Buffalo Law Review
constitutional law, public opinion, constitutional conventions, nonjusticiability doctrine
The concept of nonjusticiability, reflected primarily through the “political question” and the “standing” doctrines, fails to give the Supreme Court (and the rest of us) adequate guidance on how to resolve many constitutional disputes, such as impeachment procedures and standards, congressional expulsions, the scope of federal court jurisdiction, and the use of force abroad. These two doctrines put the Supreme Court on the horns of a false dichotomy. The Court tends to withdraw completely from an issue and from enforcing a textual passage, such as the Republican Guarantee Clause, whenever it makes a determination of nonjusticiability. Conversely, once the Court has determined that it can competently handle an issue, as it did in a recent Origination case, it tends to intervene aggressively.The Court, for example, decided in early 1992 to hear District Judge Walter Nixon's claim that he should not have been impeached for bribery because the Senate did not provide sufficient procedural safeguards. Judge Nixon asserted that his case should have been heard by all the Senators, not by a committee of twelve Senators that reported back to their colleagues. If the Court feels obligated to eliminate all unfair procedures, it might resolve Nixon's case on the merits. It could extend its existing procedural due process doctrine to impeachment proceedings. But once the Court starts reviewing impeachment proceedings, where can it stop? Could the Court review the impeachment of one of its own members? Later in this article, I will propose that the Court should not provide any meaningful review of either the process or substance of impeachment proceedings. But such judicial abstinence can excessively legitimate political behavior that violates constitutional norms. What if Judge Nixon had only been allowed to appear before a single, biased Senator? If the Court refused to correct that procedural abuse because it was “nonjusticiable,” the citizenry might interpret the Court's decision as acomplete validation of such an impeachment. A finding of nonjusticiability in the pending Walter Nixon case may convince the Senate that it can do whatever it wants, because there is no constitutional recourse or restraint. Another perspective is needed.
James G. Wilson, American Constitutional Conventions: The Judicially Unenforceable Rules That Combine With Judicial Doctrine and Public Opinion to Regulate Political Behavior, 40 Buffalo Law Review 645 (1992)