separation of powers, and as such has no real applicability to state constitutional jurisprudence.162
Furthermore, unlike federal courts, which are courts of limited jurisdiction, state courts are courts
of general jurisdiction, and they retain significant common law powers not afforded to the federal
judiciary.163 As such, state courts are able to “make law” much more so than federal courts,
resulting in a fundamentally different relationship between state government branches than that of
their federal counterparts.164 As a policy matter, too, strict adherence to the political question
doctrine is unnecessary.165 In many states (including Illinois), state supreme court justices are
elected, making them politically accountable for their opinions.166 Moreover, state supreme court
opinions are easier to overrule than United States Supreme Court opinions because state
constitutions are more malleable.167
Regardless of the Illinois Supreme Court’s justification for adopting federal political
question jurisprudence,168 its application in Edgar and Lewis E. is also at odds with its own past
political question cases.169 Cases involving political question issues prior to the education cases
are few and far between, generally involved disputes over elections, and generally barred courts
from ruling on any politically-tinged issue.170 In Donovan v. Holzman (1956), however, the court
truly the highest court in terms of this body of law . . . [ i]t is free to interpret state laws or the state constitution in any way that does
not violate principles of federal law.”); Gardner, supra note 24, at 808-09 (“[I]t is certainly possible for a state constitution to contain a
political question doctrine, and it is even possible for the state doctrine to be so similar to the federal version that precisely the same
analysis could be used for both—possible, but highly unlikely.”); O’Neill, supra note 27, at 578-79 (“It does not follow that the same
barriers (political question doctrine) would apply to state court action.”).
162 See Blanchard, supra note 33 and accompanying text.
163 See Gardner, supra note 24, at 809 (“[V]irtually all state courts have significant common law powers that federal courts lack. The
power to elaborate the common law is a power to make law.”); O’Neill, supra note 27, at 579 (noting state courts’ affirmative
common law powers).
164 See Gardner, supra note 24, at 809; see also O’Neill, supra note 27, at 579 (noting that state courts have no case in controversy
requirement, meaning that they may issue binding advisory opinions compelling state legislatures to formulate remedies); Blanchard,
supra note 33, at 273 (noting that state courts are generally more involved in creating public policy than federal courts).
165 See Blanchard, supra note 33, at 273 (citing various reasons why greater authority for state supreme court justices would not
threaten state separation of powers or democracy); Swenson, supra note 98, at 1152-53 (noting that many states have directly-elected
166 Blanchard, supra note 33, at 273-74; see also Swenson, supra note 98, at 1152-53 (discussing various appointment systems for
state supreme court justices).
167 State constitutions are re-written relatively often, and are generally easier to amend through state referendum. See Blanchard, supra
note 33, at 273 (“[S]tate court opinions are more easily overruled by constitutional amendment.”). Article XIV of the Illinois State
Constitution requires a referendum to be presented to voters every twenty years on whether a new constitutional convention should be
convened. ILL. CONST. art. XIV, § 1.
168 It is worth noting that Article II, Section 1 of the Illinois State Constitution specifically provides for the separation of state powers,
yet neither the Edgar nor Lewis E. opinion makes any mention of it, instead deferring to Baker v. Carr. See ILL. CONST. art. II, § 1;
Comm. for Educ. Rights v. Edgar, 672 N.E.2d 1178, 1191 (Ill. 1996); Lewis E. v. Spagnolo, 710 N.E.2d 798, 802-05 (Ill. 1999).
169 See O’Neill, supra note 27, at 562 (discussing generally the Court’s past political question cases and noting that “[e]ducational
adequacy cases are the only cases in which the Illinois Supreme Court has invoked the political question doctrine to preclude judicial
170 See People v. Mc Weeney, 102 N.E. 233, 238 (Ill. 1913); Daly v. Madison County, 38 N.E.2d 160, 167 (Ill. 1941); Donovan v.
Holzman, 132 N.E.2d 501, 502, 506 (Ill. 1956); Kluk v. Lang, 531 N.E.2d 790, 791, 797 (Ill. 1988). In two early cases, People v.
Mc Weeney (1913) and Daly v. Madison (1941), the court appeared to erect a clear barrier between the judiciary and any politically
tinged issues. Mc Weeney involved a disputed injunctive order that would have barred one faction of the Democratic Committee of
Cook County from attending an official party event. Mc Weeney, 102 N.E. at 234-35. Specifically, the court was reviewing the validity
of the injunction because the rival party faction had been held in contempt of court for its violation. Id. In ruling that the injunction
was impermissible, the court noted that the “courts cannot be drawn into political contests of any sort or description unless required by
statute, and any injunction for the purpose of restraining or controlling acts of a political nature is void.” Id. at 238. The court
maintained its strict prohibition on deciding political issues in Daly, a taxpayer suit that sought the enjoinment of the use of public
funds to run an election. Daly, 38 N.E.2d at 162. The plaintiffs filed the suit because they believed the state’s failure to reapportion
voting districts from 1901 to 1940 had diluted their voting strength. Id. Once again, the court found the issue to be political and thus
outside of its authority. Id. at 164-65 (“A court of equity is prohibited from passing on any political question, and once it is determined
that the controversy involves political and not civil or property rights, the court must refuse to exercise its jurisdiction. The power to
hold an election is political. A court of equity has no power to restrain officers in the exercise of that power.”). Critically, both of these
cases involved judicial action that directly impaired the democratic process. In Mc Weeney, the court ruled invalid a lower court’s
injunction—thus, it was not determining whether a party’s claim was justiciable. Mc Weeney, 102 N.E. at 237-38. The lower court’s
injunction was invalid because it directly impaired democratic party members from attending an official party event related to primary