Before the subject gets too far behind us, I wanted to emphasize two important points about political questions that may help us understand its place in constitutional law more generally:
1. As we discussed briefly in class yesterday, the political questions doctrine is one of several means of avoidance available to the Supreme Court when it would rather not get involved in a controversy (usually to preserve its institutional prestige). The political questions doctrine is the most severe form of such avoidance, because to declare a case to present a political question is essentially to hold that that issue is never reviewable by a federal court. Thus, the Court resorts to it only rarely, where it believes the issue is one that the Court will never want to get into. The less extreme forms include: (a) denying review (as most of the Court's docket is now discretionary); (b) construing the relevant statute so as not to present the constitutional question; or (c) finding some sort of jurisdictional problem with the case (e.g., a lack of standing). You might remember that the Court took this last tack in the famous pledge of allegiance case a few years ago, holding that Michael Newdow (not being the primary custodian of his daughter) lacked standing to assert her daughter's offense to stating the pledge.
2. Another way of thinking about the political questions doctrine is as a point on the spectrum of judicial scrutiny. As we discussed on the first day of class, every constitutional case (at least to some degree) is about the role of the Court: to what degree should the Court second-guess the judgment of another governmental institution or actor on the meaning of the constitution? In some instances, we think the Court should be very aggressive in its review. This is often called "strict scrutiny," and it applies when the government's action (such as when it explicitly uses race, or when it limits speech based on its content) is presumptively unconstitutional. A much more deferential form of review is so-called "rational basis" review: the law is constitutional so long as it is rationally related to a legitimate government interest. Here, the law is presumptively constitutional and will only be invalidated if there is no rational basis supporting it. We can think of the political questions doctrine as being just one step more deferential than rational basis review. The review is so deferential that there is no review at all. However the political branches resolve the question, that is the binding answer. Judicial review is nonexistent.
This second point will make more sense, I hope, after we have studied next week's material. For a crucial question in the history of the Commerce Clause has been how aggressive or deferential the Court should be in evaluating whether a given federal statute is within Congress's commerce power.