Asymmetric World Jurisprudence

This article argues that the Supreme Court should reconsider its prudential justiciability doctrines and their underlying assumptions. As a global theory, this Article offers a judicial dynamism model. It then articulates the relevance of the political question doctrine and the need to view the doctrine as prudential rather than constitutional. First, I discuss the Supreme Court's increased use of judicial minimalism and the political question doctrine to avoid important cases and reduce its docket.

Second, I describe my model, in which the court takes a dynamic approach to such issues, dependent upon the political climate, to maintain its appropriate stature and the Constitution's intended balance of powers. I use two recent cases to illustrate my prescription and how it is particularly relevant to the ongoing war on terror. Third, I examine the long-standing political question doctrine and show how dynamism would clarify that it is a prudential, not constitutional, limitation. Finally, I endorse a dynamic court, which takes up important constitutional questions when the balance of powers warrant that the federal judiciary assume its jurisdiction and speak boldly.