Judicial Approaches to Political Questions: A Comparative Study of the United States and South Korea

Abstract

Summary The United States Supreme Court (USSC) and the Constitutional Court of Korea (CCK) have adopted sharply different positions regarding the justiciability of “political questions.” On one hand, the USSC has generally refrained from adjudicating political questions, as shown in Nixon v. United States, Terlinden v. Ames, and Goldwater v. Carter. On the other hand, the CCK has regularly tried cases concerning political questions, as demonstrated in The Impeachment of the President (Roh Moo-hyun) Case and The Comfort Women Victims Case. The text of the U.S. and South Korean constitutions, their views about the proper role of the judiciary, and prudential factors explain why the USSC and the CCK have taken different approaches towards adjudicating political questions. Furthermore, the experiences of each country provide important lessons for the other: on one hand, the CCK experience has shown how a more active approach towards reviewing political questions can (1) create legal standards that keep government branches accountable in novel situations, (2) help prevent a political branch from acquiring tyrannical rule, and (3) enhance the judiciary’s legitimacy in the public. On the other hand, the USSC experience has demonstrated how a more restrained approach towards reviewing political questions may (1) strengthen the commitment of all branches to the principle of separation of powers (2) enhance the consistency and predictability of judicial decisions, and (3) lead to resolutions of issues by the branch with the most training and expertise.