JUDICIAL COUNCIL OF RIDGEWAY

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(Slip Opinion) MARCH TERM, 2025 1 Syllabus SUPREME COURT OF THE UNITED STATES Syllabus RATHUZEN, ET AL. v. 0SHANK, ET AL. CERTIORARI TO THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA No. 17-09. Argued February 17, 2025−Decided March 3, 2025 Senators 0Shank and PapaSantos allege that the Vice President in his role as the President of the United States Senate unconstitutionally ratified a new set of Standing Rules in a midnight session without appropriate notice. They state that the Vice President’s aim was to usurp the power of the Senate with other co-conspirators named in the original complaint. The Vice President was then accused of illegally preventing his political opponents of excusing Senator PapaSantos and removing his roles to prevent the Senate falling into the hands of the opposition party. The Vice President then removed the roles of Senator 0Shank under the pretence that he was assuming the office illegally, again the petitioners state, to bring about a political benefit and usurp the Senate’s powers. The Vice President, in removing these Senators, prima facie acted illegally. However, before the District Court could adjudicate the merits of this case the Vice President and his fellow appellants appealed to this Court arguing that the District Court lacked justiciability because the matter constitutes a political question. Appellants therefore argue that the District Court should dismiss the complaint. Held: The subject matter of this suit constitutes a political question because it concerns the exercise of a constitutionally reserved power. Political questions are nonjusticiable before the District Court. Only the Supreme Court by virtue of the Anytime Review Clause can review political questions. Pp. 2-5. (a) The Vice President acted unlawfully by removing these Senators from their positions. Any objection over the legal legitimacy of a Senator is reserved for judicial adjudication, not the determination of the President of the Senate. The Vice President blatantly abused his power in doing so. However, because the matter is nonjusticiable before the District Court the appellees should have pursue relief through this Court. Pp. 1-2. (b) The proper forum for a legal challenge which constitutes a political question is a petition for Anytime Review before this Court. The political question doctrine as defined in Procursive is a construct of “judicial policy” rather than an inexorable constitutional command. Pp. 2-3. (c) The Baker test is replaced by a new test to more easily identify what constitutes a political question. There are three prongs for the lower court to apply in determining if a matter constitutes a political question. An affirmative answer to any prong will mean that the matter is nonjusticiable before the District Court and is reserved for an Anytime Review challenge before this Court. “[T]he three questions a District Judge must ask before disposing of a suspected political question are: (1) whether a reasonable NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 2 RATHUZEN, ET AL. v. SHANK, ET AL. Syllabus person would find the exercise of such power to be so obviously politically charged that it would taint the lower court’s reputation for impartiality; or (2) the case invokes the exercise of a reserved constitutional power; or (3) the presented facts would find no likeness in the facts of previous cases handled by any District Court assuming it prima facie falls into the first or second category.” Pp. 3-5. 5:25-CV-0299, reversed and remanded. POSNER, J., delivered the opinion for the Court, in which, TANEY, C.J., POWELL, BRENNAN, and WHITTAKER J.J., joined. LEROUX, J., filed an opinion dissenting in part as to Part I whilst concurring in the judgment as to Part II. Chrisiful, Washington, D.C., argued the case for the appellant. With him on the brief was Tacuss. AConArtist, Washington, D.C., argued the case for the appellee. Cite as: 17 U.S. ____ (2025) 1 Opinion of the Court SUPREME COURT OF THE UNITED STATES _________ No. 17-09 _________ RATHUZEN, ET AL. v. 0SHANK, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA [March 3, 2025] JUSTICE POSNER, delivered the Opinion of the Court. This Court has been asked to consider, in essence, whether the Anytime Review Clause abrogates the common law presumption that the District Court is bound by the political question doctrine. We find that the District Court is bound by the political question doctrine and therefore is deprived of jurisdiction to hear this case. However, this Court is not bound by the political question doctrine due to the Anytime Review Clause’s unique constitutional grant of power. The only appropriate forum for a challenge to a political question therefore is a petition for Anytime Review (i.e., merits review) before the Supreme Court. See Procursive