OCTOBER TERM, 1992
Syllabus
NIXON
v. UNITED STATES ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT
No. 91-740. Argued October 14, 1992-Decided January 13, 1993
After petitioner Nixon, the Chief Judge of a Federal District
Court, was convicted of federal crimes and sentenced to prison, the
House of Representatives adopted articles of impeachment against
him and presented them to the Senate. Following proceedings
pursuant to Senate Rule XI-which allows a committee of Senators to
hear evidence against an impeached individual and to report that
evidence to the full Senate the Senate voted to convict Nixon, and
the presiding officer entered judgment removing him from his
judgeship. He then commenced the present suit for a declaratory
judgment and reinstatement of his judicial salary and privileges,
arguing that, because Senate Rule XI prohibits the whole Senate
from taking part in the evidentiary hearings, it violates the first
sentence of the Constitution's Impeachment Trial Clause, Art. I, §
3, cl. 6, which provides that the "Senate shall have the sole Power
to try all Impeachments." The District Court held that his claim
was nonjusticiable, i.
e., involved a political question
that could not be resolved by the courts. The Court of Appeals
affirmed.
Held: Nixon's claim that Senate Rule XI violates the
Impeachment Trial Clause is nonjusticiable. Pp. 228-238.
(a) A controversy is nonjusticiable where there is "a textually
demonstrable constitutional commitment of the issue to a coordinate
political department; or a lack of judicially discoverable and
manageable standards for resolving it .... "
Baker v.
Carr, 369 U.
S. 186, 217. These two concepts are not completely separate;
the lack of judicially manageable standards may strengthen the
conclusion that there is a textually demonstrable commitment to a
coordinate branch. Pp. 228-229.
(b) The language and structure of Art. I, § 3, cl. 6,
demonstrate a textual commitment of impeachment to the Senate.
Nixon's argument that the use of the word "try" in the Clause's
first sentence impliedly requires a judicial-style trial by the
full Senate that is subject to judicial review is rejected. The
conclusion that "try" lacks sufficient precision to afford any
judicially manageable standard of review is compelled by older and
modern dictionary definitions, and is fortified by the existence of
the three very specific requirements that the Clause's second and
third sentences do impose-that the Senate's Members must be under
oath or affirmation, that a two-thirds vote is required to convict,
and
225
that the Chief Justice presides when the President is tried-the
precise nature of which suggests that the Framers did not intend to
impose additional limitations on the form of the Senate
proceedings. The Clause's first sentence must instead be read as a
grant of authority to the Senate to determine whether an individual
should be acquitted or convicted, and the commonsense and
dictionary meanings of the word "sole" indicate that this authority
is reposed in the Senate alone. Nixon's attempts to negate the
significance of "sole" are unavailing, while his alternative
reading of the word as requiring impeachment only by the full
Senate is unnatural and would impose on the Senate additional
procedural requirements that would be inconsistent with the three
express limitations that the Clause sets out. A review of the
Constitutional Convention's history and the contemporary commentary
supports a reading of the constitutional language as deliberately
placing the impeachment power in the Legislature, with no judicial
involvement, even for the limited purpose of judicial review. Pp.
229-236.
(c) Justiciability is also refuted by (1) the lack of finality
inherent in exposing the country's political life-particularly if
the President were impeached-to months, or perhaps years, of chaos
during judicial review of Senate impeachment proceedings, or during
any retrial that a differently constituted Senate might conduct if
its first judgment of conviction were invalidated, and by (2) the
difficulty of fashioning judicial relief other than simply setting
aside the Senate's judgment of conviction. See
Baker, supra,
at 210. P. 236.
(d) A holding of nonjusticiability is consistent with this
Court's opinion in
Powell v.
McCormack, 395 U. S. 486. Unlike the
situation in that case, there is no separate constitutional
provision which could be defeated by allowing the Senate final
authority to determine the meaning of the word "try" in Art. I, §
3, cl. 6. While courts possess power to review legislative action
that transgresses identifiable textual limits, the word "try" does
not provide such a limit on the authority committed to the Senate.
Pp. 236-238.
290 U. S. App. D. C. 420,
938 F.2d
239, affirmed.
REHNQUIST, C. J., delivered the opinion of the Court, in which
STEVENS, O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined.
STEVENS, J., filed a concurring opinion,
post, p. 238.
WHITE, J., filed an opinion concurring in the judgment, in which
BLACKMUN, J., joined,
post, p. 239. SOUTER, J., filed an
opinion concurring in the judgment,
post, p. 252.
David Overlock Stewart argued the cause for
petitioner.
With him on the briefs were Peter M. Brody, Thomas B. Smith,
Boyce Holleman, and Michael B. Holleman.
226
Solicitor General Starr argued the cause for
respondents.
With him on the brief were Assistant Attorney General Gerson,
Deputy Solicitor General Roberts, Jeffrey P. Minear, Douglas
Letter, Michael Davidson, Ken U. Benjamin, Jr., Morgan J. Frankel,
and Claire M. Sylvia.*
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
Petitioner Walter L. Nixon, Jr., asks this Court to decide
whether Senate Rule XI, which allows a committee of Senators to
hear evidence against an individual who has been impeached and to
report that evidence to the full Senate, violates the Impeachment
Trial Clause, Art. I, § 3, cl. 6. That Clause provides that the
"Senate shall have the sole Power to try all Impeachments." But
before we reach the merits of such a claim, we must decide whether
it is "justiciable," that is, whether it is a claim that may be
resolved by the courts. We conclude that it is not.
Nixon, a former Chief Judge of the United States District Court
for the Southern District of Mississippi, was convicted by a jury
of two counts of making false statements before a federal grand
jury and sentenced to prison. See
United States v.
Nixon, 816 F.2d
1022 (CA5 1987). The grand jury investigation stemmed from
reports that Nixon had accepted a gratuity from a Mississippi
businessman in exchange for asking a local district attorney to
halt the prosecution of the businessman's son. Because Nixon
refused to resign from his office as a United States District
Judge, he continued to collect his judicial salary while serving
out his prison sentence. See H. R. Rep. No. 101-36, p. 13
(1989).
On May 10, 1989, the House of Representatives adopted three
articles of impeachment for high crimes and misde-
*
Patti A. Goldman and
Alan B. Morrison filed a
brief for Public Citizen as
amicus curiae urging
reversal.
Joseph P. Galda, Daniel J.
Popeo, and
Paul D.
Kamenar filed a brief for the Washington Legal Foundation et
al. as
amici curiae urging affirmance.
227
meanors. The first two articles charged Nixon with giving false
testimony before the grand jury and the third article charged him
with bringing disrepute on the Federal Judiciary. See 135 Congo
Rec. H1811.
