A Comparative Study of the Political Question Doctrine in the Context of Political-System Failures: The United States and the United Kingdom
DOI:
https://doi.org/10.13130/milanlawreview/15192Keywords:
Comparative constitutional law, political question, gerrymander, prorogation, judicial reviewAbstract
In 2019, the Supreme Courts of both the United States and the United Kingdom decided cases involving the political question doctrine. In Rucho v. Common Cause, the U.S. Supreme Court held that partisan gerrymandering claims raise inherently political questions because the Court was unable to discern judicially manageable standards for determining when a partisan gerrymander had gone “too far.” Whereas, in R v. The Prime Minister (“Miller”), the United Kingdom Supreme Court adopted a narrower view of the political question doctrine, unanimously ruling that although the case involved political actors and the royal prerogative, it did not present a political question. The Court then proceeded to decide the case on the merits, holding that the Prime Minister exceeded his authority in prorogating Parliament before the Brexit deadline. The response of the judiciary—whether to abdicate or to intervene—presents a study in stark contrasts.
This paper evaluates Rucho by comparing the United States’ and United Kingdom’s respective political question doctrines through the lens of John Hart Ely’s representation-reinforcement theory of judicial review. According to Ely, the judiciary is uniquely competent to intervene like referees when one side gets an unfair advantage—not when the “wrong side” scores. Translated into legal theory, that means that when the political processes are undeserving of trust, either because certain groups are denied access or because representatives are operating in flagrant disregard of constituents’ interests, courts are fully capable of determining when the political branches have gone “too far.” Both cases illustrate why the Court’s duty to protect from state infringement individual liberties related to democratic participation is at its zenith when system failures denigrate the political process. In Rucho, the Court ignored this calling, abdicating its duty to intervene. Examining Miller reveals where the Court erred in Rucho: (1) Miller is an exemplar of the representation-reinforcement theory of judicial review, (2) Miller offers critical insights to contrast the Court’s approach in Rucho, and (3) Miller offers an example of “judicially manageable standards” for determining when a branch has exceeded the constitutional boundaries of its powers—a standard that the majority in Rucho so desperately seeks. At bottom, Rucho got it wrong—and Miller can help us see why.
References
Arvind T. T. & Stirton L., The Curious Origins of Judicial Review, 133 Sussex L. Rev. Q. 91 (2017).
Barkow R. E., More Supreme than Court? The Fall of the Political Question Doctrine and the Rise of Judicial Supremacy, 102 Colum. L. Rev. 237, 248–50 (2002)
Bartlett G. & Everett M., U.K. House of Commons Libr., Briefing Paper No. 03861, The Royal Prerogative 5 (2017).
Charles G. & Fuentes-Rohwer L. E., Dirty Thinking About Law and Democracy in Rucho v. Common Cause, Am. Const. Soc’y Sup. Ct. Rev. 2018–19 (Sept. 24, 2019).
Chemerinsky E., Op-Ed: The Supreme Court just abdicated its most important role: enforcing the Constitution, in L.A. Times (June 27, 2019);
Cherry, QC MP and Others for Judicial Review [2019] CSOH 70 (Scot.).
Cohn M., Form, Formula, and Constitutional Ethos: The Political Question/Justiciability Doctrine in Three Common Law Systems, in 59 Am. J. Comp. L. 675 (2011).
Dunt I., Supreme Court bombshell: Britain is working once again, Politics.co.UK (Sept. 24, 2019).
Ely J.H., Democracy and Distrust: A Theory of Judicial Review 103 (1980).
Ely J.H., Gerrymanders: The Good, The Bad and The Ugly, in 50 Stan. L. Rev. 607, 616–23 (1998).
Erlanger S., Britain Votes to Leave E.U.; Cameron Plans to Step Down, N.Y. Times (June 23, 2016).
Fried C., A Day of Sorrow in American Democracy, in The Atlantic (July 3, 2019).
Gill E., Judicial Answer to Political Question: The Political Question Doctrine in the United States and Israel, 23 B.U. Pub. Int. L. J. 245 (2014);
Gouin M.D., United States v. Alvarez Machain: Waltzing with the Political Question Doctrine, in 26 Conn. L. Rev. 759, 763–64 (1994)
Hassan S., Note, RE GCHQ Judgment & Prerogative of the Crown (Aug. 2019).
Leigh Grove T., The Lost History of the Political Question Doctrine, in 90 N.Y.U. L. Rev. 1908 (2015)
Mc Goldrick D., The Boundaries of Justiciability, in 58 Int’l & Comp. L. Q. 981, 984 (2010).
Mhango M., Is It Time for a Coherent Political Question Doctrine in South Africa? Lessons from the United States, 7 Afr. J. Legal Stud. 457 (2014).
Mueller B., What is Brexit? A Simple Guide to Why It Matters and What Happens Next, N.Y. Times (Dec. 13, 2019).
Mulhern J. Peter, In Defense of the Political Question Doctrine, in 137 Penn. L. Rev. 97, 102 (1988)
Purvis M., Lengths of Prorogation since 1900, U.K. Parliament: House of Lords Libr. (Oct. 3, 2019).
Sarma A., Political Prorogation: What Are the Implications for British Politics?, Harv. Pol. Rev. (Oct. 12, 2019).
Shirazi S., The U.K.’s Marbury v. Madison: The Prorogation Case and How Courts Can Protect Democracy, in U. Ill. L. Rev. Online 108 (2019)
Wines M., What is Gerrymandering? And Why Did the Supreme Court Rule on It?, N.Y. Times (June 27, 2019).
