a.
Terminology: "Nonjusticiable political
questions" is redundant; what Court means is "nonjusticiable
on account of being a political question"
b.
Six-factor test to determine political questions (Baker v.
Carr, n.2(b), p. 158)
1.
Textually demonstrable constitutional commitment of issue to
coordinate political department;
2.
Lack of judicially discoverable and manageable standards for
resolving question;
3.
Impossibility of deciding questions without initial policy
determination of a kind clearly for nonjudicial discretion;
4.
Impossibility of resolving without expressing lack of
respect due coordinate branches of government;
5.
Unusual need for unquestioning adherence to political
decision already made; or
6.
Potentiality of embarrassment from multifarious
pronouncements by various departments on one occasion
c.
Nixon v. United States
1.
Truncated restatement of the rule (p. 146)
A.
Souter concurrence: looks to other factors
B.
Do other factors survive Nixon?
2.
The term "try" lacks sufficient precision to
afford judicially manageable standard of review
3.
The term "sole" denotes textually demonstrable
commitment of the matter to the Senate
A.
White concurrence: "sole" refers to
Senate's powers vis-a-vis House, not judiciary
4.
Framers decided against lodging impeachment power in Supreme
Court
A.
White concurrence: this merely demonstrates
ambivalence
5.
Judicial review of impeachment trials would upset checks and
balances because courts would be overseeing regulation of
themselves
A.
White concurrence: because of its potential reach,
unreviewable impeachment power would throw off
constitutional balance
6.
White concurrence: would rule against Nixon on merits
7.
Souter concurrence: Nixon presents political
question, but not all requests for review of impeachment
trials are nonjusticiable
d.
Is political question doctrine constitutional or prudential?
e.
Previous cases
1.
Colegrove v. Green, Luther v. Borden (nn.4-5):
Guaranty Clause nonjusticiable
2.
Powell v. McCormack (n.7(a)): Qualifications
Clause of Art. I justiciable
3.
County of Oneida v. Oneida Indian Nation
(n.7(b)): Art. I, Sec. 3, does not place all Indian
affairs decisions beyond judicial review
4.
Japan Whaling Assn. v. American Cetacean Society
(n.7(c)): Statutory interpretation does not present
political question merely because decision will have
"significant political overtones" or touch on
foreign relations
5.
Goldwater v. Carter (n.7(c)): Case
nonjusticiable because it involves authority of President in
conduct of foreign relations and extent to which Congress
can negate that authority
