Gordon v. Texas and the Prudential Approach to Political Questions

Abstract

Many scholars recognize both prudential and constitutional aspects of the political question doctrine. This Casenote uses that distinction to analyze the district court and Fifth Circuit Court of Appeals decisions in Gordon v. Texas. It argues that the district court adopted the prudential view of the political question doctrine, while the Fifth Circuit adopted the constitutional view. The district court in Gordon I found that the issues in the case were subject to practical limitations and judicial unmanageability, and thus held that the case presented a nonjusticiable political question. Emphasizing that the issues did not clearly violate the constitutional separation of powers mandate, the Fifth Circuit in Gordon II held that the case was justiciable and did not present a political question. This Casenote argues that the district court chose the correct approach to the political question doctrine, and, by extension, that the prudential approach is superior to the constitutional approach. Because the prudential approach helps conserve judicial resources and restrains the court from asserting a contrived expertise, prudential considerations principally should guide a court's analysis when confronted with a putative political question. Accordingly, this Casenote argues that only after a court has addressed the prudential limitations associated with a putative political question should that court then address the highly abstract and pragmatically inefficacious constitutional limitations informing the doctrine.