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.
Caprice L. Roberts, Asymmetric World Jurisprudence, 32 SEATTLE U. L. REV. 569 (2009).