Constitutional Law Class Notes 3/4/04


First, something about Monday’s assignment.  It’s probably the single most important assignment of the semester in terms of analytic or conceptual framework.  We’ll be talking about the basic concept of equal protection for the Equal Protection Clause.  There are ideas of laws being over- or under-inclusive, and we have a reading from Chemerinsky on those concepts.  If there’s one assignment to devote extra energy to, it’s this one.


How do we read Beazer in relationship to Chemerinsky?  Pay more attention to Chemerinsky.  On Monday, we want to get the analytic framework.  We’re only look at Beazer as an application of the analytic framework.  Beazer will later be compared to Cleburne.


The New York Times has an article by Greenhouse about the public release of Justice Blackmun’s papers from his time on the court.  That’s Foley’s justice!


To what degree do justices change their own minds?  The justices feel the weight and pressure of the arguments on both sides of an issue.  They can get tipped to one side of an issue only to get tipped back to the other side later on.  Justices can change their minds well into the deliberation of the case.


Blackmun’s papers are now public!


More on the political question doctrine


What about these lawsuits at the time of the Vietnam War?  People filed lawsuits saying that the war was illegal and unconstitutional because it was undeclared.  The court would not judge this issue because they felt that it was a political question.  In fact, this is the quintessential political question doctrine situation.


But what if someone was being sent to prison for resisting the draft for an undeclared war?  Wouldn’t there be personal consequences to that individual?  Would it still be a political question?  Why would the Supreme Court say that they’re not going to decide what the Constitution means even though they’re being asked to do so by individuals who may end up in jail?  It’s not enough to say that it is relevant whether the Court has in front of it an issue of rights or an issue of powers.  The Court is less willing to get involved in a turf battle between branches.  The presence of a rights question is not dispositive in deciding whether the Court will tackle the question.  That’s just one factor.  Another factor is whether the Court feels that another branch of government has more expertise on the subject at hand.


Another famous political question case was the “Pentagon Papers” case.  The New York Times published some documents about the Vietnam War.  The government went to court to stop the newspaper from publishing the papers, arguing that it would be a serious breach of national security.  The government invoked the political question doctrine in this case.  They said that the documents were classified and should not be released.  Instead, the Court decided to protect the freedom of the press.  In that case, they felt that the Court must interpret the Constitution to allow the New York Times to publish the information.


How do we explain the difference between the two types of cases?  The Court may not feel that they have military expertise, but they do feel like the guardians of fundamental personal liberties.  What they won’t decide in the war powers context is whether the war itself is permissible or impermissible.  They won’t get into the question of whether the president can send troops overseas without congressional authorization.


It’s hard to figure out when they will intervene; we have no definitive rule.


Isn’t everything in some sense a political question?  One of the biggest debates over whether the Court should invoke the political question doctrine has come up in the case of gerrymandering/redistricting.  There have always been claims that the ways those boundaries get drawn violate equal protection.  Is this a political question?  Or is it the Court’s role to protect against discrimination?  The court could go either way on this.


As a practical matter, when you have constitutional litigation, you must ask yourself whether the court could possibly decide to invoke the political question doctrine in this case, even if it hasn’t done so previously.  Is there a possibly that the political question doctrine could be in play, even though on the surface of the precedents you wouldn’t normally think that it was in play.  Any constitutional question could be considered a political question, but most of them are not.


What about the case of Judge Nixon?  The Court said that it could decide when it’s proper to use the impeachment power or not and decide what the phrase “high crimes and misdemeanors” means, but they feel that this is a case they shouldn’t decide because decisions about the impeachment power belong exclusively to Congress.


The Court is going to think in practical terms.  “What would this mean for the country if we, the Court, decided this question?”  Should drawing district lines be subject to judicial management?   The issue of remedies is important.  Sometimes you lose sight of the consequence when you look at the question to be decided.  But the courts, as practical institutions, will be thinking: what’s the remedial consequence of deciding this constitutional question?


Are there remedies less extreme than invoking the political question doctrine?  Can courts address an issue but impose some limitations on their own remedial authority?  What about equitable jurisdiction?  Equitable remedies, like injunctions and orders, are thought to be somewhat discretionary on the part of the court issuing them.  A court could address a question on the merits but delay or limit their remedy.  Always think about the remedy issue.  How burdensome does the court think the remedy will be?  The Court can soften the implications of its decisions by manipulating its remedial power.


In Cheney, what was sought was a writ of mandamus.  Should we give this remedy?


Virtually every law professor in the country when Bush v. Gore was going on thought that the Court would find a way to duck the issue.  But they actually granted cert twice.  They can manipulate their own agenda and their own docket when they want to.  They will make strategic judgments as to the grant or denial of cert.


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