v. United States, 7 U.S. 9 (2019). Before focusing on the legal question, it is pertinent for the Court to touch on the factual record. Although the Vice President avails himself today on a technicality today regarding the just- iciability of the matter before the District Court the appellees deserve factual vindication. The Vice President unilaterally acted to remove two Senators of the opposing / independent party to him. Their ‘removals’ brought back control of the Senate chamber to the Vice President’s political party. The Vice President prima facie acted illegally in unilaterally removing Senators by determining their ‘eligibility’. Only the Courts may pronounce on the legal and constitutional eligibility of an elected official, if contested. Elected officials, especially the Vice President, cannot engage in this exercise, for exactly the reasons why this suit arose. To prevent allegations, perceptions and entrenchments of abuses of power. Remanding this matter to the District Court will likely bring about a dismissal for mootness and of course an instruction to pursue this matter on a petition for Anytime Review if the appellees do not find that the matter is moot. This is an uncons- NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. 2 RATHUZEN, ET AL. v. SHANK, ET AL. Opinion of the Court cionable result, but one that occurred because the appellees did not avail themselves before this Court first where they would have likely succeeded. Dura lex, sed lex. The law is harsh, but it is the law. I This Court’s holding in Procursive that the political question doctrine is simply “judicial policy” rather than a constitutional imperative is affirmed here. Id., at 16. This malleability would give the Court reason to expand the District Court’s powers and do- away with the judicial restraint that the doctrine imposes on lower court judges. This would be necessary if we adopted such an approach as historically “the presence of a political question suffices to prevent the power of the federal judiciary from being invoked by the complaining party.” Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 215 (1974). However, the grant of jurisdiction through the Anytime Review Clause indicates that the Constitution has assented only to a more scrupulous and intense level of review by this Court. The const- ruction of a constitutional provision like Anytime Review “should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.” See Hon. Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 37-42, 23 (Amy Gutmann ed., 1997). Our interpretation of the scope of Anytime Review complies with Scalia’s command. Indeed, the ‘assent’ mentioned above is afforded only to the Supreme Court and so the doctrine’s application can only be disapplied in cases where a clear constitutional authority justifies doing so. II A The Court in Baker v. Carr, 369 U.S. 186 (1962), established a six-step test to assess the justiciability of a supposed political question: “[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of the government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment Cite as: 17 U.S. ____ (2025) 3 Opinion of the Court from multifarious pronouncements by various departments on one question.” Id., at 217. The matter before us today concerns a challenge by the respondents about the legality and constitutional aptness of the (now previous) Standing Rules of the United States Senate. A measured and chronological application of the Baker multi-factor test would us to decide that a merits review against the Standing Rules is reserved only for a challenge before this Court. However, a simpler reformulation of the Baker test should be adopted by lower court judges to prevent the District Court “avoid[ing] [its] responsibility” to enforce a specific statutory [or constitutional] right “merely ‘because the issues have political implications.’” Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189 , 196 (2012) (quoting INS v. Chadha, 462 U.S. 919, 943 (1983)). The problems found within the Baker test are well documented. See e.g., Erwin Chemerinsky, Federal Jurisdiction § 2.6.1 (6th ed. 2012) (high- lighting the Baker test as “useless” in identifying a political question). One key criticism of the test is that is so highly individualized that it has the effect of no longer being a test and instead outlines several issues which may or may not be political questions. See Charles Alan Wright & Arthur R. Miller et al., Federal Practice and Procedure § 3534 (3d ed. Oct. 2020 Update). Indeed, the “proper application of Baker’s six factors ha[ve] generated substantial confusion in the lower courts.” See Zivotofsky, 566 U.S. at 202 (Sotomayor, J., concurring in part and concurring in the judgment). Accordingly, the three questions a District Judge must ask before disposing of a suspected political question are: (1) whether a reasonable person would find the exercise