Judicial Capital DA
Judicial Capital DA ......................................................................................................................................... 1
Neg ............................................................................................................................................................ 3
1NC Shell ............................................................................................................................................... 4
Uniqueness................................................................................................................................................ 8
UQ – Schuette Ban Will Be Upheld – 2NC/1NR .................................................................................... 9
UQ – Kennedy = Swing Vote – 2NC/1NR............................................................................................. 11
Links ........................................................................................................................................................ 12
Link – Generic...................................................................................................................................... 13
Link – Indefinite Detention – 1NC ....................................................................................................... 14
Link – Indefinite Detention – 2NC/1NR............................................................................................... 15
Link – Introducing Armed Forces – 1NC .............................................................................................. 17
Link – Introducing Armed Forces – 2NC/1NR ..................................................................................... 18
Link – Promoting Rights ...................................................................................................................... 21
Link – Targeted Killing – 1NC............................................................................................................... 22
Link – Targeted Killing – 2NC/1NR ...................................................................................................... 23
Link – Cyber Operations - 1NC ............................................................................................................ 25
Link – Cyber Operations – 2NC/1NR ................................................................................................... 26
Internal Links ........................................................................................................................................... 28
IL - Executive Preferences Key to Legitimacy ...................................................................................... 29
IL - Judicial Capital = Finite .................................................................................................................. 31
IL - Judicial Capital Key to Decisions.................................................................................................... 32
IL - Judicial Capital Key to Schuette Decision ...................................................................................... 33
IL - Public Opinion Affects Capital ....................................................................................................... 35
IL - Public Opinion + Enforcement Key to Legitimacy ......................................................................... 37
IL - Schuette Decision Key to Federalism ............................................................................................ 38
IL - A2: There’s No Backlash ................................................................................................................ 39
Impacts.................................................................................................................................................... 40
I – Federalism High Now ..................................................................................................................... 41
I - Econ Module ................................................................................................................................... 45
I - Federalism Key to Hegemony ......................................................................................................... 47
I - Hegemony Impact Extension .......................................................................................................... 48
I - A2: Affirmative Action Good ........................................................................................................... 56
I - A2: Hegemony Declining ................................................................................................................. 57
Aff ............................................................................................................................................................ 59
Kennedy Won’t Uphold Schuette ....................................................................................................... 60
Decisions Don’t Affect Capital............................................................................................................. 61
Courts Rule on Ideology ...................................................................................................................... 62
Overruling Bad Decisions Boosts Capital ............................................................................................ 64
Judicial Capital Doesn’t Spillover ........................................................................................................ 66
Judicial Capital Doesn’t Affect Rulings ................................................................................................ 67
Judicial Capital is Resistant ................................................................................................................. 68
Affirmative Action Good Impact Turn ................................................................................................. 70
No Impact to Federalism ..................................................................................................................... 72
No Impact to Heg ................................................................................................................................ 73
No Impact to Economy........................................................................................................................ 77
Neg
1NC Shell
Michigan’s affirmative action ban in Schuette will remain in place now – Kennedy’s
the swing vote and agrees with the power of the popular referendum.
Gringlas and Shahin, 6-26
[Sam and Peter, Staff Reporters, “Ann Arbor reacts to monumental Supreme Court decisions”, 6-26-13,
The Michigan Daily,
http://www.michigandaily.com/news/supreme-court-same-sex-marriage-0?page=0,2, RSR]
While the case concerns the legality of Michigan’s ban on affirmative action, it deals more directly
with the power of popular referendum .¶ Proposal 2 — which banned affirmative action — was adopted with 58
percent support in the 2006 election. In 2012, the Sixth Circuit Court sitting en banc ruled in favor of the
Coalition to Defend Affirmative Action’s challenge to the referendum on the grounds that it violated
the equal protection clause of the 14th Amendment.¶ Justice Anthony Kennedy — the possible swing vote in
Schuette — dissented in Hollingsworth Wednesday, indicating his strong respect for the power of the
popular referendum. If he maintains a similar stance in Schuette and upholds the power of referendum, it is
nearly impossible for the ban on affirmative action to be overturned by the court.¶ The University is
expected to file an amicus curiae brief with the court later this year in support of the ban’s
invalidation. Fisher v. University of Texas, another affirmative action case decided on Monday , is unlikely to have an effect on Schuette.¶
“Fisher probably doesn’t have direct implications for Schuette,” Primus said. “The Prop 8 case (Hollingsworth v. Perry) could. In the Prop 8
case, Justice Kennedy, in his dissent, takes a very strong position in favor of the dignity of referenda.
The question in Schuette is about what can be done by referendum. If Justice Kennedy has a very approbative view
of referenda, it would be difficult to imagine the Supreme Court striking down the referendum in
Schuette .”
<Insert specific link card saying that the affirmative plan is controversial here>
Controversial decisions burn capital – justices need to pick their fights.
Grosskopf and Mondak, ‘98
[Anke (Assistant Prof of Political Science @ Long Island University) and Jeffrey (Professor of Political
Science @ U of Illinois), 1998, “Do attitudes toward specific supreme court decisions matter? The impact
of Webster and Texas v Johnson on Public Confidence in the Supreme Court” Political Research
Quarterly, vol. 51 no 3 633-54]
The existence of a strong link between basic values and diffuse support does not necessarily preclude a role for specific decisions, particularly
when we seek to understand how support comes to change over time (e.g., Caldeira and Gibson 1992: 658-61). We believe that any
claim
that the Supreme Court is fully immune to backlash against controversial decisions can be rejected on a
prima facie level. First, consider the extreme case. Were the Supreme Court to make its occasional blockbustersBrown v. Board of Education, Roe v. Wade, Texas v. Johnson, etc.-the norm by routinely ruling on the
thorniest social questions, we see it as implausible that such actions would bring no cumulative impact
on how people view the Court. Second, the Supreme Court's typical mode of operation suggests that justices themselves
view institutional support as an expendable political capital (Choper 1980). That is, the Court recognizes its own
political limitations, and thus justices pick their spots carefully when approaching potentially controversial cases.
From this perspective, the apparent dominance of democratic values as a determinant of institutional support (e.g., Caldeira and Gibson 1992)
means not that the Court is insulated from backlash, but that strategic
justices tread cautiously so as to keep backlash to
a minimum. Consequently, how and where we examine whether public response to Supreme Court decisions affects institutional support
may shape what answer we find.
Judicial capital is key to uphold the ban – otherwise Kennedy will vote switch and stick
with precedent to preserve Court legitimacy.
Smith, PoliSci @Akron, 1992
[Christopher E. Smith, Pol. Sci. @ Akron, Fall 1992 “SUPREME COURT SURPRISE: JUSTICE ANTHONY
KENNEDY'S MOVE TOWARD MODERATION” 45 Okla. L. Rev. 459]
There is, of course, no way to know with certainty why Justice Kennedy made his dramatic move toward moderation in
highly publicized cases during the 1991 Term. Because it is highly unlikely that Justice Kennedy will ever forthrightly discuss
his changing views, scholars must rely on the available evidence to analyze the motivations for and consequences of his move away
from the Court's conservative bloc. It is clear that Justice Kennedy, more than any other Justice, altered his decisions
and contradicted his previously stated positions in order to preserve precedents in cases concerning
abortion and the Establishment Clause. Although there might be various explanations for this switch, the emphasis in his
opinions on preserving doctrinal stability and the Court's legitimacy in the eyes of the public provides
the strongest plausible explanation for the change in his judicial behavior. It is difficult to predict how
Justice Kennedy will vote in future cases or if his move toward moderation will have lasting impact, particularly because new
ap- pointments in the next few years may further alter the ideological balance of power on the Court. In any event, Justice Kennedy's decisions
during the 1991 Term seem to confirm two important observations. First, Justices'
decisions are obviously affected by a set
of factors more complex than the mere sum of their judicial philosophies and policy preferences. As Justice
Kennedy's actions demonstrate, the factors motivating a Justice's decisions can change from Term to Term. Justice Kennedy's obvious
concern for the Court's legitimacy with respect to the abortion issue did not emerge until Roe was actually
threatened with reversal during the tumult of a presidential election year. Second, this relatively quiet and unassuming Justice,
who'is nearly always overshadowed by his more controversial and outspoken col- leagues, deserves additional scrutiny from scholars as an
emerging "power broker" in the middle of the Supreme Court who can determine the out- comes of cases when the Court is deeply divided.
Upholding the ban is key to preserve states’ rights and federalism.
Bursch, et al, ‘12
[John (Michigan Solicitor General); Bill Schuette (Attorney General); Eric Restuccia (Deputy Solicitor
General); and Aaron Lindstrom (Assistant Solicitor General), “PETITION FOR A WRIT OF CERTIORARI”,
November 2012, RSR]
Second, this case involves a constitutional ¶ amendment enacted by public initiative. As the Ninth ¶ Circuit
explained, if a court “relies on an erroneous ¶ legal premise [to strike down a public initiative], the ¶
decision operates to thwart the will of the people in the ¶ most literal sense.” Wilson, 122 F.3d at 699. What the
¶ people of the
state “willed to do is frustrated on the ¶ basis of principles that the people of the United States ¶ neither ordained nor
established.” Id. “A
system which ¶ permits [the courts] to block with the stroke of a pen ¶ what [millions
of] residents voted to enact as law tests ¶ the integrity of our constitutional democracy .” Id. ¶ The
same is true here. Using an equal-protection ¶ theory rejected by every federal and state court to ¶ consider it, the Sixth Circuit en banc
majority struck ¶ down a constitutional amendment approved by more ¶ than two Michigan million voters. Within our federalist ¶
system, it is no small matter for a federal court to ¶ strike down a properly enacted state
constitutional ¶ provision. See Bond v. United States, 131 S. Ct. 2355, ¶ 2364 (2011) (“Federalism . . . allows States to
respond, through the enactment of positive law, to the initiative ¶ of those who seek a voice in
shaping the destiny of ¶ their own times without having to rely solely upon the ¶ political processes
that control a remote central ¶ power.”). That is why the United States Constitution ¶ generally does
not meddle in the way that states ¶ choose to structure their government. See Sailors v. ¶ Bd. of Educ. of Kent
Cnty., 387 U.S. 105, 109 (1967). ¶ Given the special respect that should be accorded to ¶ state constitutional provisions, certiorari is appropriate
¶ to review their annulment.
Federalism solves heg
Nivola 10 (Pietro, The American Interest, “Rebalancing American Federalism”, March/April, http://www.the-americaninterest.com/article-bd.cfm?piece=787)
Thinking along those lines warrants renewed emphasis today. America’s national government has had
its hands full coping with a deep and lingering economic crisis and onerous security challenges around the world.
It cannot, or at any rate ought not, keep piling on top of those daunting tasks a second-tier agenda that
injudiciously dabbles in too many decisions and duties best consigned to local entities. Turning every
imaginable issue into a Federal case, so to speak, diverts and polarizes political leaders at the national
level, and erodes recognition of local responsibilities. A kind of attention deficit disorder besets anybody who attempts to
do a little of everything rather than a few important things well. Although not a root cause of catastrophes like the
submersion of a historic American city by a hurricane in 2005, the terrorist attacks of September 11, 2001, the great financial bust of
2008 or the successful resurgence of the Taliban in Central Asia, an overstretched and distracted
government stands less chance of mitigating such tragedies.
Heg solves war
Barnett 11 (Thomas P.M., Former Senior Strategic Researcher and Professor in the Warfare Analysis &
Research Department, Center for Naval Warfare Studies, U.S. Naval War College American military
geostrategist and Chief Analyst at Wikistrat., worked as the Assistant for Strategic Futures in the Office
of Force Transformation in the Department of Defense, “The New Rules: Leadership Fatigue Puts U.S.,
and Globalization, at Crossroads,” March 7 http://www.worldpoliticsreview.com/articles/8099/the-newrules-leadership-fatigue-puts-u-s-and-globalization-at-crossroads)
Events in Libya are a further reminder for Americans that we stand at a crossroads in our continuing evolution as the
world's sole full-service superpower . Unfortunately, we are increasingly seeking change without
cost, and shirking from risk because we are tired of the responsibility. We don't know who we are anymore, and our
president is a big part of that problem. Instead of leading us, he explains to us. Barack Obama would have us believe that he is practicing strategic patience. But many experts and
We
live in a time of arguably the greatest structural change in the global order yet endured, with this
historical moment's most amazing feature being its relative and absolute lack of mass violence . That is something to
ordinary citizens alike have concluded that he is actually beset by strategic incoherence -- in effect, a man overmatched by the job. It is worth first examining the larger picture:
consider when Americans contemplate military intervention in Libya, because if we do take the step to prevent larger-scale killing by engaging in some killing of our own, we will not be
adding to some fantastically imagined global death count stemming from the ongoing "megalomania" and "evil" of American "empire." We'll be engaging in the same sort of system-
As the guardian of
globalization, the U.S. military has been the greatest force for peace the world has ever known .
Had America been removed from the global dynamics that governed the 20th century, the mass
murder never would have ended. Indeed, it's entirely conceivable there would now be no identifiable human
administering activity that has marked our stunningly successful stewardship of global order since World War II. Let me be more blunt:
civilization left , once nuclear weapons entered the killing equation. But the world did not keep
sliding down that path of perpetual war. Instead, America stepped up and changed everything by
ushering in our now- perpetual great-power peace . We introduced the international liberal trade
order known as globalization
and played loyal Leviathan over its spread.
What resulted was the collapse of empires,
an explosion of democracy , the persistent spread of human rights , the liberation of women, the doubling of
life expectancy , a roughly 10-fold increase in adjusted global GDP and a profound and persistent
reduction in battle deaths from state-based conflicts.
That is what American "hubris" actually delivered. Please remember that the next
time some TV pundit sells you the image of "unbridled" American military power as the cause of global disorder instead of its cure. With self-deprecation bordering on self-loathing, we
now imagine a post-American world that is anything but. Just watch who scatters and who steps up as the Facebook revolutions erupt across the Arab world. While we might imagine
ourselves the status quo power, we remain the world's most vigorously revisionist force. As for the sheer "evil" that is our military-industrial complex, again, let's examine what the world
looked like before that establishment reared its ugly head. The last great period of global structural change was the first half of the 20th century, a period that saw a death toll of about
100 million across two world wars. That comes to an average of 2 million deaths a year in a world of approximately 2 billion souls. Today, with far more comprehensive worldwide
calculations
suggest a 90 percent absolute drop and a 99 percent relative drop in deaths due to war. We are
clearly headed for a world order characterized by multipolarity, something the American-birthed
system was designed to both encourage and accommodate. But given how things turned out the
last time we collectively faced such a fluid structure, we would do well to keep U.S. power, in all of
reporting, researchers report an average of less than 100,000 battle deaths annually in a world fast approaching 7 billion people. Though admittedly crude, these
its forms, deeply embedded in the geometry to come. To continue the historical survey, after salvaging Western Europe from its half-century of civil war, the U.S. emerged as the
progenitor of a new, far more just form of globalization -- one based on actual free trade rather than colonialism. America then successfully replicated globalization further in East Asia
over the second half of the 20th century, setting the stage for the Pacific Century now unfolding.
Uniqueness
UQ – Schuette Ban Will Be Upheld – 2NC/1NR
Fisher ruling guarantees that Michigan’s affirmative action ban will be upheld.
Ellis, Associate Professor Law at West Virginia University College of Law, 6-27
[Atiba, “Fisher v. University of Texas: Affirmative Action Lives (Until Next Term, At Least)”, West Virginia
College of Law, 6-27-13,
http://law.wvu.edu/news_events/2013/6/27/fisher-vs-UT, RSR]
This holding may make affirmative action more difficult to defend in future lawsuits. Fisher appears to raise the evaluative bar
by which courts must evaluate affirmative action. Universities now must demonstrate (without any
deference to their judgment) that race-conscious affirmative action is a necessary practice and that
other approaches would not accomplish the interest in achieving diversity. They must show that non-raceconscious approaches are insufficient, and that race-conscious approaches are the most affective. Under this standard, the Fifth Circuit must
now reconsider their initial ruling.¶ Though
this opinion makes it more difficult to defend affirmative action, it
did not end affirmative action. Contrary to what many feared, the Court did not overrule Bakke and Grutter. Seeking racial diversity
in undergraduate admissions and other educational and employment contexts is still a valid compelling governmental interest. For the time
being, public
universities pursuing affirmative action policies may continue to do so.¶ But this may be a
short-lived victory for proponents of affirmative action. At best, this opinion can only be read as a
narrow decision that largely restated long-standing law without taking a definitive stand concerning
affirmative action. It punted a broader consideration of the constitutionality of affirmative action to another day.¶ Indeed, another
affirmative action case will be argued before the Court this fall. The Court granted cert to the
Michigan case of Schuette v. Coalition to Defend Affirmative Action in March. In Schuette or some other
case, the Court will have to squarely confront the constitutionality of affirmative action. And the
standard articulated in Fisher may make that case far more difficult—if not virtually impossible—for
advocates of affirmative action to prove.
There will be a sweeping judgment on affirmative action now – Schuette ban will be
upheld.
Goldman, Contributor, 6-30
[LeRoy, “Affirmative action's neck is in a noose”, Blue Ridge Now, 6-30-13,
http://www.blueridgenow.com/article/20130630/ARTICLES/130629790?p=3&tc=pg, RSR]
The Supreme Court's forthcoming ruling in the Michigan case may be a blockbuster because, unlike the
Texas case, it "directly tests whether the Constitution's guarantee of equality bars a state from adopting
a flat ban on the use of race in public policy," according to Denniston on SCOTUSblog.¶ Recent polling
shows that 76 percent of Americans oppose race-based college admissions. Don't be surprised if next
year the Supreme Court closes Justice O'Connor's 25-year window 14 years early.
More conservative nature of the court means that Schuette ban will be upheld.
McCloskey, Contributor, 6-24
[Sharon, “What the Supreme Court did (and didn’t) do on affirmative action”, The Progressive Pulse, 624-13,
http://pulse.ncpolicywatch.org/2013/06/24/what-the-supreme-court-did-and-didnt-do-on-affirmativeaction/, RSR]
Earlier in the term, the Court had already signaled that it would be revisiting its landmark 2003 decision
validating affirmative action in Grutter v. Bollinger by agreeing to hear a new challenge, Schuette v.
Coalition Against Affirmative Action, next term.¶ That means that the Court may render a decision on
the merits of affirmative action policies next term even before the Fisher case makes its way again
through the lower courts.¶ The composition of the Court has changed since Grutter, with Justice Sandra
Day O’Connor, who wrote that opinion, retiring and the more conservative Justice Samuel Alito taking
her place.
UQ – Kennedy = Swing Vote – 2NC/1NR
With Kagan’s recusal – Kennedy is the swing vote on the Schuette decision.
Denniston, Reporter for the SCOTUSblog, 3-25
[Lyle, “Court to rule on affirmative action ban”, 3-25-13, SCOTUSblog,
http://www.scotusblog.com/2013/03/court-to-rule-on-affirmative-action-ban/, RSR]
On the Michigan affirmative action case, it had been expected generally that the Court would not act on that case at all until
after it had decided the case of Fisher v. University of Texas (11-345) — a case that was argued on October 10. But the decision has not yet
emerged in the Fisher case, and the Court nevertheless stepped into the Michigan dispute. (The Court is expecting to issue opinions in argued
cases tomorrow and Wednesday, and it is conceivable that the Fisher decision could come out on one of those days.)¶ With
Justice
Kagan out of the new case, there is always the chance that the Court would wind up dividing four to four —
an outcome that would leave the Sixth Circuit decision intact, and mean the end of Proposal 2. The Kagan recusal puts an
additional focus on Justice Anthony M. Kennedy, who very likely would have the power to shift the
final vote to five to three — perhaps reviving Proposal 2 — or four to four, ending it. (Justice Kagan also is not
taking part in the Fisher case.)¶ The Fisher case, while it does have fairly broad potential, focuses directly only on the specifics of an affirmative
action plan at Texas’s flagship university in Austin, and so the ruling in that case might not go much beyond that plan. The
Michigan
case, however, involves a move by a state to deny its public colleges and universities any right to use race
as a factor in choosing the incoming class of students. It thus has the potential to produce a far more
sweeping decision .
Top legal scholars all agree that the decision hinges on Kennedy.
