Student Note Preview: Political Question Doctrine in Zivotofsky v. Clinton

Posted by on Jan 27, 2014 in Updates

Carol Szurkowski provides a preview of her student note in the current issue (Volume 37, Issue 1) of the Harvard Journal of Law and Public Policy:


In 2012, the Supreme Court decided Zivotofsky ex rel. Zivotofsky v. Clinton, 132 S. Ct. 1421, in which it held that the political question doctrine could not be invoked to dismiss a suit involving the question whether an American citizen born in Jerusalem can enforce his statutory right to have “Israel” listed as his birthplace on his passport.  Chief Justice Roberts’ opinion for the Court was remarkable for its omission of any mention of the six-factor test introduced in Baker v. Carr, 369 U.S. 186 (1962), which has served as the touchstone for lower federal courts’ political question jurisprudence for the last half-century.  Especially in light of the fact that Justice Sotomayor’s concurrence, Justice Breyer’s dissent, and the D.C. Circuit opinion below all made much of the Baker six-factor test, this omission must have deliberate.

Why is this so significant?  Primarily because, since Baker was decided, lower courts have been using its test to avoid deciding some of the most sensitive foreign affairs questions of our day.  In particular, they have been relying on the final three factors of the test, which embody prudential considerations that are not drawn from the text and structure of the Constitution, to grant these dismissals.  In this note, I argue that Zivotofsky should largely put a stop to these prudential political question dismissals, forcing the courts to decide the questions that the Constitution has committed to their determination and returning the political question doctrine to its classical, text- and structure-bound roots.  With his statement that resolving sticky and sensitive questions such as that presented in Zivotofsky is “what courts do,” Chief Justice Roberts effects a Marbury-esque reclamation of the judiciary’s prerogative and duty to decide even difficult questions that have been committed to its resolution.


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