In Other Supreme Court News: Political Question Doctrine Takes a Hit in Jerusalem Passport Case

In Other Supreme Court News: Political Question Doctrine Takes a Hit in Jerusalem Passport Case

Opinions here, with an eight-Justice majority for the result, with the case kicked back downstairs for resolution on the merits.  In the long run, this could prove a watershed decision.  The Court rejects the “textual commitment” and “no manageable standards” bases for applying the political question doctrine.  Neither has ever made a lot of sense to me on their own terms, and they’ll be tricky to trot out in the future.  They were window-dressing for the functional imperatives of judicial nonparticipation in the high-stakes dramas of foreign relations.  (Justice Breyer basically takes that tack in his articulate dissent.)

Those stakes persist in some contexts, this one included, involving the status of Jerusalem.  (I suspect that the Secretary of State will win on remand.)  But in an increasing number of cases, the courts are both better positioned to decide disputes and less likely to provoke disaster, even if they get something wrong.  That’s an incident of globalization and disaggregation (see pp. 674-85 of this).  Zivotovsky points the way to greater judicial participation in foreign affairs.

Too bad the decision comes out today – with the Supreme Court beat otherwise occupied, I wonder if it will get more than a blip in tomorrow’s papers.

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Eugene Kontorovich

I’m wondering what the State Dept’s strategy will be on remand. They don’t want to litigate this issue before November; maybe by the time it comes back up on dist ct’s calendar that won’t be consideration? If Republicans win, interesting if they would continue to fight in lower courts too.


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