Very, Very Wrong... I wrote a dissent — and that's the way it works... [the court's decision was procedural] and so we'll see what happens in that ar… - Stephen Breyer

questioning the lawfulness of a long-standing State Department policy specifying that the birthplace of an American citizen born in Jerusalem be given as “Jerusalem” rather than “Israel or Jordan” in his passport.43 The courts were asked to review this policy in light of a congressional statute requiring the State Department to describe the birthplace as “Israel” if the citizen so wished. Did the statute unconstitutionally interfere with the President’s power to conduct foreign affairs?44 The lower courts had decided that the case presented an unreviewable political question.45 But the Supreme Court held to the contrary. All the justices but one (and I was the one) considered the matter of deciding what the statute meant and whether it was constitutional to be “a familiar judicial exercise.”46 My colleagues believed the courts should not avoid the question by invoking the “political question” doctrine.47 They consequently sent the case back to the lower court for a decision on the merits.48 Though alone, I saw the case differently. “In the Middle East,” I wrote, “administrative matters can have implications that extend far beyond the purely administrative.”49 The secretary of state had argued that requiring her to stamp the word Israel on a passport would represent an “official decision by the United States to begin to treat Jerusalem as a city” under Israeli sovereignty.50 She maintained that upholding the statute would have significant foreign policy implications (a conclusion that others denied). Because of our inability to know the answer to this kind of dispute, I concluded that the merits of the case raised a political question, which the other two branches should resolve between themselves.51 What matters for our purposes, however, is that the other members of the Court disagreed with me. They thought that, even there, the doctrine did not prevent the Court from reviewing the merits of this foreign policy-related question. The upshot is that neither the class

The Court’s insistence that judges and lawyers rely nearly exclusively on history to interpret the Second Amendment thus raises a host of troubling questions. Consider, for example, the following. Do lower courts have the research resources necessary to conduct exhaustive historical analyses in every Second Amendment case? What historical regulations and decisions qualify as representative analogues to modern laws? How will judges determine which historians have the better view of close historical questions? Will the meaning of the Second Amendment change if or when new historical evidence becomes available? And, most importantly, will the Court’s approach permit judges to reach the outcomes they prefer and then cloak those outcomes in the language of history?

[S]omething I enjoy is talking to [all kinds of students]. And they'll . . . ask me . . . "What is it you find particularly meaningful about your job?" . . . [W]hat I say to them is: Look, I sit there on the bench, and after we hear lots of cases [it becomes apparent that this] is a complicated country; there are more than 330 million people. And my mother used to say, "It's every race. It's every religion." And she would emphasize this: "And it's every point of view possible." . . . [I]t's a kind of miracle when you sit there and see all of those people in front of you - people that are so different in what they think. And yet, they've decided to help solve their major differences under law. And when the students [I speak to] get too cynical, I say, "Go look at what happens in countries that don't do that."