After the House presented the articles to the Senate, the Senate
voted to invoke its own Impeachment Rule XI, under which the
presiding officer appoints a committee of Senators to "receive
evidence and take testimony." Senate Impeachment Rule XI, reprinted
in Senate Manual, S. Doc. No. 101-1, p. 186 (1989).1 The Senate
committee held four days of hearings, during which 10 witnesses,
including Nixon, testified. S. Rep. No. 101-164, p. 4 (1989).
Pursuant to Rule XI, the committee presented the full Senate with a
complete transcript of the proceeding and a Report stating the
uncontested facts and summarizing the evidence on the contested
facts. See id., at 3-4. Nixon and the House impeachment managers
submitted extensive final briefs to the full Senate
1 Specifically, Rule XI provides:
"[I]n the trial of any impeachment the Presiding Officer of the
Senate, if the Senate so orders, shall appoint a committee of
Senators to receive evidence and take testimony at such times and
places as the committee may determine, and for such purpose the
committee so appointed and the chairman thereof, to be elected by
the committee, shall (unless otherwise ordered by the Senate)
exercise all the powers and functions conferred upon the Senate and
the Presiding Officer of the Senate, respectively, under the rules
of procedure and practice in the Senate when sitting on impeachment
trials.
"Unless otherwise ordered by the Senate, the rules of procedure
and practice in the Senate when sitting on impeachment trials shall
govern the procedure and practice of the committee so appointed.
The committee so appointed shall report to the Senate in writing a
certified copy of the transcript of the proceedings and testimony
had and given before such committee, and such report shall be
received by the Senate and the evidence so received and the
testimony so taken shall be considered to all intents and purposes,
subject to the right of the Senate to determine competency,
relevancy, and materiality, as having been received and taken
before the Senate, but nothing herein shall prevent the Senate from
sending for any witness and hearing his testimony in open Senate,
or by order of the Senate having the entire trial in open
Senate."
228
and delivered arguments from the Senate floor during the three
hours set aside for oral argument in front of that body. Nixon
himself gave a personal appeal, and several Senators posed
questions directly to both parties. 135 Congo Rec. S14493-14517
(Nov. 1, 1989). The Senate voted by more than the constitutionally
required two-thirds majority to convict Nixon on the first two
articles.
Id., at S14635 (Nov. 3, 1989). The presiding
officer then entered judgment removing Nixon from his office as
United States District Judge.
Nixon thereafter commenced the present suit, arguing that Senate
Rule XI violates the constitutional grant of authority to the
Senate to "try" all impeachments because it prohibits the whole
Senate from taking part in the evidentiary hearings. See Art. I, §
3, cl. 6. Nixon sought a declaratory judgment that his impeachment
conviction was void and that his judicial salary and privileges
should be reinstated. The District Court held that his claim was
nonjusticiable, 744 F. Supp. 9 (DC 1990), and the Court of Appeals
for the District of Columbia Circuit agreed. 290 U. S. App. D. C.
420,
938 F.2d
239 (1991). We granted certiorari. 502 U. S. 1090 (1992).
A controversy is nonjusticiable-i.
e., involves a
political question-where there is "a textually demonstrable
constitutional commitment of the issue to a coordinate political
department; or a lack of judicially discoverable and manageable
standards for resolving it .... "
Baker v.
Carr,
369 U. S. 186,
217 (1962). But the courts must, in the first instance, interpret
the text in question and determine whether and to what extent the
issue is textually committed. See ibid.;
Powell v.
McCormack, 395
U. S. 486, 519 (1969). As the discussion that follows makes
clear, the concept of a textual commitment to a coordinate
political department is not completely separate from the concept of
a lack of judicially discoverable and manageable standards for
resolving it; the lack of judicially manageable standards may
strengthen the con-
229
clusion that there is a textually demonstrable commitment to a
coordinate branch.
In this case, we must examine Art. I, § 3, cl. 6, to determine
the scope of authority conferred upon the Senate by the Framers
regarding impeachment. It provides:
"The Senate shall have the sole Power to try all Impeachments.
When sitting for that Purpose, they shall be on Oath or
Affirmation. When the President of the United States is tried, the
Chief Justice shall preside:
And no Person shall be convicted without the Concurrence of two
thirds of the Members present."
The language and structure of this Clause are revealing. The
first sentence is a grant of authority to the Senate, and the word
"sole" indicates that this authority is reposed in the Senate and
nowhere else. The next two sentences specify requirements to which
the Senate proceedings shall conform:
The Senate shall be on oath or affirmation, a two-thirds vote is
required to convict, and when the President is tried the Chief
Justice shall preside.
Petitioner argues that the word "try" in the first sentence
imposes by implication an additional requirement on the Senate in
that the proceedings must be in the nature of a judicial trial.
From there petitioner goes on to argue that this limitation
precludes the Senate from delegating to a select committee the task
of hearing the testimony of witnesses, as was done pursuant to
Senate Rule XI. "'[T]ry' means more than simply 'vote on' or
'review' or 'judge.' In 1787 and today, trying a case means hearing
the evidence, not scanning a cold record." Brief for Petitioner 25.
Petitioner concludes from this that courts may review whether or
not the Senate "tried" him before convicting him.
There are several difficulties with this position which lead us
ultimately to reject it. The word "try," both in 1787 and later,
has considerably broader meanings than those to which petitioner
would limit it. Older dictionaries define try as
230
"[t]o examine" or "[t]o examine as a judge." See 2 S. Johnson, A
Dictionary of the English Language (1785). In more modern usage the
term has various meanings. For example, try can mean "to examine or
investigate judicially," "to conduct the trial of," or "to put to
the test by experiment, investigation, or trial." Webster's Third
New International Dictionary 2457 (1971). Petitioner submits that
"try," as contained in T. Sheridan, Dictionary of the English
Language (1796), means "to examine as a judge; to bring before a
judicial tribunal." Based on the variety of definitions, however,
we cannot say that the Framers used the word "try" as an implied
limitation on the method by which the Senate might proceed in
trying impeachments. "As a rule the Constitution speaks in general
terms, leaving Congress to deal with subsidiary matters of detail
as the public interests and changing conditions may require .... "
Dillon v.
Gloss, 256 U. S. 368, 376
(1921).
The conclusion that the use of the word "try" in the first
sentence of the Impeachment Trial Clause lacks sufficient precision
to afford any judicially manageable standard of review of the
Senate's actions is fortified by the existence of the three very
specific requirements that the Constitution does impose on the
Senate when trying impeachments: The Members must be under oath, a
two-thirds vote is required to convict, and the Chief Justice
presides when the President is tried. These limitations are quite
precise, and their nature suggests that the Framers did not intend
to impose additional limitations on the form of the Senate
proceedings by the use of the word "try" in the first sentence.
Petitioner devotes only two pages in his brief to negating the
significance of the word "sole" in the first sentence of Clause 6.