of such power to be so obviously politically charged that it would taint the lower court’s reputation for impartiality; or (2) the case invokes the exercise of a reserved constitutional power; or (3) the presented facts would find no likeness in the facts of previous cases handled by any District Court assuming it prima facie falls into the first or second category. An affirmative answer to any one of these prongs will have the effect of depriving the lower court of subject-matter jurisdiction. The second prong of this new test is answered in the affirmative for the purpose of this case because the Constitution reserves the power to promulgate and establish the rules to each respective house of Congress. See Art I., Sec. 5, U.S. Const. (2024). Just because the political question has the effect of subsiding a ‘controversy’ under the Cases and Controversies Clause does not mean that this Court is also restrained from asserting its jurisdiction over the matter, it simply means the District Court cannot hear the case. We can. However, to be clear, a legal challenge that involves a political outcome is not inherently a political question. This analysis would bring about a form of judicial 4 RATHUZEN, ET AL. v. SHANK, ET AL. Opinion of the Court abdication that has no place in our system of government. A clear and nuanced application of the three-factor test to the facts of each case will now determine if a matter constitutes a political question. Whilst “[w]e generally take at face value the Senate’s own report of its actions” NLRB v. Canning, 573 U. S. ____ (2014) (slip op., at 35) the Anytime Review Clause affords this Court great discretion in reviewing this type of act without the philosophical restraints that bind the District Court. We are acutely aware of the fact that this Court “is not responsible for vindicating generalized partisan preferences. The Court’s constitutionally prescribed role is to vindicate the individual rights of the people appearing before it.” Gill, 585 U.S. __ (2018) (slip op., at 21). However, the Reframers found it necessary and fit for this Court to be ready to review actions carried out by the executive and legislature because even historically nonjusticiable and often complex questions of law are in good hands before the Justices of this Court. B The District Court has an obligation to dismiss a complaint that lacks sufficient justiciability due the political question doctrine. However, whilst justiciability is related it is not a constitutional imperative. As Chief Justice Holmes pointed out in Procursive, this makes matters arising from the realm of justiciability judicial policy rather than a constitutional imperative arising from the Constitution’s grant of jurisdiction. Just because a judicial doctrine finds its purpose from the Constitution does not mean it is any less of a judicial creation. See also Trump v. Hawaii, 585 U.S._, _(2018) (slip op., at 9). For example, the Constitution speaks in almost express words as to both constitutional jurisdiction and standing. The same cannot be said for the political question doctrine as it is judicially crafted to mesh with the doctrine of justiciability. A case that is a political question but nevertheless proceeds in the wrong venue (i.e., the District Court) inherently lacks justiciability which is different from the question of jurisdiction. Baker, supra at 198- 199. Justiciability goes towards the heart of what is appropriate for judicial review, whilst jurisdiction goes towards what is authorized for judicial review. This differentiation means that justiciability falls into the former camp. C Accordingly, because the Court has determined that the matter is a political question and therefore reserved only for review to this Court. The effect of such a political question does not obliterate a cause of action, it simply impacts its justiciability. Whilst “[t]he doctrines of mootness, ripeness, and political question all originate in Article III’s ‘case’ or ‘controversy’ language” DaimlerChrysler Cite as: 17 U.S. ____ (2025) 5 Opinion of the Court Corp. v. Cuno, 547 U.S. 332, 352 (2005) these do not make them constitutionally rigid imperatives. All these elements go to the doctrine of justiciability whilst more broadly touching upon the constitutional jurisdiction of the courts. See also Massachusetts v. EPA, 549 U.S. 497, 516 (2007). Baker’s principles are still good law, it is only the test that is reformulated. In turn, the new three factor test should serve as an effective guide to lower court judges as to what constitutes a political question whilst also respecting the principles of constit- utional governance that the Baker test sought to maintain. * * * The order of the District Court in relation to the temporary restraining order is vacated and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Cite as: 17 U.S. ____ (2025) 1 LEROUX, J., dissenting in part