This Essay develops the foregoing argument by examining, in Section I, the transformation of the political question doctrine from Baker v. Carr through Walter Nixon v. United States. Section II charts a similar, perhaps even more dramatic transformation of the law of standing. Section I then examines Bush v. Gore, explaining how older doctrines of standing and political questions might have been thought relevant there. It argues as well that the very fact that those doctrines went unmentioned by the Court shows why we must take a historically grounded view of justiciability doctrines. Section IV sketches the historical settings in which the political question doctrine as a counsel of prudence arose and disappeared. The Conclusion suggests that, in the current historical period, a practice of judicial review constrained by prudence may be impossible to retrieve.
80 N.C. L. Rev. 1203-1235 (2002)
Scholarly Commons Citation
Tushnet, Mark V., "Law and Prudence in the Law of Justiciability: The Transformation and Disappearance of the Political Question Doctrine" (2002). Georgetown Law Faculty Publications and Other Works. Paper 254.