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SUPREME COURT OF THE UNITED STATES

Syllabus

NIXON v. UNITED STATES et al.
certiorari to the united states court of appeals for
the district of columbia circuit
No. 91-740.   Argued October 14, 1992-Decided January 13, 1993

 Rehnquist, C. J., delivered the opinion of the Court, in which
Stevens, O'Connor, Scalia, Kennedy, and Thomas, JJ., joined.
Stevens, J., filed a concurring opinion.  White, J., filed an
opinion concurring in the judgment, in which Blackmun, J.,
joined. Souter, J., filed an opinion concurring in the judgment.

SUPREME COURT OF THE UNITED STATES
--------
No. 91-740
--------
WALTER L. NIXON, PETITIONER v. UNITED
STATES et al.
on writ of certiorari to the united states court
of appeals for the district of columbia circuit
[January 13, 1993]


  Chief Justice Rehnquist delivered the opinion of the
Court.

  Petitioner Walter L. Nixon, Jr., asks this court to decide
whether Senate Rule XI, which allows a committee of Senators to
hear evidence against an individual who has been impeached and to
report that evidence to the full Senate, violates the Impeachment
Trial Clause, Art. I, 3, cl. 6.  That Clause provides that the
-Senate shall have the sole Power to try all Impeachments.-  But
before we reach the merits of such a claim, we must decide
whether it is -justiciable,- that is, whether it is a claim that
may be resolved by the courts.  We conclude that it is not.

  Nixon, a former Chief Judge of the United States District Court
for the Southern District of Mississippi, was convicted by a jury
of two counts of making false statements before a federal grand
jury and sentenced to prison.  See United States v. Nixon, 816 F.
2d 1022 (CA5 1987).  The grand jury investigation stemmed from
reports that Nixon had accepted a gratuity from a Mississippi
businessman in exchange for asking a local district attorney to
halt the prosecution of the businessman's son. Because Nixon
refused to resign from his office as a United States District
Judge, he continued to collect his judicial salary while serving
out his prison sentence.  See H. R. Rep. No. 101-36, p. 13
(1989).   On May 10, 1989, the House of Representatives adopted
three articles of impeachment for high crimes and misdemeanors.
The first two articles charged Nixon with giving false testimony
before the grand jury and the third article charged him with
bringing disrepute on the Federal Judiciary.  See 135 Cong. Rec.
H1811.

  After the House presented the articles to the Senate, the
Senate voted to invoke its own Impeachment Rule XI, under which
the presiding officer appoints a committee of Senators to
"receive evidence and take testimony." Senate Impeachment Rule
XI, reprinted in Senate Manual, S. Doc. No. 101-1, 101st Cong.,
1st Sess., 186 (1989). The Senate committee held four days of
hearings, during which 10 witnesses, including Nixon, testified.
S. Rep. No. 101-164, p. 4 (1989).  Pursuant to Rule XI, the
committee presented the full Senate with a complete transcript of
the proceeding and a report stating the uncontested facts and
summarizing the evidence on the contested facts.  See id., at
3-4.  Nixon and the House impeachment managers submitted
extensive final briefs to the full Senate and delivered arguments
from the Senate floor during the three hours set aside for oral
argument in front of that body.  Nixon himself gave a personal
appeal, and several Senators posed questions directly to both
parties.  135 Cong. Rec. S14493-14517 (Nov. 1, 1989).  The Senate
voted by more than the constitutionally required two-thirds
majority to convict Nixon on the first two articles.  Id., at
S14635 (Nov. 3, 1989).  The presiding officer then entered
judgment removing Nixon from his office as United States District
Judge.

  Nixon thereafter commenced the present suit, arguing that
Senate Rule XI violates the constitutional grant of authority to
the Senate to -try- all impeachments because it prohibits the
whole Senate from taking part in the evidentiary hearings.  See
Art. I, 3, cl. 6.  Nixon sought a declaratory judgment that his
impeachment conviction was void and that his judicial salary and
privileges should be reinstated.  The District Court held that
his claim was nonjusticiable, 744 F. Supp. 9 (D.C. 1990), and the
Court of Appeals for the District of Columbia Circuit agreed.
290 U.S. App. D.C. 420, 938 F. 2d 239 (1991).

/* Non-justiciablilty refers to the fact that under the
separation of powers within the U.S. Constitution, the claim is
not subject to the review of the Courts. This issue is usually
raised in the context of foreign policy decisions and
impeachments. */

  A controversy is nonjusticiable-i.e., involves a political
question-where there is "a textually demonstrable constitutional
commitment of the issue to a coordinate political department; or
a lack of judicially discoverable and manageable standards for
resolving it . . . ."  Baker v. Carr, 369 U. S. 186, 217 (1962).
But the courts must, in the first instance, interpret the text in
question and determine whether and to what extent the issue is
textually committed.  See ibid.; Powell v. McCormack, 395 U. S.
486, 519 (1969).  As the discussion that follows makes clear, the
concept of a textual commitment to a coordinate political
department is not completely separate from the concept of a lack
of judicially discoverable and manageable standards for resolving
it; the lack of judicially manageable standards may strengthen
the conclusion that there is a textually demonstrable commitment
to a coordinate branch.

  In this case, we must examine Art. I, 3, cl. 6, to determine
the scope of authority conferred upon the Senate by the Framers
regarding impeachment.  It provides:


      The Senate shall have the sole Power to try all
      impeachments.  When sitting for that Purpose, they
      shall be on Oath or Affirmation.  When the President of
      the United States is tried, the Chief Justice shall
      preside: And no Person shall be convicted without the
      Concurrence of two thirds of the Members present.

The language and structure of this Clause are revealing.  The
first sentence is a grant of authority to the Senate, and the
word -sole- indicates that this authority is reposed in the
Senate and nowhere else.  The next two sentences specify
requirements to which the Senate proceedings shall conform: the
Senate shall be on oath or affirmation, a two-thirds vote is
required to convict, and when the President is tried the Chief
Justice shall preside.