As noted above, that sentence provides that "[t]he Senate shall
have the sole Power to try all Impeachments." We think that the
word "sole" is of considerable significance. Indeed, the word
"sole" appears only one other time in the Constitution-with respect
to the House of Representatives'
231
"sole Power of Impeachment." Art. I, § 2, cl. 5 (emphasis
added). The commonsense meaning of the word "sole" is that the
Senate alone shall have authority to determine whether an
individual should be acquitted or convicted. The dictionary
definition bears this out. "Sole" is defined as "having no
companion," "solitary," "being the only one," and "functioning ...
independently and without assistance or interference." Webster's
Third New International Dictionary 2168 (1971). If the courts may
review the actions of the Senate in order to determine whether that
body "tried" an impeached official, it is difficult to see how the
Senate would be "functioning ... independently and without
assistance or interference."
Nixon asserts that the word "sole" has no substantive meaning.
To support this contention, he argues that the word is nothing more
than a mere "cosmetic edit" added by the Committee of Style after
the delegates had approved the substance of the Impeachment Trial
Clause. There are two difficulties with this argument. First,
accepting as we must the proposition that the Committee of Style
had no authority from the Convention to alter the meaning of the
Clause, see 2 Records of the Federal Convention of 1787, p. 553 (M.
Farrand ed. 1966) (hereinafter Farrand), we must presume that the
Committee's reorganization or rephrasing accurately captured what
the Framers meant in their unadorned language. See
Powell v.
McCormack, 395 U. S., at 538-539. That is, we must presume
that the Committee did its job. This presumption is buttressed by
the fact that the Constitutional Convention voted on, and accepted,
the Committee of Style's linguistic version. See 2 Farrand 663-667.
We agree with the Government that "the word 'sole' is entitled to
no less weight than any other word of the text, because the
Committee revision perfected what 'had been agreed to.'" Brief for
Respondents 25. Second, carrying Nixon's argument to its logical
conclusion would constrain us to say that the
second to last
draft would govern in every instance where the Com-
232
mittee of Style added an arguably substantive word. Such a
result is at odds with the fact that the Convention passed the
Committee's version, and with the well-established rule that the
plain language of the enacted text is the best indicator of
intent.
Petitioner also contends that the word "sole" should not bear on
the question of justiciability because Art. II, § 2, cl. 1, of the
Constitution grants the President pardon authority "except in Cases
of Impeachment." He argues that such a limitation on the
President's pardon power would not have been necessary if the
Framers thought that the Senate alone had authority to deal with
such questions. But the granting of a pardon is in no sense an
overturning of a judgment of conviction by some other tribunal; it
is "[a]n executive action that mitigates or sets aside
punishment for a crime." Black's Law Dictionary 1113 (6th
ed. 1990) (emphasis added). Authority in the Senate to determine
procedures for trying an impeached official, unreviewable by the
courts, is therefore not at all inconsistent with authority in the
President to grant a pardon to the convicted official. The
exception from the President's pardon authority of cases of
impeachment was a separate determination by the Framers that
executive clemency should not be available in such cases.
Petitioner finally argues that even if significance be
attributed to the word "sole" in the first sentence of the Clause,
the authority granted is to the Senate, and this means that "the
Senate-not the courts, not a lay jury, not a Senate Committee-shall
try impeachments." Brief for Petitioner 42. It would be possible to
read the first sentence of the Clause this way, but it is not a
natural reading. Petitioner's interpretation would bring into
judicial purview not merely the sort of claim made by petitioner,
but other similar claims based on the conclusion that the word
"Senate" has imposed by implication limitations on procedures which
the Senate might adopt. Such limitations would be inconsistent with
the construction of the Clause as a whole, which, as we
233
have noted, sets out three express limitations in separate
sentences.
The history and contemporary understanding of the impeachment
provisions support our reading of the constitutional language. The
parties do not offer evidence of a single word in the history of
the Constitutional Convention or in contemporary commentary that
even alludes to the possibility of judicial review in the context
of the impeachment powers. See 290 U. S. App. D. C., at 424, 938 F.
2d, at 243; R. Berger, Impeachment: The Constitutional Problems 116
(1973). This silence is quite meaningful in light of the several
explicit references to the availability of judicial review as a
check on the Legislature's power with respect to bills of
attainder,
ex post facto laws, and statutes. See The
Federalist No. 78, p. 524 (J. Cooke ed. 1961) ("Limitations ... can
be preserved in practice no other way than through the medium of
the courts of justice").
The Framers labored over the question of where the impeachment
power should lie. Significantly, in at least two considered
scenarios the power was placed with the Federal Judiciary. See 1
Farrand 21-22 (Virginia Plan); id., at 244 (New Jersey Plan).
Indeed, James Madison and the Committee of Detail proposed that the
Supreme Court should have the power to determine impeachments. See
2 id., at 551 (Madison); id., at 178-179, 186 (Committee of
Detail). Despite these proposals, the Convention ultimately decided
that the Senate would have "the sole Power to try all
Impeachments." Art. I, § 3, cl. 6. According to Alexander Hamilton,
the Senate was the "most fit depositary of this important trust"
because its Members are representatives of the people. See The
Federalist No. 65, p. 440 (J. Cooke ed. 1961). The Supreme Court
was not the proper body because the Framers "doubted whether the
members of that tribunal would, at all times, be endowed with so
eminent a portion of fortitude as would be called for in the
execution of so difficult a task" or whether the Court "would
possess the degree of
234
credit and authority" to carry out its judgment if it conflicted
with the accusation brought by the Legislature-the people's
representative. See id., at 441. In addition, the Framers believed
the Court was too small in number: "The awful discretion, which a
court of impeachments must necessarily have, to doom to honor or to
infamy the most confidential and the most distinguished characters
of the community, forbids the commitment of the trust to a small
number of persons."
Id., at 441-442.
There are two additional reasons why the Judiciary, and the
Supreme Court in particular, were not chosen to have any role in
impeachments. First, the Framers recognized that most likely there
would be two sets of proceedings for individuals who commit
impeachable offenses-the impeachment trial and a separate criminal
trial. In fact, the Constitution explicitly provides for two
separate proceedings. See Art. I, § 3, cl. 7. The Framers
deliberately separated the two forums to avoid raising the specter
of bias and to ensure independent judgments:
"Would it be proper that the persons, who had disposed of his
fame and his most valuable rights as a citizen in one trial, should
in another trial, for the same offence, be also the disposers of
his life and his fortune? Would there not be the greatest reason to
apprehend, that error in the first sentence would be the parent of
error in the second sentence? That the strong bias of one decision
would be apt to overrule the influence of any new lights, which
might be brought to vary the complexion of another decision?" The
Federalist No. 65, p. 442 (J. Cooke ed. 1961).
