What Should the Supreme Court Actually Be Deciding?

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DISCO creates cutting-edge software for the legal industry, which means that most of my blog posts end up discussing the finer points of software's role in ediscovery. However, as DISCO was founded by lawyers, and many of us at DISCO are still lawyers first and foremost, it seems appropriate to talk about a topic currently trending near the top of the public’s perception of the legal world: an evenly split Supreme Court.

With the unexpected death of Justice Antonin Scalia, the Supreme Court has naturally received a significant increase in media attention. In particular, there is concern about the possibility of a dysfunctional Court: what happens when major issues can’t be decided because of a tie? This agitation, at least superficially, seems well-founded since the Court has recently deadlocked on two cases: Friedrichs v. California Teachers Assn., 578 U.S. ___ (2016) and Hawkins v. Community Bank, 577 U.S. ___ (2016).  

Relax, though. All is not lost. In fact, I suggest that having a vacant seat provides some much-needed breathing room and an opportunity to determine whether the Court should even be deciding certain contentious cases. More specifically, some cases may involve political questions (as defined by the political question doctrine) more correctly addressed by other branches of the government.

Vacant seats on the Supreme Court are not new.

Since at least 1792, vacancies have occurred due to death, retirement, resignation, or, in a much more limited sense, recusal. See e.g., Hayburn’s Case, 2 U.S. 408, 409 (1792). Cases that end in a tie vote simply affirm the lower court’s decision, bind the parties based on res judicata, and carry no precedential value for future cases. It is as if the Supreme Court never heard the case in the first place.

This can arguably be a positive result, however, if the case involves political questions instead of legal ones. The political question doctrine states that some questions are inherently political and need to be decided by the political process (e.g., congressional legislation or executive actions) instead of the Court.

Political Question Doctrine  

In Baker v. Carr, 369 U.S. 186  (1962), the Court laid out the current six-part test for identifying which cases are political in nature. Political questions have:

  1. a textually demonstrable constitutional commitment of the issue to a coordinate political department; or
  2. a lack of judicially discoverable and manageable standards for resolving it; or
  3. the impossibility for a court’s independent resolution without expressing a lack of respect for a coordinate branch of government; or
  4. the impossibility of deciding the issue without an initial policy decision, which is beyond the discretion of the court; or
  5. an unusual need for unquestioning adherence to a political decision already made; or
  6. the potentiality of embarrassment from multiparious pronouncements by various departments on one question.

Baker v. Carr, 369 U.S. at 216.

This six-factor test was a dramatic change from the Court’s previous view. Previously, the Court thought of a political question as consisting of a matter more appropriate for resolution by either of the other branches of government or not amenable to resolution by the judicial process. After Baker v. Carr, the Court has taken a narrow view of the political question doctrine; when narrowly construed, this six-part test has allowed the Court to tackle controversial issues such as abortion and campaign finance.  

I respectfully suggest that a better approach is to take a broad view of the six-factor test and return to the spirit of of the pre-Baker cases. Let the political process address as many contentious issues as possible instead of forcing a judgment that gets locked in place by stare decisis.  


Let’s take the two examples of abortion (Roe v. Wade, 401 U.S. 113 (1973)) and campaign finance (Citizens United v. Federal Election Commission, 558 U.S. 310 (2010)).  

In Roe, the Court found the right to an abortion was within the privacy rights found in Griswald v. Connecticut, 381 U.S. 479 (1965). Roe was decided in 1973, and we’ve endured over 40 years of rancor on the issue. Instead of addressing the issue through the political process, though, Roe made abortion a judicial issue which has resulted in years of legal attacks on the decision itself and laws designed to limit the decision in any way. Because the issue was decided on privacy grounds (which are not enumerated anywhere in the Constitution), this seems like exactly the kind of question the judiciary should not resolve because it lacks a judicially manageable standard and because it requires the Court to make an initial policy decision.2

Campaign finance reform came before the Court in Citizens United. That case involved a challenge to the McCain-Feingold Act which prohibited corporations and unions from paying for communications mentioning a political candidate within 60 days of a general election or 30 days of a primary election. The Court held, in a 5-4 opinion, that the First Amendment prohibited such restrictions upon nonprofit corporations, and the holding has been extended to other types of organizations subsequently. This has resulted in substantial changes to the ways in which elections are funded. The decision also overruled decades of Supreme Court precedent on the issue.

Citizens United takes something that was the result of the political process (in this case a law) and removes the issue from almost all further changes by the political process. Instead of simply being able to lobby Congress for a change to the McCain-Feingold Act, people must now convince the Court to reverse itself (not an easy task) or pass a Constitutional amendment (an almost impossible task).

An obligation to the bigger picture

I’m not trying to take a position on these cases, but as legal professionals, I believe we have a societal obligation to think about the bigger issues. While it is important to know which ediscovery software to purchase and why speed is important, we need to make sure that we don’t become so focused on the minutiae of the ediscovery practice that we can’t see the forest for the trees.

 1 The political question doctrine was judicially created in Marbury v. Madison  5 U.S. 137 (1803) and is raised in cases reasonably regularly. A Westlaw search for “political question” returned 2,819 results in the Federal Cases database, the most recent of which was a slip opinion from April 8, 2016. 

2 For a more detailed discussion, see Patrick M. Garry, A Different Model for the Right To Privacy: The Political Question Doctrine as a Substitute for Substantive Due Process, 61 U. Miami L. Rev. 169 (2006). 

The Supreme Court photo by Tim Sackton, modified and licensed under CC BY-SA 2.0

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Kent Radford