Supreme Court, Role of U.S.

Role in national policy of the highest court in the United States, which has jurisdiction to hear certain cases that may affect national security issues. Under Article III of the U.S. Constitution, the U.S. Supreme Court shares jurisdiction with lower district courts to hear all cases arising under the Constitution, U.S. laws, treaties of the United States, and between U.S. citizens and foreign states. The Court is granted original jurisdiction—the power to be the first court to try a case and make findings of fact—over “all Cases affecting Ambassadors, other public Ministers and Consuls.” U.S. Congress has also given district courts original jurisdiction to decide civil cases involving the U.S. Constitution, federal laws, and treaties. Thus, the U.S. Supreme Court is vested with constitutional and statutory power to decide cases concerning national security.

Despite its jurisdiction, the Supreme Court generally has been reluctant to decide on cases involving national security. Instead, it has chosen to abstain from such cases and has based these decisions on constitutional and political limitations. The judicial doctrines primarily relied on by the Supreme Court to abstain from national security cases are the political question doctrine, standing, and ripeness. These doctrines are important to issues involving national security not because they limit the Supreme Court's role, but because they force the U.S. Congress and the president to carry out their war power duties.

Political Question

The U.S. Supreme Court may decline to rule on disputes when it decides that the resolution of an issue is better left to the political branches of the government. This political question doctrine, when relied on by the Court, renders an issue nonreviewable. The U.S. Congress and the president—with the intention that the result will better reflect the will of the people—must instead decide the issue. Legal scholars disagree, [Page 697]however, on how the Court decides that the question is political and whether it is then required or optional to abstain.

The political question doctrine was first expressed by Chief Justice John Marshall in Marbury v. Madison (1803) and later reexamined in Baker v. Carr(1962). The Court rarely relies on the doctrine and has only invoked it twice in cases relating to national security. In Gilligan v. Morgan (1973), a group of students sought a declaratory judgment allowing for federal judiciary assessment of the Ohio National Guard's “training, weaponry, and orders” to determine whether force would inevitably be used against the students at Kent State University. The Court held that the Constitution gave power of control of the National Guard to Congress.

The Court invoked the doctrine again in 1979, when Arizona Senator Barry Goldwater challenged President Jimmy Carter's decision to withdraw from the mutual defense treaty with Taiwan without Senate authorization. Although the Constitution requires the “advice and consent” on making treaties, it is silent on the unilateral abrogation of treaties. Senator Goldwater's claim was held to be not proper for judicial resolution by four members of the Supreme Court because it was deemed a political question. A fifth member of the Court agreed that the case should be dismissed but concluded instead that the case was not ripe for review.

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