SUPREME COURT OF THE UNITED STATES _________ No. 17-09 _________ RATHUZEN, ET AL. v. 0SHANK, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA [March 3, 2025] JUSTICE LEROUX, dissenting in part as to Part I, while concurring in the judgment as to Part II. In this case, the Court is faced whether to answer jurisdictional questions, and to address potential defects of jurisdiction that occurred within trial jurisdiction. The majority contends that the Court’s holding in Procursive v. United States, 7 U.S. 9 (2019) as to the political question doctrine as a mere matter of “judicial policy.” I Respectfully, I dissent from the majority view in Part I that Procursive, intends to merely draw approaching the political doctrine question as a means of policy; see supra at 16. This view was in the context that the Court has not had to address the political doctrine question in the context of anytime review. As such the Court here, just as in Procursive, is addressing the political doctrine question in the context of a writ of certiorari as the vehicle of relief of how this case arrived before us. Considering the Supreme Court exempted by the political doctrine question could be seen as unjust or encroaching upon the powers which form our constitutional republic into three unique and separate branches of government. The Court has held in cases such as Oetjen, that issues that remain within a Constitutionally afforded power to the political departments of government are such issues are not “subject to judicial inquiry or decision.” Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918). NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. 2 RATHUZEN, ET AL. v. SHANK, ET AL. LEROUX, J., dissenting in part II Applying the thought that Procursive is merely malleable judicial policy disregards separation of powers and provides for judicial inquiry in constitutionally afforded powers. In Article I of the U.S. Constitution, Section 5, it is prescribed that, “[e]ach House may determine the Rules of its Proceedings for the duration of each legislature's term.” This is an expressed power of the Congress. A Within Federalist No. 51, the framers clearly call for a system of government where each shall check the other. More founding father James Madison stated, “Ambition must be made to counteract ambition.” Id. As such, anytime review exists to curve the ambition of the executive and legislative branches through a review of actions with judicial inquiry. However, the present matter is before the Court on judicial review, under a writ for certiorari having been granted. Given the majority contends the vehicle for such claims to seek relief should be a petition for anytime review, the Court has been deficient in its own restraint as Procursive, supra, only opines in the context of Anytime Review petitions. The restrain implied by the political question doctrine is otherwise alive and well during the consideration and disposal of petitions for writ of certiorari by this Court. B The Courts, within any jurisdiction, be they intermediate appellate, trial jurisdiction, or even this Court, must practice restraint. Judicial restraint is a long-held principle that Courts much adjudicate the relevant matters of a case for resolution, prior to answering an underlying Constitution question. In short, Courts must avoid “reaching constitutional questions in advance of the necessity of deciding them.” Lyng v. Northwest Indian Cemetery Protective Assn., 485 US 439 at 445. Within this case, given the challenges and limitations of a writ of certiorari being a review of the trial record, or underlying case action, we cannot seek to answer constitutional questions that may have been best served by Anytime review. That would be improper, and this Court should not be exempted from the political question doctrine in the consideration of cases arriving from petitions for writs of certiorari. III For the foregoing reasons, I dissent as to the conclusion and interpretation of Procursive exempting this Court from the practice of judicial restraint and the suggestion of expanding political doctrine jurisdiction to the District Court. The restraint Cite as: 17 U.S. ____ (2025) 3 LEROUX, J., dissenting in part required by this Court is there to provide guardrails for which the judiciary must operate to preserve the integrity of our republic through separation of powers. We must take the necessary steps to ensure that the judiciary fulfills its duties to American people, without encroaching upon constitutionally afforded powers expressed to the Congress or to the Executive. This partial dissent is in the true spirit to ensure that “[a]mbition must be made to counteract ambition.” See Federalist No. 51, supra.

JUDICIAL COUNCIL OF RIDGEWAY

JUDICIAL COUNCIL OF RIDGEWAY

17-09 Rathuzen, et al., v. 0Shank, et al. 17 U.S. ___ (2025).pdf

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