Transatlantic Perspectives on the Political Question Doctrine

*J.D., University of Virginia School of Law, 2020; M.A. (History), University of Virginia, 2020. My thanks to Charles Barzun, Justin Aimonetti, Clay Phillips, and especially Hanaa Khan for offering helpful thoughts on previous drafts of this Comment; to Ray Gans, Andrew Kintner, and everyone else at the Virginia Law Review who helped edit and publish it; and to my fiancée Madeline Roth for her constant and loving support.Show More

On September 24, 2019, the Supreme Court of the United Kingdom (UKSC) unanimously invalidated U.K. Prime Minister Boris Johnson’s attempt to suspend (or “prorogue”) Parliament. The UKSC’s decision, R (Miller) v. Prime Minister (Miller/Cherry), was a political thunderclap, contributing to the U.K.’s political turmoil over its exit from the European Union, or “Brexit.” But the legal crux of Miller/Cherry was justiciability: was the Prime Minister’s decision to prorogue parliament a non-justiciable political question? Despite this question’s centrality to the case, few commentators have analyzed the Miller/Cherry decision through the lens of the political question doctrine, an area of law held largely in common between the United States and the U.K. Likewise, scholarly analysis has failed to explore the striking contrast between Miller/Cherry and Rucho v. Common Cause, the U.S. Supreme Court’s most recent foray into the political question doctrine.

This Comment does both. Miller/Cherry adopted a narrow understanding of the political question doctrine and instead embraced a robust vision of judicial review which closely resembles that of famed mid-century law professor Herbert Wechsler. The U.S. Supreme Court’s recent decision in Rucho v. Common Cause, however, took the opposite approach. Where Miller/Cherry offered a full-throated Wechslerian defense of the judiciary’s obligation to police constitutional constraints, Rucho channeled Wechsler’s contemporary and frequent interlocutor Alexander Bickel. Holding that challenges to partisan gerrymandering are not justiciable, Rucho, following Bickel, emphasized institutional humility and the need for courts to act cautiously in light of the “counter-majoritarian difficulty.”

Miller/Cherry and Rucho thus continue the great debate between Wechsler and Bickel, offering contradictory answers to the same foundational questions. Read together, they present a fascinating and transatlantic juxtaposition, illuminating key questions about the political question doctrine, judicial review, and the proper role of the courts.

Introduction

On September 24, 2019, the Supreme Court of the United Kingdom (UKSC) issued its decision in R (Miller) v. Prime Minister (Miller/Cherry),¹ 1.R (Miller) v. Prime Minister (Miller/Cherry) [2019] UKSC 41 (appeals taken from Eng. & Scot.). The case goes by many names in its nascent scholarly treatment, including the delightful, if presumptuously historical, “Case of Prorogations.” E.g., Paul Daly, Talking About the Case of Prorogations,Admin. L. Matters (Sept. 27, 2019), https://www.administrativelawmatters.com/blog/2019/09/27/talking-about-the-case-of-prorogations/ [https://perma.cc/8U7K-JXL3]. In order to avoid confusion with the lower court decision also captioned R(Miller) v. Prime Minister, I will refer to the case as “Miller/Cherry”both in text and in citations.Show More and British politics turned on its head. In an understated oral announcement² 2.For the video of the announcement, see Supreme Court: Suspending Parliament Was Unlawful, Judges Rule,BBC News (Sept. 24, 2019), https://www.bbc.com/news/uk-politics-49810261 [https://perma.cc/5UPG-EV35].Show More and an unadorned written opinion, a unanimous Court held that Prime Minister Boris Johnson’s five-week suspension of Parliament—in Parliamentary jargon, “prorogation”³ 3.For more specifics on prorogation, see infra notes 22–24 and accompanying text.Show More—was unlawful and therefore void. The decision overturned the Prime Minister’s latest gambit in his duel with a recalcitrant House of Commons over “Brexit,” the U.K.’s planned exit from the European Union. Miller/Cherry was immediately controversial, prompting calls for the Prime Minister to resign,⁴ 4.E.g., Karla Adam & William Booth, U.K. Supreme Court Rules Prime Minister Boris Johnson Suspended Parliament Illegally, Wash. Post (Sept. 24, 2019, 2:00 PM), https://www.washingtonpost.com/world/europe/britains-supreme-court-set-to-rule-on-boris-johnsons-decision-to-suspend-parliament/2019/09/24/af719d70-dd9e-11e9-be7f-4cc85017c36f_story.html [https://perma.cc/U8EH-B29V].Show More jubilant declarations that the rule of law had been vindicated,⁵ 5.See Owen Bowcott, Ben Quinn & Severin Carrell, Johnson’s Suspension of Parliament Unlawful, Supreme Court Rules, Guardian (Sept. 24, 2019), https://www.theguardian.com/­law/2019/sep/24/boris-johnsons-suspension-of-parliament-unlawful-supreme-court-rules-prorogue [https://perma.cc/9ED9-B9V2].Show More and accusations that the Court had perpetrated a “constitutional coup.”⁶ 6.E.g.,Jonathan Ames & Chris Smyth, Supreme Court Ruling: Senior Judges Could Face US-Style Grillings, Times (Sept. 26, 2019), https://www.thetimes.co.uk/article/supreme-court-ruling-senior-judges-could-face-us-style-grillings-mh22znd5j [https://perma.cc/G6TV-ASYF] (quoting prominent pro-Brexit MP Jacob Rees-Mogg).Show More

