scholarly journals THE NIGERIAN SUPREME COURT AND THE POLITICAL QUESTION DOCTRINE

2020 ◽  
Vol 31 (1) ◽  
pp. 123-145
Author(s):  
Ekokoi Solomon
Keyword(s):  
South Africa ◽  
Supreme Court ◽  
The United States ◽  
The Political ◽  
Legal Institution ◽  
Constitutional Democracy ◽  
Fourth Republic ◽  
The Supreme Court ◽  
First Republic ◽  
Political Question

This paper examines the attitude of the Supreme Court of Nigeria towards the political question doctrine. It interrogates the decisions of the Court in selected landmark cases involving political questions since the First Republic to the Fourth Republic which commenced in 1999. The paper identifies three core approaches espoused by the Court in cases involving political questions – the deference approach, the necessity approach and the avoidance approach. This paper argues that in a constitutional democracy, it is inevitable – considering that the Court is both a political and a legal institution – that the Court, like in other jurisdictions such as Germany, India, South Africa and the United States, will be called upon to adjudicate cases involving political questions. As such, the paper recommends that the Court openly asserts the ‘politicality’ of its decisions, whether they are predicated on the need to defer to the political branches, exigency/necessity or to avoid the political questions brought before it.

scholarly journals Is It Time For a Coherent Political Question Doctrine in South Africa? Lessons from the United States

2014 ◽  
Vol 7 (4) ◽  
pp. 457-493 ◽  
Author(s):  
Mtendeweka Mhango
Keyword(s):  
United States ◽  
South Africa ◽  
South African ◽  
The United States ◽  
Current Status ◽  
The Political ◽  
Early Application ◽  
Comparative Examination ◽  
Political Question ◽  
Insight Into

This article describes the development and current status of the political question doctrine theme in South African jurisprudence. It does this through a comparative discussion of the application of this doctrine in the United States. The purpose of this comparative examination is twofold: the first is to gain insight into the origins, trends and early application of the political question doctrine. The second is to gain insight into the challenges and best practices in relation to the application of the political question doctrine elsewhere. The paper argues that while the political question doctrine theme exists in South African jurisprudence, this has not matured into a clear and transparent doctrine. It calls for the development of a clear doctrine for South Africa and offers some recommendations.

Law and Politics

2019 ◽  
pp. 785-882
Author(s):  
G. Edward White
Keyword(s):  
Supreme Court ◽  
Presidential Election ◽  
The Political ◽  
Electoral Process ◽  
Law And Politics ◽  
The Supreme Court ◽  
Political Question

Bush v. Gore, when it was first decided, was widely criticized by commentators as an unjustifiable intervention by the Supreme Court into the Florida electoral process in the 2000 presidential election. Two decades later, the case seems much less significant, and arguably less controversial. The chapter traces the “journey” of the Supreme Court toward Bush v. Gore, which consisted of a combination of its abandoning the “political question” doctrine, which posited that the Court should avoid reviewing legislative decisions affecting the redistricting of voters in political elections, and the unique circumstances of the 2000 presidential election in Florida and Florida’s electoral processes.

scholarly journals In NLRB Recess Appointments Case, Roberts Court Can Now Show It Knows How to Exercise Judicial Restraint

2018 ◽  
Author(s):  
Peter M. Shane
Keyword(s):  
Supreme Court ◽  
Labor Relations ◽  
The Political ◽  
Obama Administration ◽  
National Labor Relations Board ◽  
The Supreme Court ◽  
Full Complement ◽  
Roberts Court ◽  
Political Question

If the Senate confirms a full complement of members for the National Labor Relations Board, the Obama administration should ask the Supreme Court in Noel Canning v. NLRB to remand the case, without decision, to be re-heard by the NLRB. The court should grant the request, showing a judicial restraint for which the Roberts bench is not known — and returning the recess appointments controversy to the elected branches of government, where it belongs. If the SG does not pursue this course, the Court should use the political question doctrine to avoid unnecessary judicial interference with the dynamics of the President's and Senate's shared appointments power.