Hannah-Jones, ProPublica, 4-2
[Nikole, “Another race case for a hostile Supreme Court”, 4-2-13, The Institute for Southern Studies,
http://www.southernstudies.org/2013/04/another-race-case-for-a-hostile-supreme-court.html, RSR]
But Schuette v. Michigan Coalition to Defend Affirmative Action deals with whether a ban on
affirmative action in the state constitution -- adopted in a statewide vote in 2006 -- violates the 14th Amendment
because it discriminates against racial minorities. The U.S. Court of Appeals for the Sixth Circuit ruled that subjecting the use
of race to a popular vote that can only be overturned if racial minorities can convince a majority of the population to change their vote deprives
racial minorities of equal protection under the Constitution.¶ William
Eskridge Jr., a Yale University constitutional law
scholar, said the timing might be unexpected but that this type of case is tailor-made for this Supreme
Court.¶ "This is the classic case where the Roberts court would grant cert," he said. "It's a liberal ruling by one of the courts of appeals
overturning a populate initiative or statute that is objected to by racial minorities. That is the sort of case four members of the Supreme Court
are strongly opposed to."¶ But Eskridge said taking this case likely means that whatever the Supreme Court rules in the Texas case will not
Several legal scholars agree that the exact nature and reach of the coming rulings likely
hinge on one man: Justice Anthony Kennedy.¶ Chief Justice John Roberts, along with Justices Clarence
Thomas, Antonin Scalia and Samuel Alito, make up what is widely regarded as the most conservative
bench in seven decades, and they have made it clear they would like to strike down any use of race by
the government -- whether that involves voting laws, education or employment. The liberal judges are
expected to vote to uphold such cases to address both the legacy of discrimination and current
inequalities.¶ In recent years, the conservative-leaning Kennedy has planted himself in the court's middle
ground, consistently narrowing the use of race to address racial inequalities while still allowing for it
in some limited instances.¶ "Kennedy is the crucial decider," said John O. McGinnis, a constitutional
law scholar at Northwestern University.
affect Michigan's.¶
Links
Link – Generic
Curtailing controversial executive action sparks backlash – empirics.
Bazzle, J.D., Georgetown University Law Center, ‘12
[Timothy, “SHUTTING THE COURTHOUSE DOORS:¶ INVOKING THE STATE SECRETS PRIVILEGE TO
THWART¶ JUDICIAL REVIEW IN THE AGE OF TERROR”, Civil Rights Law Journal, Vol. 23, No. 1, 2012, RSR]
The war on terror has led to an increased use of the state secrets¶ privilege by the Executive Branch—
to dismiss legal challenges to¶ widely publicized and controversial government actions—ostensibly¶ aimed at
protecting national security from terrorist threats.1¶ Faced¶ with complaints that allege indiscriminate
and warrantless surveillance,2¶ tortious detention, and torture that flouts domestic and international law,3¶ courts
have had to reconcile impassioned appeals for¶ private justice with the government’s unyielding insistence
on protecting national security. Courts, almost unanimously , have cast their lot¶ with national
security, granting considerable deference to government¶ assertions of the state secrets principle.
This deference to state secrets¶ shows no signs of abating ; indeed, the growing trend is for courts to¶
dismiss these legal challenges pre-discovery,4¶ even before the private¶ litigants have had the chance to present actual, nonsecret evidence to¶ meet their burden of proof. Although many looked optimistically at¶ President Obama’s
inauguration as a chance to break decisively from¶ the Bush Administration’s aggressive application
of the state secrets privilege,5¶ the Obama Administration has largely disappointed on the¶ state-secrets
front, asserting the privilege with just as much fervor —if¶ not as much regularity6¶ —as its predecessor.7¶ Judicial
deference to such claims of state secrecy, whether the¶ claims merit privileged treatment, exacts a decisive toll on claimants,¶ permanently
shutting the courthouse doors to their claims and interfering with public and private rights.8¶ Moreover, courts’
adoption of a¶
sweeping view of the state secrets privilege has raised the specter of¶ the government disingenuously
invoking state secrets to conceal government misbehavior under the guise of national security .9¶ By
granting greater deference to assertions of the state secrets privilege, courts¶ share responsibility for eroding judicial
review as a meaningful check¶ on Executive Branch excesses. This Article argues for a return to a¶ narrowly tailored
state secrets privilege—one that ensures that individuals who allege a credible claim of government wrongdoing retain¶ their due process
rights.
Link – Indefinite Detention – 1NC
A decision regarding indefinite detention would spark massive backlash – past
decisions and the status quo prove.
Devins, Goodrich Professor of Law and Professor of Government, College of William & Mary, ‘10
[Neal, “Talk Loudly and Carry a Small Stick: The Supreme Court and Enemy Combatants”, Journal of
Constitutional Law, Vol. 12, No. 2, February 2010, RSR]
Throughout the course of its enemy combatant decision making,¶ the Court has moved incrementally.
In so doing, the Court has expanded its authority vis-A-vis the President. Obama administration efforts to moot al-Marri and to relocate Uighur detainees (thereby¶ mooting that litigation) speak to the administration's desire to
the Obama
administration understands that the Court has become a player¶ in the enemy combatant issue.¶ What is
striking here, is that the Court never took more than it¶ could get-it carved out space for itself without risking the
nation's¶ security or political backlash. Its 2004 and 2006 rulings provided ample opportunity for the
President to pursue his enemy combatant initiative. Its 2008 ruling in Boumediene, while clearly constraining the¶ political
branches, reflected the views of the new Democratic majority¶ in Congress and (to a lesser extent) the views of
presidential candidates Obama and McCain. 8 Its decision to steer clear of early Obama-era disputes
likewise avoids the risks of a costly backlash while¶ creating incentives for the Obama administration
to take judicial authority into account (by settling these cases outside of court).186 Put¶ another way, by taking prevailing social and
political forces into account, the Court was able to flex its muscles without meaningfully¶
undermining the policy preferences of the President and Congress.
avoid¶ Supreme Court rulings that might limit the scope of presidential ¶ power. Unlike the Bush administration (whose politically tone deaf¶ arguments paved the way for anti-administration rulings), 84
Link – Indefinite Detention – 2NC/1NR
The court understands that a policy that constrains the executive would spark
backlash.
Devins, Goodrich Professor of Law and Professor of Government, College of William & Mary, ‘10
[Neal, “Talk Loudly and Carry a Small Stick: The Supreme Court and Enemy Combatants”, Journal of
Constitutional Law, Vol. 12, No. 2, February 2010, RSR]
For much the same reason, the Court understood that its decision¶ posed few national security risks. The Court
said nothing about the¶ President's power to indefinitely detain enemy combatants, nor did¶ the Court
detail how habeas proceedings were to be conducted. 62¶ The Court, moreover, said nothing about the
availability of habeas corpus by enemy combatants held outside U.S. soil or at facilities (like¶ Guant~namo) that were under
the control of the United States. 63 Assuming that the next administration would close GuantAnamo, the¶ decision would only
impact governmental practices for a short time.1¶ More than that, the Court had been told by the Bush administration¶ that
"any reopening of the prisoners' right to habeas would not be¶ swift, but would face a variety of 'fundamental and unprecedented issues'
complicating that process.' ' 65 In other words, the Court understood that the Bush administration would do everything in its power¶ to slow
down the release of enemy combatants during its final months¶ in office. 166 For all these reasons,
Boumediene should not be
seen as an¶ attempt by the Court to meaningfully transform U.S. policy towards¶ enemy combatants
(a
decision that might risk national security or¶ prompt an elected government backlash ). Instead,
Boumediene principally served as a vehicle for the Court to make strong symbolic¶ statements about
the judicial power to "say what the law is" and, correspondingly, the necessity of the political branches to
respect the¶ centrality of habeas corpus limits on governmental power.
There’s broad public support for indefinite detention and Obama’s counter terrorism
policies – plan would trigger backlash.
Wilson and Cohen, ‘12
[Scott and Jon, Staff Writers, “Poll finds broad support for Obama’s counterterrorism policies”, The
Washington Post, 2-7-12,
http://www.washingtonpost.com/politics/poll-finds-broad-support-for-obamas-counterterrorismpolicies/2012/02/07/gIQAFrSEyQ_story.html, RSR]
The sharpest edges of President Obama’s counterterrorism policy, including the use of drone aircraft to kill suspected
terrorists abroad and keeping open the military prison at Guantanamo Bay, have broad public support , including from the
left wing of the Democratic Party.¶ A new Washington Post-ABC News poll shows that Obama, who
campaigned on a pledge to close the brig in Cuba and to change national security policies he criticized as
inconsistent with U.S. law and values, has little to fear politically for failing to live up to all of those promises. The
findings also highlight the quandary for Mitt Romney and other Republican candidates, who have portrayed Obama as weak abroad and
politically motivated in moving to end America’s two long wars.¶ Attacking
Obama’s national security policies, the poll
suggests, may do GOP challengers more harm than good when many Americans favor a national
security approach that relies more on technology than troops. By a margin of more than 2 to 1 ,
Americans say the president’s handling of terrorism is a major reason to support rather than oppose
his bid for reelection.¶ The survey shows that 70 percent of respondents approve of Obama’s decision
to keep open the prison at Guantanamo Bay. He pledged during his first week in office to close the prison within a year, but
he has not done so.¶ Even the party base appears willing to forgive that failure.¶ The poll shows that 53 percent of selfidentified liberal Democrats — and 67 percent of moderate or conservative Democrats — support
keeping Guantanamo Bay open, even though it emerged as a symbol of the post-Sept. 11 national
security policies of President George W. Bush, which many liberals bitterly opposed.
Moving prosecutions away from Guantanamo empirically has triggered political
backlash.
Hafetz, Associate Professor of Law, Seton Hall University School of Law, ‘12
[Jonathan, “RECONCEPTUALIZING FEDERAL COURTS IN THE WAR ON TERROR”, SAINT LOUIS UNIVERSITY
LAW JOURNAL, Vol. 56, RSR]
The decision to prosecute even a few Guantánamo detainees in federal ¶ court ignited a political
backlash , with opposition crystallizing over the Justice ¶ Department‘s plan to try KSM in New York.59
Lawmakers, political-advocacy ¶ groups, and conservative pundits all attacked Holder‘s decision.60
According ¶ to Andrew McCarthy, a former terrorism prosecutor and outspoken critic of ¶ using federal courts to prosecute terrorism suspects,
Holder failed to recognize ¶ that in wartime the rule of law means using military commissions and not
¶ ―wrap[ping] our enemies in our Bill of Rights.‖¶ 61 Opposition to KSM‘s ¶ prosecution gained momentum following the
attempted 2009 Christmas Day ¶ bombing by Umar Farouk Abdulmutallab of a Northwest Airlines plane bound ¶ for Detroit.62 Critics charged
that Abdulmutallab should be prosecuted before ¶ a military commission and not treated as a criminal suspect, as Obama‘s ¶ Justice
Department had done.63 ―Why in God‘s name would you stop ¶ questioning a terrorist,‖ remarked former New York City mayor Rudolph ¶
Giuliani in response to reports that Abdulmutallab had ceased cooperating after ¶ invoking his Miranda rights during interrogations after his
arrest.64 Senator
¶ Lamar Alexander told FOX News that Holder should resign for failing to ¶ distinguish
―terrorists who are flying into Detroit, blowing up planes, and ¶ American citizens who are
committing a crime.‖¶ 65
Link – Introducing Armed Forces – 1NC
Judicial decisions constraining the executive’s use of armed forces would massively
drain judicial capital – executive backlash.
Druck, J.D. Candidate Cornell Law School, ‘12
[Judah, “DRONING ON: THE WAR POWERS RESOLUTION¶ AND THE NUMBING EFFECT OF¶ TECHNOLOGYDRIVEN WARFARE”, Cornell Law Review, Vol. 98, 2012, RSR]
The suits arising out of possible WPR violations are well-documented53 and therefore only require a brief review. Generally, when¶ faced
with a question concerning the legality of presidential military¶ action, courts have punted the issue
using a number of procedural¶ tools to avoid ruling on the merits. For example, when twenty-nine¶ representatives filed
suit after President Reagan’s possible WPR violation in El Salvador, the U.S. District Court for the District of Columbia¶ dismissed the suit on
political question grounds.54 Similar suits were¶ dismissed for issues involving standing,55 mootness,56 ripeness,57 or¶ nonjusticiability
because Congress could better handle fact-finding.58¶ Despite the varying grounds for dismissing WPR suits, a
general theme¶ has
emerged: absent action taken by Congress itself, the judiciary cannot be counted on to step in to
check the President.¶ To be sure, the judiciary’s unwillingness to review cases arising¶ from WPR disputes arguably
carries some merit. Two examples illustrate this point. First, although a serviceperson ordered into combat¶ might have standing to sue,
congressional standing is less clear.59 Indeed, debates rage throughout war powers literature concerning¶ whether congressional suits should
even be heard on their merits.60¶ And though some courts have held that a member of Congress can¶ have standing when a President acts
unilaterally, holding that such¶ unauthorized actions amount to “disenfranchisement,”61 subsequent¶ decisions and commentators have
thrown the entire realm of legislative standing into doubt.62 Though the merits of this debate are beyond the scope of this Note, it is sufficient
to emphasize that a¶ member of Congress arguably suffers an injury when a President violates the WPR because the presidential action
prevents the congressperson from being able to vote (namely, on whether to authorize¶ hostilities),63 thereby amounting to
disenfranchisement by¶ “preclu[ding] . . . a specific vote . . . by a presidential violation of¶ law . . . .”64 As such, under the right circumstances,
perhaps the standing doctrine should not be as problematic as history seems to indicate ¶ when a congressperson attempting to have a say on
military action¶ brings a WPR suit.¶ Secondly, and perhaps more importantly, it
is arguably unclear¶ what, if any, remedy is
available to potential litigants. Unlike a private¶ lawsuit, where a court can impose a simple fine or jail sentence, suits¶ against the
executive branch carry a myriad of practical issues. For¶ example, if the remedy is an injunction, issues concerning enforcement arise: Who
enforces it and how?65 Or, if
a court makes a declaratory judgment stating that the President has acted
illegally, it might¶ invite open defiance , thereby creating unprecedented strife among¶ branches. Yet,
a number of possible remedies are indeed available.¶ For one, courts could simply start the WPR clock, requiring a President to either seek
congressional approval or cease all actions within¶ the time remaining (depending on whether the court starts the clock¶ from the beginning or
applies it retroactively).66 In doing so, a court¶ would trigger the WPR in the same way that Congress would have had¶ it acted alone. On a
similar note, a court could declare the relevant¶ military conflict illegal under the WPR, thereby inviting Congress to¶ begin impeachment
proceedings.67 Although both cases require¶ some level of congressional involvement, a court could at least begin¶ the process of providing a
suitable remedy. Thus, the more questionable issues of standing and remedies should not (under the right circumstances) prevent a WPR suit
from moving forward. What about the pragmatic issues associated with involving the judiciary in foreign affairs? After all, we
might not
want our judiciary¶ entering the world of realpolitik by forcing a President’s hand; doing¶ so would
require a large political (and administrative) undertaking ¶ that might take us beyond the bounds of the
judiciary’s institutional¶ role. And as previously mentioned, courts do not, and perhaps should¶ not, want to be in the
business of telling the President when or how to¶ act, especially when such conflict might result in
presidential defiance . This position might make sense in a system where we could rely¶ on congressional action to prevent unilateral
action. But given the¶ dysfunction that overwhelms the legislative branch whenever a President violates the WPR,68 the entire premise of a
system emphasizing¶ no unilateral military action is inverted when the onus is placed¶ squarely on Congress. If Congress could not go to the
courts in order¶ to prevent further presidential WPR violations, it would be required to¶ turn to its legislative powers. But doing so would
require the approval¶ of at least a majority of Congress, though two-thirds would seem more¶ reasonable given the likelihood of a presidential
veto. Requiring such¶ an overwhelming level of congressional support and unity to act is¶ irrational and unreasonable, especially after
considering the ways in¶ which most Congresses have failed to act on prior occasions.69 Given¶ this high burden placed on any Congress, even
one with majority control, the judiciary must play some role when a President violates the¶ WPR. Though the pragmatic issues around judicial
intervention require some recognition, they are, in some respect, the lesser of two¶ evils.¶ B
Link – Introducing Armed Forces – 2NC/1NR
Courts empirically avoid conflict with the president’s power to go to war – fear
backlash for national security reasons.
Franck, Former Murry and Ida Becker Professor of Law at New York University, ‘92
[Thomas, Political Questions/Judicial Answers: Does the Rule of Law Apply to Foreign Affairs, Princeton
University Press, Page 57, RSR]
The cases in which one would expect the courts to reach for the political-question doctrine and avoid
conflict are those that challenge the commander in chief’s authority to engage in undeclared war.
These cases do arise out of extraordinary circumstances that may justify greater judicial diffidence
toward political authority than might be warranted by the absence of danger to national survival. In practice, however, most of the
undeclared-war cases have not been rejected by the courts on prudential grounds. Instead, the courts
tend to treat the cases as justiciable but dismiss them for procedural reasons such as lack of standing. Or, as
in the Prizes Cases, the courts bow to the political-question doctrine but then decide such cases on the merits, holding that
presidential warmaking was implicitly authorized by congressional ratification. Few of the Vietnam cases turn
exclusively on the political-question doctrine. One exception is Mitchell v. Laird, in which Judge Wyzanski, joined by
Chief Judge Bazelon, rejected the basis for decision used in many other cases that although the Vietnam
War did require some form of congressional assent, such assent could be inferred from military appropriations or
extension of the draft. Instead the court decided that President Nixon in 1969 had inherited ongoing military hostilities. “Even
if his predecessors had exceeded their constitutional authority,” Wyzanski wrote, “President Nixon’s duty did not go beyond trying, in good
faith and to the best of his ability, to bring the war to an end as prompty as was consistent with the safety of those fighting and with a profound
concern for the durable interests of the nation-its defense, its honor, its morality….In short, we are faced with what has traditionally been
called a ‘political question.’ ¶ Much about this
opinion cuts across various schools of juridical thought on the several issues addressed. It
proposes that what might be an unconstitutional activity when initiated by one president may
become justified when continued by another who is doing his purported best to terminate this
activity. Whether he is actually doing his best, however, is a political question beyond judicial scrutiny. Nevertheless, Judge Wyzanski added,
this very “political question” may be subject to review if there has been “abuse amounting to bad faith.” Since a motion for rehearing en banc
was denied, the case stands as one of the rare applications (with an unorthodox exception seeming to allow for judicial review of executive
bona fides) of the political question doctrine in the midst of military hostilities, the one circumstance in which some form of judicial reticence
might seem warranted. What
can be summarized about these cases in which courts abdicate to save the
nation from some dreaded catastrophe is that most must be seen to have conduced to, rather than
prevented, damage to the national interest. That damage occurs when courts refuse to consider serious allegations of
unlawful behavior brought against the political branches in circumstances where what is at risk is less the survival of the nation than the
principle of legality.
Massive public support for executive control over the military – Congressional
deference proves.
Noone, Director of the Fairmont State University National ¶ Security and Intelligence Program and an
Assistant Professor of ¶ Political Science and Law, ‘12
[Gregory, “The War Powers Resolution and Public Opinion”, Case Western Reserve Journal of
International Law, Vol. 45, 2012, RSR]
Another reason Congress allows the president to lead when it ¶ comes to military action overseas is that
Congress is a distant third ¶ behind the office of the presidency and the military in the public’s ¶ eye. In
April 2011, President Obama’s highest approval rating was for ¶ his handling of foreign affairs and he has
averaged 50% during his first term.19 This is middle of the pack for presidents since the poll ¶ began. Obama’s rating is higher than Reagan’s
and George W. ¶ Bush’s, however it is narrowly behind Clinton’s, but ultimately ¶ behind the elder Bush’s 63% average.20 In fact, since
2000, the ¶ American public has trusted the U.S. government, particularly the ¶ president, more with
international problems than domestic.¶ In June 2011, a poll taken to assess the public’s confidence in ¶
institutions the U.S. military received the highest rating at 78% (11% ¶ above its historic average of
67%).21 The presidency received a ¶ confidence rating of 35% (10% below its historic average), and ¶ Congress received a
confidence rating of 12% (14% below its historic ¶ average).22 This poll has been conducted thirty-five times since 1973 ¶ and
indicates that the military has been number one since 1989 (with ¶ the exception of 1997 when small business was added to the survey).¶ An
analysis of this annual survey indicates that the public’s¶ confidence level in the military is higher
when it is engaged in ¶ military operations. In fact, the public overwhelmingly supports the ¶ military
especially during conflict. Given Congress’ low ratings it is ¶ clear why members of Congress do not
want to appear to be anything ¶ other than supportive of the military.¶ “Opposing the use of force is
no less risky domestically than it ¶ was before the [WPR’s] passage.”¶ 23 There are “electoral
disincentives ¶ for confronting the president over foreign policy .”¶ 24 There is a ¶ particular price to pay if
members of congress attempt to constrain ¶ the executive by cutting off funding. Allegations of being
unpatriotic ¶ or abandoning U.S. forces in the field will hurt re-election bids .¶ 25¶ congressional votes for
funding the use of force are usually ¶ overwhelming and decisive.
Constraining the executive’s war powers triggers massive backlash – national security
risk.
Devins, Goodrich Professor of Law and Professor of Government, College of William & Mary, ‘10
[Neal, “Talk Loudly and Carry a Small Stick: The Supreme Court and Enemy Combatants”, Journal of
Constitutional Law, Vol. 12, No. 2, February 2010, RSR]
From 1952 (when the Supreme Court slapped down President¶ Truman's war-time seizure of the steel mills) 08 until 2004 (when the¶
Court reasserted itself in the first wave of enemy combatant cases),¶ the judiciary largely steered clear of war powers
disputes.'0 9 In part,¶ the Court deferred to presidential desires and expertise. The President sees the
"rights of governance in the foreign affairs and war¶ powers areas" as core executive powers."0
Correspondingly, the President has strong incentives to expand his war-making prerogatives ."'¶ For its part,
the Court has limited expertise in this area, and, as such,¶ is extremely reluctant to stake out positions
that may pose significant¶ national security risks ." 2 The Court, moreover, is extremely reluctant ¶ to risk
elected branch opprobrium. Lacking the powers of purse and¶ sword, the Court cannot ignore the
risks of elected branch nonacquiescence.1¶ 3
Empirically courts have avoided decisions regarding introducing armed forces into
hostilities – fear backlash from Congress or the Executive.
