because they have those tools, Breyer thought judicial intervention was less necessary.

• Big practical concern

  • Court involvement risked:

    • embarrassing the United States,

    • showing disrespect to the political branches,

    • and disrupting sound foreign policy.

What did Justice Sotomayor’s concurrence say about the analysis needed for a case like Zivotofsky v. Clinton?

• analysis should be more careful:

  • The political question test is more demanding than the majority suggested.

  • Courts must look closely at exactly what issue they are being asked to decide.

• Step one: identify the real issue

  • The real question was not “What should U.S. policy be on Jerusalem?”

  • The real question was whether a federal statute gave Zivotofsky a right to have “Israel” listed on his passport, and whether that statute is constitutional.

• That kind of question is for courts

  • Deciding whether a statute is constitutional is a classic judicial function.

  • It does not require courts to judge the wisdom of the President’s foreign policy.

• But some statutory cases could still be political questions

  • She warned that just because a case involves a statute does not automatically make it justiciable.

  • Example: if Congress passed a law requiring courts to revisit impeachment “trials,” that could still raise a political question.

• She also refined the “manageable standards” idea

  • The fact that lawyers use normal legal materials — text, history, structure — does not by itself mean a case is manageable.

  • The real question is whether those materials actually give courts a meaningful basis to decide the issue.

  • If they do not, the case might still be nonjusticiable.

• Why this case was still justiciable

  • Here, there was no textual commitment of the issue to the Executive.

  • And the courts were being asked to answer a normal constitutional question about a statute.