Last week the Supreme Court of the United Kingdom handed Prime Minister Boris Johnson a stunning defeat when it ruled that he acted unlawfully in asking the Queen to prorogue (i.e., suspend) Parliament. The unanimous judgment delivered by the Court’s President, Lady Hale, and Deputy President, Lord Reed, was notable not only for its substance but for the fact that the Court adjudicated the merits at all. Courts in the U.K.—like their counterparts in the U.S.—do not resolve so-called non-justiciable political questions, and the Johnson government had argued forcefully that the lawfulness of the decision to prorogue Parliament on the eve of Brexit was a question rife with politics.
Decide the merits the SCOTUK nonetheless did. While recognizing the political question limit, the Court opined that “the fact that a legal dispute concerns the conduct of politicians, or arises from a matter of political controversy, has never been sufficient reason for the courts to refuse to consider it.” That language echoes a landmark opinion issued an ocean away and over a half-century earlier. In Baker v. Carr, the U.S. Supreme Court ruled that the political question doctrine did not bar challenges to a state’s failure to reapportion its legislature to reflect current population distributions. Writing for the majority, Justice Brennan explained that “the mere fact that the suit seeks protection of a political right does not mean it presents a political question.” Whether there or here, now or then, the lesson is the same: political implications alone do not make for a non-justiciable political question.
Yet if a core attribute of the political question doctrine persists across space and time, a gap in application has opened up. On this side of the pond, our Supreme Court recently invoked the political question doctrine in practical abdication of its role as guarantor of a level playing field in electoral politics. Earlier this year, Chief Justice Roberts wrote a majority opinion in Rucho v. Common Cause, holding that legal challenges to political gerrymandering are non-justiciable because the Constitution does not identify a unique standard by which to judge when gerrymandering goes too far.
The U.K. prorogation case shows what’s wrong with Rucho.
Judicially Discoverable and Manageable Standards
In Baker, the U.S. Supreme Court catalogued various grounds for concluding that a case presents a political question. One basis for that conclusion is “a lack of judicially discoverable and manageable standards.” In Rucho, the Supreme Court concluded that no such standards exist for resolving political gerrymandering cases because there is no shared understanding of what counts as a fair way to draw voting district lines and thus no discoverable or manageable mechanism by which to measure deviations from such fairness.
Yet to reach that conclusion, the Court had to reject what Justice Kagan observed in dissent were perfectly manageable baselines identified by the states themselves. Chief Justice Roberts thought that an improper standard, because it would vary by state, but that objection sounds more like an objection on the merits than an objection to manageability. After all, in other contexts, a state’s own law or policy choices may set the baseline against which to measure constitutional violations. For example, state definitions of property law may vary in such a way that what constitutes an unlawful Taking in violation of the Fifth Amendment in one state would be permissible in another.
More fundamentally, Justice Kagan objected that by worrying about where exactly to draw the line between permissible and impermissible legislative consideration of politics in districting, the Rucho majority effectively gave license to what, under any plausible standard, should have counted as impermissible: the blatant pro-Democratic gerrymander in Maryland and the blatant pro-Republican gerrymander in North Carolina.
The U.K. Supreme Court’s prorogation judgment provides an instructive counterpoint. The Court acknowledged that seeking the sovereign’s consent to prorogue Parliament is a prerogative of the Prime Minister and that therefore such decisions are not typically subject to judicial second-guessing. But the Court went on to recognize that a prerogative power could be abused. For the U.K. Supreme Court, unlike the U.S. Supreme Court, the difficulty of distinguishing borderline cases did not count as a reason to ignore a clear case. The Lord and Lady Justices thus ruled that
a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive.
To use the American argot, that standard was discoverable because the Court derived it from basic principles that are both codified and uncodified and together make up the U.K.’s “unwritten” constitution. And while it is true that one could have come up with a somewhat different standard based on roughly the same materials, that does not render the standard on which the Court settled undiscoverable. Any time a Court decides a hard case it discovers—in the sense that it exercises its judgment to choose—a standard.
Parallel principles explain why the U.K. Supreme Court’s standard is manageable. True, it is a standard, not a rule, because it turns on such qualitative questions as what counts as frustrating Parliament and what counts as a reasonable justification. But that hardly disqualifies the test from counting as manageable. The law consists of both relatively determinate rules and relatively indeterminate standards that call for judgment in their application.
What the U.K. Supreme Court gets but our current Supreme Court apparently does not is that in fetishizing rules to the point of treating standards as ineligible to count as manageable law, a court throws out the baby with the bathwater. The Roberts majority in Rucho is so fearful of the inherently arbitrary act of drawing a line that it allows state legislatures to subvert basic democratic principles.
Representation Reinforcement
There is an apparent irony in the foregoing juxtaposition. For generations, judges, lawyers, and scholars contrasted the United States with the United Kingdom by pointing to the greater role that judges play here in second-guessing legislative judgment. It now appears that the positions have been reversed, with the mother country adopting robust judicial review just as the younger inventor of that institution has become more cautious in its use. But that characterization is mistaken.
For one thing, the current U.S. Supreme Court is hardly non-interventionist across the board. Chief Justice Roberts and his fellow Republican appointees are perfectly happy to overturn outputs of the political process with respect to gun control, affirmative action, and campaign finance. One might therefore wonder whether the majority’s reluctance to act in Rucho was rooted in a desire to steer clear of politics or rather in a desire to leave in place a practice—political gerrymandering—that while used by both parties when in power, now systematically favors Republicans. Bush v. Gore, anyone?
Even assuming that the Rucho Court’s motives were pure, its analysis was flawed because it overlooked a key insight most forcefully articulated by John Hart Ely in his 1980 book Democracy and Distrust: A Theory of Judicial Review. Writing in defense of most of the work of the Warren Court—which had been subject to relentless criticism even by its political allies—Ely explained that it is wrong to conceive of judicial review as necessarily undemocratic or even “counter-majoritarian” (as Alexander Bickel had conceived it).
Ely explained that often judicial review can be “representation reinforcing” by striking down laws or practices that are themselves undemocratic. Baker—which was followed two years later by a merits decision in Reynolds v. Sims establishing the one-person-one-vote principle—is an excellent example. Courts ought not, in the name of democracy, defer to legislatures in the drawing of district lines when the very complaint at issue charges that the lines they have drawn disrespect democratic principles. In such cases, an intervening court acts as the protector of democracy and majoritarianism.
The U.K. Supreme Court’s decision in the prorogation case followed Ely’s logic. Far from posing a threat to Parliamentary sovereignty, the Court explained that its judgment was necessary to ensure Parliamentary sovereignty. The Court grounded its judgment in a line of cases going back to seventeenth-century England, but the core argument might be equally well understood as applying principles refined in the U.S. during the second half of the twentieth century.
Whatever its origins, the principle that courts can play a vital role in protecting the democratic process is sound. It would be a shame if American courts were to abandon that principle just as it triumphs in the U.K.