Journal of the Charles University Law Faculty
Jan Malíř
Author’s affiliation:
Czech Academy of Sciences
Modern Political Question Doctrine in the USA: A Story in Which the Final Word Has Not Been Pronounced Yet
Jurisprudence 1/2019 Section: Articles Page: 1–18
Keywords: justiciability, USA, political question doctrine, evolution of modern doctrine, judicial supremacy, judicial self-restraint, persistence
Abstract: The rise of the modern political question doctrine is closely linked to the E. Warren Supreme Court which, in Baker v. Carr case, made an attempt to circumscribe the doctrine to an unprecedented extent and, in the aspiration to judicial supremacy, to limit especially those lines of the doctrine which had been justified by the imperatives of judicial prudence. Nearly 6 decades later, however, the doctrine has not become extinct and has retained a place in the US constitutional system, including disputes from such important areas as policy of national security, foreign policy, gerrymandering or constitutional amendments. Although, in the light of ambiguous case-law of the federal judiciary, the precise justification of the doctrine and its application remain to be the subject of controversies and debates, these doubts can be considered to be a direct reflection of the doctrine character described as “more a political tool than a principled standard”. Even after Zivotofsky I judgment, there can be no doubt that, yet, the final word has not been pronounced in the history of the doctrine.