  Petitioner argues that the word -try- in the first sentence
imposes by implication an additional requirement on the Senate in
that the proceedings must be in the nature of a judicial trial.
From there petitioner goes on to argue that this limitation
precludes the Senate from delegating to a select committee the
task of hearing the testimony of witnesses, as was done pursuant
to Senate Rule XI. "`[T]ry' means more than simply `vote on' or
`review' or `judge.'"  In 1787 and today, trying a case means
hearing the evidence, not scanning a cold record. Brief for
Petitioner 25.  Petitioner concludes from this that courts may
review whether or not the Senate -tried- him before convicting
him.

  There are several difficulties with this position which lead us
ultimately to reject it.  The word -try,- both in 1787 and later,
has considerably broader meanings than those to which petitioner
would limit it.  Older dictionaries define try as "[t]o examine"
or "[t]o examine as a judge."  See 2 S. Johnson, A Dictionary of
the English Language (1785).  In more modern usage the term has
various meanings.  For example, try can mean "to examine or
investigate judicially," "to conduct the trial of," or "to put to
the test by experiment, investigation, or trial."  Webster's
Third New International Dictionary 2457 (1971).  Petitioner
submits that -try,- as contained in T. Sheridan, Dictionary of
the English Language (1796), means "to examine as a judge; to
bring before a judicial tribunal."  Based on the variety of
definitions, however, we cannot say that the Framers used the
word -try- as an implied limitation on the method by which the
Senate might proceed in trying impeachments.  "As a rule the
Constitution speaks in general terms, leaving Congress to deal
with subsidiary matters of detail as the public interests and
changing conditions may require . . . ."
Dillon v. Gloss, 256 U. S. 368, 376 (1921).

  The conclusion that the use of the word -try- in the first
sentence of the Impeachment Trial Clause lacks sufficient
precision to afford any judicially manageable standard of review
of the Senate's actions is fortified by the existence of the
three very specific requirements that the Constitution does
impose on the Senate when trying impeachments: the members must
be under oath, a two- thirds vote is required to convict, and the
Chief Justice presides when the President is tried.  These
limitations are quite precise, and their nature suggests that the
Framers did not intend to impose additional limitations on the
form of the Senate proceedings by the use of the word -try- in
the first sentence.

  Petitioner devotes only two pages in his brief to negating the
significance of the word -sole- in the first sentence of Clause
6.  As noted above, that sentence provides that -[t]he Senate
shall have the sole Power to try all Impeachments.-  We think
that the word -sole- is of considerable significance.  Indeed,
the word -sole- appears only one other time in the Constitution-
with respect to the House of Representatives' -sole Power of
Impeachment.-  Art. I, 2, cl. 5 (emphasis added).  The common
sense meaning of the word -sole- is that the Senate alone shall
have authority to determine whether an individual should be
acquitted or convicted.  The dictionary definition bears this
out.  -Sole- is defined as -having no companion,- -solitary,-
-being the only one,- and -functioning . . . independently and
without assistance or interference.-  Webster's Third New
International Dictionary 2168 (1971).  If the courts may review
the actions of the Senate in order to determine whether that
body -tried- an impeached official, it is difficult to see how
the Senate would be -functioning . . . independently and
without assistance or interference.-

/* The abdication of the judicial authority of the U.S. Supreme
Court to the dictionary. */


  Nixon asserts that the word -sole- has no substantive meaning.
To support this contention, he argues that the word is nothing
more than a mere -cosmetic edit- added by the Committee of Style
after the delegates had approved the substance of the Impeachment
Trial Clause.  There are two difficulties with this argument.
First, accepting as we must the proposition that the Committee
of Style had no authority from the Convention to alter the
meaning of the Clause, see 2 Records of the Federal Convention of
1787, p. 553 (M. Farrand ed. 1966) (hereinafter Farrand), we must
presume that the Committee's reorganization or rephrasing
accurately captured what the Framers meant in their unadorned
language.  See Powell v. McCormack, 395 U. S., at 538-539.  That
is, we must presume that the Committee did its job.  This
presumption is buttressed by the fact that the Constitutional
Convention voted on, and accepted, the Committee of Style's
linguistic version.  See 2 Farrand 663-667.  We agree with the
Government that -the word `sole' is entitled to no less weight
than any other word of the text, because the Committee revision
perfected what `had been agreed to.'-  Brief for Respondents 25.
Second, carrying Nixon's argument to its logical conclusion would
constrain us to say that the second to last draft would govern in
every instance where the Committee of Style added an arguably
substantive word.  Such a result is at odds with the fact that
the Convention passed the Committee's version, and with the well
established rule that the plain language of the enacted text is
the best indicator of intent.

/* One might quibble with the Court's analysis. The first step in
construing a statute or the consitution is the INTENT of the
words. If the intent is not clear, then only do you look to the
plain meaning of the words. Does not the plain meaning of these
terms show that the framers of the Constitution intended that the
senate they refer to means the WHOLE senate? In its parsing of
these terms, the Court runs over the arguments against its
ruling, perhaps because it cannot parry them otherwise. */


  Petitioner also contends that the word -sole- should not bear
on the question of justiciability because Art. II, 2, cl. 1, of
the Constitution grants the President pardon authority -except in
Cases of Impeachment.-  He argues that such a limitation on the
President's pardon power would not have been necessary if the
Framers thought that the Senate alone had authority to deal with
such questions.  But the granting of a pardon is in no sense
an overturning of a judgment of conviction by some other
tribunal; it is -[a]n executive action that mitigates or sets
aside punishment for a crime.-  Black's Law Dictionary 1113 (6th
ed. 1990) (emphasis added).  Authority in the Senate to determine
procedures for trying an impeached official, unreviewable by the
courts, is therefore not at all inconsistent with authority in
the President to grant a pardon to the convicted official.  The
exception from the President's pardon authority of cases of
impeachment was a separate determination by the Framers that
executive clemency should not be available in such cases.

