The Political Question Doctrines: Zivotofsky v. Clinton and Getting beyond the Textual–Prudential Paradigm

28 Pages Posted: 7 Mar 2017

Date Written: January 5, 2016

Abstract

Since the Supreme Court’s opinion in Baker v. Carr, the political question doctrine has been viewed as consisting of textual and prudential factors. How these interrelate, and which type of factors to favor if these clash, has led to considerable confusion. In the recent case of Zivotofsky ex rel. Zivotofsky v. Clinton, Chief Justice Roberts may have attempted to settle these concerns by ignoring prudential factors altogether, characterizing political questions as concerned only with textual constraints.

This Note argues that a simple textual–prudential understanding of the political question doctrine is incomplete. In surveying all thirty-eight Supreme Court cases involving the political question doctrine since Baker was decided, it becomes clear that four competing conceptions of the political question doctrine have actually been formulated. Regardless of political question’s future, only by recognizing these competing conceptions can one make sense of the doctrine up to and through Zivotofsky.

Keywords: Judicial Decision Making, Constitutional Law

Suggested Citation

Shemtob, Zachary Baron, The Political Question Doctrines: Zivotofsky v. Clinton and Getting beyond the Textual–Prudential Paradigm (January 5, 2016). Georgetown Law Journal, Vol. 104, p. 1001, 2016. Available at SSRN: https://ssrn.com/abstract=2927726

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