Certainly judicial review of the Senate's "trial" would
introduce the same risk of bias as would participation in the trial
itself.
Second, judicial review would be inconsistent with the Framers'
insistence that our system be one of checks and
235
balances. In our constitutional system, impeachment was designed
to be the
only check on the Judicial Branch by the
Legislature. On the topic of judicial accountability, Hamilton
wrote:
"The precautions for their responsibility are comprised in the
article respecting impeachments. They are liable to be impeached
for mal-conduct by the house of representatives, and tried by the
senate, and if convicted, may be dismissed from office and
disqualified for holding any other. This is the only provision
on the point, which is consistent with the necessary independence
of the judicial character, and is the only one which we find in our
own constitution in respect to our own judges." Id., No. 79, at
532-533 (emphasis added).
Judicial involvement in impeachment proceedings, even if only
for purposes of judicial review, is counterintuitive because it
would eviscerate the "important constitutional check" placed on the
Judiciary by the Framers. See id., No. 81, at 545. Nixon's argument
would place final reviewing authority with respect to impeachments
in the hands of the same body that the impeachment process is meant
to regulate.2
Nevertheless, Nixon argues that judicial review is necessary in
order to place a check on the Legislature. Nixon fears that if the
Senate is given unreviewable authority to interpret the Impeachment
Trial Clause, there is a grave risk that the Senate will usurp
judicial power. The Framers anticipated this objection and created
two constitutional
2 Nixon contends that justiciability should not hang on the mere
fact that the Judiciary's interest may be implicated or affected by
the legislative action in question. In support, he cites our
decisions in
Mistretta v.
United States, 488 U. S. 361 (1989), and
Morrison v.
Olson, 487 U. S. 654 (1988).
These cases do not advance his argument, however, since neither
addressed the issue of justiciability. More importantly, neither
case involved a situation in which judicial review would remove the
only check placed on the Judicial Branch by the Framers.
236
safeguards to keep the Senate in check. The first safeguard is
that the whole of the impeachment power is divided between the two
legislative bodies, with the House given the right to accuse and
the Senate given the right to judge.
Id., No. 66, at 446.
This split of authority "avoids the inconvenience of making the
same persons both accusers and judges; and guards against the
danger of persecution from the prevalency of a factious spirit in
either of those branches." The second safeguard is the two-thirds
supermajority vote requirement. Hamilton explained that "[a]s the
concurrence of two-thirds of the senate will be requisite to a
condemnation, the security to innocence, from this additional
circumstance, will be as complete as itself can desire."
Ibid.
In addition to the textual commitment argument, we are persuaded
that the lack of finality and the difficulty of fashioning relief
counsel against justiciability. See
Baker v.
Carr,
369 U. S., at 210. We agree with the Court of Appeals that opening
the door of judicial review to the procedures used by the Senate in
trying impeachments would "expose the political life of the country
to months, or perhaps years, of chaos." 290 U. S. App. D. C., at
427, 938 F. 2d, at 246. This lack of finality would manifest itself
most dramatically if the President were impeached. The legitimacy
of any successor, and hence his effectiveness, would be impaired
severely, not merely while the judicial process was running its
course, but during any retrial that a differently constituted
Senate might conduct if its first judgment of conviction were
invalidated. Equally uncertain is the question of what relief a
court may give other than simply setting aside the judgment of
conviction. Could it order the reinstatement of a convicted federal
judge, or order Congress to create an additional judgeship if the
seat had been filled in the interim?
Petitioner finally contends that a holding of nonjusticiability
cannot be reconciled with our opinion in
Powell v.
McCormack, 395
U. S. 486 (1969). The relevant issue in
Powell was
whether courts could review the House of Representa-
237
tives' conclusion that Powell was "unqualified" to sit as a
Member because he had been accused of misappropriating public funds
and abusing the process of the N ew York courts. We stated that the
question of justiciability turned on whether the Constitution
committed authority to the House to judge its Members'
qualifications, and if so, the extent of that commitment.
Id., at 519, 521. Article I, § 5, provides that "Each House
shall be the Judge of the Elections, Returns and Qualifications of
its own Members." In turn, Art. I, § 2, specifies three
requirements for membership in the House: The candidate must be at
least 25 years of age, a citizen of the United States for no less
than seven years, and an inhabitant of the State he is chosen to
represent. We held that, in light of the three requirements
specified in the Constitution, the word "qualifications"-of which
the House was to be the Judge-was of a precise, limited nature.
Id., at 522; see also The Federalist No. 60, p. 409 (J.
Cooke ed. 1961) ("The qualifications of the persons who may choose
or be chosen, as has been remarked upon another occasion, are
defined and fixed in the constitution; and are
unalterable by
the legislature") (emphasis added) (quoted in
Powell,
supra, at 539).
Our conclusion in
Powell was based on the fixed meaning
of "[q]ualifications" set forth in Art. I, § 2. The claim by the
House that its power to "be the Judge of the Elections, Returns and
Qualifications of its own Members" was a textual commitment of
unreviewable authority was defeated by the existence of this
separate provision specifying the only qualifications which might
be imposed for House membership. The decision as to whether a
Member satisfied these qualifications
was placed with the
House, but the decision as to what these qualifications consisted
of was not.
In the case before us, there is no separate provision of the
Constitution that could be defeated by allowing the Senate final
authority to determine the meaning of the word "try" in the
Impeachment Trial Clause. We agree with Nixon that
238
courts possess power to review either legislative or executive
action that transgresses identifiable textual limits. As we have
made clear, "whether the action of [either the Legislative or
Executive Branch] exceeds whatever authority has been committed, is
itself a delicate exercise in constitutional interpretation, and is
a responsibility of this Court as ultimate interpreter of the
Constitution."
Baker v.
Carr, supra, at 211; accord,
Powell, supra, at 521. But we conclude, after exercising
that delicate responsibility, that the word "try" in the
Impeachment Trial Clause does not provide an identifiable textual
limit on the authority which is committed to the Senate.
For the foregoing reasons, the judgment of the Court of Appeals
is
Affirmed.
JUSTICE STEVENS, concurring.
For me, the debate about the strength of the inferences to be
drawn from the use of the words "sole" and "try" is far less
significant than the central fact that the Framers decided to
assign the impeachment power to the Legislative Branch. The
disposition of the impeachment of Samuel Chase in 1805 demonstrated
that the Senate is fully conscious of the profound importance of
that assignment, and nothing in the subsequent history of the
Senate's exercise of this extraordinary power suggests otherwise.
See generally 3 A. Beveridge, The Life of John Marshall 169-222
(1919); W. Rehnquist, Grand Inquests 275-278 (1992). Respect for a
coordinate branch of the Government forecloses any assumption that
improbable hypotheticals like those mentioned by JUSTICE WHITE and
JUSTICE SOUTER will ever occur. Accordingly, the wise policy of
judicial restraint, coupled with the potential anomalies associated
with a contrary view, see
ante, at 234-236, provide a
sufficient justification for my agreement with the views of THE
CHIEF JUSTICE.