  Petitioner finally argues that even if significance be
attributed to the word -sole- in the first sentence of the
clause, the authority granted is to the Senate, and this means
that -the Senate-not the courts, not a lay jury, not a Senate
Committee-shall try impeachments.-  Brief for Petitioner 42.  It
would be possible to read the first sentence of the Clause this
way, but it is not a natural reading.  Petitioner's
interpretation would bring in to judicial purview not merely the
sort of claim made by petitioner, but other similar claims based
on the conclusion that the word -Senate- has imposed by
implication limitations on procedures which the Senate might
adopt.  Such limitations would be inconsistent with the
construction of the Clause as a whole, which, as we have noted,
sets out three express limitations in separate sentences.

/* If the senate passed a senate rule which provided that the
impeachments were to be tried by an outside special master, would
the court then intervene? Nixon's point is that the Senate does
not include "part of the senate" and that the Senate itself, not
a sub-set must hear the case and rule. None of the arguments to
date clearly addresses this problem. However, it is quite
possible to justify this ruling as one necessary for mutual
respect within the three branches of government. */


  The history and contemporary understanding of the impeachment
provisions support our reading of the constitutional language.
The parties do not offer evidence of a single word in the history
of the Constitutional Convention or in contemporary commentary
that even alludes to the possibility of judicial review in the
context of the impeachment powers.  See 290 U. S. App. D.C., at
424, 938 F. 2d, at 243; R. Berger, Impeachment:  The
Constitutional Problems 116 (1973).  This silence is quite
meaningful in light of the several explicit references to the
availability of judicial review as a check on the  Legislature's
power with respect to bills of attainder, ex post facto laws, and
statutes.  See The Federalist No. 78, p. 524 (J. Cooke ed. 1961)
("Limitations . . . can be preserved in practice no other way
than through the medium of the courts of justice").

  The Framers labored over the question of where the impeachment
power should lie.  Significantly, in at least two considered
scenarios the power was placed with the Federal Judiciary.  See 1
Farrand 21-22 (Virginia Plan); id., at 244 (New Jersey Plan).
Indeed, Madison and the Committee of Detail proposed that the
Supreme Court should have the power to determine impeachments.
See 2 id., at 551 (Madison); id., at 178-179, 186 (Committee
of Detail).  Despite these proposals, the Convention ultimately
decided that the Senate would have "the sole Power to Try all
Impeachments."  Art. I, 3, cl. 6.  According to Alexander
Hamilton, the Senate was the "most fit depositary of this
important trust" because its members are representatives of the
people.  See The Federalist No. 65, p. 440 (J. Cooke ed. 1961).
The Supreme Court was not the proper body because the Framers
"doubted whether the members of that tribunal would, at all
times, be endowed with so eminent a portion of fortitude as would
be called for in the execution of so difficult a task" or whether
the Court "would possess the degree of credit and authority" to
carry out its judgment if it conflicted with the accusation
brought by the Legislature- the people's representative.  See
id., at 441. In addition, the Framers believed the Court was too
small in number: "The awful discretion, which a court of
impeachments must necessarily have, to doom to honor or to infamy
the most confidential and the most distinguished characters of
the community, forbids the commitment of the trust to a small
number of persons."

/* Nixon's argument in a nutshell. The framers intended for a
larger body to rule, not just part of the Senate. */

Id., at 441-442.

  There are two additional reasons why the Judiciary, and the
Supreme Court in particular, were not chosen to have any role in
impeachments.  First, the Framers recognized that most likely
there would be two sets of proceedings for individuals who commit
impeachable offenses- the impeachment trial and a separate
criminal trial.  In fact,the Constitution explicitly provides for
two separate proceedings.  See Art. I, 3, cl. 7.  The Framers
deliberately separated the two forums to avoid raising the
specter of bias and to ensure independent judgments:


      Would it be proper that the persons, who had disposed
      of his fame and his most valuable rights as a citizen
      in one trial, should in another trial, for the same
      offence, be also the disposers of his life and his
      fortune?  Would there not be the greatest reason to
      apprehend, that error in the first sentence would be
      the parent of error in the second sentence?  That the
      strong bias of one decision would be apt to overrule
      the influence of any new lights, which might be brought
      to vary the complexion of another decision?- The
      Federalist No. 65, p. 442 (J. Cooke ed. 1961).

Certainly judicial review of the Senate's -trial- would introduce
the same risk of bias as would participation in the trial itself.

  Second, judicial review would be inconsistent with the Framers'
insistence that our system be one of checks and balances.  In our
constitutional system, impeachment was designed to be the only
check on the Judicial Branch by the Legislature.  On the topic of
judicial accountability, Hamilton wrote:

           The precautions for their responsibility are comprised
      in the article respecting impeachments.  They are
      liable to be impeached for malconduct by the house of
      representatives, and tried by the senate, and if
      convicted, may be dismissed from office and
      disqualified for holding any other.  This is the only
      provision on the point, which is consistent with the
      necessary independence of the judicial character, and
      is the only one which we find in our own constitution
      in respect to our own judges. Id., No. 79, pp. 532-533
      (emphasis added).


Judicial involvement in impeachment proceedings, even if only for
purposes of judicial review, is counterintuitive because it would
eviscerate the -important constitutional check- placed on the
Judiciary by the Framers.  See id., No. 81, p. 545.  Nixon's
argument would place final reviewing authority with respect to
impeachments in the hands of the same body that the impeachment
process is meant to regulate.