Although many British commentators have analyzed and criticized Miller/Cherry since its decision,⁷ 7.Perhaps most notable was a vehement and extensive criticism published only four days after the decision by John Finnis, a professor at Oxford and the former doctoral advisor to U.S. Supreme Court Justice Neil Gorsuch. SeeJohn Finnis, Pol’y Exchange, The Unconstitutionality of the Supreme Court’s Prorogation Judgment (Sept. 28, 2019), https://policyexchange.org.uk/wp-content/uploads/2019/10/The-unconstitutionality-of-the-Supreme-Courts-prorogation-judgment.pdf [https://perma.cc/9RS4-FGFU]. Other critics of varying degrees of vehemence abound in Anglophone academic circles. E.g., Martin Loughlin, Pol’y Exchange, The Case of Prorogation (Oct. 15, 2019), https://policyexchange.org.uk/publication/the-case-of-prorogation/ [https://perma.cc/9E8D-FXC9]; Steven Spadijer, Miller No 2: Orthodoxy as Heresy, Heresy as Orthodoxy, UK Const. L. Ass’n: Blog (Oct. 7, 2019), https://ukconstitutionallaw.org/2019/10/07/steven-spadijer-miller-no-2-orthodoxy-as-hersey-hersey-as-orthodoxy/ [https://perma.cc/DQ2T-W­2RY]; Paul Yowell, Is Miller (No 2) the UK’s Bush v Gore?, UK Const. L. Ass’n: Blog (Oct. 7, 2019), https://ukconstitutionallaw.org/2019/10/07/paul-yowell-is-miller-no-2-the-uks-bu­sh-v-gore/ [https://perma.cc/A8GJ-ZZWN].The decision has also had its defenders. E.g., Nick Barber, Constitutional Hardball and Justified Development of the Law, Jud. Power Project (Sept. 29, 2019), https://judicialpowerproject.org.uk/nick-barber-constitutional-hardball-and-justified-development-of-the-law/ [https://perma.cc/Z3FH-2NV2]; Alison Young, Deftly Guarding the Constitution, Jud. Power Project (Sept. 29, 2019), https://judicialpowerproject.org.uk/­alison-young-deftly-guarding-the-constitution/ [https://perma.cc/R6JP-Z4J3] (arguing that Miller/Cherry “demonstrates a delicate balance between law and politics, affirming the Supreme Court’s role as the guardian of the UK’s constitution”). For a more extensive list of pieces commenting on Miller/Cherry, see Paul Craig, The Supreme Court, Prorogation and Constitutional Principle, Pub. L. (forthcoming) (manuscript at 1–2 nn.4–8), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3477487 [https://perma.cc/Y6ZR-PB­XD].Show More the case has not received sustained or detailed attention on this side of the Atlantic.⁸ 8.One exception is Sam Shirazi, The U.K.’s Marbury v. Madison: The Prorogation Case and How Courts Can Protect Democracy, 2019 U. Ill. L. Rev. Online 108. Shirazi compares and contrasts Miller/Cherry with Marbury v. Madison and more generally focuses on the salutary role of judicial review in constitutional systems. Id. Shirazi spends little time discussing Miller/Cherry in the context of the political question doctrine, see id. at 113, and only fleetingly connects it to Rucho v. Common Cause, see id. at 118 n.79. See also Gerard N. Magliocca, Judicial Review Comes to Britain, Balkinization (Sept. 24, 2019), https://balkin.blogspot.com/2019/09/judicial-review-comes-to-britain.html [https://perma.cc­/5HUQ-8ZBB] (providing brief summary of Miller/Cherry by an American law professor).Show More This lack of American attention is regrettable. Miller/Cherry holds important lessons for the American lawyer, especially through its striking contrast with recent decisions of the U.S. Supreme Court.