239
JUSTICE WHITE, with whom JUSTICE BLACKMUN joins, concurring in
the judgment.
Petitioner contends that the method by which the Senate
convicted him on two articles of impeachment violates Art. I, § 3,
cl. 6, of the Constitution, which mandates that the Senate "try"
impeachments. The Court is of the view that the Constitution
forbids us even to consider his contention. I find no such
prohibition and would therefore reach the merits of the claim. I
concur in the judgment because the Senate fulfilled its
constitutional obligation to "try" petitioner.
I
It should be said at the outset that, as a practical matter, it
will likely make little difference whether the Court's or my view
controls this case. This is so because the Senate has very wide
discretion in specifying impeachment trial procedures and because
it is extremely unlikely that the Senate would abuse its discretion
and insist on a procedure that could not be deemed a trial by
reasonable judges. Even taking a wholly practical approach, I would
prefer not to announce an unreviewable discretion in the Senate to
ignore completely the constitutional direction to "try" impeachment
cases. When asked at oral argument whether that direction would be
satisfied if, after a House vote to impeach, the Senate, without
any procedure whatsoever, unanimously found the accused guilty of
being "a bad guy," counsel for the United States answered that the
Government's theory "leads me to answer that question yes." Tr. of
Oral Arg. 51. Especially in light of this advice from the Solicitor
General, I would not issue an invitation to the Senate to find an
excuse, in the name of other pressing business, to be dismissive of
its critical role in the impeachment process.
Practicalities aside, however, since the meaning of a
constitutional provision is at issue, my disagreement with the
Court should be stated.
240
WHITE, J., concurring in judgment
II
The majority states that the question raised in this case meets
two of the criteria for political questions set out in
Baker
v.
Carr, 369
U. S. 186 (1962). It concludes first that there is "'a
textually demonstrable constitutional commitment of the issue to a
coordinate political department.''' It also finds that the question
cannot be resolved for" 'a lack of judicially discoverable and
manageable standards.' "
Ante, at 228.
Of course the issue in the political question doctrine is not
whether the constitutional text commits exclusive responsibility
for a particular governmental function to one of the political
branches. There are numerous instances of this sort of textual
commitment,
e. g., Art. I, § 8, and it is not thought that
disputes implicating these provisions are nonjusticiable. Rather,
the issue is whether the Constitution has given one of the
political branches final responsibility for interpreting the scope
and nature of such a power.
Although
Baker directs the Court to search for "a
textually demonstrable constitutional commitment" of such
responsibility, there are few, if any, explicit and unequivocal
instances in the Constitution of this sort of textual commitment.
Conferral on Congress of the power to "Judge" qualifications of its
Members by Art. I, § 5, may, for example, preclude judicial review
of whether a prospective member in fact meets those qualifications.
See
Powell v.
McCormack, 395 U. S. 486, 548
(1969). The courts therefore are usually left to infer the presence
of a political question from the text and structure of the
Constitution. In drawing the inference that the Constitution has
committed final interpretive authority to one of the political
branches, courts are sometimes aided by textual evidence that the
Judiciary was not meant to exercise judicial review-a coordinate
inquiry expressed in
Baker's "lack of judicially
discoverable and manageable standards" criterion. See,
e.
g.,
Coleman v.
Miller, 307 U. S. 433, 452-454
(1939), where the Court refused to determine
241
the life span of a proposed constitutional amendment given Art.
V's placement of the amendment process with Congress and the lack
of any judicial standard for resolving the question. See also id.,
at 457-460 (Black, J., concurring).
A
The majority finds a clear textual commitment in the
Constitution's use of the word "sole" in the phrase "[t]he Senate
shall have the sole Power to try all Impeachments." Art. I, § 3,
cl. 6. It attributes "considerable significance" to the fact that
this term appears in only one other passage in the Constitution.
Ante, at 230. See Art. I, § 2, cl. 5 (the House of
Representatives "shall have the sole Power of Impeachment"). The
Framers' sparing use of "sole" is thought to indicate that its
employment in the Impeachment Trial Clause demonstrates a concern
to give the Senate exclusive interpretive authority over the
Clause.
In disagreeing with the Court, I note that the Solicitor General
stated at oral argument that "[w]e don't rest our submission on
sole power to try." Tr. of Oral Arg. 32; see also id., at 51. The
Government was well advised in this respect. The significance of
the Constitution's use of the term "sole" lies not in the
infrequency with which the term appears, but in the fact that it
appears exactly twice, in parallel provisions concerning
impeachment. That the word "sole" is found only in the House and
Senate Impeachment Clauses demonstrates that its purpose is to
emphasize the distinct role of each in the impeachment process. As
the majority notes, the Framers, following English practice, were
very much concerned to separate the prosecutorial from the
adjudicative aspects of impeachment.
Ante, at 235-236
(citing The Federalist No. 66, p. 446 (J. Cooke ed. 1961)). Giving
each House "sole" power with respect to its role in impeachments
effected this division of labor. While the majority is thus right
to interpret the term "sole" to indicate that the Senate ought to
"'functio[n] independently
242
WHITE, J., concurring in judgment
and without assistance or interference,'"
ante, at 231,
it wrongly identifies the Judiciary, rather than the House, as the
source of potential interference with which the Framers were
concerned when they employed the term "sole."
Even if the Impeachment Trial Clause is read without regard to
its companion Clause, the Court's willingness to abandon its
obligation to review the constitutionality of legislative acts
merely on the strength of the word "sole" is perplexing. Consider,
by comparison, the treatment of Art. I, § 1, which grants "All
legislative powers" to the House and Senate. As used in that
context "all" is nearly synonymous with "sole"-both connote entire
and exclusive authority. Yet the Court has never thought it would
unduly interfere with the operation of the Legislative Branch to
entertain difficult and important questions as to the extent of the
legislative power. Quite the opposite, we have stated that the
proper interpretation of the Clause falls within the province of
the Judiciary. Addressing the constitutionality of the legislative
veto, for example, the Court found it necessary and proper to
interpret Art. I, § 1, as one of the "[e]xplicit and unambiguous
provisions of the Constitution [that] prescribe and define the
respective functions of the Congress and of the Executive in the
legislative process."
INS v.
Chadha, 462 U. S. 919, 945
(1983).
The majority also claims support in the history and early
interpretations of the Impeachment Clauses, noting the various
arguments in support of the current system made at the
Constitutional Convention and expressed powerfully by Hamilton in
The Federalist Nos. 65 and 66. In light of these materials there
can be little doubt that the Framers came to the view at the
Convention that the trial of officials' public misdeeds should be
conducted by representatives of the people; that the fledgling
Judiciary lacked the wherewithal to adjudicate political intrigues;
that the Judiciary ought not to try both impeachments and
subsequent criminal cases emanating from them; and that the
impeachment power must
243
reside in the Legislative Branch to provide a check on the
largely unaccountable Judiciary.