/* A gross overstatement as all Nixon wants is a review of the
process, not the result, and a rather limited review of the
process at that. */

  Nevertheless, Nixon argues that judicial review is necessary in
order to place a check on the Legislature.  Nixon fears that if
the Senate is given unreviewable authority to interpret the
Impeachment Trial Clause, there is a grave risk that the Senate
will usurp judicial power.  The Framers anticipated this
objection and created two constitutional safeguards to keep the
Senate in check.  The first safeguard is that the whole of the
impeachment power is divided between the two legislative bodies,
with the House given the right to accuse and the Senate given
the right to judge.  Id., No. 66, p. 446.  This split of
authority "avoids the inconvenience of making the same persons
both accusers and judges; and guards against the danger of
persecution from the prevalency of a factious spirit in either of
those branches."  The second safeguard is the two-thirds
supermajority vote requirement. Hamilton explained that "[a]s the
concurrence of two-thirds of the senate will be requisite to a
condemnation, the security to innocence, from this additional
circumstance, will be as complete as itself can desire.-
Ibid.

  In addition to the textual commitment argument, we are
persuaded that the lack of finality and the difficulty of
fashioning relief counsel against justiciability.  See Baker
v. Carr, 369 U. S., at 210.  We agree with the Court of  Appeals
that opening the door of judicial review to the procedures used
by the Senate in trying impeachments would "expose the political
life of the country to months, or perhaps years, of chaos."  290
U. S. App. D.C., at 427, 938 F. 2d, at 246.  This lack of
finality would manifest itself most dramatically if the President
were impeached.  The legitimacy of any successor, and hence his
effectiveness, would be impaired severely, not merely while the
judicial process was running its course, but during any retrial
that a differently constituted Senate might conduct if its first
judgment of conviction were invalidated.  Equally uncertain is
the question of what relief a court may give other than simply
setting aside the judgment of conviction.  Could it order the
reinstatement of a convicted federal judge, or order Congress to
create an additional judgeship if the seat had been filled in the
interim?

  Petitioner finally contends that a holding of nonjusticiability
cannot be reconciled with our opinion in Powell v. McCormack, 395
U. S. 486 (1969).  The relevant issue in Powell was whether
courts could review the House of Representatives' conclusion that
Powell was -unqualified- to sit as a Member because he had been
accused of misappropriating public funds and abusing the process
of the New York courts.  We stated that the question of
justiciability turned on whether the Constitution committed
authority to the House to judge its members' qualifications, and
if so, the extent of that commitment.  Id., at 519, 521.  Article
I, 5 provides that "Each House shall be the Judge of the
Elections, Returns and Qualifications of its own Members."  In
turn, Art. I, 2 specifies three requirements for membership in
the House: The candidate must be at least 25 years of age, a
citizen of the United States for no less than seven years, and an
inhabitant of the State he is chosen to represent.  We held that,
in light of the three requirements specified in the Constitution,
the word -qualifications--of which the House was to be the
Judge-was of a precise, limited nature.  Id., at 522; see also
The Federalist No. 60, p. 409 (J. Cooke ed. 1961) ("The
qualifications of the persons who may choose or be chosen, as has
been remarked upon another occasion, are defined and fixed in the
constitution; and are unalterable by the legislature.") (emphasis
added) (quoted  in Powell, supra, at 539).

  Our conclusion in Powell was based on the fixed meaning of
-[q]ualifications- set forth in Art. I, 2.  The claim by the
House that its power to -be the Judge of the Elections, Returns
and Qualifications of its own Members- was a textual commitment
of unreviewable authority was defeated by the existence of this
separate provision specifying the only qualifications which might
be imposed for House membership.  The decision as to whether a
member satisfied these qualifications was placed with the House,
but the decision as to what these qualifications consisted of was
not.

  In the case before us, there is no separate provision of the
Constitution which could be defeated by allowing the Senate final
authority to determine the meaning of the word -try- in the
Impeachment Trial Clause.  We agree with Nixon that courts
possess power to review either legislative or executive action
that transgresses identifiable textual limits.  As we have made
clear, "whether the action of [either the Legislative or
Executive Branch] exceeds whatever authority has been committed,
is itself a delicate exercise in constitutional interpretation,
and is a responsibility of this Court as ultimate interpreter of
the Constitution."  Baker v. Carr, supra, at 211; accord, Powell,
supra, at 521.  But we conclude, after exercising that delicate
responsibility, that the word -try- in the Impeachment Clause
does not provide an identifiable textual limit on the authority
which is committed to the Senate.

  For the foregoing reasons, the judgment of the Court of
Appeals is
                                    Affirmed.

  Justice Stevens, concurring.

  For me, the debate about the strength of the inferences to be
drawn from the use of the words -sole- and -try- is far less
significant than the central fact that the Framers decided to
assign the impeachment power to the Legislative Branch.  The
disposition of the impeachment of Samuel Chase in 1805
demonstrated that the Senate is fully conscious of the profound
importance of that assignment, and nothing in the subsequent
history of the Senate's exercise of this extraordinary power
suggests otherwise.  See generally 3 A. Beveridge, The Life of
John Marshall 169-222 (1919); W. Rehnquist, Grand Inquests
275-278 (1992).  Respect for a coordinate Branch of the
Government forecloses any assumption that improbable
hypotheticals like those mentioned by Justice White and Justice
Souter will ever occur.  Accordingly, the wise policy of judicial
restraint, coupled with the potential anomalies associated with a
contrary view, see ante at 9-12, provide a sufficient
justification for my agreement with the views of The Chief
Justice.


  Justice White, with whom Justice Blackmun joins,
concurring in the judgment.

  Petitioner contends that the method by which the Senate
convicted him on two articles of impeachment violates Art. I, 3,
cl. 6 of the Constitution, which mandates that the Senate -try-
impeachments.  The Court is of the view that the Constitution
forbids us even to consider his contention.  I find no such
prohibition and would therefore reach the merits of the claim.  I
concur in the judgment because the Senate fulfilled its
constitutional obligation to -try- petitioner.

