What Happens When the Law Runs Out?

I've been reading up on the Political Question Doctrine in my Fed Courts studying, and I wanted to share some of my thoughts (this started in an e-mail thread with my study group).

In hard cases—many of the ones that get to the Court—there's a line where the text of the Constitution and the other interpretive tools judges use just run out. Where, in effect, the law has just run out. This is what happened, for example, in Boumediene with the issue of habeas corpus for Guantánamo detainees (once you start discussing "18th-century relations between England and the kingdoms of Scotland and Hanover,"—yes, an actual quote—it's pretty clear that the law has "run out").

However, in such cases Court can't just throw up its hands and say, "Not our job!" We're a Common Law country. "It is emphatically the province and duty of the judicial department to say what the law is." So they just make it up. Most of the time, I'm ok with that; I'm past any problems with the idea that "judges make the law."



However, sometimes it is ok to say "Not our job!" These tend to be on highly politically sensitive issues where judicial interference would put the legitimacy of the Court or various government actions at stake, or where judicial interference could cause constitutional crises. In certain areas, it would be a really bad thing if judges made the law, and they will occasionally recognize that. What areas are off-limits in such situations is a tricky question, and certainly one worthy of discussion, but I will not elaborate further on that issue here.

Now, the important part here is that the court still gets to draw the line of deciding where the law runs out. This is akin to the idea that a court always has jurisdiction to determine if it has jurisdiction. This would explain why in Powell, the Court could say that being corrupt is not a "disqualification" while in Nixon it could not give an opinion on what "try" means. This is why in Hawke it can say that "ratified by the Legislature" means "by the Legislature," but in Coleman it cannot give an opinion on whether "ratified" means it has to be on the first try. This is also why in the redistricting cases (like Vieth), the court is so schizophrenic. Four justices say "We've crossed the line and have to throw up our hands." Four justices say, "No, we're on the safe side of the line and can rule on the merits." And Justice Kennedy sits there in the middle doing whatever the hell he wants.

It's clearly not the subject matter of the case that's determining these outcomes. In each case, the Court is still—albeit often without really saying so—determining where the line is that the law "runs out."