67 Am. U. L. Rev. F. 35 (2018).

*Federal Courts instructor and Professor of Legal Rhetoric, American University Washington College of Law.  Law clerk to Associate Justice Sandra Day O’Connor of the United States Supreme Court.  Law clerk to Judge Patricia M. Wald of the United States Court of Appeals for the District of Columbia Circuit.  J.D., Columbia Law School, 1993; A.B., Princeton University, 1989.

Professor John Harrison’s The Political Question Doctrines flags several interesting dynamics in the federal courts’ treatment of the doctrine.  He claims that the Supreme Court has actually applied the political question doctrine in only two situations—where it has found final decision-making authority in a non-judicial actor and where it has sought to avoid the issuance of prospective relief that intrudes too much upon the policy-making authority of other actors.  He notes that the Court has never actually held that the doctrine is a limit on its subject matter jurisdiction and contends that lower courts, which have applied the doctrine in other contexts and routinely dismissed for want of subject matter jurisdiction, have strayed too far afield.  This Response examines these points in turn and concludes that, while Professor Harrison’s characterization of the Supreme Court’s holdings is descriptively accurate, scattered tea leaves in dicta and separate opinions may give reason for skepticism that the Court has proceeded with a method to its madness.