Justiciability, Doctrine and Deference: Political Questions Before the U.S. Supreme Court and Private Applicant Standing Before the European Court of Justice

Abstract

This paper compares the political question jurisprudence of the United States Supreme Court with the private applicant standing jurisprudence of the Community Courts under Article 230 (4) EC. It traces the development and eventual abandonment of the political question doctrine from Luther v Borden to Bush v Gore. Underdevelopment of the aspects of the doctrine which come closest to expressing its true purpose as a check on judicial power lead to an overemphasis of its textual commitment and prudential strands, as set out in Baker v Carr. This contributed to the Supreme Court's failure to invoke the doctrine when deciding the outcome of the 2000 presidential election.Turning to the case law of the European Court of Justice and Court of First Instance (Community Courts), I analyse the development of a highly restrictive test for individual standing to challenge regulations and decisions addressed to another. The Courts' decisions in Plaumann, Calpak, UPA and Jego-Quere, in particular, suggest an attempt to grapple with the same 'counter-majoritarian difficulty' which informed the development of the political question doctrine. Given the failure of such tests and doctrines to reliably determine justiciability, I ask if courts would be better off applying selective deference to the other branches in cases brought before them. This approach would allow the substance of a claim to be taken into account explicitly, rather than indirectly as can be observed in the case law analysed here.