Nixon v. United States - White Questions The Justiciability Ruling

Three justices filed concurring opinions. Justice Stevens wrote that there was no need to haggle over the words "try" and "sole;" all the Court needed to settle the case was to recognize "the central fact that the Framers decided to assign the impeachment power to the Legislative Branch." Justices White and Souter in their concurring opinions, Stevens wrote, were also looking too deeply into the question, raising "improbable hypotheticals."

Justice White, joined by Justice Blackmun, wrote an opinion concurring in the judgment. He considered the case to be justiciable, he said, but since the Senate had fulfilled its constitutional obligation, he was able to concur. To Justice White, "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" as that indicated in the Senate's authority to try impeachments. Despite the Court's ruling in Baker, White wrote, there were few instances where this "final responsibility" was so clear-cut. It was not that the framers of the Constitution specifically wanted to keep the judiciary out of impeachment proceedings; rather, the issue of impeachment "vexed" them. Quoting The Federalist, White observed that the framers were more afraid of placing in one branch "the awful discretion, which a court of impeachments must necessarily have." Hence White questioned the Court's understanding of the word "try" as not offering a judicially manageable standard--that is, as a term that excluded the judiciary from impeachment proceedings.

Justice Souter concurred in the judgment, but he disagreed with the Court's unwillingness to consider the possibility that Senate impeachment proceedings might be justiciable in certain circumstances. Referring to a hypothetical situation raised by Justice White, in which the Senate might choose to impeach an official simply because he was "a bad guy," Souter wrote that in such a situation, "judicial interference might well be appropriate."