Litwak, Candidate for Doctor of Jurisprudence, May 2013, University of North Carolina School of Law,
‘12
[Brian, “PUTTING CONSTITUTIONAL TEETH INTO A ¶ PAPER TIGER: HOW TO FIX THE WAR POWERS ¶
RESOLUTION”, National Security Law Brief, Vol. 2, No. 2, 2012, RSR]
The court’s exercise of the political question doctrine, excusing itself from deciding the differing
positions of the Executive and Congress, combines multiple aligning considerations. First, as a practical
matter, courts lack the institutional capacity to decide the presence of hostilities .50 Second, ¶ the
Constitution delegates foreign affairs decisions to the two political branches, not the courts.51¶ Third,
deciding the issue of hostilities in foreign affairs would take the courts into “ uncharted ¶ legal terrain ,”
where no law exists and applicable standards are wanting.52 Given the omission of a ¶ definition of “hostilities” in the WPR53 and
the absence of a workable legal standard, courts would ¶ have an extremely difficult time navigating this “uncharted
terrain” in foreign affairs. Consequently, ¶ courts have opted to leave the resolution of the disputes to those
elected branches both capable and ¶ constitutionally committed to making decisions concerning the
use of force abroad.54 Although not ¶ the only tool invoked by courts to skirt tough decisions concerning
the separation of war powers,55¶ the political question doctrine is an oft-accepted argument by courts
in justifying the dismissal of ¶ claims made pursuant to the WPR.56
Link – Promoting Rights
Wartime conditions make it much harder for the Supreme Court to promote civil
liberties.
Epstein et al, ‘5,
[Lee (Edward Mallinckrodt Distinguished¶ University Professor of Political Science and Professor of Law
at Washington University in¶ St. Louis); Daniel Ho (a J.D. candidate at Yale Law School and received his
Ph.D. in¶ political science at Harvard University); Gary King (David Florence Professor of Government at
Harvard); Jeffrey Segal (Distinguished Professor and Chair of the¶ Department of Political Science at
Stony Brook University), “The Supreme Court During Crisis: How War Affects only Non-War Cases”, New
York University Law Review, Vol. 80, No. 1, RSR]
Our evidence, which spans all civil liberties decisions over six¶ decades, strongly suggests that the
decisions made by the Supreme¶ Court during wartime would have been systematically different if¶
these same cases had been decided during peacetime. We show that¶ war causes the Court to decide cases
unrelated to the war in a markedly more conservative direction than they otherwise would. However, war
appears to have no effect on the conservatism of the Court’s¶ decisions in cases closely related to an ongoing military conflict. In¶ those cases,
the Court retreats from its usual rights versus security¶ focus of decisionmaking to a focus on
institutional process. By¶ changing its focus to a mostly unrelated dimension, the effect of war¶ on the conservatism of decisionmaking
in war-related cases vanishes.¶ Contrary to the rhetoric of Ex parte Milligan, the judiciary is no¶ panacea for
wartime curtailments on civil rights . The justices of the¶ U.S. Supreme Court seem to feel little responsibility to
“rebuke the¶ legislative and executive authorities when, under the stress of war [those authorities]
have sought to suppress the rights of dissenters.”457¶ Nor have the justices acted entirely in accordance with Cicero’s¶
maxim. During times of war, the Court does indeed speak, but it does¶ so in a seemingly paradoxical manner,
curtailing civil rights and liberties with more frequency in times of war than in peacetime and taking¶ this action only in
cases unrelated to war. In fact, ordinary civil rights¶ and liberties cases are precisely the ones for which war has the most¶ detectible impact.
Link – Targeted Killing – 1NC
Massive backlash to judicial oversight for targeted killing – would harm national
security.
Bazzle, J.D., Georgetown University Law Center, ‘12
[Timothy, “SHUTTING THE COURTHOUSE DOORS:¶ INVOKING THE STATE SECRETS PRIVILEGE TO
THWART¶ JUDICIAL REVIEW IN THE AGE OF TERROR”, Civil Rights Law Journal, Vol. 23, No. 1, 2012, RSR]
The war on terror has created new opportunities for the Executive to expand the reach of the state
secrets privilege. Courts considering challenges to the government’s TSP wiretapping program, the¶ rendition
program, and the targeted killing of Anwar al-Aulaqi have¶ all had to reconcile competing interests in protecting
state secrets with¶ preserving the rule of law. A sweeping view of the scope of the state¶ secrets
privilege to limit judicial review of executive actions has¶ emerged as a result . Given the diffuse boundaries of
the war on terror, even if the particular subject matter at issue in any given case may¶ not be a secret, the
government is not hard pressed to assert a colorable claim that the non-secret question is “so
infused” with other matters that are state secrets such that any disclosure would risk¶ endangering
national security. The upshot of the ever-widening reach¶ of the state secrets privilege is that it
severely undermines the due¶ process rights of individuals harmed by a government program by¶
insulating the program from judicial scrutiny under the state secrets¶ privilege. To ensure that the privilege
does not completely erode due¶ process guarantees, substantive reform to the use and scope of the¶ privilege is necessary
Link – Targeted Killing – 2NC/1NR
Massive public support for targeted killing – drone polls prove.
Cillizza, founder and editor of The Fix, a leading blog on state and national politics, ‘13
[Chris, “The American public loves drones”, 2-6-13, The Washington Post,
http://www.washingtonpost.com/blogs/the-fix/wp/2013/02/06/the-american-public-loves-drones/,
RSR]
But, when it comes to drones, the fight in Washington has no parallel in the public at large. Put simply: Americans love drones . A
look across the polling landscape on the Obama Administration’s increased reliance on drones
suggests that support for the strikes is not only wide but also bipartisan. A February 2012 Washington Post-ABC
poll showed that eight in ten Americans (83 percent) approved of the Obama Administrations use of unmanned
drones against suspected terrorists overseas — with a whopping 59 percent strongly approving of the
practice. Support for the drone attacks was also remarkably bipartisan. Seventy six percent of
Republicans and 58 percent of Democrats approved of the policy.¶ In that same poll, respondents were
asked whether they supported using drones to target American citizens who are suspected terrorists,
the question that stands at the heart of the recent flare-up in Congress over the practice. Two thirds of people in the survey said
they approved of doing so.¶ It’s not just Post-ABC polling that suggests the use of drones is widely popular with the American public.
A September 2011 Pew poll showed that 69 percent of people said that the increased use of drones
was a good thing while just 19 percent said it was a bad thing.¶ The reason drone strikes are popular? Because they
are perceived to be effective in reducing the threat of terrorism without endangering American lives.
(Polling on the wars in Iraq and Afghanistan has, for several years now, suggested that a majority of the public believes neither was worth
fighting almost certainly due to the losses of American lives.) In
a September 2011 Post-ABC poll, three-quarters of the
public said drone strikes against suspected terrorists in Yemen and Pakistan had been either ”very” or
“somewhat” effective to reduce the threat of terrorism.¶ Now there are all sorts of “to be sure” statements regarding the
data above. To be sure, the average American isn’t paying close attention to the issue of drones and how they are being used. To be sure, the
debate over what the government can and can’t do as well as how much or little it should be required to tells its citizenry its doing is a worthy
one. To be sure, making policy decisions simply based on what the public wants (or thinks it wants) is a dangerous game.¶ But, it’s also
important to remember as the drone debate gains steam in Washington that there is little public appetite for an extended look at how
Minds are made up on the matter . And, if the public has
anything to do with it, drones are here to stay.
unmanned attacks fit into our broader national security policy.
Backlash is guaranteed – courts have an inability oversee executive decisions
regarding targeted killing without a political firestorm.
Setty, Professor of Law, Western New England University School of Law, ‘12
[Sudha, “The Rise of National Security Secrets”, Connecticut Law Review, Vol. 44, No. 5, July 2012, RSR]
Part II of this Article argues that the professionalization of security ¶ during World War II and the early Cold War
era enabled not only the ¶ exclusivity of military decision-making in the executive branch and ¶
administration, but also subverted the fundamental democratic principle ¶ that the public, the courts, and Congress have
the right to information ¶ about security decision-making. This shift in the information paradigm ¶ was cemented
during the early Cold War years and has reinforced ¶ governmental secrecy in current times. Courts now rely on
their own ¶ precedent over several decades to defer extensively to executive branch ¶
determinations that secrecy must surround national security initiatives, ¶ such as extraordinary rendition and
targeted killing, even when the end ¶ result undermines the judiciary’s role in protecting fundamental
rights .3¶ In such cases, courts often express misgivings about their (in)ability to take ¶ on their traditional
counter-majoritarian role, but profess a lack of ¶ understanding to question executive branch
assertions and override claims ¶ of national security, even where executive branch overreaching is ¶
remediable only through judicial action.4¶ Likewise, Congress continues its ¶ decades-old pattern of actively ceding authority to
the executive branch ¶ even when it has the constitutional authority to demand more information ¶ or, as Professor Rana encourages, play a
greater role in security-related ¶ decision-making.
Empirically court rulings have avoided harming national security for fear of backlash.
Murphy and Radsan, ‘9
[Richard (AT&T Professor of Law, Texas Tech University School of Law) and Afsheen (Professor, William
Mitchell College of Law), “DUE PROCESS AND TARGETED KILLING OF TERRORISTS”, Cardozo Law Review,
Vol. 31, No. 2, RSR]
An obvious objection to applying the Due Process Clause across ¶ the board is that it would cause excessive
judicial interference with ¶ executive action; anyone harmed by our government overseas would be ¶
tempted to run to court for relief. Due process, however, does not ¶ demand judicial process to review the merits of executive
action if this ¶ review would be unreasonable (and thus not ―due‖). Boumediene itself ¶ demonstrates this point. Justice Kennedy applied a
fact-sensitive, ¶ Matthews-like balancing test to determine whether the Guantanamo ¶ petitioners had a right to judicial process via habeas
corpus.183 Under ¶ the extraordinary facts of that case, the majority determined that the ¶ balance of factors favored judicial review. This
holding should not, ¶ however, obscure that Boumediene itself instructs
courts not to interfere ¶ with executive
action abroad if such interference would be ¶ ―impracticable or anomalous.‖184 In short, Boumediene can
still be ¶ understood in light of a long tradition of judicial deference to executive ¶ action on foreign
policy and national security.185 In light of this strong, ¶ persistent tradition, there is little reason to fear
that courts would seize ¶ on worldwide due process to usurp the deep powers and grave ¶
responsibilities of the executive abroad.
Link – Cyber Operations - 1NC
Courts prefer judicial deference in terms of cyber operations – fear legislative
backlash.
Bellia, Professor of Law & Notre Dame Presidential Fellow, ‘11
[Patricia, “DESIGNING SURVEILLANCE LAW”, Arizona State Law Journal, Vol. 43, No. 293, 2011, RSR]
Two key points emerge from this discussion. The first concerns the role¶ of courts in regulating surveillance techniques. Observing
that statutes¶ predominate in communications surveillance law understates the role of¶ courts. Judicial regulation in cases
involving executive rule selection is both¶ present and unsurprising. In addition, some judicial silence as to
the¶ constitutionality of surveillance can be explained by the reactive nature of¶ the statutes involved, where
courts have in fact largely driven the statute’s¶ terms or Congress has sought to provide safeguards
above those a court has¶ found the Constitution to require. The second key point concerns how we¶
might explain courts’ hands-off approach. The fact that courts have played a¶ limited role in response
to proactive statutes as well may reflect a welcome¶ norm of judicial deference to legislative action.
On the other hand,¶ examining the surveillance law landscape in light of the patterns outlined¶ above reveals certain risks
of under-enforcement—in the case of¶ modernizing statutes, a failure to dislodge assumptions about the path of
technology, and in the case of crisis response statutes, a failure to isolate or¶ properly weigh the
importance of government interests.
Link – Cyber Operations – 2NC/1NR
There would be massive executive backlash to the aff – oversight would kill
effectiveness of operations and reveal confidential information.
Lorber, J.D. Candidate, University of Pennsylvania Law School, Ph.D Candidate, Duke University ¶
Department of Political Science, ‘13
[Eric, “EXECUTIVE WARMAKING AUTHORITY AND OFFENSIVE CYBER ¶ OPERATIONS: CAN EXISTING
LEGISLATION SUCCESSFULLY ¶ CONSTRAIN PRESIDENTIAL POWER?”, Journal of Constitutional Law, Vol.
15, No. 3, 2013, RSR]
While many in the public sphere have paid a great deal of attention to ¶ the legality of offensive cyber
operations, far less attention has been devoted ¶ to how domestic law interacts with the United States’
employment of these ¶ capabilities. Indeed, policymakers have repeatedly noted “the mismatch ¶ between
our technical capabilities to conduct operations and the governing ¶ laws and policies.”71 Over the past few years, studies
have suggested that the ¶ United States has not developed such a legal framework and that whether ¶ current
U.S. law—such as the War Powers Resolution—can regulate OCOs ¶ remains under-analyzed.72 While some argue that attempting
to develop ¶ such a framework will severely hamper the United States’ ability to effectively ¶ conduct
offensive cyber operations in future conflicts ,73 most analysts agree ¶ that “[t]oday’s policy and legal framework for guiding
and regulating the ¶ U.S. use of cyberattack is ill-formed, undeveloped, and highly uncertain.”74¶ To this point, most of the debate as
to the legality of these operations has ¶ remained behind government doors.75 Indeed, until very recently,
scholars have not paid substantial attention to these issues. To date, only a few ¶ articles,76 blog postings,77 and a
National Resource Council report78 have ¶ delved into this issue in any detail.
Broad public support for measures that preserve cybersecurity – polls prove.
Experian, ‘13
[“Chubb Survey discovers U.S. public companies’ number one fear”, 1-15-13,
http://www.experian.com/blogs/data-breach/2013/01/15/chubb-survey-discovers-u-s-publiccompanies-number-one-fear/, RSR]
When asked by The Chubb 2012 Public Company Risk Survey what worried them the most about doing business in today’s
current marketplace, decision makers at U.S. public companies named their number one fear to be cyber security
threats. Chubb commissioned public opinion and market research firm Pollara to telephone survey management liability insurance decision
makers at U.S. publicly traded corporations to discover their biggest corporate concerns, risks and risk-mitigation strategies. Even though
63% of public companies surveyed said data breaches were their biggest concern, 65% of the
respondents also said they did not have cyber liability insurance. And although 71 percent of the survey participants
said they had a data security breach and response plan, 57% of the ones who had a plan also did not have cyber insurance. Therefore, it
would seem some of the biggest U.S. public companies are definitely concerned about data breaches,
but they’re not prepared to appropriately cover the risk. ¶ This is particularly disconcerting when you consider the cost of a data
breach. In 2011, a typical data breach averaged a total of 28,349 breached records at $194 per record (including call centers, forensics and
other expenses) equaling around $5.5 million in total organizational costs.
And public opinion seems to agree with the
figures. In a 2011 Opinion Research Corporation study performed for Chubb, 33% of Americans
surveyed don’t think companies do enough to protect them from identity theft.
History proves that the judiciary will default to more executive power in terms of
cyber ops for fear of backlash.
Lessig, Professor at Law at the University of Chicago School of Law, ‘96
[Lawrence, “Reading the Constitution in Cyberspace”, Emory Law Journal, Vol. 45, No. 3, 1996, RSR]
There’s a pattern to these cases that we must step back to see. At each stage, as the constraints of
technology give way, or as technology makes possible a kind of control never before imagined, there
is a question whether to allow these gaps to be filled with increased governmental power, or with
increased protections for individual privacy. Overall, my sense is, the judicial answer will favor power, rather than
privacy . The reason is this: We haven’t within our constitutional tradition principles to resist this increased
pressure to, as Foucault might put it, rationalize this space. The irrationality, the friction, the imperfections of real
space technologies are sources of regret, not virtue. They have not been principles of virtue in
constitutional thought; they have been by-products of technology, not its aim. And these by-products of
friction, though constituting privacy in real space, don’t generate into constitutional principle.
Principle does not argue on the side of imperfection.
Internal Links
IL - Executive Preferences Key to Legitimacy
Presidential backlash to judicial decisions kills the court’s power. (Also a turns case
arg)
Benson, J.D., University of California, Berkeley, School of Law, ‘9
[Josh, “The Guantanamo Game: A Public Choice Perspective on Judicial Review in Wartime”, California
Law Review, Vol. 97, RSR]
First, Howell notes that the judiciary can issue decisions, but it cannot¶ enforce them without the
executive. Thus, the Court is reluctant to reach a¶ decision that the president might ignore-which could
severely limit the¶ institutional power of the Court. Howell draws on several studies (and builds¶ his own) to
suggest that, as a result, the Court rarely overturns unilateral¶ presidential actions (which also explains why d, the
parameter capturing the¶ president's unilateral power, is quite large vis-A-vis the judiciary).55¶ Second, the president has more
latitude in certain policy areas, such as¶ national security, where the courts are reluctant to confront
the president.¶ Throughout history, courts have avoided direct conflicts with a wartime¶ president on
foreign affairs.56 I consider this phenomenon-and how the¶ Supreme Court may have finally upended it-in Part IV.¶ Third, the
Supreme Court has developed several techniques of¶ constitutional and statutory interpretation to
enshrine such deference: the¶ political question doctrine, the constitutional avoidance canon, the
clear¶ statement rule, among others. Howell argues that only when Congress or¶ special interest groups
oppose the president on a salient public issue does the¶ Court even consider intervening. 57 In general,
the Supreme Court gives the¶ president a wide berth to move policy-again, subject to the limitations
noted¶ in this Comment.
Presidential backlash specifically hurts court’s power with foreign policy – no
jurisdiction.
Franck, Former Murry and Ida Becker Professor of Law at New York University, ‘92
[Thomas, Political Questions/Judicial Answers: Does the Rule of Law Apply to Foreign Affairs, Princeton
University Press, Pages 58-59, RSR]
Among the “prudential” grounds why courts should refuse to decide some kinds of cases, as outlined by
Professor Alexander Bickel, is “the anxiety, not so much that the judicial judgment will be ignored, as that
perhaps it should but will not be.” This is a backhanded advertence to that aspect of prudential
judicial policy that seeks to avoid situations in which courts are seen as unable to enforce their write
against a noncompliant party. In U.S. v. Lee, Justice Miller defended the judiciary’s refusal to decide
disputes – foreign affairs were his example – when lacking “the power to adjust them ”. ¶ In a sense, this
is the ultimate, or purest, prudential reason for judicial abdication – the desire to avoid an unwinnable
confrontation with political power. It is manifest when courts seek to lower the stakes in a dispute, for example, by refusing to
decide on the basis of the constitutional issues presented when less controversial grounds will do or when judges apply the common
presumption in favor of the constitutionality of statutes and the regularity of an executive act. Courts’
sense of self-preservation
counsels them to seek to dismiss cases on procedural grounds (standing, ripeness, failure to exhaust local remedies, or
mootness) if that makes it unnecessary to reach the merits, thereby avoiding the possibility of a clash with political
power. Judges are also sensitive to the fact that the political agencies, by law, may limit or deprive
them of their jurisdiction by committing the review of certain issues to other agencies. While the
Vietnam cases do not say so specifically, judges were undoubtedly influenced by the onerous
consequences that might ensue if an unelected group of life-tenured officials were to order the
elected president to end a conflict in which at the time half a million American lives were engaged. It is
not difficult to empathize with Judge Wyzanski’s view that in the middle of a war, constitutionally authorized or not, “ a court
would not substitute its judgment for that of the President .” Indeed, what is odd is the relative reluctance of the
courts to use the abdicationist way out of cases in which recourse to it would appear comparatively comprehensible while deploying it in
numerous situations where virtually nothing of great national importance appears to be at stake and executive compliance is not seriously in
question.
IL - Judicial Capital = Finite
Court needs to save capital – controversial decisions burn capital.
Peretti, Professor of Political Science at Santa Clara University, ‘1
[Terri Jennings, 2001, In Defense of a Political Court, p.152]
To the degree that a justice cares deeply about her policy goals, she will be quite attentive to the degree of support and
opposition among interest groups and political leaders for those goals. She will be aware of the re— sources (e.g..
commitment, wealth, legitimacy) that the relevant interest groups possess who bear the burden of both carrying forward the appropriate
litigation necessary for policy success and for pressuring the other branches for full and effective implementation. Only the policy motivated
justice will care about the willingness of other government officials to comply with the Court’s decisions
or carry them out effectively. And only the policy motivated justice will care about avoiding the application of political
sanctions against the Court that might foreclose all future policy options. The school desegregation cases illustrate
these points quite nicely. The Court could not pursue the goal of racial integration and racial equality until there was an organized and
highly regarded interest group such as the National Association for the Advancement of Colored People willing and able to help. The Court
further was required to protect that group from political attack, as it did in NAACP v. Alabama and NAACP v. Button.
