Rachel E. Barkow

More Supreme than Court? The Fall of the Political Question Doctrine and the Rise of Judicial Supremacy

This Article traces the rise and the fall of the political question doctrine and explores the relationship of the doctrine to the Supreme Courts contemporaneous view of its institutional competency and the proper scope of judicial review. The Article provides this account for both the classical political question doctrine, which is rooted in the text and structure of the Constitution, and the prudential political question doctrine, which is a judicially created method of avoiding certain constitutional questions. The Article chronicles the Supreme Courts disregard in recent years for both versions of the doctrine, including an extensive analysis of the applicability of the political question doctrine to the Article II question in the 2000 presidential election cases. The Courts failure even to consider the doctrine in those cases reflects the doctrines demise. The Article argues that the fall of the political question doctrine is part of a larger trend in which the Supreme Court has embraced the view that it alone among the three branches of government has the power and competency to provide the full substantive meaning of all constitutional provisions. The Article concludes that the demise of the political question doctrine is troubling because the doctrine forces the Court to confront the institutional strengths of the political branches - and the Courts weaknesses - in resolving some constitutional questions.