would encroach on the authority of the executive or legislature.152 Because the United States
Supreme Court has the ultimate authority to interpret the Federal Constitution,153 it also has the
final authority to determine when an issue or responsibility has been delegated to a particular
branch of the government.154 The Court outlined its current political question doctrine standard in
1962 in Baker v. Carr.155 Holding that mere political sensitivity did not make an issue a political
question,156 the Court formulated a six-factor test to determine whether an issue was a political
question and thus non-justiciable.157 If the issue involved any of the following six factors, it
could not be reviewed by the court: ( 1) a textually demonstrable constitutional commitment of the
issue to a coordinate political department; ( 2) or a lack of judicially discoverable and manageable
standards for resolving it; ( 3) or the impossibility of deciding without an initial policy
determination of a kind clearly for non-judicial discretion; ( 4) or the impossibility of a court's
undertaking independent resolution without expressing lack of respect due coordinate branches of
government; ( 5) or an unusual need for unquestioning adherence to a political decision already
made; ( 6) or the potentiality of embarrassment from multifarious pronouncements by various
departments on one question.158 Nevertheless, even after Baker, application of the political
question doctrine in the Court’s opinions has remained fairly limited.159
In contrast, some state supreme courts have readily invoked the doctrine in the context of
education finance cases.160 As many legal scholars have argued, however, there is nothing
explicitly binding state courts to the Supreme Court’s political question precedent when ruling on
state constitutional law.161 The political question doctrine is rooted in the Federal Constitution’s
152 See Baker v. Carr, 369 U.S. 186, 210 (1962) (“The nonjusticiability of a political question is primarily a function of the separation
of powers.”); see also NOWAK & ROTUNDA, supra note 27, at 58-66 (providing a general overview of the United States Supreme
Court’s political question jurisprudence); O’Neill, supra note 27, at 555-56 (“The political question doctrine is the judiciary's attempt
to respect the structural boundaries between the three branches of federal government.”).
153 Marbury v. Madison, 5 U.S. ( 1 Cranch) 137, 177 (1803). See generally NOWAK & ROTUNDA, supra note 27, at 1-11 (summarizing
the United States Supreme Court’s judicial review authority).
154 Baker, 369 U.S. at 210. Early in the Court’s history, the political question doctrine most often arose in cases involving the Guaranty
Clause of Article IV, Section 4. See O’Neill, supra note 27, at 556; see, e.g., Luther v. Borden, 48 U.S. 1, 42-43 (1849). Generally,
these cases involved a dispute over an elected office, a matter the Court believed it lacked authority to decide. In Luther v. Borden,
plaintiffs alleged the Rhode Island government failed to satisfy the Constitution’s guaranty of a republican government. Id. The Court
refused to decide the case, instead asserting that either the President or Congress must resolve the conflict. Id.; see also O’Neill, supra
note 27, at 556 (noting that “[v]ery early on, the Supreme Court used the doctrine to avoid political representation issues under the
Guaranty Clause of the Constitution” and discussing Luther v. Borden).
155 Baker, 369 U.S. at 198-99. In Baker, the court was presented with the issue of whether voting districts that, due to population shifts,
effectively diluted the voting power of a particular voting group violated the Equal Protection Clause. Id. at 187-88. The defendants
argued that issues of political reapportionment involved political questions, and as such, the court lacked authority to decide the
matter. Id. at 197-98.
156 Id. at 217 (“The doctrine of which we treat is one of ‘political questions,’ not one of ‘political cases.’ The courts cannot reject as
‘no law suit’ a bona fide controversy as to whether some action denominated ‘political’ exceeds constitutional authority.”).
158 Id.; see also NOWAK & ROTUNDA, supra note 27, at 59-60 (summarizing Baker’s impact on political question jurisprudence).
159 See NOWAK & ROTUNDA, supra note 27, at 61-66 (discussing the political question doctrine’s limited application to certain issues
involving foreign affairs and war, constitutional amendments, impeachment, political gerrymandering, apportionment of congressional
districts among states, and Origination Clause cases); Blanchard, supra note 33, at 272 (stating that Supreme Court commentators
have observed a decrease in the use of the political question doctrine since the early 1960s); O’Neill, supra note 27, at 557-60 (noting
that the doctrine has been limited in application to questions of political districting and foreign affairs, and then summarizing the few
cases since Baker in which it has been at issue).
160 See, e.g., Comm. for Educ. Rights v. Edgar, 672 N.E.2d 1178, 1191 (Ill. 1996); Lewis E. v. Spagnolo, 710 N.E.2d 798, 802-03 (Ill.
1999); Neb. Coal.for Educ. Equity & Adequacy v. Heineman, 731 N. W.2d 164, 183 (Neb. 2007) (formally adopting the U.S. Supreme
Court’s Baker test, finding that issues of education adequacy are political questions for the legislature to decide, and upholding the
Nebraska state school funding system); City of Pawtucket v. Sundlun, 662 A.2d 40, 57-58 (R.I. 1995) (upholding Rhode Island’s
funding system, and finding that the determination of what constitutes an adequate or equal education is a political question reserved
for the state general assembly).
161 See Brennan, supra note 78, at 501 (“[S]tate courts that rest their decisions wholly or even partly on state law need not apply
federal principles of standing and justiciability that deny litigants access to the courts.”); Blanchard, supra note 33, at 233 (“State
court reliance on federal separation of powers and political question doctrine jurisprudence is problematic because these doctrines are
not freely transferrable to state constitutional analysis.”); NOWAK & ROTUNDA, supra note 27, at 11 (“The supreme court of a state is