Political Questions and Few Answers

Patrick Reagan, Associate Member, University of Cincinnati Law Review

No constitutional law class is complete without reading and discussing Baker v. Carr, where the Supreme Court held that a claim that Tennessee’s state legislative district map violated the Equal Protection Clause should proceed.[1] The Court also held that the claim did not present a non-justiciable political question, and Justice Brennan articulated six core principles[3] that have since been used in evaluating whether a claim presents a political question.[4] One of these principles is “the potentiality of embarrassment from multifarious pronouncements by various departments on one question.”[5] This factor has proved to be fortuitous in the decades since Baker was decided. Two cases that illustrate that “potentiality of embarrassment” are Citizens United v. Federal Election Commission and Roe v. Wade.[6] Legislative and political backlash from these and other cases has led to an environment in which ordinary federal judicial nominations have become hyper-politicized. A prime example of this is the Senate holding the late Justice Antonin Scalia’s Supreme Court seat open for an entire year.[7] Forcing the judiciary to conform to the political ideals of the legislature severely impairs the Supreme Court’s ability to perform several of its essential functions, which is not good for anyone.

      Roe v. Wade and the Ensuing Controversy

Perhaps no other Supreme Court ruling has engendered so much controversy as Roe v. Wade, which legalized abortion in the United It has played a prominent role in both presidential campaigns and Supreme Court nominations[10] and pitted the Court against state legislatures who have tried many times to restrict abortion access and abrogate Roe.[11] These are  “multifarious pronouncements by various departments on one question,” about which Justice Brennan cautioned about in his Baker v. Carr opinion.[12] The fight between the Supreme Court and legislators over the question of abortion is far from over. That much was clear during Whole Woman’s Health v. Hellerstedt, which dealt with abortion restrictions passed in Texas.[13]

While Roe resolved a constitutional issue and prevented legislators from having to make difficult value judgments before casting their vote, it sapped much judicial capital from the Court and took it in a direction that could not have been foreseen by Justice Blackmun. It inspired what is referred to as “Roe rage,” which is a social movement that uses Roe as a wedge to motivate people to support its traditional, socially conservative view of America.[14] Those who have succumbed to “Roe rage” and others who oppose it generally have woven it into a greater narrative about the role of the judiciary. It is common to hear Roe referred to as a prime example of “judicial activism” or “legalizing the slaughter of innocent unborn lives,”[15] and the case is still discussed by scholars from both sides of the ideological aisle.[16]

Roe has also changed the environment for judicial nominations. A perfect example of this is the nomination of Harriet Miers, President George W. Bush’s former White House counselor, to the Supreme Court to fill the seat vacated by Justice Sandra Day O’Connor.[17]  Her nomination was withdrawn just 24 days after it was announced.[18] While her nomination was pending, Senator Sam Brownback of Kansas stated there was a “good chance” he would vote against her nomination if she stated that Roe is the law of the land.[19]

Citizens United and its Ensuing Controversy

What Roe is to the right, Citizens United v. Federal Election Commission is to the left. The conservative non-profit Citizens United (a group led by President Trump’s deputy campaign manager David Bossie) wanted to air a film critical of Hillary Clinton and advertise it on television shortly before the 2008 Democratic presidential primary in violation of federal election law.[20] The Court in Citizens United (1) removed limits on corporate spending in elections; (2) applied strict scrutiny to political speech restrictions; and (3) affirmed under the First Amendment the right of corporations to engage in political activities. It also opened a Pandora’s box of criticism.

In his 2010 State of the Union address, President Obama took a swipe at the Court. He stated that the ruling “reversed a century of law that, I believe, will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections.”[22] He further urged Congress “to pass a bill that helps correct some of these problems.”[23] By “problems,” President Obama was referring to the Citizens United ruling.[24]

It was not just President Obama who took umbrage with the ruling. Former Judge Richard Posner of the Seventh Circuit said in a speech at the University of Chicago Law School function that “[o]ur political system is pervasively corrupt due to our Supreme Court taking away campaign-contribution restrictions on the basis of the First Amendment.”[25] Similarly, Federal Election Commission member Ellen Weintraub wrote an editorial in The New York Times criticizing the decision.[26] Citizens United also impacted the 2016 Democratic presidential primary contest between Sen. Bernie Sanders (I-VT) and Sec. Hillary Clinton, where both candidates stated that overruling the decision would be their litmus test for any Supreme Court nominee they would pick while president.[27]

Perhaps most intriguing is that Citizens United has sparked a grassroots movement called Move to Amend, which describes itself as a “coalition of hundreds of organizations and hundreds of thousands of individuals committed to social and economic justice, ending corporate rule, and building a vibrant democracy that is genuinely accountable to the people, not corporate interests.”[28] The group calls for passage of a twenty-eighth amendment to the Constitution, which would: (1) strip corporations and other non-human entities of any rights under the Constitution; and (2) require federal, state, and local entities to “regulate, limit, or prohibit contributions and expenditures, including a candidate’s own contributions and expenditures.”[29] Move to Amend lists hundreds of organizations as endorsers of the amendment, including the Sierra Club, North Carolina AFL-CIO, Minnesota AFL-CIO, and the Green Party of Hamilton County, Ohio.[30]

Future Considerations

Newton’s third law of physics holds that for every action, there is an equal and opposite reaction. This is similar to Justice Brennan’s sixth consideration in Baker v. Carr, that courts should pay attention to the “potentiality of embarrassment from multifarious pronouncements by various departments on one question.” Unfortunately, the Court’s actions in Baker and Citizens United have not engendered an equal or opposite reaction. Politicians have perverted normal judicial criticism and used it for their advantage. Such criticism has made it more difficult for litigants who are arguing deep, controversial issues to get a clear answer that would clarify what is at stake for them and the country because the Court must now always look behind its back when taking controversial cases.