I

  It should be said at the outset that, as a practical matter, it
will likely make little difference whether the Court's or my view
controls this case.  This is so because the Senate has very wide
discretion in specifying impeachment trial procedures and because
it is extremely unlikely that the Senate would abuse its
discretion and insist on a procedure that could not be deemed a
trial by reasonable judges.  Even taking a wholly practical
approach, I would prefer not to announce an unreviewable
discretion in the Senate to ignore completely the constitutional
direction to -try- impeachment cases.  When asked at oral
argument whether that direction would be satisfied if,  after a
House vote to impeach, the Senate, without any procedure
whatsoever, unanimously found the accused guilty of being -a bad
guy,- counsel for the United States answered that the
Government's theory "leads me to answer that question yes."  Tr.
Oral Arg. 51.  Especially in light of this advice from the
Solicitor General, I would not issue an invitation to the Senate
to find an excuse, in the name of other pressing business, to be
dismissive of its critical role in the impeachment process.

  Practicalities aside, however, since the meaning of a
constitutional provision is at issue, my disagreement with the
Court should be stated.


II

  The majority states that the question raised in this case meets
two of the criteria for political questions set out in Baker v.
Carr, 369 U. S. 186 (1962).  It concludes first that there is -`a
textually demonstrable constitutional commitment of the issue to
a coordinate political department.'  It also finds that the
question cannot be resolved for -`a lack of judicially
discoverable and manageable standards.'-  Ante, at 3.

  Of course the issue in the political question doctrine is
not whether the Constitutional text commits exclusive
responsibility for a particular governmental function to one
of the political branches.  There are numerous instances of this
sort of textual commitment, e.g., Art. I, 8, and it is not
thought that disputes implicating these provisions are
nonjusticiable.  Rather, the issue is whether the Constitution
has given one of the political branches final responsibility for
interpreting the scope and nature of such a power.

  Although Baker directs the Court to search for "a textually
demonstrable constitutional commitment" of such responsibility,
there are few, if any, explicit and unequivocal instances in the
Constitution of this sort of textual commitment.  Conferral on
Congress of the power to -Judge- qualifications of its members by
Art. I, 5 may, for example, preclude judicial review of whether a
prospective member in fact meets those qualifications.  See
Powell v. McCormack, 395 U. S. 486, 548 (1969).  The courts
therefore are usually left to infer the presence of a political
question from the text and structure of the Constitution.  In
drawing the inference that the Constitution has committed final
interpretive authority to one of the political branches, courts
are sometimes aided by textual evidence that the judiciary was
not meant to exercise judicial review - a coordinate inquiry
expressed in Baker's -lack of judicially discoverable and
manageable standards- criterion.  See, e.g., Coleman v. Miller,
307 U. S. 433, 452-454 (1939), where the Court refused to
determine the life span of a proposed constitutional amendment
given Art. V's placement of the amendment process with Congress
and the lack of any judicial standard for resolving the question.
See also id., at 457-460 (Black, J., concurring).

A

  The majority finds a clear textual commitment in the
Constitution's use of the word -sole- in the phrase -the
Senate shall have the sole Power to try all impeachments.-  Art.
I, 3, cl. 6.  It attributes -considerable significance- to the
fact that this term appears in only one other passage in the
Constitution.  Ante, at 6.  See Art. I, 2, cl. 5 (the House of
Representatives -shall have the sole Power of Impeachment-).  The
Framers' sparing use of -sole- is thought to indicate that its
employment in the Impeachment Trial Clause demonstrates a concern
to give the Senate exclusive interpretive authority over the
Clause.

  In disagreeing with the Court, I note that the Solicitor
General stated at oral argument that -[w]e don't rest our
submission on sole power to try.-  Tr. Oral Arg. 32; see also
id., at 51.  The Government was well advised in this respect.
The significance of the Constitution's use of the term -sole-
lies not in the infrequency with which the term appears, but in
the fact that it appears exactly twice, in parallel provisions
concerning impeachment.  That the word -sole- is found only in
the House and Senate Impeachment Clauses demonstrates that its
purpose is to emphasize the distinct role of each in the
impeachment process.  As the majority notes, the Framers,
following English practice, were very much concerned to
separate the prosecutorial from the adjudicative aspects
of impeachment.  Ante, at 11 (citing The Federalist No.
66, p. 446 (J. Cooke ed. 1961)).  Giving each House -sole- power
with respect to its role in impeachments effected this division
of labor.  While the majority is thus right to interpret the term
-sole- to indicate that the Senate ought to -`functio[n]
independently and without assistance or interference,'- ante, at
6, it wrongly identifies the judiciary, rather than the House, as
the source of potential interference with which the Framers were
concerned when they employed the term -sole.-

  Even if the Impeachment Trial Clause is read without regard to
its companion clause, the Court's willingness to abandon its
obligation to review the constitutionality of legislative acts
merely on the strength of the word -sole- is perplexing.
Consider, by comparison, the treatment of Art. I, 1, which grants
-All legislative powers- to the House and Senate.  As used in
that context -all- is nearly synonymous with -sole- - both
connote entire and exclusive authority.  Yet the Court has never
thought it would unduly interfere with the operation of the
Legislative Branch to entertain difficult and important questions
as to the extent of the legislative power.  Quite the opposite,
we have stated that the proper interpretation of the Clause falls
within the province of the judiciary.  Addressing the
constitutionality of the legislative veto, for example, the Court
found it necessary and proper to interpret Art. I, 1 as one of
the "[e]xplicit and unambiguous provisions of the Constitution
[that] prescribe and define the respective functions of the
Congress and of the Executive in the legislative process."  INS
v. Chadha, 462 U. S. 919, 945 (1983).

  The majority also claims support in the history and early
interpretations of the Impeachment Clauses, noting the various
arguments in support of the current system made at the
Constitutional Convention and expressed powerfully by Hamilton in
The Federalist Nos. 65 and 66.  In light of these materials there
can be little doubt that the Framers came to the view at the
Convention that the trial of officials' public misdeeds should be
conducted by representatives of the people; that the fledgling
judiciary lacked the wherewithal to adjudicate political
intrigues; that the judiciary ought not to try both impeachments
and subsequent criminal cases emanating from them; and that
the impeachment power must reside in the Legislative Branch to
provide a check on the largely unaccountable judiciary.

