Jerusalem & US Supreme Court Comment

From Alan Rozenshtein's blog on the issue of Jerusalem in the US Supreme Court, which in Zivotofsky v. Clinton it delieverd an 8–1 decision and reversed the lower courts’ dismissal of Menachim Zivotofsky’s suit to have “Jerusalem, Israel” listed as his place of birth. The Court held that that the political-question doctrine did not bar Zivotofsky’s suit, and he adds:-

...Chief Justice Roberts began by setting out the conditions for 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” (internal quotation marks omitted). He held that the lower courts had “misunderst[ood] the issue presented. Zivotofsky does not ask the courts to determine whether Jerusalem is the capital of Israel. He instead seeks to determine whether he may vindicate his statutory right, under §214(d), to choose to have Israel recorded on his passport as his place of birth.”...[and] concluded that Zivotofsky’s suit was not barred by the political-question doctrine...Recognizing that the Court was “without the benefit of thorough lower court opinions to guide [its] analysis of the merits,” he remanded the case for a decision on the merits.

Justice Sotomayor concurred in part, writing

In my view, it is not whether the evidence upon which litigants rely is common to judicial consideration that determines whether a case lacks judicially discoverable and manageable standards. Rather, it is whether that evidence in fact provides a court a basis to adjudicate meaningfully the issue with which it is presented. The answer will almost always be yes, but if the parties’ textual, structural, and historical evidence is inapposite or wholly unilluminating, rendering judicial decision no more than guesswork, a case relying on the ordinary kinds of arguments offered to courts might well still present justiciability concerns.

but

...(Justice Sotomayor’s opinion, unlike Chief Justice’s Roberts, presumably leaves it open for the lower courts to again find Zivotofsky’s suit nonjusticiable as a political question, this time on Baker category three grounds.)

And he adds

For an interesting thought on what Zivotofsky means for judicial involvement in foreign affairs, see Peter Spiro’s brief post...

where you can find this comment by 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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