This backlash has also clogged and stalled the judicial nomination and confirmation process. While it is important to identify a nominee’s legal and judicial philosophy to ensure that qualified people are on the bench, some politicians have taken it too far. Senators frequently veer into tangents when questioning nominees’ backgrounds.[32] They ask questions about cases like Roe and Citizens United that are meant to appease their voter base in anticipation of their reelection campaigns.

That does not mean that the Court decided Roe or Citizens United incorrectly. The law should not bend to political pressure; and the moment it does, the door is opened down a slippery path to a judiciary that more resembles a series of “kangaroo courts” rather than a serious, removed venue for people to receive redress for wrongs committed against them. If the Court were to shy away from taking a case every time they feared an errant tweet or floor speech from an enraged member of Congress, the justices might as well just pack-up and close shop. Rather, the Court should be pragmatic and realize that it has a limited amount of judicial Big cases require thousands of hours of work, careful deliberation, and will have indelible effects on the country and the law—and that’s ok. It is likely what the Framers meant when they entrusted the Supreme Court with its authority back in 1789. Unfortunately, the likely reality is that this destructive cycle will not stop any time soon.


Instead of spouting poll-tested platitudes criticizing Roe, Citizens United, and the like that rake in donations and stir up support, politicians should have a little more deference and respect for the rule of law. Today’s contention over the Court’s role and fights over judicial nominees is what Justice Brennan in Baker v. Carr predicted would happen when the Court wades into controversial cases, but that does not mean politicians have to fuel the fire. This country is governed by a document that is a product of the Enlightenment that has been used to guarantee substantive rights since the inception of judicial review by the Supreme Court. The Supreme Court needs the flexibility to wade into difficult issues that have deep and lasting effects on society, otherwise Baker v. Carr will become an “ad hoc litmus test” that neuters judicial review.[33]

[1] Baker v. Carr, 369 U.S. 186, 237 (1962).

[2] Id. (“We conclude that the complaint’s allegations of a denial of equal protection present a justiciable constitutional cause of action upon which appellants are entitled to a trial and a decision.”).

[3] Id. at 217 (“[p]rominent on the surface of any case held to involve a political question is found [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; [2] or a lack of judicially discoverable and manageable standards for resolving it; [3] or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; [4] or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; [5] or an unusual need for unquestioning adherence to a political decision already made; [6] or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.”). Thus, if a claim presents a political question, then it is deemed non-justiciable and may not be adjudicated by a court.

[4] See, e.g., El-Shifa Pharmaceutical Industries Co. v. U.S., 607 F.3d 836, 842 (D.C. Cir. 2010) (dismissing Federal Tort Claims Act lawsuit brought by a Sudanese pharmaceutical company after a cruise missile destroyed its plant; the court wrote “[w]e have consistently held, however, that courts are not a forum for reconsidering the wisdom of discretionary decisions made by the political branches in the realm of foreign policy or national security. . . . The political question doctrine bars our review of claims that, regardless of how they are styled, call into question the prudence of the political branches in matters of foreign policy or national security constitutionally committed to their discretion.”).

[5] Baker, 369 U.S. at 217.

[6] See Roe v. Wade, 410 U.S. 113 (1973); Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).

[7] Amita Kelly, McConnell: Blocking Supreme Court Nomination ‘About a Principle, Not a Person’, NPR (March 16, 2016), http://www.npr.org/2016/03/16/470664561/mcconnell-blocking-supreme-court-nomination-about-a-principle-not-a-person. The article quotes Senate Judiciary Committee Chairman Charles Grassley (R-IA), who said the following after President Obama nominated Judge Merrick Garland to fill the Supreme Court seat vacated by the death of the late Justice Antonin Scalia: “Do we want a court that interprets the law, or do we want a court that acts as an unelected super legislature? This year is a tremendous opportunity for our country to have a sincere and honest debate about the role of the Supreme Court in our constitutional system of government.”

[8] See, e.g., Eliza Collins, Sanders takes dead aim on Citizens United ruling, Politico (May 10, 2015) (Sen. Sanders states his litmus test for any Supreme Court nominee would be whether they will overturn Citizens United v. Federal Election Commission); Jonathan Easley, Clinton: ‘I have a bunch of litmus tests’ for Supreme Court nominees, The Hill (Feb. 3, 2016), http://thehill.com/blogs/ballot-box/presidential-races/268174-clinton-i-have-a-bunch-of-litmus-tests-for-supreme-court; RNC Communications, Republican Platform 2016, (July 18, 2016), https://prod-cdn-static.gop.com/media/documents/DRAFT_12_FINAL[1]-ben_1468872234.pdf, at 10 (“Only a Republican president will appoint judges who respect the rule of law expressed within the Constitution and Declaration of Independence, including the inalienable right to life and the laws of nature and nature’s God, as did the late Justice Antonin Scalia.”).