Avoidance of other decisions that might harm its desegregation efforts was also deemed necessary. Thus,
the Court had legal doctrine available to void antimiscegenation statutes, but refused to do so on two occasions.‘°° (Murphy notes that one
justice was said to remark upon leaving the conference discussion, "One bombshell at a time is enough."'°‘) The Court additionally
softened the blow by adopting its “deliberate speed" implementation formula. Even so, the Court still needed the active cooperation of a broad
range of government officials. in all branches and at all levels of government, in order to carry out its decisions effectively. Thus, significant
progress in racial integration in the southern schools did not in fact occur until Congress and the Department of Health, Education, and Welfare
decided to act. The
Court further had to consider whether the political opposition that it knew would ensue
would be sufficient to result in sanctions against the Court, such as withdrawal of jurisdiction or impeachment. These
considerations arose only in the process of caring deeply about the policy goal at hand—racial equality in public education. They were not a byproduct of caring only about the logical or precedential consistency of an opinion or of worrying only about deriving a decision from the
Framers’ intentions.
Court needs to pick battles – capital is finite.
Young, Professor of Law at UT Austin, ‘4
[Ernest, November 2004, “The Rehnquist Court's Two Federalisms” 83 Tex. L. Rev. 1]
Whether or not Alexander Hamilton was right to call the judiciary the "least dangerous branch," n451 both contemporary theory
and
historical experience suggest that courts' ability to defy the national political branches is not
unlimited. Those limits bear on federalism doctrine in at least three respects. First, they support, at least to some extent, the notion that
the judiciary has limited institutional capital. If that is true, then courts may not be able to pursue all possible
doctrinal avenues at once and may, in consequence, have to choose among them. Second, these limits suggest that courts
should pursue certain kinds of doctrine. In particular, they support doctrine that advances the goal of state autonomy without
forcing direct confrontations by invalidating political branch actions. Finally, the limits on the judiciary's ability to
confront the political branches ought to temper our expectations (or fears) of what judicial federalism doctrine can accomplish.
IL - Judicial Capital Key to Decisions
Judicial capital is key to the legitimacy of decisions.
Gibson and Caldeira, ‘9
[James (Professor of Political Science at Washington University in St. Louis and Gregory (Professor of
Political Science at Ohio State University), January 2009, “Confirmation Politics and The Legitimacy of
the U.S. Supreme Court” American Journal of Political Science, Vol. 53, No. 1, January 2009, Pg. 139–
155]
We reiterate our view that institutional legitimacy is an enormously important source of political capital . The
conventional hypothesis is that legitimacy is significant because it contributes to acquiescence to decisions of
which people do not approve (e.g., Gibson, Caldeira, and Spence 2005). We have devoted considerable effort toward investigating
that hypothesis throughout the world. To the extent that we are correct in our analysis of the theory of positivity bias, we suggest here that
legitimacy has an even more significant role in the political process: Citizens who extend legitimacy to
the Supreme Court are characterized by a set of attitudes that frame a variety of expectations and choices.
These frames provide a standing decision that is difficult to rebut in contemporary American politics. This
consequence of institutional legitimacy is perhaps the most significant.
Refusal to acquiesce to dominant political forces kills the courts’ decision making
capacity.
Devins, Goodrich Professor of Law and Professor of Government, College of William & Mary, ‘10
[Neal, “Talk Loudly and Carry a Small Stick: The Supreme Court and Enemy Combatants”, Journal of
Constitutional Law, Vol. 12, No. 2, February 2010, RSR]
Supreme Court decision making rarely deviates from dominant¶ social and political forces.2 6 Nominated
by the President and confirmed by the Senate, Supreme Court Justices are part of the social and political forces at the
time of their nomination.27 Lacking the¶ power of the purse and the sword, moreover, the Court is well
aware • • 28¶ of its need to enlist elected officials to implement its decisions . Finally, judges-like other people-care
about the "esteem of other¶ people."29 "[Oiverwhelmingly upper-middle or upper-class and extremely well educated, usually at
the nation's more elite universities,"¶ economic and social leaders' views matter more to the Court than to¶
popularly elected lawmakers (who must appeal to popular sentiment¶ in order to win elections).3 In particular, since the Justices'
reputations are shaped by the media, law professors, lawyers groups, and¶ other judges and justices, they maximize their status by
taking opinions of the elite into account.3¶ 1
IL - Judicial Capital Key to Schuette Decision
Judicial capital is key to sweeping judgments regarding affirmative action – history
proves.
Kloppenberg, Dean and Prof of Law @ Dayton, 2001
[Lisa Kloppenberg, Dean and Professor of Law @ Dayton, 2001 Playing It Safe p. 218-219]
In addition to its refusal to provide clarity about race-based affirmat ive action, the Court avoided considering the
constitutionality of gend er-based affirmative action programs during this period through meas ured opinions and
denial of certiorari. Although many of the challenged programs benefited both racial minorities and women (e.g., the one chall enged in
Adarand), the
Court did not review cases in which gender- based programs were challenged. Even when a challenged affirmative
act ion program covered both women and racial minorities, the Court focused narrowly on the facts of the specific
challenges before it, striking down only the portions of the plan based on race and not reaching gend er. The Court ruled that strict
scrutiny will be used for racial classificat ions, whether they disadvantage or benefit minorities. The Court has ruled that facial gender
classifications that disadvantage women are subj ect to intermediate scrutiny but has never considered a classification benefiting women
(chapter 6). The Court may simply have been issuing4 measured steps in a sensitive area, but it
also focused its political capital
on the most divisive portion of affirmative action, the programs benefiti ng racial minorities. This produces a strange
anomaly: it is easier for the government to help white women under the new approach than people . of color. Yet, as a group, white women are
still better represented and wield more clout than racial minorities in the political process. The
Court casts a shadow over
affirmative action programs, but focuses on a. more politically acceptable result for the majority , one at
least more acc eptable to many white women and their families who benefit from affir mative action. Perhaps the Court will condemn genderbased affirmative action programs as it agrees to hear such challenges. For now, those and other questions face public entities and Lower
courts as they struggle to understand the contours of the Court’s affirmative action rulings. Thus far, the federal
circuits have split as
they apply the color-blind precedents , to gender-based affirmative action?9 Justices Stephen Breyer and Gins.. burg dissented
from the Court’s denial of certiorari in the late 1990s to an appeal by the city of Dallas after the Fifth Circuit Court of Appeals struck down a
promotion plan beneficial to women and minorities.40 Earlier,. the Court refused to hear an appeal from a District of Columbia Circuit ruling,
authored by Clarence Thomas, which invalidated the FCC’s gend er preference, diverging in part from the Court’s race ruling in Metro
Broadcasting.4’
Fisher ruling proves that capital is key to affirmative action rulings – Kennedy wants to
preserve Court’s legitimacy.
Goldstein, Contributor and Publisher for SCOTUSblog, 7-9
[Tom, “Your cheat sheet to the end of a historic Supreme Court Term, in Plain English”, 7-9-13,
SCOTUSblog,
http://www.scotusblog.com/2013/07/your-cheat-sheet-to-the-end-of-a-historic-supreme-court-termin-plain-english/, RSR]
Most people expected the case – which involved the University of Texas – to strictly limit affirmative action in a
five-to-four ruling with the conservatives outvoting the more liberal Justices. That made sense,
because in the ten years since the Court last ruled that universities could account for race in
admissions, it has moved significantly to the right. Justice Sandra Day O’Connor, who had been regarded as the “swing
vote” on the Court, retired and was replaced by the more conservative Samuel Alito. On other ideological questions, the new conservative
majority has been pretty aggressive about limiting or overruling important precedent with which it disagreed.¶ But
to all our surprise,
that did not happen. Instead, over only a single dissent, the Court sent the case back down to a lower
court for further consideration. In the Court’s opinion, it made clear that public universities which want to
consider race can only do so if they can show that their student bodies won’t be sufficiently diverse
any other way. But the Court made little new law. It looks like the Court’s current ideological center – Justice
Anthony Kennedy – ultimately wanted to write a ruling that could attract support from both of the
Court’s wings . In the end, a major case turned out to be something of a dud.
Kennedy votes on controversial decisions based off of court capital, but the courts
have a finite amount of capital, which would get spent on the plan.
Bragaw and Perry, ‘2
[Steven (Assistant Professor of Government and Director, Law & Society Program, Sweet Briar College)
and Barbara (Carter Glass Professor of Government and Director, Center for Civic Renewal, Sweet Briar
College), “The Brooding Omnipresence" in Bush v. Gore: Anthony Kennedy, the Equality Principle, and
Judicial Supremacy,” Stanford Law Review, 2002]
Kennedy, who at this point had already testified for half an hour before the subcommittee on the minutest technical details of the Supreme
Court building's upcoming renovation--all without notes--began a dramatic soliloquy. n93 He noted that the justices knew, even as
they decided the presidential election case, that their opinion would provoke strong feelings among the American
people (How could they have thought otherwise when protestors for each side in the presidential race staged loud demonstrations at the
Court's very doorstep? n94). Launching an institutional defense of the tribunal he represented, Kennedy attempted to distinguish the Court from
the other two branches by virtue of its language, ethic, discipline, dynamic, grammar, tradition, and logic of the law that are all "different from
the political branches." n95 Thus, he contended, the Supreme Court would be judged on Bush v. Gore not by what the justices say after the
fact, but "by what we put in the appellate reports." n96 Kennedy
also revealed the Court's consideration of its
institutional capital, observing, "Ultimately, the power and the prestige and the respect of the Court
depends on trust. My colleagues and I want to be the most trusted people in America. How do you instill that
trust? Over time you build up a deposit, a reservoir, a [*31] storehouse of trust. And when we make a
difficult decision . . . you draw down on that capital of trust." n97 Then the brooding, soul-searching Kennedy admitted,
"You must make sure you are listening to the right voice, not the wrong voice. And I've been a judge for over 25 years, and I know how hard it is
to search for that voice and to make sure you're doing what's neutral." n98
IL - Public Opinion Affects Capital
Court capital is limited – public opinion matters.
McGuire and Stimson, ‘4
[Kevin (Professor of Political Science and UNC Chapel Hill) and James (Professor of Political Science at
UNC Chapel Hill), November 2004, “The Least Dangerous Branch Revisited: New Evidence on Supreme
Court Responsiveness to Public Preferences” THE JOURNAL OF POLITICS, Vol. 66, No. 4, November 2004,
Pp. 1018–1035]
The reasons for such behavior are not terribly mysterious. The justices may well want to see their preferences reflected
in policy outcomes, but that ambition would be fairly hollow if those policies, once promulgated, had no practical
effect. The Court requires the cooperation of legislative and executive officials, many of whom are themselves careful auditors of mass
opinion. For that reason, the members of the Court must reflect on how well their preferred outcomes will be
received and supported by implementers. By no means does this imply that the Court cares about public opinion in the same ways that
elected officials do, but we do think it entirely reasonable to assume that justices want their policies to be taken seriously
by relevant publics.1 This is not just our opinion, of course. There is abundant evidence of resistance, avoidance, and downright
defiance from various constituencies of the Court (Canon and Johnson 1999). It is only when popular opinion supports the Court’s goals that its
policies have their full effects (Rosenberg 1991). To be sure, the
Constitution affords the Supreme Court institutional
independence, but it in no way guarantees the prestige upon which its success is so highly dependent.
Public opinion affects capital – Bush v. Gore proves.
Bragaw and Perry, ‘2
[Stephen (Assistant Professor of Government at Sweet Briar College) and Barbara (Professor of
Government at Sweet Briar College), 2002, “The "Brooding Omnipresence" in Bush v. Gore” 13 Stanford
Law and Policy Review 19]
At the March 2001 House of Representatives Subcommittee meeting, Congressman Serrano begged Justices Kennedy and Thomas to
explain Bush v. Gore to the American people. While proclaiming his profound respect for the justices and the high court they
represented, Serrano berated their decision on Election 2000, which he said struck some of his immigrant constituents as similar to the corrupt
electoral practices in their native countries from which they had fled. n92 Kennedy, who at this point had already testified for half an hour
before the subcommittee on the minutest technical details of the Supreme Court building's upcoming renovation--all without notes--began a
dramatic soliloquy. n93 He noted that the justices
knew, even as they decided the presidential election case, that their opinion
would provoke strong feelings among the American people (How could they have thought otherwise when protestors
for each side in the presidential race staged loud demonstrations at the Court's very doorstep? n94). Launching an institutional
defense of the tribunal he represented, Kennedy attempted to distinguish the Court from the other two
branches by virtue of its language, ethic, discipline, dynamic, grammar, tradition, and logic of the law that are all "different from the political
branches." n95 Thus, he contended, the Supreme Court would be judged on Bush v. Gore not by what the justices say after
the fact, but "by what we put in the appellate reports." n96 Kennedy also revealed the Court's consideration of its
institutional capital, observing, "Ultimately, the power and the prestige and the respect of the Court depends
on trust. My colleagues and I want to be the most trusted people in America. How do you instill that trust?
Over time you build up a deposit, a reservoir, a [*31] storehouse of trust. And when we make a difficult
decision . . . you draw down on that capital of trust." n97 Then the brooding, soul-searching Kennedy admitted, "You
must make sure you are listening to the right voice, not the wrong voice. And I've been a judge for over 25 years, and I
know how hard it is to search for that voice and to make sure you're doing what's neutral." n98 Kennedy next turned to the substance of Bush
v. Gore, citing its two main themes: the fundamental right to vote that the Florida Supreme Court had violated with its equal protection
transgressions and the supreme authority of the U.S. Supreme Court to decide such a case. n99 On the latter contention, Kennedy grew
particularly grave, observing that the justices "did not bring it [the election case] there [to the Court] ... It involved
a constitutional
issue of the gravest importance, decided 4 to 3 by a state court on a federal issue, . . . it was our responsibility to take the case."
n100
Paraphrasing the closing refrain of Bush v. Gore's per curiam opinion, Kennedy concluded, "Sometimes it's easy, so it seems, to enhance
your prestige by not exercising your responsibility, but that's not been the tradition of our Court." n101 Summing up his oration, he declared,
"I'm confident that the
people will understand the position that the Court was in and will trust the
institution for what it is." n102 The brooding justice had found his voice.
Public opinion factors into court decisions.
Kramer, Professor of Law at NYU, ‘4
[Larry, July 2004, “Popular Constitutionalism” 92 Calif. L. Rev. 959]
We can, in a sense, view all this work on the existence and necessity of popular constitutionalism as a
kind of upping the ante on legal realism. Where the realists taught us to look beyond "the rules" to what courts actually do, we
now see that even this does not go far enough. We must also look beyond the courts to see how judicial rulings are absorbed,
transformed, and sometimes made irrelevant. This is especially true when it comes to the Supreme
Court's constitutional jurisprudence. Whether because of practical institutional limitations or a need for support from other branches or a
willingness to behave strategically to preserve institutional capital or an inability to overcome deeply inscribed societal norms, the Supreme
Court can never monopolize constitutional lawmaking or law interpreting. Popular constitutionalism is, to some extent, perhaps a very great
extent, inevitable and unavoidable. The question is what to make of this fact. That the
Supreme Court does not fully
determine the course of constitutional law is something most lawyers and judges already know - including, I am sure, the
Justices of the Supreme Court. We sometimes talk or write as if we thought otherwise, but that is because most legal scholarship is about (and
so mainly interested in) only the formal legal system. Aware that there are limits to this system's effectiveness, we leave them unspoken
because such qualifications are beyond the problem being addressed and because we assume they will be taken for granted. Maybe this is a
mistake. By declining to qualify what we say or failing to consider the fate of law beyond the courthouse, legal scholars
have almost
the influence of judicial pronouncements and overlooked extrajudicial
influences that matter. To that extent, the work of scholars like Griffin, Whittington, Galanter, Rosenberg, McCann, and others
certainly overestimated
provides a useful and important corrective, a reminder that judicial lawmakers face substantial obstacles and that nonjudicial actors and
activities have real significance for law and especially for constitutional law. n56 Yet nothing in this scholarship provides a basis for criticizing or
challenging even the most ambitious claims of judicial authority. Quite the contrary, evidence that courts
face inherent limits in
enforcing constitutional norms may simply give those who believe in the necessity of judicial
supervision a reason to redouble their efforts to shut down extrajudicial interpretation. The reason is straightforward: barriers to the
Supreme Court's ability to monopolize constitutional interpretation are not exogenous to beliefs
about what the status of the Court's rulings ought to be. Grant that the Justices will, at some point, inevitably run up
establishing and
[*974]
against limits on their ability to control the course of constitutional law. The location of these limits will nevertheless vary depending on how
much authority ordinary citizens and political leaders believe the Court ought to have. Yet we cannot decide where we want the limits to be
without first deciding whether popular constitutionalism is a good or a bad thing - something about which its mere existence tells us nothing.
Murder and love will both inevitably exist in society, but we feel very differently about whether to encourage or discourage them.
IL - Public Opinion + Enforcement Key to Legitimacy
Judicial legitimacy depends on branch enforcement and citizen opinion.
Simad, Assistant Dean and Professor of Law at Suffolk University Law School, ‘8
[Linda, University of Texas School of Law - The Review of Litigation. Summer, 2008, Lexis]
This is an interesting theory, in part because traditional jurisprudence would suggest that the judicial branch is to be insulated [*682] from
majoritarian pressures, not subject to them. Yet, the
judiciary's institutional legitimacy is ultimately dependent
upon the influence of its decisions upon society. To the extent that the strength of the judicial system
depends upon having decisions followed and not overridden, altered, or ignored, judges have an
incentive to fit within the parameters of broadly shared public opinion. n58 Moreover, lacking the purse
and the sword, the judicial branch is not equipped to enforce its decisions without the assistance of
the other branches of government and the goodwill of the citizenry. n59 Thus, while the judicial branch is theoretically
shielded from majoritarian forces, the practical reality suggests that some consideration of public opinion may be prudent.
IL - Schuette Decision Key to Federalism
Schuette decision is an important test for federalism – upholding the ban preserves
the power of the popular referendum.
Shahin, 7-10
[Peter, Staff Reporter, “Ann Arbor reacts to monumental Supreme Court decisions”, 7-10-13, The
Michigan Daily,
http://www.michigandaily.com/news/university-mulls-brief-faculty-weigh-prop-2-case?page=0,1, RSR]
Though the University has not made a move to file a brief, Philosophy Prof. Carl Cohen, one of the University’s most senior
tenured faculty and an outspoken critic of affirmative action policies, has filed a joint amicus curiae
brief with other opponents from across the country.¶ While the brief draws heavily on reasoning from the Texas
Association of Scholars in its opposition to affirmative action policies, Cohen said he focused his portion of the brief more
on the constitutionality of popular referendum — which he sees as the most important issue of the
case .¶ “I was amazed at the decision of the Circuit Court,” he said. “The people of the state of Michigan have the right
to determine policy of the state of Michigan within the frame of the United States Constitution. The
Sixth Circuit Court of Appeals denied them that right and decided on their own view of the matter that this was not
appropriate decision making for the people of the state.”¶ Citing James Madison’s Federalist Papers, Cohen also said the Sixth Circuit
Court had exercised its “will” rather than its “judgment,” and that popular referendum must be
answerable only to the strictures of the Constitution itself in judicial review.¶ Since the central
question is the power and legal standing of a popularly adopted referendum, Cohen said he could see
some of the court’s liberal justices supporting overturning the Sixth Circuit Court’s decision in the
interests of popular sovereignty.¶ “I don’t think people fully understand what’s at issue here,” Cohen said. “People think
‘are they for affirmative action or are they against it?’ But that’s not the issue here — the issue is the
right of the people to make a decision against certain policies whether you like that policy or don’t
like that policy.”
Upholding a popular referendum is key to the preservation of federalism.
Frey and Bohnet, ‘93
[Bruno and Iris, Institute for Empirical Economic Research at the University of Zurich, “Democracy by
Competition: Referenda and Federalism in Switzerland”, Publius, Spring 1993, RSR]
Federalism, however, is not only an alternative to referenda but also a prerequisite for the effective working of a direct democracy. In small
communities, the¶ information costs of voters when deciding on issues or judging representatives'¶
performance are much lower than in a large jurisdiction. The more fiscal equivalence is guaranteed, the better the
benefits of publicly supplied goods can be¶ acknowledged and the corresponding costs be attributed to the relevant political¶ programs or
actors. Thus, while
federalism provides for cheaper information,¶ referenda enable citizens to use this
knowledge effectively in the political process.¶ The interdependence of federalism and referenda also
works the other way¶ around: Referenda improve the working of federalism . Besides the possibility
of¶ voting with their feet, citizens may also vote directly. This represents a double¶ incentive for
politicians to take their citizens' preferences into account; otherwise,¶ they may lose their tax base to
another jurisdiction or may be forced by referenda¶ and initiatives to meet the demands of the
voters.
IL - A2: There’s No Backlash
Backlash is guaranteed – Courts can’t sway public opinion for unpopular rulings –
especially true in terms of national security risks.
