Zivotofsky v. Kerry is a U.S. Supreme Court case that has to do with two big, difficult issues in real-world geography: how the US government is allowed to make foreign policy and—in case that isn’t tough enough—the state of Jerusalem in the Israel-Palestine conflict. Good luck, justices. (Vox)
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- What is a plaintiff? Who is the plaintiff in this case? Who is the defendant?
- A plaintiff is a person who brings a lawsuit (complaint) against someone else. The plaintiff is always listed first in court cases. In Brown v. Board of Education, for instance, Oliver Brown was the plaintiff. In Bush v. Gore, George W. Bush was the plaintiff.
- In Zivotofsky v. Kerry, the plaintiff is 12-year-old Menachem Zivotofsky. The lawsuit was filed by his parents, Ari and Naomi, soon after his birth.
- The defendant, person accused of wrongdoing in this case, is U.S. Secretary of State John Kerry.
- Why are the Zivotofskys suing Secretary of State John Kerry? Read the Vox article or this terrific summary from SCOTUSblog for some guidance. (SCOTUS stands for the Supreme Court of the United States.)
- Why they are suing Secretary Kerry, specifically: Secretary Kerry is a stand-in for the entire State Department, the department of government responsible for international relations. More to the point, the State Department is the group that issues passports to American citizens like the Zivotofskys. The State Department, in turn, is a stand-in for the entire U.S. government. The Zivotofskys are suing the federal government.
- Why they are suing the government: The Zivotofskys are suing the State Department in order to have it record Israel as their son, Menachem’s, place of birth. Menachem was born in the city of Jerusalem in 2002. Since 1948, U.S. policy has been not to register Israel as the place of birth for Americans born in Jerusalem, because formally recognizing Jerusalem as part of Israel would upset the Israel-Palestine peace process.
- Why did the U.S. implement such an unusual policy in 1948?
- That was the year Israel declared its independence. It’s the year after the United Nations voted to divide the British Mandate for Palestine into two states, one Jewish and one Arab. Jerusalem itself was divided into (Israeli-controlled) West Jerusalem and (Jordanian-controlled) East Jerusalem. Read more about the division and the “international zone” of Jerusalem here.
- Will the Supreme Court’s decision in Zivotofsky v. Kerry change U.S. foreign policy toward Israel or the Palestinian Territories?
- No. Any decision SCOTUS reaches will not directly change foreign policy or even provide an opinion on whether the current State Department policy (the one about not stamping “Israel” on Jerusalem passports) is a good one.
- So, if the SCOTUS case is not really about the Israel, why does Israel care?
- This is a small part of a huge issue. When Israel declared Jerusalem its official capital in 1980, for instance, the international response was for every country to move its embassy from Jerusalem to the uncontested Israeli city of Tel Aviv.
- If SCOTUS sides with the Zivotofskys, it will be a huge symbolic victory for those who think Jerusalem is a part of Israel. Having a branch of the U.S. government even hint at acknowledging Jerusalem as a city in Israel may be interpreted as a powerful gesture.
- So, if the SCOTUS case is not really about the Israel, what’s it about?
- It’s about who makes foreign policy decisions in the U.S. government.
- So, who makes foreign policy decisions in the U.S. government?
- Traditionally, it’s the president. In this case, the State Department and the president are on the same side. “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations,” wrote former Supreme Court Chief Justice John Marshall in 1800—policy that became known as the “sole organ” doctrine.
- The Zivotofskys and their supporters say Congress should have a much more influential role. In particular, they think that the State Department should follow a 2002 law (“United States Policy With Respect to Jerusalem as the Capital of Israel”—see section 214 here) that requires the secretary of state to record Israel as the place of birth in the passport of any American who was born in Jerusalem and requested it. (The Zivotofskys requested it.)
- So, which side is Democratic and which side is Republican?