The majority's review of the historical record thus explains why
the power to try impeachments properly resides with the Senate. It
does not explain, however, the sweeping statement that the
Judiciary was "not chosen to have any role in impeachments." 1
Ante, at 234. Not a single word in the historical materials
cited by the majority addresses judicial review of the Impeachment
Trial Clause. And a glance at the arguments surrounding the
Impeachment Clauses negates the majority's attempt to infer
nonjusticiability from the Framers' arguments in support of the
Senate's power to try impeachments.
What the relevant history mainly reveals is deep ambivalence
among many of the Framers over the very institution of impeachment,
which, by its nature, is not easily reconciled with our system of
checks and balances. As they clearly recognized, the branch of the
Federal Government which is possessed of the authority to try
impeachments, by having final say over the membership of each
branch, holds a potentially unanswerable power over the others. In
addition, that branch, insofar as it is called upon to try not only
members of other branches, but also its own, will have the
advantage of being the judge of its own members' causes.
It is no surprise, then, that the question of impeachment
greatly vexed the Framers. The pages of the Convention debates
reveal diverse plans for resolving this exceedingly difficult
issue. See P. Hoffer & N. Hull, Impeachment in America,
1635-1805, pp. 97-106 (1984) (discussing various proposals). Both
before and during the Convention, Madison maintained that the
Judiciary ought to try impeachments.
Id., at 74, 98, 100.
Shortly thereafter, however, he devised a quite complicated scheme
that involved the partici-
1 This latter contention is belied by the Impeachment Trial
Clause itself, which designates the Chief Justice to preside over
impeachment trials of the President.
244
WHITE, J., concurring in judgment
pation of each branch.
Id., at 74-75. Jefferson likewise
had attempted to develop an interbranch system for impeachment
trials in Virginia.
Id., at 71-72. Even Hamilton's eloquent
defense of the scheme adopted by the Constitution was based on a
pragmatic decision to further the cause of ratification rather than
a strong belief in the superiority of a scheme vesting the Senate
with the sole power to try impeachments. While at the Convention,
Hamilton advocated that impeachment trials be conducted by a court
made up of state-court judges. 1 Records of the Federal Convention
of 1787, pp. 292-293 (M. Farrand ed. 1966). Four months after
publishing The Federalist Nos. 65 and 66, however, he urged the New
York Ratifying Convention to amend the Clause he had so ably
defended to have the Senate, the Supreme Court, and judges from
each State jointly try impeachments. 5 The Papers of Alexander
Hamilton 167-168 (H. Syrett ed. 1962).
The historical evidence reveals above all else that the Framers
were deeply concerned about placing in any branch the "awful
discretion, which a court of impeachments must necessarily have."
The Federalist No. 65, p. 441 (J. Cooke ed. 1961). Viewed against
this history, the discord between the majority's position and the
basic principles of checks and balances underlying the
Constitution's separation of powers is clear. In essence, the
majority suggests that the Framers' conferred upon Congress a
potential tool of legislative dominance yet at the same time
rendered Congress' exercise of that power one of the very few areas
of legislative authority immune from any judicial review. While the
majority rejects petitioner's justiciability argument as espousing
a view "inconsistent with the Framers' insistence that our system
be one of checks and balances,"
ante, at 234, it is the
Court's finding of nonjusticiability that truly upsets the Framers'
careful design. In a truly balanced system, impeachments tried by
the Senate would serve as a means of
245
controlling the largely unaccountable Judiciary, even as
judicial review would ensure that the Senate adhered to a minimal
set of procedural standards in conducting impeachment trials.
B
The majority also contends that the term "try" does not present
a judicially manageable standard. It notes that in 1787, as today,
the word "try" may refer to an inquiry in the nature of a judicial
proceeding, or, more generally, to experimentation or
investigation. In light of the term's multiple senses, the Court
finds itself unable to conclude that the Framers used the word
"try" as "an implied limitation on the method by which the Senate
might proceed in trying impeachments."
Ante, at 230. Also
according to the majority, comparison to the other more specific
requirements listed in the Impeachment Trial Clause-that the
senators must proceed under oath and vote by two-thirds to convict,
and that the Chief Justice must preside over an impeachment trial
of the President-indicates that the word "try" was not meant by the
Framers to constitute a limitation on the Senate's conduct and
further reveals the term's unmanageability.
It is apparently on this basis that the majority distinguishes
Powell v.
McCormack, 395 U. S. 486 (1969). In
Powell, the House of Representatives argued that the grant
to Congress of the power to "Judge" the qualifications of its
members in Art. I, § 5, precluded the Court from reviewing the
House's decision that Powell was not fit for membership. We held to
the contrary, noting that, although the Constitution leaves the
power to "Judge" in the hands of Congress, it also enumerates, in
Art. I, § 2, the "qualifications" whose presence or absence
Congress must adjudge. It is precisely the business of the courts,
we concluded, to determine the nature and extent of these
constitutionally specified qualifications.
Id., at 522. The
majority finds this case different from
Powell only on the
grounds that, whereas the qualifi-
246
WHITE, J., concurring in judgment
cations of Art. I, § 2, are readily susceptible to judicial
interpretation, the term "try" does not provide an "identifiable
textual limit on the authority which is committed to the Senate."
Ante, at 238.
This argument comes in two variants. The first, which asserts
that one simply cannot ascertain the sense of "try" which the
Framers employed and hence cannot undertake judicial review, is
clearly untenable. To begin with, one would intuitively expect
that, in defining the power of a political body to conduct an
inquiry into official wrongdoing, the Framers used "try" in its
legal sense. That intuition is borne out by reflection on the
alternatives. The third Clause of Art. I, § 3, cannot seriously be
read to mean that the Senate shall "attempt" or "experiment with"
impeachments. It is equally implausible to say that the Senate is
charged with "investigating" impeachments given that this
description would substantially overlap with the House of
Representatives' "sole" power to draw up articles of impeachment.
Art. I, § 2, cl. 5. That these alternatives are not realistic
possibilities is finally evidenced by the use of "tried" in the
third sentence of the Impeachment Trial Clause ("[w]hen the
President of the United States is tried ... "), and by Art. III, §
2, cl. 3 ("[t]he Trial of all Crimes, except in Cases of
Impeachment ... ").