Although nominally about the Prime Minister’s prorogation of Parliament, Miller/Cherry was really about justiciability: could (or should) the Court decide the case in the first place? The UKSC’s answer to this question not only took sides in a long-standing debate about the proper role for courts in reviewing government action—it also did so in a way directly contrary to the U.S. Supreme Court’s decision three months prior in Rucho v. Common Cause. Whereas Miller/Cherry endorsed a robust judicial role and a correspondingly narrow political question doctrine—a perspective associated with famed mid-century academic Herbert Wechsler—Rucho emphasized constraint on judicial discretion and expressed a concern for institutional legitimacy, two hallmarks of the approach of Professor Alexander Bickel.

Although decided on different sides of the Atlantic, these two cases are fundamentally about the same issue.⁹ 9.There are undoubtedly differences between the broader legal regimes of Britain and the United States which affect how courts in each country think about justiciability. For instance, Britain’s lack of a written constitution means that British courts, unlike American courts, generally would not look to constitutional text as a constraint on judicial discretion. Cf.infranotes 104–08 and accompanying text (discussing this American tendency). This Comment does not—and does not need to—argue that the justiciability inquiry in the two nations is identical. Rather, because the political question doctrine’s basic argumentative contours are shared between the two nations, see infra Section I.B, Miller/Cherry and Ruchocan fruitfully be read together.Show More Far from merely being a curious case from a foreign jurisdiction, Miller/Cherry lays bare the tensions inherent in the political question doctrine and in judicial review more broadly. Especially through its juxtaposition with Rucho v. Common Cause, Miller/Cherry provides an important perspective on judicial review and the judicial office in a time of heightened attention to the proper role of the courts.

1. * J.D., University of Virginia School of Law, 2020; M.A. (History), University of Virginia, 2020. My thanks to Charles Barzun, Justin Aimonetti, Clay Phillips, and especially Hanaa Khan for offering helpful thoughts on previous drafts of this Comment; to Ray Gans, Andrew Kintner, and everyone else at the Virginia Law Review who helped edit and publish it; and to my fiancée Madeline Roth for her constant and loving support. ↑
2. R (Miller) v. Prime Minister (Miller/Cherry) [2019] UKSC 41 (appeals taken from Eng. & Scot.). The case goes by many names in its nascent scholarly treatment, including
   the delightful, if presumptuously historical, “Case of Prorogations.” E.g., Paul Daly,
   Talking About the Case of Prorogations, Admin. L. Matters (Sept. 27, 2019), https://www.administrativelawmatters.com/blog/2019/09/27/talking-about-the-case-of-prorogations/ [https://perma.cc/8U7K-JXL3]. In order to avoid confusion with the lower court decision also captioned R(Miller) v. Prime Minister, I will refer to the case as “Miller/Cherry” both in text and in citations. ↑
3. For the video of the announcement, see Supreme Court: Suspending Parliament Was Unlawful, Judges Rule, BBC News (Sept. 24, 2019), https://www.bbc.com/news/uk-politics-49810261 [https://perma.cc/5UPG-EV35]. ↑
4. For more specifics on prorogation, see infra notes 22–24 and accompanying text. ↑
5. E.g., Karla Adam & William Booth, U.K. Supreme Court Rules Prime Minister Boris Johnson Suspended Parliament Illegally, Wash. Post (Sept. 24, 2019, 2:00 PM), https://www.washingtonpost.com/world/europe/britains-supreme-court-set-to-rule-on-boris-johnsons-decision-to-suspend-parliament/2019/09/24/af719d70-dd9e-11e9-be7f-4cc85017c36f_story.html [https://perma.cc/U8EH-B29V]. ↑
6. See Owen Bowcott, Ben Quinn & Severin Carrell, Johnson’s Suspension of Parliament Unlawful, Supreme Court Rules, Guardian (Sept. 24, 2019), https://www.theguardian.com/­law/2019/sep/24/boris-johnsons-suspension-of-parliament-unlawful-supreme-court-rules-prorogue [https://perma.cc/9ED9-B9V2]. ↑
7. E.g., Jonathan Ames & Chris Smyth, Supreme Court Ruling: Senior Judges Could Face US-Style Grillings, Times (Sept. 26, 2019), https://www.thetimes.co.uk/article/supreme-court-ruling-senior-judges-could-face-us-style-grillings-mh22znd5j [https://perma.cc/G6TV-ASYF] (quoting prominent pro-Brexit MP Jacob Rees-Mogg). ↑
8. Perhaps most notable was a vehement and extensive criticism published only four days after the decision by John Finnis, a professor at Oxford and the former doctoral advisor to U.S. Supreme Court Justice Neil Gorsuch. See John Finnis, Pol’y Exchange, The Unconstitutionality of the Supreme Court’s Prorogation Judgment (Sept. 28, 2019), https://policyexchange.org.uk/wp-content/uploads/2019/10/The-unconstitutionality-of-the-Supreme-Courts-prorogation-judgment.pdf [https://perma.cc/9RS4-FGFU]. Other critics of varying degrees of vehemence abound in Anglophone academic circles. E.g., Martin Loughlin, Pol’y Exchange, The Case of Prorogation (Oct. 15, 2019), https://policyexchange.org.uk/publication/the-case-of-prorogation/ [https://perma.cc/9E8D-FXC9]; Steven Spadijer, Miller No 2: Orthodoxy as Heresy, Heresy as Orthodoxy, UK Const. L. Ass’n: Blog (Oct. 7, 2019), https://ukconstitutionallaw.org/2019/10/07/steven-
   spadijer-miller-no-2-orthodoxy-as-hersey-hersey-as-orthodoxy/ [https://perma.cc/DQ2T-W­2RY]; Paul Yowell, Is Miller (No 2) the UK’s Bush v Gore?, UK Const. L. Ass’n: Blog (Oct. 7, 2019), https://ukconstitutionallaw.org/2019/10/07/paul-yowell-is-miller-no-2-the-uks-bu­sh-v-gore/ [https://perma.cc/A8GJ-ZZWN].

