During the confirmation hearings for Judge (soon to be Justice) Ketanji Brown Jackson, she answered written questions for the record from a number of senators, including Senator Mike Lee. One of Senator Lee’s questions (hat tip: Ira Goldman) struck me as odd:
In Committee on the Judiciary v. McGahn, you took an extremely broad view of standing that all but ignored the previous elements of standing that you clung to in Federal Forest Resource Coalition (individualized injury). Setting aside the merits of the underlying controversy, your opinion never once mentions the phrase “political question.” Isn’t a case where the legislative branch is suing the executive branch a quintessential political question?
One problem with this question is that it was based on a false premise—as she pointed out in her answer, Jackson’s opinion in McGahn did in fact (more than once) use the phrase “political question” and it did so in the context of explaining why the political question doctrine was inapplicable to the case before her. See, e.g., Comm. on the Judiciary v. McGahn, 415 F. Supp.3d 148, 178 (D.D.C. 2019) (“[T]he Supreme Court has specifically confirmed that not all legal claims that impact the political branches are properly deemed non-justiciable political questions.”).
To be sure, Jackson’s discussion of this issue was somewhat in passing. Her primary point was that the Justice Department’s legal arguments on standing and separation of powers sounded like attempts to evoke the political question doctrine without grappling with well-established limits on that doctrine. See id. at 177-78. But because the Justice Department (representing McGahn) did not actually assert that the political question doctrine applied, the judge presumably thought it unnecessary to discuss the doctrine in depth. Perhaps Lee should ask the Justice Department why it did not think McGahn presented a “quintessential political question.”
I think I can save him the trouble, though. There was a time when legal scholars (to the extent they thought about the issue) very likely would have agreed with the sentiment expressed in Lee’s question. As one noted constitutional expert wrote long ago: “In 1958, when the reach of the political question doctrine was far broader than it is today, no lesser an authority than Judge Learned Hand expressed the view that such a dispute [over a congressional subpoena] between two branches of government was a clear example of a nonjusticiable constitutional question.” Rex E. Lee, Executive Privilege, Congressional Subpoena Power, and Judicial Review: Three Branches, Three Powers, and Some Relationships, 1978 B.Y.U. L. Rev. 231, 266 (1978). For the last 60 years, though, the law has rejected such a broad view of political questions. Continue reading “Two Lees, One Jackson, and Some Stonewalling”