The other variant of the majority position focuses not on which
sense of "try" is employed in the Impeachment Trial Clause, but on
whether the legal sense of that term creates a judicially
manageable standard. The majority concludes that the term provides
no "identifiable textual limit." Yet, as the Government itself
conceded at oral argument, the term "try" is hardly so elusive as
the majority would have it. See Tr. of Oral Arg. 51-52. Were the
Senate, for example, to adopt the practice of automatically
entering a judgment of conviction whenever articles of impeachment
were delivered from the House, it is quite clear that the
Senate
247
will have failed to "try" impeachments.2 See id., at 52. Indeed
in this respect, "try" presents no greater, and perhaps fewer,
interpretive difficulties than some other constitutional standards
that have been found amenable to familiar techniques of judicial
construction, including, for example, "Commerce ... among the
several States," Art. I, § 8, cl. 3, and "due process of law,"
Arndt. 5. See
Gibbons v.
Ogden, 9 Wheat. 1, 189
(1824) ("The subject to be regulated is commerce; and our
constitution being ... one of enumeration, and not of definition,
to ascertain the extent of the power, it becomes necessary to
settle the meaning of the word");
Mathews v.
Eldridge, 424
U. S. 319, 334 (1976) ('" "[D]ue process," unlike some legal
rules, is not a technical conception with a fixed content unrelated
to time, place and circumstances''') (quoting
Cafeteria
&
Restaurant Workers v.
McElroy, 367 U. S. 886, 895
(1961)).3
2 It is not a sufficient rejoinder to this example to say, with
one of the Court of Appeals judges below, that it postulates a
"monstrous hypothetical abuse." See 290 U. S. App. D. C. 420,427,
938 F.2d
239, 246 (1991). The unlikelihood of the example being realized
does not undermine the point that "try" has a definable meaning and
thus ought to be regarded as judicially manageable.
3 The majority's
in terrorem argument against
justiciability-that judicial review of impeachments might cause
national disruption and that the courts would be unable to fashion
effective relief-merits only brief attention. In the typical
instance, court review of impeachments would no more render the
political system dysfunctional than has this litigation. Moreover,
the same capacity for disruption was noted and rejected as a basis
for not hearing
Powell. Powell v.
McCormack, 395 U. S. 486, 549
(1969). The relief granted for unconstitutional impeachment trials
would presumably be similar to the relief granted to other unfairly
tried public employee-litigants. Finally, as applied to the special
case of the President, the majority's argument merely points out
that, were the Senate to convict the President without any kind of
a trial, a constitutional crisis might well result. It hardly
follows that the Court ought to refrain from upholding the
Constitution in all impeachment cases. Nor does it follow that, in
cases of Presidential impeachment, the Justices ought to abandon
their constitutional responsibilities because the Senate has
precipitated a crisis.
248
WHITE, J., concurring in judgment
III
The majority's conclusion that "try" is incapable of meaningful
judicial construction is not without irony. One might think that if
any class of concepts would fall within the definitional abilities
of the Judiciary, it would be that class having to do with
procedural justice. Examination of the remaining question-whether
proceedings in accordance with Senate Rule XI are compatible with
the Impeachment Trial Clause-confirms this intuition.
Petitioner bears the rather substantial burden of demonstrating
that, simply by employing the word "try," the Constitution
prohibits the Senate from relying on a factfinding committee. It is
clear that the Framers were familiar with English impeachment
practice and with that of the States employing a variant of the
English model at the time of the Constitutional Convention. Hence
there is little doubt that the term "try" as used in Art. I, § 3,
cl. 6, meant that the Senate should conduct its proceedings in a
manner somewhat resembling a judicial proceeding. Indeed, it is
safe to assume that Senate trials were to follow the practice in
England and the States, which contemplated a formal hearing on the
charges, at which the accused would be represented by counsel,
evidence would be presented, and the accused would have the
opportunity to be heard.
Petitioner argues, however, that because committees were not
used in state impeachment trials prior to the Convention, the word
"try" cannot be interpreted to permit their use. It is, however, a
substantial leap to infer from the absence of a particular device
of parliamentary procedure that its use has been forever barred by
the Constitution. And there is textual and historical evidence that
undermines the inference sought to be drawn in this case.
The fact that Art. III, § 2, cl. 3, specifically exempts
impeachment trials from the jury requirement provides some evidence
that the Framers were anxious not to have additional specific
procedural requirements read into the term
249
"try." Contemporaneous commentary further supports this view.
Hamilton, for example, stressed that a trial by so large a body as
the Senate (which at the time promised to boast 26 members)
necessitated that the proceedings not "be tied down to ... strict
rules, either in the delineation of the offence by the prosecutors,
or in the construction of it by the Judges .... " The Federalist
No. 65, p. 441 (J. Cooke ed. 1961). In his extensive analysis of
the Impeachment Trial Clause, Justice Story offered a nearly
identical analysis, which is worth quoting at length.
"[I]t is obvious, that the strictness of the forms of proceeding
in cases of offences at common law is ill adapted to impeachments.
The very habits growing out of judicial employments; the rigid
manner, in which the discretion of judges is limited, and fenced in
on all sides, in order to protect persons accused of crimes by
rules and precedents; and the adherence to technical principles,
which, perhaps, distinguishes this branch of the law, more than any
other, are all ill adapted to the trial of political offences, in
the broad course of impeachments. And it has been observed with
great propriety, that a tribunal of a liberal and comprehensive
character, confined, as little as possible, to strict forms,
enabled to continue its session as long as the nature of the law
may require, qualified to view the charge in all its bearings and
dependencies, and to appropriate on sound principles of public
policy the defence of the accused, seems indispensable to the value
of the trial. The history of impeachments, both in England and
America, justifies the remark. There is little technical in the
mode of proceeding; the charges are sufficiently clear, and yet in
a general form; there are few exceptions, which arise in the
application of the evidence, which grow out of mere technical rules
and quibbles. And it has repeatedly been seen, that the functions
have been better understood, and more liberally and justly
expounded by states-
250
WHITE, J., concurring in judgment
men, then by mere lawyers." 1 J. Story, Commentaries on the
Constitution of the United States § 765, p. 532 (3d ed. 1858).
It is also noteworthy that the delegation of factfinding by
judicial and quasi-judicial bodies was hardly unknown to the
Framers. Jefferson, at least, was aware that the House of Lords
sometimes delegated factfinding in impeachment trials to committees
and recommended use of the same to the Senate. T. Jefferson, A
Manual of Parliamentary Practice for the Use of the Senate of the
United States § LIII (2d ed. 1812) ("The practice is to swear the
witnesses in open House, and then examine them there: or a
committee may be named, who shall examine them in committee ... "),
reprinted in Jefferson's Parliamentary Writings, The Papers of
Thomas Jefferson, Second Series 424 (w. Howell ed. 1988). The
States also had on occasion employed legislative committees to
investigate whether to draw up articles of impeachment. See Hoffer
& Hull, Impeachment in America, at 29, 33. More generally, in
colonial governments and state legislatures, contemnors appeared
before committees to answer the charges against them. See
Groppi v.