Silverstein and Hanley, ‘10
[Gordon (Assistant Professor of Political Science, University of California, Berkeley and Fellow in the
Program of Law and Public Affairs, Princeton University) and John (Ph.D. Candidate, Political Science,
University of California, Berkeley), “The Supreme Court and Public Opinion in Times of War and Crisis”,
Hastings Law Journal, Vol. 61, RSR]
Does this suggest that the Supreme Court merely follows the polls? ¶ There seems to be no credible evidence to suggest that the Justices ¶
determine their votes based on popular opinion.26 Indeed, far from ¶ slavishly following public opinion, there
is research that
suggests the ¶ Court has some ability to move public opinion through its decisions and ¶ rulings27 by serving
as something of a “republican schoolmaster,”28¶ though this is mediated by the salience of the issue and the
intensity of ¶ public sentiment. The public deference to judicial resolution of disputes ¶ over the
allocation of power to the other branches may well diminish, ¶ however, in times of crisis when the Court
may perceive a risk of ¶ backlash from a public concerned for national security and favorably ¶
inclined toward the executive.29 And even though the Court may have some ability to bring public opinion over to its side, the
empirical work ¶ does not suggest that the Court would be able to win public support for ¶ deeply
unpopular rulings , particularly in the midst of what is widely ¶ perceived to be a national crisis—a
scenario that is suggested by an ¶ alternative reading of the Court’s ruling in Korematsu which we will ¶ discuss below.30
Impacts
I – Federalism High Now
Federalism high now
Katz ‘12 (Vice President and Director, Metropolitan Policy Program, Global Cities Initiative (Bruce,
03/18, “Will the Next President Remake Federalism?”
http://www.brookings.edu/research/articles/2012/03/18-federalism-katz)
The genius of American federalism is that it diffuses power among different layers of government and across disparate sectors of society.
States are the key constitutional partners, because they have broad powers over such market-shaping policy areas
as infrastructure, innovation, energy, education and skills training. But other sub-national units - particularly major
cities and metropolitan areas - also are critical, because they concentrate and agglomerate the assets that drive prosperity and share leadership
with actors in the corporate, civic, university and other spheres. When
the federal government becomes polarized and
fails to act on critical issues of national importance, states and metros can step in to take on larger roles.
With Washington mired in partisan gridlock, the states and metropolitan areas are doing just that. With
federal innovation funding at risk, metros like New York City and states like Ohio and Tennessee are making sizable commitments to attract
innovative research institutions, commercialize leading-edge research and grow innovation-intensive firms. With the future of federal trade
policy unclear, metro areas like Los Angeles, San Francisco and Minneapolis/St. Paul and states like Colorado and New York are reorienting their
economic development strategies toward exports and the attraction of innovative foreign companies and skilled immigrants. With federal
energy policy in shambles, metro areas like Seattle and Philadelphia are cementing their niches in energy-efficient technologies, and states like
Connecticut are experimenting with green banks to help deploy clean technologies at scale. State green banks can play a crucial role in
financing clean energy projects by combining scarce public resources with private investment, and then leveraging the funds to make each
public $1 support $5 or $10 or even more dollars of investment. With
federal transportation policy in limbo, metro areas like
Jacksonville and Savannah and states like Michigan are modernizing their air, rail and sea freight hubs to position
themselves for an expansion of global trade. What unites these disparate efforts is intent. After decades of pursuing fanciful illusions (e.g.,
becoming the next Silicon Valley) or engaging in copycat strategies, states and metros are
deliberately building on their
special assets, attributes and advantages using business-planning techniques honed in the private sector. The bubbling
of state and metro innovation offers an affirmative and practical counterpoint to a Washington that has become
increasingly hyper-partisan and overly ideological and gives the next president an opportunity to engage states and metropolitan areas as true
working partners in a focused campaign for national economic renewal.
Health care decision proves power is shifting to the states now
Davenport, Senior Fellow @ Hoover Institution, 12 (David, Forbes, “Federalism's Silver Lining
in the Healthcare Decision”, June 29th,
http://www.forbes.com/sites/daviddavenport/2012/06/29/federalisms-silver-lining-in-the-healthcaredecision/, 7/7/12, AH)
Today, the Court said the limit on the federal spending power had been improperly crossed by Congress in the
healthcare reform bill. Rather than the “relatively mild inducement” the Court found when five percent of South Dakota’s highway funds were
at risk, today’s Court said that losing all of a state’s Medicaid funding was more like “a gun to the head.” The Court noted that Medicaid
spending accounts for over 20% of the average state’s total budget, whereas 5% of South Dakota’s highway funding was less than one half of
one percent of its total budget at the time. So we
now know there is some limit beyond which the federal
government may not go in withholding state funding to incentivize (bribe?) a state to do Washington’s bidding. I can hardly wait for
some states to follow this holding right back into court to challenge the federal takeover of K-12 education. Over the last decade, beginning
with President George W. Bush’s No Child Left Behind legislation to President Obama’s Race to the Top grants, the federal government has
gone from the back seat to the driver’s seat in K-12 education policy. What was only a decade ago cited as the classic example of a state or local
policy matter, K-12 education is now dominated by federal testing and accountability measures, and now the beginnings of a national
curriculum. Although it falls somewhere between South Dakota’s share of federal highway money and the average state’s federal Medicaid
money, the
Court today opened the door for such a challenge. Beyond the money, it is the kind of pervasive and dominating
is not just a theoretical victory, but perhaps the setting of a practical
stage for more state challenges to federal power.
scheme that should be examined. So this
Recent policies prove that power is shifting toward the states
Metzger, Constitutional Law Scholar and Professor @ Columbia Law School, 12 (Gillian
E., “Obama's Reforms Give States a Shot at Coming Out Winners”, March 26th,
http://www.law.upenn.edu/blogs/regblog/2012/03/obamas-reforms-give-states-a-shot-at-coming-outwinners.html, 7/7/12, AH)
Specifically, states have been given a pivotal role in implementing both of President Obama’s signature
legislative accomplishments: the Patient Protection and Affordable Care Act (ACA) and the Dodd-Frank financial
reform law. The provisions of the health care legislation that will have the greatest direct impact on the states are the expansion of
Medicaid and the creation of state–based health exchanges. In both matters, the states stand to come out winners: The
federal government’s responsibility to pay the vast majority of the costs of Medicaid expansion was a
significant legislative victory for the states. So was the decision to grant the states primary authority
to run the exchanges, and the states are being offered significant flexibility in how they do so. States
also gained powers under the Dodd-Frank Act. For example, Dodd-Frank created the Consumer Financial Protection Bureau
(CFPB) and granted the states authority to enforce existing CFPB regulations as well as a special role in instigating CFPB rulemaking. Dodd-Frank
also limited the occasions in which state regulation of national banks is preempted and protected state regulatory authority over insurance.
And, in a novel move, Dodd-Frank provided that three state regulatory officials—a banking supervisor, an insurance commissioner, and a
securities commissioner—would serve as nonvoting members of the new Financial Stability Oversight Council, the top federal financial
regulatory entity charged with guarding against systemic risks of the kind that led to the recent financial crisis.
There has been a recent rollback in federal power
Metzger, Constitutional Law Scholar and Professor @ Columbia Law School, 12 (Gillian
E., “Obama's Reforms Give States a Shot at Coming Out Winners”, March 26th,
http://www.law.upenn.edu/blogs/regblog/2012/03/obamas-reforms-give-states-a-shot-at-coming-outwinners.html, 7/7/12, AH)
Although its challenge to Arizona’s immigration law has dominated the headlines, the Obama Administration has also pulled
back on when federal law takes precedence over, or “preempts,” state law. The ACA allows states to
add regulatory requirements consistent with federal law, and Dodd-Frank expressly limits the
preemptive powers of federal financial regulators. Shortly after entering office, President Obama issued a preemption
memorandum directing federal agencies to preempt state law only after a careful determination that such an act was legal and legitimate. A
study commissioned by the Administrative Conference of the United States suggested that the memorandum helped curb some of the
expansive preemption policies agencies had adopted during the George W. Bush Administration.
Federalism is expanding now
Dranias 12 (Nick, Director of the Joseph and Dorothy Donnelly Moller Center for Constitutional
Government at the Goldwater Institute, Library of Law and Liberty, “We Should Accept the Supreme
Court’s Invitation to Check and Balance Washington, D.C.”, March 24th ,
http://libertylawsite.org/2012/03/24/we-should-accept-the-supreme-courts-invitation-to-check-andbalance-washington-d-c/, 7/7/12, AH)
Rarely does a unanimous Supreme Court announce a sea change in the balance of power between the
states and the federal government. But nearly a year ago, on June 16, 2011, the Court did just that. In Bond v. United
States, the Court effectively extended an invitation to strategic lawmaking and litigation under the
Tenth Amendment. Constitutionalists should accept the Court’s invitation. The unanimous opinion penned by Justice Anthony
Kennedy could signal the beginning of the end of the federal government’s inexorable expansion into
areas the Tenth Amendment reserves exclusively to state and local government, such as local criminal law,
health care and firearms regulation. With unusual clarity, the Court ruled our system of dual sovereignty denies “any one government
complete jurisdiction over all the concerns of public life.”[1] It underscored that the primary reason for dividing power between the states and
the federal government is to protect individual liberty; observing, “Federalism
is more than an exercise in setting the
boundary between different institutions of government for their own integrity . . . Federalism secures
the freedom of the individual.”[2] In view of these principles, the Court ruled that individual citizens can sue the federal
government when it violates the Tenth Amendment. But the Court went even further than that—it declared that the states
themselves may advance the goals of federalism through “positive law.” Bond expressly declared that our system
of federalism empowers “[s]tates to respond, through the enactment of positive law, to the initiative of those who seek a voice in shaping the
destiny of their own times without having to rely solely upon the political processes that control a remote central power.”[3] And all of this took
place within the context of a case that challenged a federal law stemming from an international treaty on chemical weapons—a context in
which federal power would otherwise seem to be at its zenith under modern case law.
The Bond decision shifted power to the states
Dranias 12 (Nick, Director of the Joseph and Dorothy Donnelly Moller Center for Constitutional
Government at the Goldwater Institute, Library of Law and Liberty, “We Should Accept the Supreme
Court’s Invitation to Check and Balance Washington, D.C.”, March 24th ,
http://libertylawsite.org/2012/03/24/we-should-accept-the-supreme-courts-invitation-to-check-andbalance-washington-d-c/, 7/7/12, AH)
Bond’s emphasis that federalism serves the purpose of protecting individual freedom and that states
are empowered to enact “positive law” to advance the goals of federalism appears to recognize that
the Tenth Amendment’s guarantee of state sovereignty was originally meant to work “in tandem” [10] with the Bill of
Rights and the Ninth Amendment’s guarantee of reserved rights.[11] Because of Bond, the door is now open for strategic
lawmaking and litigation premised on the theory that state law guarantees of individual freedom limit the
reach of federal power so long as the state law (1) is within the scope of the traditionally reserved powers of the states, and (2) arises
from the same conception of fundamental rights and ordered liberty that is guaranteed by the Bill of Rights. This Bond-based legal theory is not
the same as the long-rejected contention that the state has parens patriae standing to enforce the rights of its citizenry against the federal
government—i.e., that the state can stand in the shoes of its citizens and enforce their constitutional rights. Instead, the point is that “the
promise of liberty” lies in the “tension between federal and state power.”[12] As James Madison underscored in Federalist No. 51, “[i]n the
compound republic of America . . . [t]he different governments will control each other.” Accordingly, when states enact “positive law” to
protect constitutional liberty, they are creating the tension states were meant to create as states to ensure a “constitutional equilibrium.”[13]
Together with its precedential predecessors, Bond
makes it possible for citizens to challenge federal overreach with
the argument that the federal government cannot have the power to override state sovereignty when
such sovereignty is exercised in service of the very purpose for which our system of dual sovereignty exists—the protection of individual
freedom. As such, the Court’s decision in Bond did not come a moment too soon. As
much as we want a strong and vigorous
national government, the goal of restraining and moderating its power is more important than ever .
Anyone—conservatives and liberals alike—can see that Washington has no idea how to keep its own house. And yet, Washington increasingly
insists on telling the American people and the states how they should keep theirs. This concentration of power is not only unconstitutional, it is
palpably unwise and dangerous. Citizens need to use every existing constitutional tool to refocus Washington on matters of truly national
concern—like getting a handle on the runaway national debt. Otherwise, the federal government will eventually dictate our most important
and intimate choices in life. Fortunately, Bond
finally gives us the jurisprudence we need to check and balance
Washington, D.C.
The health care decision actually helped federalism
Davenport, Contributor to Forbes Magazine, 6/29/12
(David, Forbes, “Federalism's Silver Lining in the Healthcare Decision,” 6/29/2012
http://www.forbes.com/sites/daviddavenport/2012/06/29/federalisms-silver-lining-in-the-healthcaredecision/ 7/7/12 MLF)
Perhaps only an academic could appreciate theoretical victories on the battlefield of a major defeat.
But the 193-page U.S. Supreme Court opinion on the constitutionality of the healthcare reform bill
does actually leave conservatives, and especially those concerned about states’ rights and federalism,
some room for encouragement. The 193-page U.S. Supreme Court opinion on the constitutionality of the healthcare reform bill
does actually leave conservatives, and especially those concerned about states’ rights and federalism, some room for encouragement. (Photo
credit: Wikipedia) In fact, one could argue that conservatives won all the major constitutional battles in this case but, thanks to some deft
footwork by Chief Justice Roberts, still managed to lose the war. The
big constitutional questions in this case were
whether there are any limits to the federal government’s power under the Commerce Clause and the
conditional spending power and, to each of those questions, a strong majority of the Court said “yes,”
and moreover, held that Congress’ actions in this case exceeded those limits. When this case was first brought,
you couldn’t have found more than a handful of legal experts who thought there was a serious chance that the federal courts would rule the
healthcare reform bill unconstitutional on commerce clause grounds, yet that is exactly what happened. People laughed initially at the
argument that not buying health insurance constituted economic inactivity and the commerce clause only allowed the regulation of activity,
and yet that argument prevailed. As Chief Justice Roberts wrote in his majority opinion: “[T]he distinction between doing something and doing
nothing would not have been lost on the Framers, who were ‘practical statesmen,’ not metaphysical philosophers.” The
Court’s
conclusion in this regard is powerful and clear: “The Framers gave Congress the power to regulate
commerce, not to compel it.”
I - Econ Module
Federalism is key economic consolidation--which is vital for economic growth
Calebresi 95 (Stephen, Associate Professor, Northwestern University School of Law. B.A. 1980, J.D.
1983, Yale, “Reflections on United States v. Lopez: "A government of limited and enumerated powers: in
defense of United States v. Lopez,” 94 Mich. L. Rev. 752, Michigan Law Review, December, lexis, AD:
7/5/9) LS
A third related advantage is that international federations can undertake a host of governmental activities in
which there are significant economies of scale. This is one reason why federations can provide better for the common
defense than can their constituent parts. Intercontinental ballistic missiles, nuclear-powered aircraft carriers and submarines, and B-2 stealth
bombers tend to be expensive.
Economies of scale make it cheaper for fifty states to produce one set of these
items than it would be for fifty states to try to produce fifty sets. This is true even without factoring in the North
American regional tensions that would be created if this continent had to endure the presence of fifty nuclear minipowers, assuming that each
small state could afford to own at least one Hiroshima-sized nuclear bomb. Important governmental economies of scale obtain in other areas,
as well, however, going well beyond national defense.
For example, there are important economies of scale to the
governmental provision of space programs, scientific and biomedical research programs, the creation
of transportation infrastructure, and even the running of some kinds of income and wealth
redistribution programs.
Economic collapse causes global nuclear war.
Friedberg and Schoenfeld, ‘8 (Aaron [Prof. Politics. And IR @ Princeton’s Woodrow Wilson School
and Visiting Scholar @ Witherspoon Institute], and Gabriel, [Senior Editor of Commentary and Wall
Street Journal], “The Dangers of a Diminished America”,
http://online.wsj.com/article/SB122455074012352571.html)
Then there are the dolorous consequences of a potential collapse of the world's financial architecture. For
decades now, Americans have enjoyed the advantages of being at the center of that system. The
worldwide use of the dollar, and the stability of our economy, among other things, made it easier for us to run huge
budget deficits, as we counted on foreigners to pick up the tab by buying dollar-denominated assets as a
safe haven. Will this be possible in the future? Meanwhile, traditional foreign-policy challenges are multiplying. The
threat from al Qaeda and Islamic terrorist affiliates has not been extinguished. Iran and North Korea are
continuing on their bellicose paths, while Pakistan and Afghanistan are progressing smartly down the
road to chaos. Russia's new militancy and China's seemingly relentless rise also give cause for concern .
If America now tries to pull back from the world stage, it will leave a dangerous power vacuum. The stabilizing effects of our presence in Asia,
our continuing commitment to Europe, and our position as defender of last resort for Middle East energy sources and supply lines could all be
placed at risk. In such a scenario there
are shades of the 1930s, when global trade and finance ground nearly to a
halt, the peaceful democracies failed to cooperate, and aggressive powers led by the remorseless
fanatics who rose up on the crest of economic disaster exploited their divisions. Today we run the risk
that rogue states may choose to become ever more reckless with their nuclear toys, just at our moment
of maximum vulnerability. The aftershocks of the financial crisis will almost certainly rock our
principal strategic competitors even harder than they will rock us. The dramatic free fall of the Russian stock market has
demonstrated the fragility of a state whose economic performance hinges on high oil prices, now driven
down by the global slowdown. China is perhaps even more fragile, its economic growth depending heavily on
foreign investment and access to foreign markets. Both will now be constricted, inflicting economic pain and perhaps even
sparking unrest in a country where political legitimacy rests on progress in the long march to prosperity.
None of this is good news if the authoritarian leaders of these countries seek to divert attention from
internal travails with external adventures.
Best studies prove.
Royal 10 (Jeddiah, Director of Cooperative Threat Reduction at the U.S. Department of Defense,
“Economic Integration, Economic Signalling And The Problem Of Economic Crises”, in Economics of War
and Peace: Economic, Legal and Political Perspectives, ed. Goldsmith and Brauer, p. 213-215)
Second, on
a dyadic level. Copeland's (1996. 2000) theory of trade expectations suggests that 'future expectation of trade' is
a significant variable in understanding economic conditions and security behaviour of states. He argues
that interdependent states are likely to gain pacific benefits from trade so long as they have an optimistic
view of future trade relations. However, if the expectations of future trade decline, particularly for difficult to
replace items such as energy resources, the likelihood for conflict increases, as states will be inclined to use force
to gain access to those resources. Crises could potentially be the trigger for decreased trade
expectations either on its own or because it triggers protectionist moves by interdependent states.4
Third, others have considered the link between economic decline and external armed conflict at a national level. Blomberg and Hess (2002)
find a strong correlation between internal conflict and external conflict, particularly during periods of
economic downturn. They write, The linkages between internal and external conflict and prosperity are
strong and mutually reinforcing. Economic conflict tends to spawn internal conflict, which in turn
returns the favour. Moreover, the presence of a recession lends to amplify the extent to which
international and external conflicts self-rein force each other. (Blombcrj! & Hess. 2002. p. 89) Economic decline
has also been linked with an increase in the likelihood of terrorism (Blomberg. Hess. & Weerapana, 2004). which
has the capacity to spill across borders and lead to external tensions. Furthermore, crises generally reduce
the popularity of a sitting government. "Diversionary theory" suggests that, when facing unpopularity
arising from economic decline, sitting governments have increased incentives to fabricate external
military conflicts to create a 'rally around the flag' effect. Wang (1996), DeRouen (1995), and Blombcrg. Mess, and
Thacker (2006) find supporting evidence showing that economic decline and use of force are at least indirectly correlated.
Gelpi (1997), Miller (1999). and Kisangani and Pickering (2009) suggest that the tendency towards diversionary tactics arr
greater for democratic states than autocratic states, due to the fact that democratic leaders are
generally more susceptible to being removed from office due to lack of domestic support . DeRouen (2000)
has provided evidence showing that periods of weak economic performance in the United States, and thus weak
Presidential popularity, are statistically linked to an increase in the use of force.
I - Federalism Key to Hegemony
Federalism is key to hegemony
Rivlin ‘92 (Brookings Institution, Alice, Reviving the American Dream: The Economy, The States, and
the Federal Government)
The inexorably rising frequency and complexity of U.S. interaction with the rest of the world add to the stress on federal decisionmaking
If the United States is to be an effective
world leader, it cannot afford a cumbersome national government overlapping responsibilities between the
federal government and the states, and confusion over which level is in charge of specific domestic government functions. As the
world shrinks, international concerns will continue threatening to crowd out domestic policy on the
federal agenda. Paradoxically, however, effective domestic policy is now more crucial than ever precisely because it is
essential to U.S. leadership in world affairs . Unless we have a strong productive economy, a healthy, well-educated
processes and underline the need for making those processes simpler and more effective.
population, and a responsive democratic government, we will not be among the major shapers of the future of this interdependent world. If
the American standard of living is falling behind that of other countries and its government structure is paralyzed, the United States will find its
credibility in world councils eroding. International considerations provide additional rationale, if more were needed, for the United States to
have a strong effective domestic policy. One answer to this paradox is to rediscover the strengths of our federal system, the division of labor
Washington not only has too much to do, it has taken on domestic
responsibilities that would be handled better by the states. Revitalizing the economy may depend on restoring a
between the states and the national government.
cleaner division of responsibility between the states and the national government.
Federalism is key to preventing isolation and assuring US global power.