  The majority's review of the historical record thus explains
why the power to try impeachments properly resides with the
Senate.  It does not explain, however, the sweeping statement
that the judiciary was -not chosen to have any role in
impeachments.-  Ante, at 9.  Not a single word in the historical
materials cited by the majority addresses judicial review of the
Impeachment Trial Clause.  And a glance at the arguments
surrounding the Impeachment Clauses negates the majority's
attempt to infer nonjusticiability from the Framers' arguments in
support of the Senate's power to try impeachments.

  What the relevant history mainly reveals is deep ambivalence
among many of the Framers over the very institution of
impeachment, which, by its nature, is not easily reconciled with
our system of checks and balances.  As they clearly recognized,
the branch of the Federal Government which is possessed of the
authority to try impeachments, by having final say over the
membership of each branch, holds a potentially unanswerable power
over the others.  In addition, that branch, insofar as it is
called upon to try not only members of other branches,
but also its own, will have the advantage of being the
judge of its own members' causes.

  It is no surprise, then, that the question of impeachment
greatly vexed the Framers.  The pages of the Convention debates
reveal diverse plans for resolving this exceedingly difficult
issue.  See P. Hoffer & N. Hull, Impeachment in America,
1635-1805, pp. 97-106 (1984) (discussing various proposals).
Both before and during the convention, Madison maintained that
the judiciary ought to try impeachments.  Id., at 74, 98, 100.
Shortly thereafter, however, he devised a quite complicated
scheme that involved the participation of each branch. Id., at
74-75.  Jefferson likewise had attempted to develop an
interbranch system for impeachment trials in Virginia.  Id., at
71-72.  Even Hamilton's eloquent defense of the scheme adopted by
the Constitution was based on a pragmatic decision to further the
cause of ratification rather than a strong belief in the
superiority of a scheme vesting the Senate with the sole power to
try impeachments.  While at the Convention, Hamilton advocated
that impeachment trials be conducted by a court made up of
state court judges.  1 Records of the Federal Convention of 1787,
pp. 292-293 (M. Farrand ed. 1966).  Four months after publishing
the Federalist Nos. 65 and 66, however, he urged the New York
Ratifying Convention to amend the Clause he had so ably defended
to have the Senate, the Supreme Court, and judges from each state
jointly try impeachments.  5 The Papers of Alexander Hamilton
167-168 (H. Syrett ed. 1962).

  The historical evidence reveals above all else that the
Framers were deeply concerned about placing in any branch the
-awful discretion, which a court of impeachments must necessarily
have.-  The Federalist No. 65, p. 441 (J. Cooke ed. 1961).
Viewed against this history, the discord between the majority's
position and the basic principles of checks and balances
underlying the Constitution's separation of powers is clear.  In
essence, the majority suggests that the Framers' conferred upon
Congress a potential tool of legislative dominance yet at
the same time rendered Congress' exercise of that power one of
the very few areas of legislative authority immune from any
judicial review.  While the majority rejects petitioner's
justiciability argument as espousing a view "inconsistent with
the Framers' insistence that our system be one of checks and
balances," ante, at 10, it is the Court's finding of
nonjusticiability that truly upsets the Framers' careful design.
In a truly balanced system, impeachments tried by the Senate
would serve as a means of controlling the largely unaccountable
judiciary, even as judicial review would ensure that the Senate
adhered to a minimal set of procedural standards in conducting
impeachment trials.

/* This is perhaps the most coherent explanation of the position
that the Courts cannot review the verdict of an impeachment, but
can review the process which leads to the verdict for the sole
purpose of seeing that the Senate, in full, try the case. */