Leslie, 404 U. S. 496, 501
(1972). Federal courts likewise had appointed special masters and
other factfinders "[f]rom the commencement of our Government."
Ex parte Peterson, 253 U. S. 300, 312
(1920). Particularly in light of the Constitution's grant to each
House of the power to "determine the Rules of its Proceedings," see
Art. I, § 5, cl. 2, the existence of legislative and judicial
delegation strongly suggests that the Impeachment Trial Clause was
not designed to prevent employment of a factfinding committee.
In short, textual and historical evidence reveals that the
Impeachment Trial Clause was not meant to bind the hands of the
Senate beyond establishing a set of minimal procedures. Without
identifying the exact contours of these procedures, it is
sufficient to say that the Senate's use of a factfinding committee
under Rule XI is entirely compatible with
251
the Constitution's command that the Senate "try all
impeachments." Petitioner's challenge to his conviction must
therefore fail.
IV
Petitioner has not asked the Court to conduct his impeachment
trial; he has asked instead that it determine whether his
impeachment was tried by the Senate. The majority refuses to reach
this determination out of a laudable desire to respect the
authority of the Legislature. Regrettably, this concern is
manifested in a manner that does needless violence to the
Constitution.4 The deference that is owed can
4 Although our views might well produce identical results in
most cases, the same objection may be raised against the prudential
version of political question doctrine presented by JUSTICE SOUTER.
According to the prudential view, judicial determination of whether
the Senate has conducted an impeachment trial would interfere
unacceptably with the Senate's work and should be avoided except
where necessitated by the threat of grave harm to the
constitutional order. As articulated, this position is missing its
premise: No explanation is offered as to why it would show
disrespect or cause disruption or embarrassment to review the
action of the Senate in this case as opposed to, say, the enactment
of legislation under the Commerce Clause. The Constitution requires
the courts to determine the validity of statutes passed by Congress
when they are challenged, even though such laws are passed with the
firm belief that they are constitutional. The exercise of judicial
review of this kind, with all of its attendant risk of interference
and disrespect, is not conditioned upon a showing in each case that
without it the Republic would be at risk. Some account is therefore
needed as to why prudence does not counsel against judicial review
in the typical case, yet does so in this case.
In any event, the prudential view cannot achieve its stated
purpose.
The judgment it wishes to avoid-and the attendant disrespect and
embarrassment-will inevitably be cast because the courts still will
be required to distinguish cases on their merits. JUSTICE SOUTER
states that the Court ought not to entertain petitioner's
constitutional claim because "[i]t seems fair to conclude,"
post, at 253, that the Senate tried him. In other words, on
the basis of a preliminary determination that the Senate has acted
within the "broad boundaries" of the Impeachment Trial Clause, it
is concluded that we must refrain from making that determination.
At best, this approach offers only the illusion of deference and
respect by substituting impressionistic assessment for
constitutional analysis.
252
SOUTER, J., concurring in judgment
be found in the Constitution itself, which provides the Senate
ample discretion to determine how best to try impeachments.
JUSTICE SOUTER, concurring in the judgment.
I agree with the Court that this case presents a nonjusticiable
political question. Because my analysis differs somewhat from the
Court's, however, I concur in its judgment by this separate
opinion.
As we cautioned in
Baker v.
Carr, 369 U. S. 186, 210-211
(1962), "the 'political question' label" tends "to obscure the need
for case-by-case inquiry." The need for such close examination is
nevertheless clear from our precedents, which demonstrate that the
functional nature of the political question doctrine requires
analysis of "the precise facts and posture of the particular case,"
and precludes "resolution by any semantic cataloguing," id., at
217:
"Prominent on the surface of any case held to involve a
political question is found a textually demonstrable constitutional
commitment of the issue to a coordinate political department; or a
lack of judicially discoverable and manageable standards for
resolving it; or the impossibility of deciding without an initial
policy determination of a kind clearly for nonjudicial discretion;
or the impossibility of a court's undertaking independent
resolution without expressing lack of the respect due coordinate
branches of government; or an unusual need for unquestioning
adherence to a political decision already made; or the potentiality
of embarrassment from multifarious pronouncements by various
departments on one question." Ibid.
Whatever considerations feature most prominently in a particular
case, the political question doctrine is "essentially a function of
the separation of powers,"
ibid., existing to restrain
courts "from inappropriate interference in the business of the
other branches of Government,"
United States v.
253
Munoz-Flores, 495 U. S. 385, 394
(1990), and deriving in large part from prudential concerns about
the respect we owe the political departments, see
Goldwater
v.
Carter, 444
U. S. 996, 1000 (1979) (Powell, J., concurring in judgment); A.
Bickel, The Least Dangerous Branch 125-126 (2d ed. 1986);
Finkelstein, Judicial Self-Limitation, 37 Harv. L. Rev. 338,
344-345 (1924). Not all interference is inappropriate or
disrespectful, however, and application of the doctrine ultimately
turns, as Learned Hand put it, on "how importunately the occasion
demands an answer." L. Hand, The Bill of Rights 15 (1958).
This occasion does not demand an answer. The Impeachment Trial
Clause commits to the Senate "the sole Power to try all
Impeachments," subject to three procedural requirements: the Senate
shall be on oath or affirmation; the Chief Justice shall preside
when the President is tried; and conviction shall be upon the
concurrence of two-thirds of the Members present. U. S. Const.,
Art. I, § 3, cl. 6. It seems fair to conclude that the Clause
contemplates that the Senate may determine, within broad
boundaries, such subsidiary issues as the procedures for receipt
and consideration of evidence necessary to satisfy its duty to
"try" impeachments. Other significant considerations confirm a
conclusion that this case presents a nonjusticiable political
question: the "unusual need for unquestioning adherence to a
political decision already made," as well as "the potentiality of
embarrassment from multifarious pronouncements by various
departments on one question."
Baker, supra, at 217. As the
Court observes, see
ante, at 236, judicial review of an
impeachment trial would under the best of circumstances entail
significant disruption of government.
One can, nevertheless, envision different and unusual
circumstances that might justify a more searching review of
impeachment proceedings. If the Senate were to act in a manner
seriously threatening the integrity of its results, convicting,
say, upon a coin toss, or upon a summary determination that an
officer of the United States was simply" 'a bad
254
SOUTER, J., concurring in judgment
guy,'"
ante, at 239 (WHITE, J., concurring in judgment),
judicial interference might well be appropriate. In such
circumstances, the Senate's action might be so far beyond the scope
of its constitutional authority, and the consequent impact on the
Republic so great, as to merit a judicial response despite the
prudential concerns that would ordinarily counsel silence. "The
political question doctrine, a tool for maintenance of governmental
order, will not be so applied as to promote only disorder."
Baker, supra, at 215.
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