When Judges Refuse to Abdicate
AS WE HAVE SEEN, many judges still dismiss foreign-affairs cases as nonjusticiable. They do this because of conceptual adherence to a constitutional theory of limited judicial review in “political” cases or nowadays more frequently because of the practical difficulty in assessing factual evidence, the absence of relevant legal standards, or the delicacy of the issues. Whether for theoretical or prudential reasons, a widespread tendency to defer to the political decision makers and foreign-relations experts persists.
This tendency, however, is far from universal. Particularly in the Supreme Court, the political-question doctrine is now quite rarely used and may be falling into desuetude. This chapter will survey that significant countervailing trend, viewing it through nonabdicationist jurisprudence. That courts do decide “political” cases challenges the notion, explored in the previous chapter, that they cannot decide them. Such a survey will also demonstrate that these antithetical judicial tendencies remain largely unnoted and consequently unreconciled. This creates both a problem and an opportunity.
In particular, a problem arises from the way judges register their refusal to abdicate. When judges take jurisdiction in a case involving foreign affairs or national security, they never reject the politicalquestion doctrine as such. Instead, they circumnavigate it, and they have developed several pragmatic ways to do this. The duty to abstain may be held specifically inapplicable in the circumstances of a particular case. This can be done by simply reclassifying the subject matter of the case; for example, deciding that it deals with treaty interpretation or a First Amendment claim rather than foreign affairs. Circumnavigation can also be managed by judicial double-entry bookkeeping. As we noted in chapter 2, courts frequently pay lip service to abstentionist dogma while taking jurisdiction to decide the case on its merits. Most simply, circumnavigation is accomplished by silently passing over the doctrinal or theoretical shoals, gliding past the prudential problems, while studiously avoiding all disquisition on jurisprudential issues.