- Neither and both. This is absolutely not a party-line case. Democratic President Harry Truman oversaw the creation of the 1948 policy, and Republican President George Bush strongly supported it in 2002, when Congress passed the contradictory law. He protested that the law “interferes with the President’s constitutional authority to conduct the nation’s foreign affairs.” (Nevertheless, as Justice Antonin Scalia pointed out, the president did sign the bill instead of vetoing it.)
- SCOTUS only considers cases that “lower courts” have already decided. What did the lower court decide in Zivotofsky v. Kerry?
- It sided with the government (Kerry), saying that only the president has the power to recognize foreign countries, and the State Department does not have to comply with the 2002 law.
- Actually, that ruling was the second time the lower court heard the case. The first time, the lower court dismissed the case, or refused to make any ruling at all. The district court ruled that making any decision relating to Jerusalem was outside its jurisdiction (geographic region associated with a legal authority). The Zivotofskys and their lawyers appealed that dismissal, and the issue actually went to the Supreme Court. The first time, in 2010, it was called Zivotofsky v. Clinton, after then-Secretary of State Hillary Rodham Clinton. In that decision, SCOTUS decided that the issue was within a federal court’s jurisdiction after all and couldn’t be dismissed. They sent it back to the lower (district) court for a decision, which is when the district court decided for the government, and the Zivotofskys appealed again. And here we are.
- Zivotofsky v. Kerry was argued on Monday, November 3. Who argued for the Zivotofskys? Who argued for the government?
- The Zivotofskys were represented by Alyza D. Lewin, a prominent attorney who began her career clerking for the deputy president of the Israeli Supreme Court.
- The government was represented by Solicitor General Donald B. Verrilli, whose job is to represent the government in the Supreme Court. Prior to working for the government, Verrilli argued cases in front of the Supreme Court as a lawyer like Lewin.
- Supreme Court justices are sometimes broken into the “liberal” and “conservative” wings. What was the liberal response to the arguments? What was the conservative response?
- The liberal wing (here made up of Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor) were more critical of the Zivotofskys, with Justice Kagan noting that “history suggests that everything is a big deal with respect to the status of Jerusalem.”
- The conservative wing (here made up of Justices Samuel Alito, Antonin Scalia, and Chief Justice John Roberts) were more critical of the government, with Justice Scalia asking “what difference does it make whether [a U.S. law] antagonizes foreign countries?”
- Is there any suggestion of a compromise here?
- Yes, SCOTUS often likes compromises and partial rulings. In particular, Justice Anthony Kennedy posed a great question to the Zivotofskys’ lawyer, Alyza Lewin: Could the passport of Jerusalem-born Americans say “Israel” but have a disclaimer saying “This designation [of Jerusalem as a place in Israel] is neither an acknowledgment nor a declaration by the Department of State or the President of the United States that Jerusalem is within the borders of the State of Israel”? This would not eliminate the issue, of course, but there is precedent for this, and SCOTUS loves precedent. Currently, Americans born in Taiwan have “Taiwan” stamped on their passports despite the U.S. not recognizing the Republic of China (read more about the “Two Chinas” here). There is a disclaimer on these passports, however: “The United States does not officially recognize Taiwan as a “state” or “country,” although passport issuing officers may enter “Taiwan” as a place of birth.”
Vox: Zivotofsky v. Kerry: The Supreme Court case over Israel and US foreign policy, explained
SCOTUSblog: Jerusalem passport case divides Court: In Plain English
Nat Geo glossary:
Department of State
Nat Geo Education: JERUSALEM Education
Nat Geo This Day in Geographic History: 1947: Palestine Divided
Washington Post: The origins of the Zivotofsky disclaimer
(extra credit! This transcript is long, but fascinating reading—what a real Supreme Court case sounds like.) Supreme Court of the United States: No. 13-628: Menachem Binyamin Zivotofsky, by his parents and guardians, Ari Z. and Naomi Siegman Zivotofsky (petitioner) v. John Kerry, Secretary of State