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Abstract

The power to interpret the Constitution is not vested solely in the judicial branch. Although Marbury v. Madison has been used to assert the preeminence of judicial review and elevate the judiciary to the status of "ultimate interpreter of the Constitution," the Framers anticipated that all branches would have a "concurrent right to expound the [C]onstitution." This decision left room for judicial deference to the political branches. However, the judicial branch wields a potent weapon in the exercise of its authority as the courts alone determine when they should defer to another branch or exercise judicial review. The thin line between judicial deference and judicial review is manned exclusively by the justices of the courts.

The political question doctrine is one of the methods for abstaining from the exercise of judicial review. Like other justiciability doctrines such as standing, ripeness, or mootness, the political question doctrine provides the courts with a means to avoid deciding a case on its merits. Although the doctrine was originally tied exclusively to the text of the Constitution, the current doctrine has evolved into two different strands: the classical version and the prudential version. The original, or classical strand, is tied to the determination of whether an issue has been committed to another branch of government or whether an act of another branch exceeds the authority committed to that branch. The prudential strand, on the other hand, suggests that the courts should abstain from judicial review in order to protect the courts' legitimacy, to circumvent legitimizing a questionable policy choice by another branch, and to avoid disputes with the political branches. The ostensible purpose of both the classical strand and the prudential strand of the doctrine is to provide the courts with methods for avoiding a decision on the merits of the case, albeit for different purposes.

Although the political question doctrine was fully explicated by the U.S. Supreme Court in Baker v. Carr almost fifty years ago, the Nebraska Supreme Court first made use of the doctrine in Nebraska Coalition for Educational Equity & Adequacy v. Heineman in 2007. In Coalition, the Nebraska Supreme Court addressed a constitutional challenge to the adequacy of Nebraska's funding system for education, holding that the challenge was a non-justiciable political question under four of the criteria articulated by the U.S. Supreme Court in Baker. In an attempt to avoid a decision on the merits of the case, the Nebraska Supreme Court sought to resurrect the political question doctrine in its entirety.

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