More on Article V Justiciability: Dyer v. Blair

In my last post on the justiciability of Article V cases, we discussed the Supreme Court’s 1939 decision in Coleman v. Miller and whether that decision would be applied broadly to block most or all Article V claims as nonjusticiable political questions. Those who would read Coleman narrowly often cite two district court decisions from the 1970s which addressed justiciability of claims related to the ratification of the Equal Rights Amendment. While these cases do provide some support for a narrower application of the political question doctrine, they also illustrate other justiciability issues which may be equally if not more problematic for an Article V plaintiff.

Today I will discuss one of those cases, Dyer v. Blair, 390 F. Supp. 1291 (N.D. Ill. 1975), which was brought by members of the Illinois General Assembly seeking declaratory and injunctive relief regarding the attempt to ratify the ERA during the 78th Session of the General Assembly. During that session, votes in both the house and senate resulted in a majority, but less than three-fifths, supporting ratification of the amendment. Neither house deemed this vote sufficient to pass the ratification resolution. In the house, the speaker ruled that a supermajority was necessary under both a provision of the Illinois constitution and a house rule, each of which declared a three-fifths vote was required to ratify amendments. The senate presiding officer also ruled that a three-fifths vote was needed for ratification, despite a recently adopted senate rule allowing a simple majority vote, presumably on the basis that the state constitutional provision took precedence.

The plaintiffs sought declaratory relief that the Illinois constitutional provision and similar house rule were void and of no legal effect under Article V, which (they argued) requires that ratification of proposed amendments be by a simple majority. The also sought injunctive relief against the house speaker and senate president, prohibiting these officers from applying any supermajority requirement to ratification votes and ordering them to sign and certify the ratification resolutions that had previously received majority approval.

A three-judge court was convened, including then-Judge (and future Justice) John Paul Stevens, who wrote the court’s opinion.

Dyer and the Political Question Doctrine

The defendants made two arguments in support of their contention that the case should be dismissed as presenting a political question: “first, that Congress has sole and complete control over the entire amending process, subject to no judicial review; and second, that even if every aspect of the amending process is not controlled by Congress, the specific issue raised in these cases is.” Dyer, 390 F. Supp. at 1299.

Dyer acknowledged that “[t]here is force to the first argument since it was expressly accepted by four Justices of the Supreme Court in [Coleman].” 390 F. Supp. at 1299-1300 (referring to Justice Black’s concurrence). However, it concluded that this argument could not be accepted in light of the contrary view of the Coleman “majority” (actually a three Justice plurality) and the fact that “the Court has on several occasions decided questions arising under article V, even in the face of ‘political question’ contentions.” Dyer, 390 F. Supp. at 1300. Accordingly, Dyer rejected the argument that Article V issues generally constitute nonjusticiable political questions.

The court also concluded that the narrower issue of how to interpret the meaning of “ratification” under Article V was not a political question. The text of the Constitution, Judge Stevens reasoned, did not assign to Congress the sole responsibility for determining the meaning of this term. Further, “[d]ecision of the question presented requires no more than an interpretation of the Constitution,” which “decision falls squarely within the traditional role of the federal judiciary to construe that document.” 390 F. Supp. at 1301. Moreover, “[t]he possibility that such an adjudication may conflict with the views of Congress cannot justify the courts’ avoiding their constitutional responsibility.” Id. Accordingly, the court found the question before it to be justiciable.


Dyer’s View of Prior Precedent

Dyer rather overstates when the court suggests it is bound by precedent to reject the broad view of the political question doctrine set forth in Justice Black’s Coleman concurrence. As discussed in my prior post, the Coleman plurality, in an opinion written by Chief Justice Hughes, offered a narrower rationale for applying the political question doctrine to the ratification issues before the Court, but the Court deadlocked 4-4 on whether the doctrine barred the resolution of a pure legal issue (i.e., the question of whether the Lieutenant Governor was permitted to break a tie vote on ratification in the Kansas senate) analogous to that faced in Dyer. To suggest that Coleman definitively settled the question of how broadly the political question doctrine applies in Article V cases seems to be a bit of a stretch.

Dyer relies on the fact that pre-Coleman Supreme Court cases, such as Hawke v. Smith (No. 1), 253 U.S. 221 (1920) and National Prohibition Cases, 253 U.S. 350 (1920), decided Article V issues on the merits. Although the Court did not address the political question doctrine or justiciability generally in any of these cases, Dyer cites two law review articles for the proposition that these issues were briefed and argued before the Court. See Dyer, 390 F. Supp. at 1300 n.21. By reaching the merits, the Court implicitly rejected any broad justiciability position such as set forth in the Black concurrence. Or so the Dyer court concluded.

This conclusion is doubtful. Leaving aside whether it is ever appropriate to give precedential effect to the Court’s silence on a jurisdictional issue, this seems like a particularly weak case in which to draw such an inference for the following reasons.