   The decision has also had its defenders. E.g., Nick Barber, Constitutional Hardball and Justified Development of the Law, Jud. Power Project (Sept. 29, 2019), https://judicialpowerproject.org.uk/nick-barber-constitutional-hardball-and-justified-development-of-the-law/ [https://perma.cc/Z3FH-2NV2]; Alison Young, Deftly Guarding the Constitution, Jud. Power Project (Sept. 29, 2019), https://judicialpowerproject.org.uk/­alison-young-deftly-guarding-the-constitution/ [https://perma.cc/R6JP-Z4J3] (arguing that Miller/Cherry “demonstrates a delicate balance between law and politics, affirming the Supreme Court’s role as the guardian of the UK’s constitution”). For a more extensive list of pieces commenting on Miller/Cherry, see Paul Craig, The Supreme Court, Prorogation
   and Constitutional Principle, Pub. L. (forthcoming) (manuscript at 1–2 nn.4–8), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3477487 [https://perma.cc/Y6ZR-PB­XD]. ↑

9. One exception is Sam Shirazi, The U.K.’s Marbury v. Madison: The Prorogation Case and How Courts Can Protect Democracy, 2019 U. Ill. L. Rev. Online 108. Shirazi compares and contrasts Miller/Cherry with Marbury v. Madison and more generally focuses on the salutary role of judicial review in constitutional systems. Id. Shirazi spends little time discussing Miller/Cherry in the context of the political question doctrine, see id. at 113, and only fleetingly connects it to Rucho v. Common Cause, see id. at 118 n.79. See also Gerard N. Magliocca, Judicial Review Comes to Britain, Balkinization (Sept. 24, 2019), https://balkin.blogspot.com/2019/09/judicial-review-comes-to-britain.html [https://perma.cc­/5HUQ-8ZBB] (providing brief summary of Miller/Cherry by an American law professor). ↑
10. There are undoubtedly differences between the broader legal regimes of Britain and the United States which affect how courts in each country think about justiciability. For instance, Britain’s lack of a written constitution means that British courts, unlike American courts, generally would not look to constitutional text as a constraint on judicial discretion. Cf. infra notes 104–08 and accompanying text (discussing this American tendency). This Comment does not—and does not need to—argue that the justiciability inquiry in the two nations is identical. Rather, because the political question doctrine’s basic argumentative contours are shared between the two nations, see infra Section I.B, Miller/Cherry and Rucho can fruitfully be read together. ↑