[9] Roe, 410 U.S. at 113.

[10] Jerome A. Barron, C. Thomas Dienes, Wayne McCormack, & Martin Redish, Constitutional Law: Principles and Policy § 6.02, p. 570 (8th ed. 2012).

[11] See, e.g., Planned Parenthood of Southeast Pennsylvania v. Casey, 505 U.S. 833 (1992); Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016).

[12] Baker, 369 U.S. at 217.

[13] See, e.g., Whole Woman’s Health, 136 S. Ct.

[14] Id. at 572 (quoting Robert Post & Reva Siegel, Roe Rage: Democratic Constitutionalism in Backlash, 42 Yale L.J. 373, 377 (2007)).

[15] See, e.g., Evan Puschak, Rubio trashes Roe v. Wade as ‘blatant’ judicial activism, MSNBC (Jan. 22, 2013), http://www.msnbc.com/the-last-word/rubio-trashes-roe-v.

[16] See, e.g., Jack Balkin, Abortion and Original Meaning, 24 Const. Comentary 291 (2007); Philip Heymann & Douglas Barzelay, The Forest and the Trees: Roe v. Wade and Its Critics, 53 B.U. L. Rev. 765 (1973).

[17] Bush picks White House counsel for Supreme Court, CNN (October 4, 2005), http://www.cnn.com/2005/POLITICS/10/03/scotus.miers/.

[18] Michael A. Fletcher and Charles Babington, Miers, Under Fire From Right, Withdraws as Nominee, The Washington Post (October 28, 2005), http://www.washingtonpost.com/wp-dyn/content/article/2005/10/27/AR2005102700547.html.

[19] GOP Senator Concerned About Miers’ Abortion Views, ABC News (Oct. 5, 2005), http://abcnews.go.com/GMA/SupremeCourt/story?id=1184984.

[20] Citizens United v. Federal Election Comm’n., 558 U.S. 310, 320-321 (2010).

[21] Id. at 340-65.

[22] Robert Barnes, Reactions split on Obama’s remark, Alito’s response at State of the Union, The Washington Post (January 29, 2010), http://www.washingtonpost.com/wp-dyn/content/article/2010/01/28/AR2010012802893.html.

[23] Id.

[24] Id.

[25] James Warren, Richard Posner Bashes Supreme Court’s Citizens United Ruling, The Daily Beast (July 14, 2012), http://www.thedailybeast.com/richard-posner-bashes-supreme-courts-citizens-united-ruling.

[26] Ellen L. Weintraub, Taking on Citizens United, The New York Times (March 30, 2016), https://www.nytimes.com/2016/03/30/opinion/taking-n-citizens-united.html?mcubz=3.

[27] See, e.g., Eliza Collins, Sanders takes dead aim on Citizens United ruling, supra; Jonathan Easley, Clinton: ‘I have a bunch of litmus tests’ for Supreme Court nominees, supra.

[28] MTA Coalition – Mission, Move to Amend, https://movetoamend.org/about-us.

[29] Move to Amend’s Proposed 28th Amendment to the Constitution, Move to Amend, https://movetoamend.org/wethepeopleamendment.

[30] Endorsing Organizations, Move to Amend, https://movetoamend.org/organizations.

[31] Baker, 369 U.S. at 217.

[32] For example, Justice Samuel Alito faced criticism from senators over his membership in a conservative Princeton alumni group. See David Stout, Alito Sworn In as Justice After 58-42 Vote to Confirm Him, The New York Times (Jan. 31, 2006), http://www.nytimes.com/2006/01/31/politics/politicsspecial1/alito-is-sworn-in-as-justice-after-5842-vote-to.html. This year at an event in New Zealand, Chief Justice John Roberts lamented that Supreme Court nominations have become too politicized, stating “You’re not electing a representative, so you’re not entitled to know what their views on political issues are.” See Chief Justice Roberts: Confirmation process for justices too politicized, Politico (July 26, 2017), https://www.politico.com/story/2017/07/26/chief-justice-roberts-confirmation-process-for-justices-too-politicized-240979. In criticizing the Senate’s removal of the filibuster for judicial nominees, Jon Healey of Los Angeles Times wrote “That’s why interest groups push senators to go further, to trying to unearth a judge’s sympathies in the hope of better predicting whether he or she will be an ally on issues they care about. The quality of a judge’s legal reasoning isn’t as important as where the reasoning might lead.” See Jon Healey, Congress didn’t just nuke the filibuster, it permanently politicized the Supreme Court, Los Angeles Times (Apr. 6, 2017), http://www.latimes.com/opinion/opinion-la/la-ol-nuclear-option-gorsuch-20170406-story.html.


[33] Davis v. Bandemer, 478 U.S. 109, 126 (1986).

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