There is unquestionably a tension between the result in Coleman and the Court’s willingness to reach the merits in prior Article V cases, most notably Dillon v. Gloss, 256 U.S. 368 (1921), in which the Court rejected on the merits the claim that Congress lacked power to fix a 7-year period for ratification of an amendment it proposed. Both the Coleman dissent and the Black concurrence commented on this tension. In his dissent, Justice Butler criticized the Court for effectively overruling Dillon without briefing or argument. See 307 U.S. at 474 (“As the Court in the Dillon case did directly decide upon the reasonableness of the seven years fixed by Congress, it ought not now, without hearing argument on the point, hold itself to lack power to decide whether more than 13 years between proposal by Congress and attempted ratification by Kansas is reasonable.”). The Black concurrence also criticized the Court (i.e., the plurality opinion by Chief Justice Hughes) for failing to explicitly disavow Dillon to the extent that it implied a judicial power to pronounce upon the ratification period for an amendment. 307 U.S. at 458-59. Hughes, however, did not acknowledge any conflict with Dillon and did not respond directly to the criticisms.

One can draw different inferences from the fractured Coleman decision. One could infer, as Dyer did, that Coleman established only a narrow political question exception to a general rule of justiciability implied by prior cases. But it would be equally plausible to conclude that Coleman’s holding was incompatible with Dillon and other pre-Coleman cases, as a majority of the Coleman justices seemed to realize, and therefore overruled those prior cases to the extent they sub silentio expressed a view of justiciability.

The latter view is not only closest to that expressed by most modern constitutional scholars (see my prior post), but it is also supported by one of the law review articles cited by Dyer itself. See Homer Clark, The Supreme Court and the Amending Process, 39 Va. L. Rev. 621 (1953) (cited in Dyer, 390 F. Supp. at 1299-1300 nn. 20-21). While Clark expressed the view that pre-Coleman cases had implied justiciability of Article V issues, he did not view these cases as settling the law in this area: “The only conclusion to be drawn from the foregoing historical material is that the law on the justiciability of amendments to the Federal Constitution was in doubt when Coleman v. Miller came before the Court.” 39 Va. L. Rev. at 630. More importantly, he concluded that Coleman “reduced the Court’s jurisdiction appreciably by placing a large category of issues involving the validity of amendments outside its authority. Just how large that category is, is not certain, but in the writer’s opinion it includes all questions on the procedural side of the amending process.” Id. at 650. Clark’s opinion would seem to support the result opposite to that reached by Dyer.

There are additional problems with attempting to interpret the Court’s silence in pre-Coleman cases as precedent on the political question issue. Although there were instances in which the parties or amici argued that the Court should defer to the political branches or give conclusive effect to their actions, the nature of these arguments may have been unclear. I am relying here on the two law review articles cited in Dyer, both of which note lack of clarity and inconsistencies in the “political question” type arguments that were raised. See W.F. Dodd, Amending the Federal Constitution, 30 Yale L. J. 321, 323 (1921); Clark, 39 Va. L. Rev. at 628 n.38.

In particular, there is a serious question whether some or all of these arguments were intended to be, or were understood by the Court to be, jurisdictional in nature. For example, the argument that the Court may not go behind the official legislative record (whether it be with respect to proposing an amendment by Congress or ratifying an amendment by a state legislature) to determine whether the record accurately reflects what happened is a form of deference to the political branches, but it is generally understood as an evidentiary rule that does not go to jurisdiction. See Dodd, 30 Yale L. J. at 324 (discussing distinction); see also Tara Leigh Grove, The Lost History of the Political Question Doctrine, 90 N.Y.U. L. Rev. 1908, 1934-35 n. 141 (2015).

More generally, Professor Grove has argued that the traditional political question doctrine as it was understood by the Court prior to Coleman was not a jurisdictional doctrine at all (except in the unique case of the Guarantee Clause), but constituted a rule of decision in which the judicial branch would enforce and apply a particular determination made by one of the political branches. Grove, 90 N.Y.U. L. Rev. at 1911. She also suggests that legal scholars began to shift their understanding of the doctrine in the years before Coleman, which she portrays as the first case to suggest that the doctrine placed certain constitutional questions beyond the judicial power. Id. at 1947-59. This could explain why the Court may not have recognized certain political question arguments in pre-Coleman cases to have been jurisdictional in nature.

Finally, it should be noted that the procedural postures of pre-Coleman cases were often not conducive to political question type arguments. For example, in Hawke v. Smith (No. 1), the case was initiated in state court by a private citizen who complained of the spending of public money on a referendum to determine whether an amendment should be ratified. Because state law evidently recognized this as a legitimate claim, the Court’s refusal to decide the case would have meant that each state could decide for itself whether such referenda were consistent with the federal constitution, with little prospect that Congress would resolve the issue in the near future (if ever). Thus, it is perhaps not surprising that a Coleman-type political question argument would not have been appealing to the Court at that time.

In short, there are many possible reasons why the pre-Coleman Court did not discuss the political question doctrine in the context of Article V cases. These include the possibility that the Court simply overlooked the issue, that it did not understand the issue to be jurisdictional, or that it was impossible to gain consensus among a sufficient number of justices as to how to resolve the issue. Dyer’s inference that the Court implicitly rejected the application of the doctrine to these cases would seem at best to be one possibility among many.