Rivlin ‘92 (Brookings Institution, Alice, Reviving the American Dream: The Economy, The States, and
the Federal Government)
There are at least four reasons to think that reraising the fundamental questions of federalism— which level of Government should do what
and where the revenues should come from—would help in meeting these challenges. The first reason is that dramatic
changes in the
world are radically altering the tasks facing national governments. Rapid advances in the technology or
transportation, communications, and weaponry have shrunk distances and intertwined the United States with the rest of the world, intimately
and irreversibly. Goods. services, money, and people are flowing easily across oceans and borders. So are economic, political, and
environmental problems. Global
interdependence requires international cooperation to solve common
problems and some delegation of sovereignty to supranational authorities. The Gulf war and growing
nuclear capacity in developing nations leave no doubt that stronger international controls are needed
on sophisticated weapons. The rapidly thinning ozone layer dramatizes the stake that all nations have in controlling harmful atmospheric
emissions. Despite its political appeal, isolationism is no longer a viable option. If the United States is to protect its own citizens and help shape
a more habitable world, it must take an active part in international partnerships focused on everything from chemical weapons to acid rain to
narcotics traffic. These partnerships are already demanding increasing attention from both the executive and legislative branches of the federal
government. Global
interdependence creates a paradox for the U.S. government. On the one hand, since both the
policy will get less attention
in Washington. At the same time, global interdependence makes domestic policy more important
than ever. The United States needs rising productivity, a skilled labor force, and modern physical
capital, both public and private, if it is to generate the improved standard of living necessary not only to
foster domestic well-being, but also to play an effective role in international partnerships. The added complexity
of Washington’s international role strengthens the case for sorting out domestic responsibilities more
clearly. Washington cannot do everything and should not try. The states should take responsibility.
president and Congress will be spending greater time and energy on international affairs. Domestic
I - Hegemony Impact Extension
Heg solves nuclear escalation and global nuclear arms races- other states won’t deter
effectively.
Brooks et al. 13 [STEPHEN G. BROOKS is Associate Professor of Government at Dartmouth College.¶ G.
JOHN IKENBERRY is Albert G. Milbank Professor of Politics and International Affairs at Princeton
University and Global Eminence Scholar at Kyung Hee University in Seoul.¶ WILLIAM C. WOHLFORTH is
Daniel Webster Professor of Government at Dartmouth College. “Lean Forward,” EBSCO]
KEEPING THE PEACE¶ Of course, even
if it is true that the costs of deep engagement fall far below what advocates
of retrenchment claim, they would not be worth bearing unless they yielded greater benefits . In fact, they do. The most
obvious benefit of the
current strategy is that it reduces the risk of a dangerous conflict . The United States' security
commitments deter states with aspirations to regional hegemony from contemplating expansion and dissuade
U.S. partners from trying to solve security problems on their own in ways that would end up threatening
other states.¶ Skeptics discount this benefit by arguing that U.S. security guarantees aren't necessary to prevent dangerous rivalries from
erupting. They maintain that the high costs of territorial conquest and the many tools countries can use to signal their benign intentions are
enough to prevent conflict. In other words, major powers could peacefully manage regional multipolarity without the American pacifier.¶ But
that outlook is too sanguine. If
Washington got out of East Asia, Japan and South Korea would likely expand
their military capabilities and go nuclear , which could provoke a destabilizing reaction from China. It's
worth noting that during
the Cold War, both South Korea and Taiwan tried to obtain nuclear weapons; the
only thing that stopped them was the U nited S tates, which used its security commitments to restrain
their nuclear temptations. Similarly, were the United States to leave the Middle East, the countries
currently backed by Washington--notably, Israel, Egypt, and Saudi Arabia--might act in ways that would
intensify the region's security dilemmas.¶ There would even be reason to worry about Europe. Although it's hard to
imagine the return of great-power military competition in a post-American Europe, it's not difficult to foresee governments
there refusing to pay the budgetary costs of higher military outlays and the political costs of increasing
EU defense cooperation. The result might be a continent incapable of securing itself from threats on its
periphery, unable to join foreign interventions on which U.S. leaders might want European help, and vulnerable to the
influence of outside rising powers.¶ Given how easily a U.S. withdrawal from key regions could lead to
dangerous competition , advocates of retrenchment tend to put forth another argument: that such rivalries wouldn't actually hurt
the United States. To be sure, few doubt that the United States could survive the return of conflict among powers in Asia or the Middle East-but at what cost? Were
states in one or both of these regions to start competing against one another, they
would likely boost their military budgets, arm client states, and perhaps even start regional proxy
wars, all of which should concern the United States, in part because its lead in military capabilities would
narrow.¶ Greater regional insecurity could also produce cascades of nuclear proliferation as powers
such as Egypt, Saudi Arabia, Japan, South Korea, and Taiwan built nuclear forces of their own. Those
countries' regional competitors might then also seek nuclear arsenals . Although nuclear deterrence
can promote stability between two states with the kinds of nuclear forces that the Soviet Union and the United States
possessed,
things get shakier when there are multiple nuclear rivals with less robust arsenals. As the
number of nuclear powers increases, the probability of illicit transfers, irrational decisions, accidents,
and unforeseen crises goes up .¶ The case for abandoning the United States' global role misses the underlying security logic of the
current approach. By reassuring allies and actively managing regional relations, Washington dampens
competition in the world’s key areas, thereby preventing the emergence of a hothouse in which
countries would grow new military capabilities. For proof that this strategy is working, one need look no further
than the defense budgets of the current great powers: on average, since 1991 they have kept their
military expenditures as A percentage of GDP to historic lows , and they have not attempted to match the
U nited S tates' top-end military capabilities . Moreover, all of the world's most modern militaries are U.S.
allies, and the United States' military lead over its potential rivals is by many measures growing.¶ On top of all
this, the current grand strategy acts as a hedge against the emergence regional hegemons . Some supporters
of retrenchment argue that the U.S. military should keep its forces over the horizon and pass the buck to local powers to do the dangerous
work of counterbalancing rising regional powers. Washington, they contend, should deploy forces abroad only when a truly credible contender
for regional hegemony arises, as in the cases of Germany and Japan during World War II and the Soviet Union during the Cold War. Yet there
is already a potential contender for regional hegemony--China--and to balance it, the U nited S tates will
need to maintain its key alliances in Asia and the military capacity to intervene there. The implication is that
the United States should get out of Afghanistan and Iraq, reduce its military presence in Europe, and pivot to Asia. Yet that is exactly what the
Obama administration is doing.
Every academic discipline confirms the centrality of hegemony as a guarantor of
peace.
Wohlforth 9 [Professor of government @ Dartmouth College. [William C. Wohlforth, “Unipolarity,
Status Competition, and Great Power War,” World Politics, Volume 61, Number 1, January 2009]
Second, I
question the dominant view that status quo evaluations are relatively independent of the
distribution of capabilities. If the status of states depends in some measure on their relative capabilities, and if
states derive utility from status, then different distributions of capabilities may affect levels of satisfaction, just as
different income distributions may affect levels of status competition in domestic settings. 6 Building on research in psychology
and sociology, I argue that even capabilities distributions among major powers foster ambiguous
status hierarchies, which generate more dissatisfaction and clashes over the status quo. And the more stratified the
distribution of capabilities, the less likely such status competition is. Unipolarity thus generates far fewer incentives than
either bipolarity or multipolarity for direct great power positional competition over status. Elites in the other major powers
continue to prefer higher status, but in a unipolar system they face comparatively weak incentives to translate that preference into costly
action. And the absence of such incentives matters because social
status is a positional good—something whose value
depends on how much one has in relation to others.7 “If everyone has high status,” Randall Schweller notes,
“no one does.”8 While one actor might increase its status, all cannot simultaneously do so. High status is thus inherently
scarce, and competitions for status tend to be zero sum.9 I begin by describing the puzzles facing predominant theories
that status competition might solve. Building on recent research on social identity and status seeking, I then show
that under certain conditions the ways decision makers identify with the states they represent may prompt
them to frame issues as positional disputes over status in a social hierarchy. I develop hypotheses that tailor this
scholarship to the domain of great power politics, showing how the probability of status competition is likely to be
linked to polarity. The rest of the article investigates whether there is sufficient evidence for these hypotheses to warrant further
refinement and testing. I pursue this in three ways: by showing that the theory advanced here is consistent with what we
know about large-scale patterns of great power conflict through history; by [End Page 30] demonstrating that the
causal mechanisms it identifies did drive relatively secure major powers to military conflict in the past (and therefore that they might do so
again if the world were bipolar or multipolar); and by showing that observable evidence concerning the major powers’ identity politics and
grand strategies under unipolarity are consistent with the theory’s expectations. Puzzles of Power and War Recent research on the connection
between the distribution of capabilities and war has concentrated on a hypothesis long central to systemic theories of power transition or
hegemonic stability: that major
war arises out of a power shift in favor of a rising state dissatisfied with a
status quo defended by a declining satisfied state.10 Though they have garnered substantial empirical support, these
theories have yet to solve two intertwined empirical and theoretical puzzles—each of which might be explained by positional concerns for
status. First, if the material costs and benefits of a given status quo are what matters, why would a state be dissatisfied with the very status quo
that had abetted its rise? The rise of China today naturally prompts this question, but it is hardly a novel situation. Most of the best known and
most consequential power transitions in history featured rising challengers that were prospering mightily under the status quo. In case after
case, historians argue that these revisionist powers sought recognition and standing rather than specific alterations to the existing rules and
practices that constituted the order of the day. In each paradigmatic case of hegemonic war, the claims of the rising power are hard to reduce
to instrumental adjustment of the status quo. In R. Ned Lebow’s reading, for example, Thucydides’ account tells us that the rise of Athens
posed unacceptable threats not to the security or welfare of Sparta but rather to its identity as leader of the Greek world, which was an
important cause of the Spartan assembly’s vote for war.11 The issues that inspired Louis XIV’s and Napoleon’s dissatisfaction with the status quo
were many and varied, but most accounts accord [End Page 31] independent importance to the drive for a position of unparalleled primacy. In
these and other hegemonic struggles among leading states in post-Westphalian Europe, the rising challenger’s dissatisfaction is often difficult
to connect to the material costs and benefits of the status quo, and much contemporary evidence revolves around issues of recognition and
status.12 Wilhemine Germany is a fateful case in point. As Paul Kennedy has argued, underlying material trends as of 1914 were set to propel
Germany’s continued rise indefinitely, so long as Europe remained at peace.13 Yet Germany chafed under the very status quo that abetted this
rise and its elite focused resentment on its chief trading partner—the great power that presented the least plausible threat to its security: Great
Britain. At fantastic cost, it built a battleship fleet with no plausible strategic purpose other than to stake a claim on global power status.14
Recent historical studies present strong evidence that, far from fearing attacks from Russia and France, German leaders sought to provoke
them, knowing that this would lead to a long, expensive, and sanguinary war that Britain was certain to join.15 And of all the motivations
swirling round these momentous decisions, no serious historical account fails to register German leaders’ oft-expressed yearning for “a place in
the sun.” The second puzzle is bargaining failure. Hegemonic theories tend to model war as a conflict over the status quo without specifying
precisely what the status quo is and what flows of benefits it provides to states.16 Scholars generally follow Robert Gilpin in positing that the
underlying issue concerns a “desire to redraft the rules by which relations among nations work,” “the nature and governance of the system,”
and “the distribution of territory among the states in the system.”17 If these are the [End Page 32] issues at stake, then systemic theories of
hegemonic war and power transition confront the puzzle brought to the fore in a seminal article by James Fearon: what prevents states from
striking a bargain that avoids the costs of war? 18 Why can’t states renegotiate the international order as underlying capabilities distributions
shift their relative bargaining power? Fearon proposed that one answer consistent with strict rational choice assumptions is that such bargains
are infeasible when the issue at stake is indivisible and cannot readily be portioned out to each side. Most
aspects of a given
international order are readily divisible, however, and, as Fearon stressed, “both the intrinsic complexity and richness of most
matters over which states negotiate and the availability of linkages and side-payments suggest that intermediate bargains typically will exist.”19
Thus, most scholars have assumed that the indivisibility problem is trivial, focusing on two other rational choice explanations for bargaining
failure: uncertainty and the commitment problem.20 In the view of many scholars, it is these problems, rather than indivisibility, that likely
explain leaders’ inability to avail themselves of such intermediate bargains. Yet recent
research inspired by constructivism
shows how issues that are physically divisible can become socially indivisible, depending on how they
relate to the identities of decision makers.21 Once issues surrounding the status quo are framed in positional
terms as bearing on the disputants’ relative standing, then, to the extent that they value their standing itself, they
may be unwilling to pursue intermediate bargaining solutions. Once linked to status, easily divisible
issues that theoretically provide opportunities for linkages and side payments of various sorts may themselves be seen as indivisible and
thus unavailable as avenues for possible intermediate bargains. The historical record surrounding major wars
is rich with evidence suggesting that positional concerns over status frustrate bargaining : expensive,
protracted conflict over what appear to be minor issues; a propensity on the part of decision makers to frame issues
in terms of relative rank even when doing so makes bargaining harder; decision-makers’ [End Page 33]
inability to accept feasible divisions of the matter in dispute even when failing to do so imposes high costs;
demands on the part of states for observable evidence to confirm their estimate of an improved position in the hierarchy; the inability of
private bargains to resolve issues; a frequently observed compulsion for the public attainment of concessions from a higher ranked state;
and stubborn resistance on the part of states to which such demands are addressed even when acquiescence entails
limited material cost. The literature on bargaining failure in the context of power shifts remains inconclusive, and it is premature to
take any empirical pattern as necessarily probative. Indeed, Robert Powell has recently proposed that indivisibility is not a rationalistic
explanation for war after all: fully rational leaders with perfect information should prefer to settle a dispute over an indivisible issue by
resorting to a lottery rather than a war certain to destroy some of the goods in dispute. What might prevent such bargaining solutions is not
indivisibility itself, he argues, but rather the parties’ inability to commit to abide by any agreement in the future if they expect their relative
capabilities to continue to shift.22 This is the credible commitment problem to which many theorists are now turning their attention. But how it
relates to the information problem that until recently dominated the formal literature remains to be seen.23 The larger point is that positional
concerns for status may help account for the puzzle of bargaining failure. In the rational choice bargaining literature, war is puzzling because it
destroys some of the benefits or flows of benefits in dispute between the bargainers, who would be better off dividing the spoils without war.
Yet what happens to these models if what matters for states is less the flows of material benefits themselves than their implications for relative
status? The salience of this question depends on the relative importance of positional concern for status among states. Do Great Powers Care
about Status? Mainstream
theories generally posit that states come to blows over an international status quo only
when it has implications for their security or material well-being. The guiding assumption is that a state’s satisfaction [End
Page 34] with its place in the existing order is a function of the material costs and benefits implied by that status. 24 By that assumption, once a
state’s status in an international order ceases to affect its material wellbeing, its relative standing will have no bearing on decisions for war or
peace. But
the assumption is undermined by cumulative research in disciplines ranging from
neuroscience and evolutionary biology to economics, anthropology, sociology, and psychology that
human beings are powerfully motivated by the desire for favorable social status comparisons . This
research suggests that the preference for status is a basic disposition rather than merely a strategy for
attaining other goals.25 People often seek tangibles not so much because of the welfare or security they bring but because
of the social status they confer. Under certain conditions, the search for status will cause people to behave in ways
that directly contradict their material interest in security and/or prosperity. Pg. 33-35//1ac
Decline is net worse – leads to transition wars --- the US will becomeuncooperative
and desperate.
Goldstein 7 Professor of Global Politics and International Relations @ University of Pennsylvania
“Power transitions, institutions, and China's rise in East Asia: Theoretical expectations and evidence,”
Journal of Strategic Studies, Volume 30, Issue 4 & 5 August 2007, pages 639 – 682
Two closely related, though distinct, theoretical arguments focus explicitly on the consequences for international politics of a shift in power
between a dominant state and a rising power. In War and Change in World Politics, Robert Gilpin suggested that peace
prevails
when a dominant state’s capabilities enable it to ‘govern’ an international order that it has shaped.
Over time, however, as economic and technological diffusion proceeds during eras of peace and development, other
states are empowered. Moreover, the burdens of international governance drain and distract the
reigning hegemon, and challengers eventually emerge who seek to rewrite the rules of
governance. As the power advantage of the erstwhile hegemon ebbs, it may become desperate
enough to resort to the ultima ratio of international politics, force, to forestall the increasingly urgent demands
of a rising challenger. Or as the power of the challenger rises, it may be tempted to press its case with threats to use
force. It is the rise and fall of the great powers that creates the circumstances under which major
wars , what Gilpin labels ‘ hegemonic wars’, break out .13 Gilpin’s argument logically encourages
pessimism about the implications of a rising China. It leads to the expectation that international
trade, investment, and technology transfer will result in a steady diffusion of American economic
power, benefiting the rapidly developing states of the world, including China. As the US simultaneously
scurries to put out the many brushfires that threaten its far-flung global interests (i.e., the classic problem of overextension), it will be
unable to devote sufficient resources to maintain or restore its former advantage over emerging
competitors like China. While the erosion of the once clear American advantage plays itself out,
the US will find it ever more difficult to preserve the order in Asia that it created during its era of
preponderance. The expectation is an increase in the likelihood for the use of force – either by a Chinese challenger able to field a
stronger military in support of its demands for greater influence over international arrangements in Asia, or by a besieged American
hegemon desperate to head off further decline. Among the trends that alarm those who would look at Asia through the lens of Gilpin’s
theory are China’s expanding share of world trade and wealth (much of it resulting from the gains made possible by the international
economic order a dominant US established); its acquisition of technology in key sectors that have both civilian and military applications
(e.g., information, communications, and electronics linked with to forestall, and the challenger becomes increasingly determined to realize
the transition to a new international order whose contours it will define. the ‘revolution in military affairs’); and an expanding military
burden for the US (as it copes with the challenges of its global war on terrorism and especially its struggle in Iraq) that limits the resources
it can devote to preserving its interests in East Asia.14 Although similar to Gilpin’s work insofar as it emphasizes the importance of shifts in
the capabilities of a dominant state and a rising challenger, the power-transition theory A. F. K. Organski and Jacek Kugler present in The
War Ledger focuses more closely on the allegedly dangerous phenomenon of ‘crossover’– the point at which a dissatisfied challenger is
about to overtake the established leading state.15 In such cases, when the power gap narrows, the dominant state becomes increasingly
desperate. Though suggesting why a rising China may ultimately present grave dangers for international peace when its capabilities make it
a peer competitor of America, Organski and Kugler’s power-transition theory is less clear about the dangers while a potential challenger
still lags far behind and faces a difficult struggle to catch up. This clarification is important in thinking about the theory’s relevance to
interpreting China’s rise because a broad consensus prevails among analysts that Chinese military capabilities are at a minimum two
decades from putting it in a league with the US in Asia.16 Their theory, then, points with alarm to trends in China’s growing wealth and
power relative to the United States, but especially looks ahead to what it sees as the period of maximum danger – that time when a
dissatisfied China could be in a position to overtake the US on dimensions believed crucial for assessing power. Reports beginning in the
mid-1990s that offered extrapolations suggesting China’s growth would give it the world’s largest gross domestic product (GDP aggregate,
not per capita) sometime in the first few decades of the twentieth century fed these sorts of concerns about a potentially dangerous
challenge to American leadership in Asia.17 The
huge gap between Chinese and American military capabilities
(especially in terms of technological sophistication) has so far discouraged prediction of
comparably disquieting trends on this dimension, but inklings of similar concerns may be reflected
in occasionally alarmist reports about purchases of advanced Russian air and naval equipment, as
well as concern that Chinese espionage may have undermined the American advantage in nuclear
and missile technology, and speculation about the potential military purposes of China’s manned
space program.18 Moreover, because a dominant state may react to the prospect of a crossover
and believe that it is wiser to embrace the logic of preventive war and act early to delay a
transition while the task is more manageable, Organski and Kugler’s power-transition theory also
provides grounds for concern about the period prior to the possible crossover.19 pg. 647-650
The best statistical studies validate our claim – hegemony leads to peace.
