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This short essay, prepared for a symposium in the American Journal of International Law Unbound, reflects on the Supreme Court’s interpretive methodology in the “Jerusalem passports” case, Zivotofsky v. Kerry. In particular, the essay considers the Court’s reliance on the historic practices of Congress and the executive branch in support of the Court’s finding of an exclusive presidential recognition power. In Zivotofsky, the relevant practice provided clear support only for a power of recognition and was ambiguous about whether this power was concurrent with congressional authority or exclusive. The Court’s assessment of the practice, therefore, appears to have been affected by other considerations, such as the Court’s perception about the consequences of adopting a particular interpretation. This is not necessarily an indictment, given that a similar dynamic often characterizes other aspects of constitutional interpretation, including textual analysis. It seems fair to say, however, that whereas in some cases historical practice shapes perceptions about other interpretive materials, in Zivotofsky it was largely the other way around. The decision also highlights tensions between a custom-based approach to the separation of powers and the institution of judicial review, tensions that are potentially relevant both to the proper scope of justiciability doctrines as well as to the way in which judicial decisions are best formulated.

Agora: Reflections on Zivotofsky v. Kerry: Historical Gloss, the Recognition Power, and Judicial Review