Repeal of the Judiciary Act of 1801

1915 ◽  
Vol 9 (3) ◽  
pp. 519-528 ◽  
Author(s):  
William S. Carpenter
Keyword(s):  
United States ◽  
Supreme Court ◽  
The United States ◽  
Federal Courts ◽  
The Political ◽  
The Federalist ◽  
The Supreme Court ◽  
Political Advantage ◽  
The One ◽  
Circuit Courts

The intent of the framers of the judiciary act of 1801 has been to the present day a matter of some doubt. On the one hand it has been shown that alterations in the judiciary system of the United States had long been agitated before the failure of the Federalist party in the elections of 1800. Soon after the establishment of federal courts in 1789 relief had been sought by the justices of the supreme court from the arduous duties necessitated in riding the circuits. In 1799 a bill designed to establish a system of circuit courts was reported upon which action was postponed. But this later became the basis for the act of 1801. It has, therefore, been contended that, quite apart from the political advantage given the Federalists by the passage of the act of 1801, such changes in the judiciary system were warranted by necessity.At the same time it is equally clear that the amount of business before the courts of the United States, although it had been excessive, had begun to decline. No further prosecutions were to be expected under the alien and sedition acts, and a decrease in the number of suits before the federal courts involving other questions was observed even before the accession of Jefferson to the presidency.

scholarly journals Judicial Review And Judicial Supremacy: A Paradigm of Constitutionalism in Nigeria

2011 ◽  
Vol 11 (1) ◽  
pp. 45-75
Author(s):  
Ajepe Taiwo Shehu
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
The United States ◽  
Judicial Power ◽  
The Political ◽  
Natural Consequence ◽  
The People ◽  
Judicial Supremacy ◽  
The Supreme Court ◽  
The Government

Abstract This paper examines judicial review and judicial power in Nigeria under the 1999 Constitution in relation to the constitution itself and in relation to the political branches of government. Th is is essentially to locate where lays supremacy between the branches and the judiciary particularly the Supreme Court with its final appellate jurisdiction. Judicial review and supremacy of the judiciary had been of recurring academic discuss in some jurisdictions with written Constitutions, particularly the United States from where Nigeria largely borrowed its presidential constitutionalism. This thus suggests that there is a need to examine the controversy within the context of Nigeria’s experience; is it really in the Constitution that creates branches of the government and that is proclaimed to be supreme over all authorities including the judiciary? Is it in the judiciary whose oversight function cuts across the political branches and whose interpretative decisions are binding on the constitution itself and the other branches? Is it in the executive that appoints and removes Justices of the court subject to confirmation by the Senate, or is it in the legislature? The paper argues that the overriding effect of the judicial power of the Supreme Court over all persons and authorities including the Constitution puts the judiciary in supreme position, that being the natural consequence of the power so vested in the judiciary by the “People Themselves.”

The Role of the Judiciary in Foreign Affairs To Be Duly Recognised, with Special Reference to the Supreme Court of the USA

2021 ◽  
Vol 2021 (2) ◽  
pp. 330-361
Author(s):  
Riaan Eksteen
Keyword(s):  
Foreign Policy ◽  
Supreme Court ◽  
The United States ◽  
Foreign Affairs ◽  
Policy Outcomes ◽  
The Political ◽  
The Supreme Court ◽  
The Usa ◽  
Presidential Decisions

The judiciary’s influence on foreign affairs has been neglected for too long as the focus has been confined to the role of the two political branches – thus, a state-centrism orientation. Studies on foreign affairs confirm this omission. Hence, the question: what is the role of the judiciary in foreign affairs and what precisely is its influence? Consequential decisions by the Supreme Court of the United States (“SCOTUS”) underscore the extent of the court’s engagement with foreign policy-related issues. While the political branches of government most directly determine foreign-policy outcomes, the contribution of the court by way of its relevance and influence is no less significant. Its impact is incontrovertible. The executive can no longer assume that its actions in foreign affairs will not be scrutinised and evaluated constitutionally. Presidential decisions often stem from overreach, especially in matters with implications for foreign affairs. Over the years, it has become increasingly apparent that the President is not immune from rebuke. SCOTUS is the only constitutional interpreter and consequently a vital compass. The result is that the executive has to bend to the judiciary. The latter will not accommodate the former when its judicial mandate is to interpret the Constitution in order to make clear what the executive has decreed, however unpalatable that may be to the executive. The response by SCOTUS is no longer confined to single, isolated cases; it has become widespread. The court no longer shies away from displaying judicial power when it is faced with cases dealing with foreign affairs. What SCOTUS has declared unequivocally is that when the political branches are allowed to switch the Constitution on or off at will, this will lead to a regime in which the executive, and not SCOTUS, says what the law is. This article concludes that the recognition of this role of SCOTUS in foreign affairs is long overdue.

In the Supreme Court of the United States: Clara Watson v. Fort Worth Bank & Trust..

1988 ◽  
Vol 43 (12) ◽  
pp. 1019-1028 ◽  
Author(s):  
Donald N. Bersoff ◽  
Laurel P. Malson ◽  
Donald B. Verrilli
Keyword(s):  
United States ◽  
Supreme Court ◽  
The United States ◽  
Fort Worth ◽  
The Supreme Court
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