Owen 11
[John M. Owen Professor of Politics at University of Virginia PhD from Harvard "DON’T DISCOUNT
HEGEMONY" Feb 11 www.cato-unbound.org/2011/02/11/john-owen/dont-discount-hegemony/]
Andrew Mack and his colleagues at the Human Security Report Project are to be congratulated. Not only do they present a
study with a striking conclusion, driven by data, free of theoretical or ideological bias , but they also do
something quite unfashionable: they bear good news. Social scientists really are not supposed to do that. Our job is, if not to be
Malthusians, then at least to point out disturbing trends, looming catastrophes, and the imbecility and
mendacity of policy makers. And then it is to say why, if people listen to us, things will get better. We do this as if our careers
depended upon it, and perhaps they do; for if all is going to be well, what need then for us?¶ Our colleagues at Simon Fraser University are
brave indeed. That may sound like a setup, but it is not. I
shall challenge neither the data nor the general
conclusion that violent conflict around the world has been decreasing in fits and starts since the
Second World War. When it comes to violent conflict among and within countries, things have
been getting better . (The trends have not been linear—Figure 1.1 actually shows that the frequency of interstate wars peaked in
the 1980s—but the 65-year movement is clear.) Instead I shall accept that Mack et al. are correct on the macro-trends, and focus on their
explanations they advance for these remarkable trends. With apologies to any readers of this forum who recoil from academic debates,
this might get mildly theoretical and even more mildly methodological.¶ Concerning
international wars, one version of
the “nuclear-peace” theory is not in fact laid to rest by the data. It is certainly true that nuclear-armed states have
been involved in many wars. They have even been attacked (think of Israel), which falsifies the simple claim of “assured destruction”—that
any nuclear country A will deter any kind of attack by any country B because B fears a retaliatory nuclear strike from A.¶ But the most
important “nuclear-peace” claim has been about mutually assured destruction, which obtains
between two robustly nuclear-armed states. The claim is that (1) rational states having second-strike
capabilities—enough deliverable nuclear weaponry to survive a nuclear first strike by an enemy—will have an overwhelming incentive
not to attack one another; and (2) we can safely assume that nuclear-armed states are rational. It follows that states with a second-strike
capability will not fight one another.¶ Their colossal atomic arsenals neither kept the United States at peace with North Vietnam during the
Cold War nor the Soviet Union at peace with Afghanistan. But the argument remains strong that those arsenals did help keep the United
States and Soviet Union at peace with each other. Why non-nuclear states are not deterred from fighting nuclear states is an important and
open question. But in a time when calls to ban the Bomb are being heard from more and more quarters, we must be clear about precisely
what the broad trends toward peace can and cannot tell us. They may tell us nothing about why we have had no World War III, and little
about the wisdom of banning the Bomb now.¶ Regarding
the downward trend in international war , Professor
Mack is friendlier to more palatable theories such as the “ democratic peace ” (democracies do not fight
one another, and the proportion of democracies has increased, hence less war); the
interdependence or “ commercial
peace ” (states with extensive economic ties find it irrational to fight one another, and interdependence has increased, hence less war);
and the notion that people around the world are more anti-war than their forebears were.
Concerning the downward trend in civil wars, he favors theories of economic growth (where commerce
is enriching enough people, violence is less appealing—a logic similar to that of the “commercial peace” thesis that applies among nations)
and the end of the Cold War (which end reduced superpower support for rival rebel factions in so many Third-World countries).¶ These
are all plausible mechanisms for peace . What is more, none of them excludes any other; all could
be working toward the same end. That would be somewhat puzzling, however. Is the world just lucky these
days? How is it that an array of peace-inducing factors happens to be working coincidentally in our
time, when such a magical array was absent in the past? The answer may be that one or more of these
mechanisms reinforces some of the others, or perhaps some of them are mutually reinforcing. Some
scholars, for example, have been focusing on whether economic growth might support democracy and vice versa, and whether both might
support international cooperation, including to end civil wars.¶ We
would still need to explain how this charmed
circle of causes got started, however. And here let me raise another factor, perhaps even less
appealing than the “nuclear peace” thesis, at least outside of the United States. That factor is what
international relations scholars call hegemony—specifically American hegemony .¶ A theory that many
regard as discredited, but that refuses to go away, is called hegemonic stability theory. The theory emerged in the
1970s in the realm of international political economy. It asserts that for the global economy to
remain open —for countries to keep barriers to trade and investment low— one powerful country
must take the lead . Depending on the theorist we consult, “taking the lead” entails paying for global public
goods (keeping the sea lanes open, providing liquidity to the international economy), coercion
(threatening to raise trade barriers or withdraw military protection from countries that cheat on the
rules), or both. The theory is skeptical that international cooperation in economic matters can
emerge or endure absent a hegemon. The distastefulness of such claims is self-evident: they imply that it is good for
everyone the world over if one country has more wealth and power than others. More precisely, they imply that it has been good for the
world that the United States has been so predominant.¶ There
is no obvious reason why hegemonic stability
theory could not apply to other areas of international cooperation, including in security affairs,
human rights, international law, peacekeeping (UN or otherwise), and so on. What I want to suggest here—
suggest, not test—is that American hegemony might just be a deep cause of the steady decline of
political deaths in the world .¶ How could that be? After all, the report states that United States is the third most war-prone
country since 1945. Many of the deaths depicted in Figure 10.4 were in wars that involved the United States (the Vietnam War being the
leading one). Notwithstanding politicians’ claims to the contrary, a
candid look at U.S. foreign policy reveals that the
country is as ruthlessly self-interested as any other great power in history.¶ The answer is that U.S.
hegemony might just be a deeper cause of the proximate causes outlined by Professor Mack. Consider
economic growth and openness to foreign trade and investment, which (so say some theories) render
violence irrational . American power and policies may be responsible for these in two related
ways. First, at least since the 1940s Washington has prodded other countries to embrace the market
capitalism that entails economic openness and produces sustainable economic growth . The
United States promotes capitalism for selfish reasons, of course: its own domestic system depends upon growth,
which in turn depends upon the efficiency gains from economic interaction with foreign countries, and the more the better. During the
Cold War most of its allies accepted some degree of market-driven growth.¶ Second,
the U.S.-led western victory in the
Cold War damaged the credibility of alternative paths to development—communism and import-substituting
industrialization being the two leading ones—and left market capitalism the best model . The end of the Cold War also
involved an end to the billions of rubles in Soviet material support for regimes that tried to make these alternative models work. (It also,
as Professor Mack notes, eliminated the superpowers’ incentives to feed civil violence in the Third
World.) What we call globalization is caused in part by the emergence of the United States as the
global hegemon .¶ The same case can be made, with somewhat more difficulty, concerning the spread of
democracy . Washington has supported democracy only under certain conditions—the chief one
being the absence of a popular anti-American movement in the target state—but those conditions have
become much more widespread following the collapse of communism. Thus in the 1980s the Reagan
administration—the most anti-communist government America ever had—began to dump America’s old dictator friends, starting in the
Philippines. Today
Islamists tend to be anti-American, and so the Obama administration is skittish
about democracy in Egypt and other authoritarian Muslim countries. But general U.S. material and
moral support for liberal democracy remains strong.
Here are more impacts to decline - great-power war, collapses trade and spreads
economic nationalism.
Zhang & Shi 11 – Yuhan Zhang, researcher at the Carnegie Endowment for International Peace; Lin
Shi, Columbia University, independent consultant for the Eurasia Group and consultant for the World
Bank, January 22, 2011, “America’s decline: A harbinger of conflict and rivalry,” East Asia Forum, online:
http://www.eastasiaforum.org/2011/01/22/americas-decline-a-harbinger-of-conflict-and-rivalry/
Over the past two decades, no other state has had the ability to seriously challenge the US military. Under these circumstances, motivated
by both opportunity and fear, many
actors have bandwagoned with US hegemony and accepted a subordinate role.
a
status quo that has tended to mute great power conflicts . ¶ However, as the hegemony that drew these
powers together withers, so will the pulling power behind the US alliance. The result will be an
international order where power is more diffuse, American interests and influence can be more readily challenged, and conflicts
or wars may be harder to avoid .¶ As history attests, power decline and redistribution result in military
Canada, most of Western Europe, India, Japan, South Korea, Australia, Singapore and the Philippines have all joined the US, creating
confrontation . For example, in the late 19th century America’s emergence as a regional power saw it launch its first overseas war of
conquest towards Spain. By the turn of the 20th century, accompanying the increase in US power and waning of British power, the
American Navy had begun to challenge the notion that Britain ‘rules the waves.’ Such a notion would eventually see the US attain the
status of sole guardians of the Western Hemisphere’s security to become the order-creating Leviathan shaping the international system
with democracy and rule of law.¶ Defining
this US-centred system are three key characteristics: enforcement of property
rights, constraints on the actions of powerful individuals and groups and some degree of equal
opportunities for broad segments of society. As a result of such political stability, free markets, liberal trade
and flexible financial mechanisms have appeared. And, with this, many countries have sought
opportunities to enter this system, proliferating stable and cooperative relations.¶ However, what will happen to
these advances as America’s influence declines? Given that America’s authority, although sullied at times, has benefited
people across much of Latin America, Central and Eastern Europe, the Balkans, as well as parts of Africa and, quite extensively, Asia, the
answer to this question could
affect global society in a profoundly detrimental way. ¶ Public imagination and
academia have anticipated that a
post-hegemonic world would return to the problems of the 1930s: regional blocs,
trade conflicts and strategic rivalry . Furthermore, multilateral institutions such as the IMF, the World Bank or the
WTO might give way to regional organisations.¶ For example, Europe and East Asia would each step forward to fill the
vacuum left by Washington’s withering leadership to pursue their own visions of regional political and economic orders. Free markets
would become more politicised — and, well, less free — and major powers would compete for supremacy. ¶
Additionally, such power
plays have historically possessed a zero-sum element . In the late 1960s and 1970s, US
economic power declined relative to the rise of the Japanese and Western European economies, with the US dollar also becoming less
attractive. And, as American power eroded, so did international regimes (such as the Bretton Woods System in 1973).¶ A
world
without American hegemony is one where great power wars re-emerge , the liberal international
system is supplanted by an authoritarian one, and trade protectionism devolves into restrictive,
anti-globalisation barriers . This, at least, is one possibility we can forecast in a future that will inevitably be devoid of unrivalled
US primacy.
Great power war causes extinction
Chisholm 5 (Paul K. Chisholm, foreign policy and international relations scholar based in Kenya, holds a University Degree in Sociology
and Diploma in Human Resources, Terrorism, the Threat in Perspective and Great Power Conflict, Free World Syndicate, April, 2005,
http://www.synd.org/opinion-columns-chisholm/terrorism.html)
heard much about terrorism since the 9/11 attacks. It has become an issue at the forefront of foreign policy
and the mainstream media. The danger is no doubt real, the threat to be taken seriously. However, looking at the
big picture, we should keep terrorism in perspective and perhaps have a look at more traditional threats to
world peace - namely conflict between the great powers.¶ It is a matter of some speculation the damage terrorists could
¶ We've
inflict on the western democracies. The worst case scenario being an attack with weapons of mass destruction on a major urban center. A
reasonable estimate would place the death toll running from tens of thousands to perhaps a million with accompanying destruction/disruption
of domestic infrastructure. The panic would no doubt exceed the actual damage.¶ The ability of terrorist groups to effectively deliver weapons
of mass destruction is open to debate. Chemical and biological weapons, while lethal and having great psychological impact may not be able to
inflict the kind of mass damage many perceive. Nuclear weapons are the only available that can offer a guarantee of mass destruction. To
obtain, deliver and detonate one is no easy task.¶ As frightening as such scenarios are, actual damage would be limited to a city or relatively
small geographic area. Simultaneous attacks on several cities with weapons of mass destruction are beyond the reach of international terrorist
organizations, especially in the heightened security of the post 9/11 era.¶ Terrorism
is usually discussed as an unprecedented
threat to western civilization. Those of us who grew up during the cold war were presented with a far more
frightening threat to world civilization - the clash to two nuclear armed superpowers.¶ Government officials, military leaders,
foreign policy experts and journalists of the cold war era, right up until its end, presented the following scenario:¶ A nuclear war would begin
and end with a conventional attack on East Germany lasting approximately 30 minutes. This would be followed by nuclear strikes against major
targets in both the United States and Soviet Union and other strategic locations. Accounting
for delivery time the world, as we
end in approximately 90 minutes. To add insult to injury nuclear winter would follow rendering
the Earth uninhabitable.¶ This was made possible, as anti-nuclear protesters told us, by each superpower possessing enough nuclear
weapons to destroy the world four times over.¶ Coming back to the present, we are in a transitional stage brought about by
9/11. For the duration of the 1990s the potential for great power conflict was considerably less than during
the cold war. Even the last few years have seen little real potential for a major war between superpowers.¶ It was the 9/11 attacks
that prompted a more aggressive foreign policy by the United States, soon to be imitated by other nations
that have put us back on the path of the potential for major conflict.¶ The immediate focus after the attacks was on
knew it, would
international terrorist organizations. We then began to hear about rogue states for which the Bush Doctrine's most famous principle began to
gain attention - pre-emptive strikes. The use of such strikes in the Bush Doctrine was originally reserved only for the United States. Many
observers at the time warned that a foreign policy Pandora's box had been opened.¶ The concept of pre-emptive strikes has now been adopted
as a legitimate response by Russia. Putin has stated he would strike terrorist organizations anywhere in the world to protect the Russian
homeland. Ask yourself what would happen should such a strike run counter to the interests of the United States or her allies? ¶ Another corner
stone of the Bush Doctrine states that no foreign power should approach or equal the United States military capability. US military dominance
is a concern of Russia and China. Both nations have been moving to establish closer ties and expand their military capability.¶ Russia
has
announced they are developing a new generation of nuclear weapons. They are also negotiating
increased arms sales to China and are cross training their military . The two countries have also signed agreements
offering support for suppression of separatist movements within their borders. China has recently passed a law authorizing
force against Taiwan should the island try for independence. With Europe considering lifting the ban
of weapons sales to China there is potential for real trouble.¶ We're not in another cold war yet, but
we're moving back into the era of great power politics. Russia is the wild card, sitting on the fence between a western or
eastern orientation.¶ A look at the globe will tell you there is potential for major war, between India and Pakistan,
whose relations always run tense; the growing prominence of Asian nations China and Korea could
bring tension with Japan and finally in the next decade we'll see American interests threatened by
great power alliance.¶ Terrorism kills people and disrupts civilian life on a limited scale. It doesn't lead
to the fall of nations and wide spread annihilation. Only great power conflict can do that. Should we not
refocus our attention and foreign policy now? Diplomacy should be redirected to head off a full scale arms race and
potential conflicts between nuclear parties.
I - A2: Affirmative Action Good
Affirmative action isn’t key to diversity – states have empirically adopted alternatives
that have worked.
Gaertner, Research Scientist at Pearson, 7-8
[Matthew, “Class and Race”, Inside Higher Ed, 7-8-13,
http://www.insidehighered.com/views/2013/07/08/essay-calls-consideration-class-affirmative-action,
RSR]
In fact, the issue seems far from settled. Fisher will be reconsidered by the U.S. Circuit Court of Appeals for the Fifth Circuit, and the Supreme
Court agreed to hear an additional case this fall – Schuette v. Coalition to Defend Affirmative Action – related to affirmative action in Michigan.
At issue in Schuette is the constitutionality of statewide bans (usually enacted via popular referendum) on using race in admissions or
employment. Because
popular support for traditional, race-based preferences has dwindled over the past
decade, and Fisher and Schuette are still in play, many Court observers suspect race-based affirmative
action will be curtailed significantly if not struck down entirely. If that happens, it seems reasonable to
think diversity at our nation's selective institutions of higher education will be radically diminished.¶
But that’s by no means inevitable . Many states have already faced prohibitions on race-conscious
admissions, and have developed innovative admissions strategies to maintain and even increase
diversity at their flagship institutions. In some cases, they’ve also managed to increase an even more
underrepresented population on campus – poor students.¶ That’s what happened in 2008, when
Colorado faced a ballot initiative seeking to prohibit consideration of race in college admissions. In
response, the University of Colorado Boulder (CU) developed a class-based affirmative action system
that would serve the university’s interest in admitting a broadly diverse class while complying with
the proposed ban on race-conscious admissions. Even though the initiative did not pass, CU went ahead and enhanced its
admissions process to give additional consideration to disadvantaged applicants. In 2011, when this class-based system was
fully used for the first time, CU enrolled the most socioeconomically and racially diverse freshman
class in its history.¶
Affirmative action turns your impact – perpetuates racism.
Zeng, Undergrad at UT Austin, ‘13
[Danny, “Affirmative Action: If You Care About Ending Racism, Work to End Race-Conscious College
Admission”, PolicyMic, June 2013,
http://www.policymic.com/articles/47867/supreme-court-affirmative-action-2013-if-you-care-aboutending-racism-work-to-end-race-conscious-college-admission, RSR]
At its core, a race-conscious admission policy essentially asks innocent contemporaries to readdress
historic wrongs in which that they could claim no direct involvement or sanction. At the risk of sounding too
crass, let me ask this: Is it fair for us to attempt to demand reparations from Germans today for the
atrocity committed under the Third Reich? I think not. However, a race-conscious admission policy even
with the best intentions may have the effect of instilling guilt in the minds of whites while stirring up
feelings of injustice and dissonance among Asians and other minorities. This undermines racial
integration, cohesion, and progress, hallmarks of the civil rights movement. From Plessy v. Ferguson to Brown v.
Board of Ed, from the Civil War Amendments to the Civil Rights Act, from Martin Luther King Jr. to Barack Obama, from a formerly segregated
school to being one of the most diverse universities in the country, our
nation and our college campuses have collectively
endured a shameful past of human subjugation and racial prejudice, and yet we have overcome de
jure racism in modern times. Today’s race-conscious admission tramples on this great legacy in the
name of “diversity.” Race-conscious admission has also raised inquiries into Ivy League schools’ de
facto quotas against Asians, similar to the ones imposed against Jews in the early 20th century .
I - A2: Hegemony Declining
Hegemony is currently economically and politically sustainable
Kagan 07, Carnegie Endowment for International Peace senior associate
(Robert, Senior Associate at the Carnegie Endowment for International Peace and Senior Transatlantic
Fellow at the German Marshall Fund, July 17, 2007, Hoover Institution, No. 144, “End of Dreams, Return
of History,” http://www.hoover.org/publications/policy-review/article/6136, Accessed 6/27/12, THW)
The world’s failure to balance against the superpower is the more striking because the United States,
notwithstanding its difficult interventions in Iraq and Afghanistan, continues to expand its power and military reach and
shows no sign of slowing this expansion even after the 2008 elections. The American defense budget has surpassed
$500 billion per year, not including supplemental spending totaling over $100 billion on Iraq and
Afghanistan. This level of spending is sustainable, moreover, both economically and politically. 14 As the
American military budget rises, so does the number of overseas American military bases. Since September 11, 2001, the United States has built
or expanded bases in Afghanistan, Kyrgyzstan, Pakistan, Tajikistan, and Uzbekistan in Central Asia; in Bulgaria, Georgia, Hungary, Poland, and
Romania in Europe; and in the Philippines, Djibouti, Oman, and Qatar. Two
decades ago, hostility to the American military
presence began forcing the United States out of the Philippines and seemed to be undermining
support for American bases in Japan. Today, the Philippines is rethinking that decision, and the furor
in Japan has subsided. In places like South Korea and Germany, it is American plans to reduce the U.S.
military presence that stir controversy, not what one would expect if there was a widespread fear or
hatred of overweening American power. Overall, there is no shortage of other countries willing to
host U.S. forces, a good indication that much of the world continues to tolerate and even lend support
to American geopolitical primacy if only as a protection against more worrying foes. 15
US has an unprecedented lead
Kagan 12, senior fellow at the Brookings Institution
(Robert, The New Republic, "Not Fade Away: The Myth of Decline," January 11,
http://www.tnr.com/article/politics/magazine/99521/america-world-powerdeclinism?passthru=ZDkyNzQzZTk3YWY3YzE0OWM5MGRiZmIwNGQwNDBiZmI&utm_source=Editors+a
nd+Bloggers&utm_campaign=cbaee91d9d-Edit_and_Blogs&utm_medium=email, accessed 7-6-12,
CNM)
Less than a decade ago, most observers spoke not of America’s decline but of its enduring primacy . In
2002, the historian Paul Kennedy, who in the late 1980s had written a much-discussed book on “the rise and fall of the great powers,” America
included, declared that never in history had there been such a great “disparity of power” as between the United States and the rest of the
world. Ikenberry
agreed that “no other great power” had held “such formidable advantages in military,
economic, technological, cultural, or political capabilities.... The preeminence of American power”
was “unprecedented.” In 2004, the pundit Fareed Zakaria described the United States as enjoying a
“comprehensive uni-polarity” unlike anything seen since Rome. But a mere four years later Zakaria was writing about the “postAmerican world” and “the rise of the rest,” and Kennedy was discoursing again upon the inevitability of American decline. Did the fundamentals
of America’s relative power shift so dramatically in just a few short years?
Lead now – military
Kagan 12, senior fellow at the Brookings Institution
(Robert, The New Republic, "Not Fade Away: The Myth of Decline," January 11,
http://www.tnr.com/article/politics/magazine/99521/america-world-powerdeclinism?passthru=ZDkyNzQzZTk3YWY3YzE0OWM5MGRiZmIwNGQwNDBiZmI&utm_source=Editors+a
nd+Bloggers&utm_campaign=cbaee91d9d-Edit_and_Blogs&utm_medium=email, accessed 7-6-12,
CNM)
Military capacity matters, too, as early nineteenth-century China learned and Chinese leaders know today. As Yan Xuetong recently
noted, “military strength underpins hegemony.” Here the United States remains unmatched. It is far and
away the most powerful nation the world has ever known, and there has been no decline in America’s
relative military capacity—at least not yet. Americans currently spend less than $600 billion a year on defense, more than the rest of
the other great powers combined. (This figure does not include the deployment in Iraq, which is ending, or the combat forces in Afghanistan,
which are likely to diminish steadily over the next couple of years.) They
do so, moreover, while consuming a little less than 4
percent of GDP annually—a higher percentage than the other great powers, but in historical terms lower than
the 10 percent of GDP that the United States spent on defense in the mid-1950s and the 7 percent it spent in the late 1980s. The superior
expenditures underestimate America’s actual superiority in military capability. American land
and air forces are equipped
with the most advanced weaponry, and are the most experienced in actual combat. They would
defeat any competitor in a head-to-head battle. American naval power remains predominant in every
region of the world.¶ By these military and economic measures, at least, the United States today is not remotely like Britain
circa 1900, when that empire’s relative decline began to become apparent. It is more like Britain circa 1870, when the empire
was at the height of its power. It is possible to imagine a time when this might no longer be the case, but that moment has not yet
arrived.