                            B

  The majority also contends that the term -try- does not
present a judicially manageable standard.  It notes that
in 1787, as today, the word -try- may refer to an inquiry
in the nature of a judicial proceeding, or, more generally,
to experimentation or investigation.  In light of the term's
multiple senses, the Court finds itself unable to conclude
that the Framers used the word -try- as -an implied limitation on
the method by which the Senate might proceed in trying
impeachments.-  Ante, at 5.  Also according to the majority,
comparison to the other more specific requirements listed in the
Impeachment Trial Clause - that the senators must proceed under
oath and vote by two-thirds to convict, and that the Chief
Justice must preside over an impeachment trial of the President
- indicates that the word -try- was not meant by the Framers to
constitute a limitation on the Senate's conduct and further
reveals the term's unmanageability.   It is apparently on this
basis that the majority distinguishes Powell v. McCormack, 395 U.
S. 486 (1969).  In Powell, the House of Representatives argued
that the grant to Congress of the power to -Judge- the
qualifications of its members in Art. I, 5 precluded the Court
from reviewing the House's decision that Powell was not fit for
membership.  We held to the contrary, noting that, although the
Constitution leaves the power to -Judge- in the hands of
Congress, it also enumerates, in Art. I, 2, the -qualifications-
whose presence or absence Congress must adjudge.  It is precisely
the business of the courts, we concluded, to determine the nature
and extent of these constitutionally-specified qualifications.
Id., at 522.  The majority finds this case different from Powell
only on the grounds that, whereas the qualifications of Art. I, 2
are readily susceptible to judicial interpretation, the term -try
does not provide an -identifiable textual limit on the authority
which is committed to the Senate.-  Ante, at 14.   This argument
comes in two variants.  The first, which asserts that one simply
cannot ascertain the sense of -try- which the Framers employed
and hence cannot undertake judicial review, is clearly untenable.
To begin with, one would intuitively expect that, in defining the
power of a political body to conduct an inquiry into official
wrongdoing, the Framers used -try- in its legal sense.  That
intuition is borne out by reflection on the alternatives.
The third clause of Art. I, 3 cannot seriously be read to mean
that the Senate shall -attempt- or -experiment with-
impeachments.  It is equally implausible to say that the  Senate
is charged with -investigating- impeachments given that this
description would substantially overlap with the House of
Representatives' -sole- power to draw up articles of impeachment.
Art. I, 2, cl. 5.  That these alternatives are not realistic
possibilities is finally evidenced by the use of -tried- in the
third sentence of the Impeachment Trial Clause ("[w]hen the
President of the United States is tried . . ."), and by Art. III,
2, cl. 3 (-[t]he Trial of all Crimes, except in Cases of
Impeachment . . .-).   The other variant of the majority position
focuses not on which sense of -try- is employed in the
Impeachment Trial Clause, but on whether the legal sense of that
term creates a judicially manageable standard.  The majority
concludes that the term provides no -identifiable textual
limit.-  Yet, as the Government itself conceded at oral
argument, the term -try- is hardly so elusive as the majority
would have it.  See Tr. of Oral Arg. 51-52.  Were the Senate, for
example, to adopt the practice of automatically entering a
judgment of conviction whenever articles of impeachment were
delivered from the House, it is quite clear that the Senate will
have failed to -try- impeachments.  See, id., at 52.  Indeed in
this respect, -try- presents no greater, and perhaps fewer,
interpretive difficulties than some other constitutional
standards that have been found amenable to familiar techniques of
judicial construction, including, for example, -Commerce
. . . among the several States,- Art. I, 8, cl. 3, and -due
process of law.-  Amdt. 5; see Gibbons v. Ogden, 9 Wheat.
1, 189 (1824) ("The subject to be regulated is commerce; and our
constitution being . . . one of enumeration, and not of
definition, to ascertain the extent of the power, it becomes
necessary to settle the meaning of the word"); Mathews v.
Eldridge, 424 U. S. 319, 334 (1976) (`-[D]ue process,- unlike
some legal rules, is not a technical conception with a fixed
content unrelated to time, place and circumstances'-) (quoting
Cafeteria Workers v. McElroy, 367 U. S. 886, 895 (1961)).

                           III

  The majority's conclusion that -try- is incapable of
meaningful judicial construction is not without irony.  One
might think that if any class of concepts would fall within
the definitional abilities of the judiciary, it would be that
class having to do with procedural justice.  Examination
of the remaining question - whether proceedings in accordance
with Senate Rule XI are compatible with the Impeachment Trial
Clause - confirms this intuition.   Petitioner bears the rather
substantial burden of demonstrating that, simply by employing the
word -try,- the Constitution prohibits the Senate from relying on
a fact-finding committee.  It is clear that the Framers were
familiar with English impeachment practice and with that
of the States employing a variant of the English model at the
time of the Constitutional Convention.  Hence there is little
doubt that the term -try- as used in Art. I, 3, cl. 6 meant that
the Senate should conduct its proceedings in a manner somewhat
resembling a judicial proceeding.  Indeed, it is safe to assume
that Senate trials were to follow the practice in England and the
States, which contemplated a formal hearing on the charges, at
which the accused would be represented by counsel, evidence
would be presented, and the accused would have the opportunity to
be heard.

  Petitioner argues, however, that because committees were not
used in state impeachment trials prior to the Convention, the
word -try- cannot be interpreted to permit their use.  It is,
however, a substantial leap to infer from the absence of a
particular device of parliamentary procedure that its use has
been forever barred by the Constitution.  And there is textual
and historical evidence that undermines the inference sought to
be drawn in this case.   The fact that Art. III, 2, cl. 3
specifically exempts impeachment trials from the jury requirement
provides some evidence that the Framers were anxious not to have
additional specific procedural requirements read into the
term -try.-  Contemporaneous commentary further supports this
view.  Hamilton, for example, stressed that a trial by so large a
body as the Senate (which at the time promised to boast 26
members) necessitated that the proceedings not -be tied down
to . . . strict rules, either in the delineation of the offence
by the prosecutors, or in the construction of it by the
Judges . . . .-  The Federalist No. 65, p. 441 (J. Cooke ed.
1961).  In his extensive analysis of the Impeachment Trial
Clause, Justice Story offered a nearly identical analysis, which
is worth quoting at length.

      [I]t is obvious, that the strictness of the forms of
      proceeding in cases of offences at common law is ill
      adapted to impeachments.  The very habits growing out
      of judicial employments; the rigid manner, in which the
      discretion of judges is limited, and fenced in on all
      sides, in order to protect persons accused of crimes by
      rules and precedents; and the adherence to technical
      principles, which, perhaps, distinguishes this branch
      of the law, more than any other, are all ill adapted to
      the trial of political offences, in the broad course of
      impeachments.  And it has been observed with great
      propriety, that a tribunal of a liberal and
      comprehensive character, confined, as little as
      possible, to strict forms, enabled to continue its
      session as long as the nature of the law may require,
      qualified to view the charge in all its bearings and
      dependencies, and to appropriate on sound principles of
      public policy the defence of the accused, seems
      indispensable to the value of the trial.  The history
      of impeachments, both in England and America, justifies
      the remark.  There is little technical in the mode of
      proceeding; the charges are sufficiently clear, and yet
      in a general form; there are few exceptions, which
      arise in the application of the evidence, which grow
      out of mere technical rules and quibbles.  And it has
      repeatedly been seen, that the functions have been
      better understood, and more liberally and justly
      expounded by statesmen, then by mere lawyers.-  1 J.
      Story, Commentaries on the Constitution of the
      United States 765, p. 532 (3d ed. 1858).

