What is Justiciability?

Simply put, justiciability “is the quality or state of being appropriate or suitable for adjudication by a court.” (Black’s Law Dictionary, 9th ed. 2009). The Political Question Doctrine is a subset of justiciability. 

At federal level, “[t]he judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as Congress may from time to time ordain and establish.” (Article III, Section 1 of the United States Constitution).

Although many specialized courts are created under Article I, Article III courts are deemed to be “vested with greater powers because they are independent of Congress, the President and the political process.” Article III, Section 2, delineates the limits of their jurisdiction. 

Although the text of the US Constitution does not so provide, the Supreme Court of the United States (SCOTUS) has held that, “it is emphatically the province and duty of the judicial department to say what the law is” (Marbury v Madison, 5 U.S. 137 (1803)) and to determine the constitutionality of a decision by a state court (Martin v. Hunter’s Lessee, 1 Wheat. 304 (1816)). 

Under the Supremacy Clause (Article VI, Section 2), the federal judiciary has the power to review state actions such as court decisions, state statutes, executive orders to ensure conformity with the Constitution, laws, and treaties of the United States. (Fletcher v. Peck, 10 U.S. 87 (1810)).

Under the Eleventh Amendment, it is not justiciable for citizens of one state to sue another state in federal court for money damages or equitable relief, where the state is a defendant, and the plaintiff is a citizen of another state or foreign country.

In addition, the Eleventh Amendment also bars lawsuits in federal court against state officials for violating state law. (Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984)). 

Consent or waiver by a state will serve as an exception to Eleventh Amendment justiciability (Lapides v. Board of Regents of Univ. System of Ga., 535 U.S. 613 (2002)). Another exception is when a state official instead of the state itself is named as the defendant in a case seeking injunctive relief (Ex Parte Young, 209 U.S. 123 (1908)) and (Edelman v. Jordan, 415 U.S. 651 (1974)).

However, a state cannot invoke its sovereign immunity to prevent a lawsuit by a state agency seeking to enforce a federal right against a state official (Virginia Office for Prot. & Advocacy v. Stewart, 563 U.S. 247 (2011)).

The other exceptions to the Eleventh Amendment cover situations where damages are to be paid by an individual, there are prospective damages or there is congressional authorization. 

Actions against local governments (cities, counties, or towns), actions by the United States governments and bankruptcy proceedings (Central Cmty. Coll. V. Katz, 546 U.S. 356 (2006)) are not barred under the Eleventh Amendment.

Generally, Standing may also determine whether a federal court will hear a case or not. To have standing, the plaintiff must establish (i) injury in fact (ii) causation and (iii) redressability. A taxpayer does not have standing to file a federal lawsuit to challenge government expenditures although she may challenge her own tax liability. (United States v. Windsor, 570 U.S. 744 (2013)).

There is a narrow exception under the Establishment Clause to mount an establishment of religion challenge to specific congressional appropriations under its taxing and spending powers. (Flast v. Cohen 392 U.S. 83 (1968)).

Third-party standing, organizational standing, parental standing, assignee standing, citizenship standing, standing to assert a Tenth Amendment violation, legislator’s standing, Section 1983 Claims with respect to “proper defendants” and “color of state” law are the other aspects of Standing.

Timelines – ripeness which concerns the prematurity of a case and mootness which deals with cases which are “overripe” except for those capable of repetition, (Turner v. Rogers, 564 U.S. 431 (2001)) and yet evading review, such as pregnancy also affect justiciability. Voluntary cessation and class actions are exceptions. 

Advisory opinions, declaratory judgments, or abstentions due to strong state interests (Pullman Doctrine and Younger abstentions) are further issues in justiciability.

The Political Question Doctrine

The Political Question Doctrine is another category of justiciability. Although the foregoing are issues of justiciability, they are not political questions.

The fact that the federal courts will not hear them because they are non-justiciable, does not metamorphose them into political questions.

The Doctrine is not about “politics” per se. It states that a federal court will not rule on a matter in controversy when the Constitution has assigned decision-making on the subject to a different branch of the government or that there are no judicially manageable standards for adjudication, among others. (Baker v. Carr, 369 U.S. 186 (1962)).

The Guarantee Clause of the US Constitution which protects the republican form of government is an example of a political question. It is a matter for Congress to deal with. 

The conduct of foreign affairs with respect to acts such as opening and breaking off diplomatic relations with another country, is a political question which is the domain of the Executive.

The Doctrine did not however bar SCOTUS from pronouncing on the constitutionality of a federal statute directing that an American child born in Jerusalem, is entitled to have Israel listed as her place of birth in her passport.

The Court held that this was not a political question because resolving the case involved examining, “textual, structural, and historical evidence” affecting statutory and constitutional provisions, and that those were within judicial competence. (Zivotofsky ex. rel. Zivotofsky v. Clinton, 566 U.S. 189 (2012)).

Impeachment of executive officers is another political question which has been assigned to Congress. The House of Representatives by majority vote passes an accusation. Once impeached, the person is tried in the Senate where a two-thirds vote is required for conviction and the only penalty is removal from office. 

Although political gerrymandering may violate the Equal Protection Clause of the Fourteenth Amendment, the Court here too, has found no judicially manageable standard for determining what is and what is not acceptable in drawing districts, thus leaving it as a political question. 

SCOTUS

Although the above analyses apply to SCOTUS, the specifics of this part are worth mentioning. 

SCOTUS exercises original jurisdiction over “all cases affecting ambassadors, other public ministers and consuls and those in which a state shall be a party.”

Although Congress may not expand or limit this jurisdiction, (Marbury v. Madison) it may, and it has granted concurrent original jurisdiction to lower federal courts except with respect to controversies between states.

In most cases, however, the jurisdiction of SCOTUS is appellate. Here, Congress can legislate exceptions to the appellate jurisdiction of SCOTUS. The Court exercises this type of jurisdiction by either a petition for a writ of certiorari or by a direct appeal.

The first type is discretionary and under the Rule of 4, if 4 justices agree, the case will be heard. SCOTUS is the only federal court that exercises discretionary jurisdiction. 

Under the second, only a small number of cases are brought under specific statutes such as the Voting Rights Act. Apart from the “constrained” power of Congress to limit the appellate jurisdiction of SCOTUS, (Boumediene v. Bush, 553 U.S. 723 (2008), which held that Congress and the President cannot remove the authority of SCOTUS “to say what the law is,” the concept of Adequate and Independent State Grounds (AISG), also serves as a limitation on this kind of jurisdiction. 

AISG arises only in SCOTUS and only when it reviews a judgment of the highest state court unless that court declined jurisdiction.

SCOTUS can only review the state court judgment if it turned on federal grounds. If it rested on adequate (the federal claimant wins anyway under state law) and independent (the state law does not depend on an interpretation of federal law) state grounds, SCOTUS will have no jurisdiction. 

This article may well be the harbinger to another one on the applicability of the Political Question Doctrine in the Constitutional Law of Ghana. 

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   The author is the Managing Partner at Nii Arday Clegg & Co. and holds a Master of Laws (LL.M.) degree from Harvard Law School.

He has passed the New York Bar Exam and the New York Law Exam and is completing other requirements for admission to the New York State Bar Association. He is a member of the Ghana Bar Association.