There have long been debates about the nature, scope, and legitimacy of the political question doctrine, the modern version of which originates with the Supreme Court’s 1962 decision in Baker v. Carr. Despite the differing views, the scholarly commentary has one thing in common: It is focused almost entirely on the Supreme Court. In the sixty years since Baker, however, the Court has applied the doctrine as a basis for dismissal in only three majority decisions. By contrast, during this period, the lower courts have applied the doctrine as a basis for dismissal in hundreds of cases. We provide the first empirical account of how the doctrine has operated in the lower courts since Baker. Our account is based on both a quantitative and qualitative analysis of a sample of these decisions. This account reveals a political question doctrine that is substantially different from the one described in most scholarship: It is more vibrant, heavily focused on foreign affairs, often applied in nonconstitutional cases, more prudential, and not a permanent disallowance of judicial review. The lower courts use the doctrine to evaluate their own institutional capacity to resolve politically sensitive disputes. It is the lower courts’ more limited capacity compared to that of the Supreme Court, combined with their non-discretionary docket, that explains the lower courts’ heavier reliance on the doctrine.
* Curtis A. Bradley is the Allen M. Singer Professor, University of Chicago Law School. Eric A. Posner is the Kirkland & Ellis Distinguished Service Professor, University of Chicago Law School. Professor Posner began a position in the Justice Department after this paper was substantially completed; the views in the paper do not necessarily reflect those of the Department or the U.S. government. For helpful comments and suggestions, we thank Will Baude, Kathy Bradley, Harlan Cohen, Richard Fallon, Amanda Frost, Maggie Gardner, Tara Grove, John Harrison, William Hubbard, Maggie Lemos, Michael Morse, Jim Pfander, Richard Re, Neil Siegel, participants in a faculty workshop at the University of Chicago Law School, and participants in the 2022 Chicago-Virginia Foreign Relations Law Roundtable. For excellent research assistance, we thank Tori Keller, Alex Petrillo, and Kelsey Roberts. For assistance with the data, we thank Sima Biondi.