Article by Martin Shapiro
Michael Perry has written a book called Morality, Politics, and Law. I wish to focus for a moment on the word “politics” before moving on to “morality” and “law.” From my perspective its principal value is that it helps clear up a misunderstanding that has long plagued students of the Supreme Court. No one has ever denied that the Supreme Court is one of the three great branches of American government. It would seem to follow, then, that the Supreme Court is a part of American politics. For surely government lies within the realm of politics. Yet there is a persistent tradition of opposing the judicial branch to the two political branches. The absurd political questions doctrine is emblematic of this tradition, which asserts that the Supreme Court does or ought to eschew political questions—as opposed presumably to legal ones. We are then invited to watch with a straight face as the Court treats such issues as the powers of Congress, the relation between the national government and the states, government regulation of the press, and the power of the President to appoint government officials as nonpolitical questions.
About the Author
Martin Shapiro. Coffroth Professor of Law, University of California, Berkeley.
Citation
63 Tul. L. Rev. 1555 (1989)