It is also noteworthy that the delegation of fact-finding
by judicial and quasi-judicial bodies was hardly unknown to the
Framers.  Jefferson, at least, was aware that the House of Lords
sometimes delegated fact-finding in impeachment trials to
committees and recommended use of the same to the Senate.  T.
Jefferson, A Manual of Parliamentary Practice for the Use of the
Senate of the United States LIII (2d ed. 1812) ("The practice is
to swear the witnesses in open House, and then examine them
there: or a committee may be named, who shall examine them in
committee . . ."), reprinted in Jefferson's Parliamentary
Writings, The Papers of Thomas Jefferson, Second Series 424 (W.
Howell ed. 1988).  The States also had on occasion employed
legislative committees to investigate whether to draw up articles
of impeachment.  See Hoffer & Hull, at 29, 33.  More generally,
in colonial governments and state legislatures, contemnors
appeared before committees to answer the charges against them.
See Groppi v. Leslie, 404 U. S. 496, 501 (1972).  Federal
courts likewise had appointed special masters and other
fact finders -[f]rom the commencement of our Government.-  Ex
parte Peterson, 253 U. S. 300, 312 (1920).  Particularly in light
of the Constitution's grant to each House of the power to
-determine the Rules of its Proceedings,- see Art. I,  5, cl. 2,
the existence of legislative and judicial delegation strongly
suggests that the Impeachment Trial Clause was not designed to
prevent employment of a factfinding committee.

  In short, textual and historical evidence reveals that the
Impeachment Trial Clause was not meant to bind the hands of the
Senate beyond establishing a set of minimal procedures.  Without
identifying the exact contours of these procedures, it is
sufficient to say that the Senate's use of a factfinding
committee under Rule XI is entirely compatible with the
Constitution's command that the Senate -try all impeachments.-
Petitioner's challenge to his conviction must therefore fail.

                           IV

  Petitioner has not asked the Court to conduct his impeachment
trial; he has asked instead that it determine whether his
impeachment was tried by the Senate.  The majority refuses to
reach this determination out of a laudable desire to respect the
authority of the legislature. Regrettably, this concern is
manifested in a manner that does needless violence to the
Constitution.  The deference that is owed can be found in the
Constitution itself, which provides the Senate ample discretion
to determine how best to try impeachments.


  Justice Souter, concurring in the judgment.

  I agree with the Court that this case presents a nonjusticiable
political question.  Because my analysis differs somewhat from
the Court's, however, I concur in its judgment by this separate
opinion.

  As we cautioned in Baker v. Carr, 369 U. S. 186, 210-211
(1962), -the `political question' label- tends -to obscure the
need for case-by-case inquiry.-  The need for such close
examination is nevertheless clear from our precedents, which
demonstrate that the functional nature of the political question
doctrine requires analysis of -the precise facts and posture of
the particular case,- and precludes -resolution by any semantic
cataloguing,- id., at 217:

      Prominent on the surface of any case held to involve
      a political question is found a textually demonstrable
      constitutional commitment of the issue to a coordinate
      political department; or a lack of judicially
      discoverable and manageable standards for resolving it;
      or the impossibility of deciding without an initial
      policy determination of a kind clearly for nonjudicial
      discretion; or the impossibility of a court's
      undertaking independent resolution without expressing
      lack of the respect due coordinate branches of
      government; or an unusual need for unquestioning
      adherence to a political decision already made; or the
      potentiality of embarrassment from multifarious
      pronouncements by various departments on one question.
        Ibid.

  Whatever considerations feature most prominently in a
particular case, the political question doctrine is -essentially
a function of the separation of powers,- ibid., existing to
restrain courts "from inappropriate interference in the business
of the other branches of Government," United States v.
Munoz-Flores, 495 U. S. 385, 394 (1990), and deriving in large
part from prudential concerns about the respect we owe the
political departments.  See Goldwater v. Carter, 444 U. S. 996,
1000 (1979) (Powell, J., concurring in judgment); A. Bickel, The
Least Dangerous Branch 125-126 (2d ed. 1986); Finkelstein,
Judicial Self-Limitation, 37 Harv. L. Rev. 338, 344-345 (1924).
Not all interference is inappropriate or disrespectful,
however, and application of the doctrine ultimately turns,
as Learned Hand put it, on "how importunately the occasion
demands an answer."  L. Hand, The Bill of Rights 15 (1958).

  This occasion does not demand an answer.  The Impeachment Trial
Clause commits to the Senate "the sole Power to try all
Impeachments," subject to three procedural requirements: the
Senate shall be on oath or affirmation; the Chief Justice shall
preside when the President is tried; and conviction shall be upon
the concurrence of two-thirds of the Members present.  U. S.
Const., Art. I, 3, cl. 6.  It seems fair to conclude that the
Clause contemplates that the Senate may determine, within broad
boundaries, such subsidiary issues as the procedures for receipt
and consideration of evidence necessary to satisfy its duty to
-try- impeachments.  Other significant considerations confirm a
conclusion that this case presents a nonjusticiable political
question: the -unusual need for unquestioning adherence to a
political decision already made,- as well as -the potentiality of
embarrassment from multifarious pronouncements by various
departments on one question.-  Baker, supra, at 217.  As the
Court observes, see ante, at 11-12, judicial review of an
impeachment trial would under the best of circumstances entail
significant disruption of government.   One can, nevertheless,
envision different and unusual circumstances that might justify a
more searching review of impeachment proceedings.  If the Senate
were to act in a manner seriously threatening the integrity of
its results, convicting, say, upon a coin-toss, or upon a
summary determination that an officer of the United States was
simply -`a bad guy,'- ante, at 2 (White, J., concurring in
judgment), judicial interference might well be appropriate.  In
such circumstances, the Senate's action might be so far beyond
the scope of its constitutional authority, and the consequent
impact on the Republic so great, as to merit a judicial response
despite the prudential concerns that would ordinarily counsel
silence.  "The political question doctrine, a tool for
maintenance of governmental order, will not be so applied as to
promote only disorder."  Baker, supra, at 215.


/* A middle ground findinf that this procedure is acceptable but
leaving review of other procedures to the time when they are
brought before the Court. */