This is not to say that Dyer’s approach to the political question doctrine is necessarily wrong. My view is that Coleman leaves much open to future resolution, and a court is certainly free to conclude that the doctrine should only be narrowly applied to issues with the precise characteristics of those which the plurality found to be covered by the doctrine. Moreover, Dyer’s approach is consistent with the greater tendency of the modern Court not to defer to Congress. However, Dyer’s claim that it was precluded by precedent from applying the doctrine more broadly is ill-founded.


Decision on the Merits

Dyer gave short shrift to justiciability issues other than the political question doctrine. Having concluded that the case did not present a political question, the court reached the merits and held that the Constitution did not prohibit a state legislature from adopting a supermajority requirement for ratifying an amendment. Dyer explained that “[t]he act of ratification is an expression of consent to the amendment by that body” and “[b]y what means that body shall decide to consent or not to consent is a matter for that body to determine for itself.” 390 F. Supp. at 1307. Accordingly, the Illinois house and senate were free to adopt rules requiring a supermajority vote for ratification.

The Dyer court suggested, however, that the Illinois legislature was not bound to follow the state constitutional provision that purported to mandate a supermajority vote for ratification. Just as a state “may not inhibit its legislature’s federal power to ratify a proposed amendment to the United States Constitution by requiring approval at a popular referendum,” it may not mandate that the legislature use a supermajority rule for ratification. 390 F. Supp. at 1308. But this tentative conclusion did not change the court’s view of the validity of the Illinois legislature’s recognition of a supermajority requirement for ratification:

If our analysis of the nature of the delegated power is correct, the Illinois constitutional provision may only be precatory in its effect on the federal process, and [the house and senate] are free to accept or reject the three-fifths requirement.

They did accept that requirement during the 78th General Assembly. Whether they did so because of a mistaken understanding of the applicable law . . ., or because of their decision to respect a policy choice made by the framers of their own constitution in 1970, or simply because they independently determined that the supermajority requirement would be desirable, is of no legal significance.

390 F. Supp. at 1308.

Accordingly, the court “conclude[d] that the action taken by the 78th Session of the Illinois General Assembly did not constitute an effective ratification because the resolution did not pass by the vote required by the applicable rules of procedure adopted by both houses of the legislature.” Id. at 1308-09. The claims for relief were dismissed.


Overlooked Justiciability Issues

Although the Dyer court was certainly correct in dismissing the case, its decision to reach the merits at all is questionable (even accepting its ruling on the political question issue). One of the requirements of justiciability (standing specifically) is the ability to grant effective relief. It is certainly difficult to see how the court could have granted the injunctive relief sought by the plaintiffs, namely an order to the speaker and senate president to sign and certify the resolutions ratifying the ERA. Such an order would have effectively forced the Illinois legislature to treat the amendment as ratified.

This seems like an absurd request. To begin with, the fact that the resolutions received majority support when the legislators understood a supermajority was needed for passage does not mean they would have received majority support in a vote requiring only a simple majority. Apart from this problem, I do not know of any precedent for a court ordering a legislature or legislator to perform a legislative act. Thus, courts do not order legislatures to pass bills or resolutions, nor do they direct officers of the legislature to engross or enroll such measures as if they had passed.

An analogy would be Common Cause’s recent constitutional challenge to the filibuster, which it claimed caused injury to the plaintiffs by prevented the enactment of legislation that would have benefitted them. But, as I pointed out at the time, this alleged injury was not redressable: “The only way for a court to redress the asserted injuries would be to order the political branches to enact these laws (or perhaps simply to deem them enacted without bothering with the niceties of passage and presentment). Even Common Cause would not dream of asking for such relief, however.”

The request in Dyer for declaratory relief (i.e., instructing the speaker and senate president that it would be unconstitutional to apply a supermajority state constitutional provision and/or legislative rule to future ratification votes) is less obviously impermissible that the request for an injunction. Nonetheless, for a federal court to issue a declaratory judgment to state legislators regarding a matter of legislative procedure raises serious questions of federalism, separation of powers and legislative immunity. The Dyer court did not consider these issues before reaching the merits.

It should be noted that a case like Dyer would likely be impossible today due to the Supreme Court’s ruling in Raines v. Byrd, 521 U.S. 811 (1997), in which the Court held that individual legislators do not have standing to complain of injuries suffered in their official capacities in the course of the legislative process. The Court made it clear in that case that it was seeking to avoid having the federal courts serve as referees in intra-legislative disputes regarding legislative procedure and the like.

As in the Common Cause case, moreover, it is not at all obvious that declaratory relief would have redressed the alleged injury. Instead, it would have effectively been an advisory opinion from a federal court instructing the state legislature how to comply with Article V in future ratification votes. But such an opinion would not redress any injury suffered by the plaintiffs with respect to ratification votes taken in the past.

It should be noted that the Dyer decision effectively does provide an advisory opinion by its gratuitous dicta informing the legislature that it need not comply with the supermajority provision in the state constitution. No doubt then-Judge Stevens believed he was performing a public service by giving the legislature the benefit of the court’s constitutional wisdom. But for that reason among others, Dyer is not a model for its handling of justiciability.

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