Aff
Kennedy Won’t Uphold Schuette
Kennedy won’t uphold Schuette ban – he’ll vote on precedent.
Smith, Law Professor at Suffolk University, 6-24
[Robert, “Supreme Court Decision "Did Nothing to … Clarify Constitutional Issues Surrounding
Affirmative Action”’, Suffolk University News, 6-24-13,
http://www.suffolk.edu/news/17966.php#.UeARsUFvP_m, RSR]
“If the Supreme Court were to reverse the lower court in Schuette and rule that Michigan can create a
constitutional ban on affirmative action, then it could achieve what conservatives might consider a
‘second-best’ option. The four conservative justices were unable in Fisher and earlier Supreme Court decisions to
have the Supreme Court create a national ban on affirmative action (as part of U.S. constitutional law). But if the
Court upholds the Michigan constitutional amendment, it would allow for state-by-state bans of
affirmative action that would not be subject to Supreme Court review.¶ “It is likely, however, that the
court will not allow the Michigan amendment to stand. Justice Kennedy is likely to refuse to join the
four conservative justices in allowing a total ban on affirmative action, much as he has done in prior
affirmative action decisions.”
Kennedy won’t make a monumental decision on affirmative action – he’ll take the
middle ground.
Rostron, William R. Jacques Constitutional Law Scholar and Professor of Law at the University of
Missouri-Kansas City, ‘12
[Allen, “Affirmative Action, Justice Kennedy, and the Virtues of the Middle Ground”, Northwestern
University Law Review, Colloquy, 2012, RSR]
Of course, Justice Kennedy might make a surprising turn to the left or right in Fisher. He might decide that
even though he dissented in Grutter, that precedent now has the weight of stare decisis behind it, and
it would be better for the Court to stand pat and let the remaining time run on Justice O'Connor's 25-year clock. On the other
hand, he might decide to eradicate affirmative action entirely, figuring that it is better to firmly shut the door to it rather
than leave even a small crack through which government officials will continually try to squeeze too much. But the most likely
outcome is that Kennedy will once again arrive at a middle ground, refusing to put a complete stop to
affirmative action, but insisting that government officials must finally realize that rigorous strict
scrutiny really and truly will apply.
Decisions Don’t Affect Capital
Individual decisions don’t affect capital.
Gibson et al., ‘3
[James (Professor in Political Science at Washington University in St. Louis); Gregory Caldeira (Professor
in Political Science at Ohio State University); and Lester Spence (Professor in Political Science at
Washington University in St. Louis), “Measuring Attitudes Towards the U.S. Supreme Court”, American
Journal of Political Science, Vol. 47, No. 2, April 2003]
Perhaps more important is the rather limited relationship between performance evaluations and loyalty to
the Supreme Court. These two types of attitudes are of course not entirely unrelated, but commitments to the Supreme
Court are not largely a function of whether one is pleased with how it is doing its job. Even less
influential are perceptions of decisions in individual cases. When people have developed a "running tally" about an
institution-a sort of historical summary of the good and bad things an institution has done-it is difficult for any given decision to
have much incremental influence on that tally. Institutional loyalty is valuable to the Court precisely
because it is so weakly related to actions the Court takes at the moment.
Courts Rule on Ideology
Justices rule based on ideology and personal considerations.
Pacelle, Prof PoliSci Georgia Southern, 2002
[Richard L. Pacelle, Jr., Prof of Poli Sci @ Georgia Southern University, The Role of the Supreme Court in
American Politics: The Least Dangerous Branch? 2002 p 140-1]
Every decision that a Supreme Court justice makes is inherently political. The Court hears a small number of cases,
focusing on the most important issues of the times. Accepting that the Court’s decisions are political and have important policy consequences
does not explain how those decisions were made. As Prankfurter claimed, “Constitutional law is at all not a science, but applied politics”
(O’Brien 1997, l37). To at least some degree, justices are making law and making policy. Judicial restraint would minimize the amount of
policymaking. How do Supreme Court justices make the individual decisions that lead to a Court opinion? On the most basic grounds, there are
two sets of factors or determinants that justices consider when they weigh the alternatives in a case: legal and
extralegal. These are sometimes referred to by the unwieldy terms interpretivism and non-interpretivism, respectively Table 6.1 shows the
legal and extralegal factors justices typically use in making their decisions. Suffice it to say that 011 normative grounds, the legal factors are
considered preferable to the extralegal. Proponents of judicial restraint say that interpretivism is a process of law while non-interpretivism is a
process of politics (McKeever 1993, 29). The terms legal and extralegal refer to a variety of modes of judicial interpretation. The legal
factors represent a number of approaches that suggest that justices do their utmost to put their policy views,
prejudices, and biases aside when they confront an issue, and decide cases by referring to factors that have a grounding in the law.
The legal model argues that judges do not have great discretion in deciding cases. A number of analysts reject this formulaic
perception of mechanical jurisprudence. The so-called legal realists‘* have refuted the idea that judges lack such discretion,
arguing, in effect, that judges make law. Extralegal factors, on the other hand, allow the justices to include political
considerations in their calculations and to use their ideological views to inform their decisions. While the
legal factors may be the desirable ones, it is clear that extralegal factors may be a better practical explanation for
judicial decisionmaking. On the simplest, most general level, the differences between legal and extralegal are reflected in the
differences between finding the law and making the law.
Capital irrelevant – court votes on ideology.
Cohen, CBS News Chief Legal Analyst, 09
[Andrew Cohen, CBS News' Chief Legal Analyst and Legal Editor, 6/30/09, “Supreme Court Term in
Review” http://www.cbsnews.com/blogs/2009/06/30/courtwatch/entry5126577.shtml]
Not that it needs to, but the Supreme Court has not reached a 50 percent approval rating in national polling in
quite some time. And this phenomenon is not likely to change even if (or when) Judge Sotomayor replaces Justice Souter
and the Court begins to look more like the rest of America. The sad fact is that a great majority of Americans have no real clue
about how the Justices reach their decisions, how they should reach their decisions, or why they rule the way they rule.
Compared with the Congress, the Court is a big hit. But compared with the Congress virtually anything this side of Bernard Madoff is a big hit.
Nothing the Court did this past term, and nothing it
is likely to do in the coming term, is likely to change this dynamic. The
partisan divides are firmly entrenched. Gone is the Chief Justice’s
early fantasy of more unanimous rulings in more diverse cases. Gone is the illusion, often recited like a mantra at
confirmation hearings, that the Justices will necessarily respect precedent and revere consensus . We should stop
Supreme Court proved again in its 2009-2010 that its
fooling ourselves into thinking that things will be different. They never are.
Capital irrelevant - Consensus shows decisions based on ideology, not capital.
Cross and Nelson, ‘1
[Frank (Professor of Business Law at UT Austin) and Blake (Assistant Professor of Political Science at
Penn State, “STRATEGIC INSTITUTIONAL EFFECTS ON SUPREME COURT DECISIONMAKING” 95 Nw. U.L.
Rev. 1437, 2001]
The normative political model, sometimes called the attitudinal model, contends that judges make decisions so as to advance
their political or ideological [*1444] policy ends, without regard to either the demands of the normative legal model or
the concerns of other institutions. n39 It is normative in that it assumes that judges are unconstrained and have single-
peaked utility functions. In this model, judges decide so
as to advance their ideological policy ends, without regard for
the formal requirements of law (e.g., constraining precedents and text) and without concern for the reaction of external entities. The
political model may find support in legal sources beyond the legal realists and the contemporary
critical legal theorists. n40 Supreme Court Justices are commonly characterized as "liberal" or
"conservative" - political terms describing the ideological import of their decisions. Significantly, this model of
decisionmaking does not necessitate an extremely cynical view of judges, as the political model may
reflect subconscious psychology and cognitive dissonance. n41 With the growth of clerk populations, it is easy for "the
appellate judge to determine a result based on personal notions of fairness and right, and then to leave to the staff attorney the task of
constructing reasons to support that result." n42 The
political model can be descriptively accurate, even absent
conscious judicial policymaking. In contrast to the normative legal model, considerable empirical data supports the claims of the
political model of judicial decisionmaking. Many studies have already been described in the legal literature. n43 Some
prominent judges have taken issue with these studies and raised some methodological challenges, n44 though the challenges are
readily answered. n45 Perhaps [*1445] the most persuasive evidence can be found in a meta-analysis of studies on judicial
decisionmaking conducted by Dan Pinello. n46 He identified 140 research papers that empirically analyzed judicial decisionmaking by party
affiliation. A majority of these papers reported data in a manner that could be incorporated in his meta-analysis, and he found that virtually
every study showed a positive association between judicial voting and judicial ideology . n47 The studies
together contained over 222,000 judicial votes, and the judges' political party explained thirty-eight percent of the variance
in their voting.
Overruling Bad Decisions Boosts Capital
Overruling doesn’t cost capital – overruling bad decisions boosts capital.
Linton, assoc general counsel Americans United for Life, 1993
[Paul Benjamin Linton, Associate General Counsel for Litigation, Americans United for Life, 1993,
“PLANNED PARENTHOOD V. CASEY: THE FLIGHT FROM REASON IN THE SUPREME COURT” 13 St. Louis U.
Pub. L. Rev. 15]
The Court describes this first circumstance as "hypothetical." n272 The distinct impression left by this passage is that decisions of
the Supreme Court overruling earlier decisions on matters of constitutional interpretation are rare and thus should
not be too readily emulated, lest the "legitimacy" of the Court be called into question. But this impression
is wrong. On more than 200 occasions, the Court has overturned previous decisions, and in nearly threefourths of those cases, the Court overruled because the earlier decision had wrongly interpreted the
Constitution. n273 What does this remarkable track re [*75] cord of "judicial correction" mean? At the very least, that the
"legitimacy" of the Court is not affected by its acknowledgement of prior error, even when that error
involved an intepretation of the Constitution. Indeed, as in Brown and West Coast Hotel, the Court has often
enhanced its credibility by overruling decisions that were wrong when originally decided. One more
overruling decision, if otherwise appropriate, could not reasonably be expected to damage that credibility.
Overruling bad decisions boosts capital.
Peters, Assis. Prof of Law Wayne State U Law School, 2K
[Christopher Peters, Assistant Professor of Law, Wayne State University Law School, October 2000,
“Assessing the New Judicial Minimalism” 100 Colum. L. Rev. 1454]
Might there be some tension in extolling the connection between rights and the continuity of the common
law method, as I did in Part III.C, while at the same time appealing to the adaptability of the common law
method, as I have just done in responding to the inertia objection? In the context of overrulings of precedent, this
tension may indeed exist. When the Court overrules its own precedent - at least when it does so in fairly short order,
as in Adkins and West Coast Hotel - it acts like a legislature repealing a statute, and thus arguably forfeits some of its
credibility as a trustworthy decisionmaker about rights. n303 Of course, it can also be argued that the Court bolsters its credibility
by quickly repudiating decisions that are obviously wrong. n304
Overruling bad decisions boosts legitimacy.
Rosenfeld, Prof Human Rights @ Cardozo, 2004
[Michel Rosenfeld, Justice Sydney L. Robins Professor of Human Rights, Benjamin N. Cardozo School of
Law, October 2004, “Constitutional adjudication in Europe and the United States: Paradoxes and
contrasts” International Journal of Constitutional Law 2004 2(4):633-668]
In theory at least, common law adjudication need not involve repudiation of precedents, only their
refinement and adjustment through further elaborations. Accordingly, gaps in predictability may be merely the result of
indeterminacies; the recourse to notions of fairness are meant primarily to reassure the citizenry that the
inevitably unpredictable will never be unjust. Constitutional adjudication, on the other hand, while relying
on precedents as part of its common law methodology, must ultimately be faithful to the constitutional provision
involved rather than to the precedents. As a result, when precedents appear patently unfair or circumstances have
changed significantly, the U.S. Supreme Court is empowered—perhaps obligated pursuant to its constitutional
function—to overrule precedent, thus putting fairness above predictability.60 For example, in its recent decision in
Lawrence v. Texas,61 the Supreme Court overruled its 1986 decision in Bowers v. Hardwick,62 which held that the due process clause did not
extend constitutional protection to homosexual sex among consenting adults, thus upholding a law that criminalized such conduct. More
generally, whenever
a constitutional challenge raises a significant question that could entail overruling a
constitutional precedent, the Supreme Court faces a choice between predictability and fairness. American
rule of law, like the Verfassungsstaat, involves constitutional rule through law, but unlike the Rechtsstaat it produces a rule
through law where predictability is but one among several, often antagonistic, elements. American rule of law
ultimately amounts to a complex, dynamic interplay between competing elements and tendencies. Moreover, it appears, at least initially, that
more than the Rechtsstaat or the État de droit, American rule of law
depends for its viability on a broad based
consensus regarding extralegal norms, such as fairness and substantive notions of justice and equity. Indeed, if there is a
consensus on what constitutes fairness or justice, then the tensions between predictability and fairness, and between procedural and
substantive safeguards, seem entirely manageable, and the work of the constitutional adjudicator more legal than political. If, on the contrary,
there are profound disagreements over what is fair or just, then the work of the constitutional adjudicator is bound to seem unduly political.
Accordingly, at least prima facie, the task of the American constitutional adjudicator seems more delicate and precarious than that of her
continental counterpart.
Judicial Capital Doesn’t Spillover
Capital doesn’t spill over to other decisions.
Redish, Professor of Law and Public Policy at Northwestern, ‘97
[Martin ““Federalist Society Symposium: Washington, D.C.: November 14 - November 16, 1996: Panel
Three: Disciplining Congress: The Boundaries of Legislative Power”, 13 J. L. & Politics 585, 1997]
The limited pie theory, associated with Professor Choper, n39 is that the Supreme Court has a limited pie of institutional
capital, of institutional goodwill, and if it spends some of that on constitutional federalism, it will be deprived
of its opportunity to use that for where it really is needed - individual rights. The reason institutional
capital is really needed in individual rights is [*604] primarily that the states can protect themselves in the
jungles of the political process, while individuals cannot. To that, my colleague Michael Perry and others have added
what implicitly underlies this: that individual rights are simply more important than constitutional federalism. n40 I like to take the position that
a true constitutional liberal should strongly believe in adherence to constitutional, not just political, limits on federalism, because federalism
serves an important function as a buffer between the government and the individual. The whole idea, the genius of the structure set up by the
Framers, was that the system of separation
of powers, the system of federalism, and the system of individual rights
would all interlock as different fail-safe mechanisms. If federalism and separation of powers are working
properly as divisions of government power, tyranny would be prevented, and presumably the number of instances where
individuals and government conflict over their rights would be reduced. The story that best illustrates how constitutional federalism
can protect against tyranny is the story that I gather is true about Mussolini when he was given a copy of the National Recovery Act,
which ultimately was held unconstitutional, and he looks at it and he says in Italian, "Ah, now there's a dictator." And I think that illustrates how
dangerous it is in terms of the values of our constitutional system to vest full power within the federal government. The
limited pie
theory, as a justification, makes no sense because it assumes a kind of fungibility of institutional
capital that just doesn't comport with reality. How people feel about individual rights decisions will
not be determined by whether the Supreme Court has said anything about constitutional federalism.
Reactions to Roe v. Wade n41 or Miranda v. Arizona n42 are based on people's concerns about those
decisions. What the Supreme Court says or doesn't say about constitutional federalism will have little, if any, effect
on reactions to those decisions. [*605]
Judicial Capital Doesn’t Affect Rulings
No clear connection between capital and decisionmaking.
Grosskopf and Mondak, ‘98
[Anke (Assistant Prof of Political Science @ Long Island University) and Jeffrey (Professor of Political
Science @ U of Illinois), 1998, “Do attitudes toward specific supreme court decisions matter? The impact
of Webster and Texas v Johnson on Public Confidence in the Supreme Court” Political Research
Quarterly, vol. 51 no 3 633-54]
Some evidence supports our political capital perspective, but the empirical record remains unsatisfying. Tanenhaus and
Murphy (1981) found that approval of Supreme Court rulings accounted for roughly 15 percent of the little variance in diffuse support they
detected. However, due to the nine-year gap between the waves of their panel survey, the authors could not attribute change in support to any
specific court rulings. Caldeira (1986) showed
that aggregate confidence in the Court varies in response to
judicial actions such as support for defendants' rights, but Caldeira also could not trace this effect to specific decisions.
Caldeira subsequently (1987) demonstrated that public response to Supreme Court decisions affected aggregate support for Franklin
Roosevelt's court-packing plan. However, because the dependent variable was not support for the Court, these results speak only indirectly to
the political capital thesis. Unlike survey-based research, laboratory
experiments (Mondak 1991, 1992) provide direct support
for the claim that attitudes toward decisions affect assessments of the Court. Unfortunately, the generalizability
of such findings is uncertain due to the use of hypothetical scenarios, specialized research contexts, and nonrepresentative (i.e., college
student) samples.
Judges don’t consider capital when deciding.
Landau, JD Harvard and clerk to US CoA judge, 2005
[David Landau, JD Harvard Law, clerk to Honorable Sandra L. Lynch, U.S. Court of Appeals for the First
Circuit, 2005, “THE TWO DISCOURSES IN COLOMBIAN CONSTITUTIONAL JURISPRUDENCE: A NEW
APPROACH TO MODELING JUDICIAL BEHAVIOR IN LATIN AMERICA” 37 Geo. Wash. Int'l L. Rev. 687]
Theoretically, attitudinalists could argue that judges rule in accordance with their own ideological
preferences honestly, rather than strategically, because for some reason judges simply are not capable of, or prefer not to, act
strategically. In practice, however, this is not what they say. Attitudinalists instead say that the factual
environment renders strategic action unnecessary, at least for U.S. Supreme Court justices, because, for
example, federal judges have life tenure, U.S. Supreme Court justices have no real ambition for higher office, and
congressional overrides are rarely a realistic danger. n25 "The Supreme Court's rules and structures, along with
those of the American political system in general, give life-tenured justices [*696] enormous latitude to reach decisions
based on their personal policy preferences." n26 In other words, both strategic and attitudinal models, in practice,
assume that judges are willing and able to act strategically. Where the two theories differ is in their factual
assumptions: Strategic models support the belief that judges face various types of constraints that force them to support decisions that differ
from their preferred policy points, while attitudinalists believe that the
that they study - generally U.S.
institutional environment leaves at least those judges
Supreme Court justices - free to make decisions that are exactly in accord with
their preferred policies. Similarly, followers of strategic theory could theoretically believe that judges act strategically to maximize
achievement of some set of goals other than their ideological policy preferences. For example, perhaps judges could prefer "legalistic" goals like
adherence to precedent, but would have to defect strategically from absolute adherence to those goals given the presence of other institutions
with some clout, like the U.S. Congress. In practice, however, this is not what happens. Instead, strategic theorists virtually always model judges
as strategically furthering sets of ideological policy goals, which are the exact same goals modeled by the attitudinal theorists. n27 What we
have, then, are two
theories that in practice tend to collapse into one. In both theories, actors are assumed: (1) to have
preferences; and (2) to act strategically for the maximization of those preferences. n28 In addition, attitudinalists and strategic theorists both
believe in a particular kind of rational choice theory: Specifically, the actors'
preferences are assumed to be solely
ideological, policy-based goals derived from the political realm. It is important to emphasize that both theories also believe that the
[*697] proper way to test judicial behavior is to look at what judges actually do, not at what they say: Thus, what matters is the outcome, not
the reasoning of the case.
Judicial Capital is Resistant
Court decisions do not burn capital – strong presumption that decisions should be
accepted.
Fontana, associate professor of law at George Washington University Law School, ‘8
[David, “The Supreme Court: Missing in Action”, Dissent, Vol. 55, No. 2, Spring 2008, RSR]
Second, Court decisions do not necessarily¶ create the backlash that many on the left¶ fear. If the Court
had decided cases in favor¶ of rights before the tide had turned against¶ the Bush administration, its
decisions might¶ have elicited formulaic and near-obligatory¶ compliance. There is considerable
evidence ¶ suggesting a strong presumption in American¶ public opinion that the Court's decisions¶
should be widely accepted and then complied¶ with by the other branches of government.¶ Even
when citizens disagree with Supreme¶ Court decisions, an overwhelming majority of¶ them are loyal
to the Court and inclined to¶ think that the less popular branches of government¶ should fall into
line—even when the¶ Court issues controversial decisions such as¶ Bush v. Gore.
Judicial capital is resistant – one controversial decision won’t destroy it.
Grosskopf and Mondak, ‘98
[Anke (Assistant Prof of Political Science @ Long Island University) and Jeffrey (Professor of Political
Science @ U of Illinois), 1998, “Do attitudes toward specific supreme court decisions matter? The impact
of Webster and Texas v Johnson on Public Confidence in the Supreme Court” Political Research
Quarterly, vol. 51 no 3 633-54]
Opinion about the Supreme Court may influence opinion about the Court's decisions, but is the opposite true? Viewed from the perspective of
the Court's justices, it
would be preferable if public reaction to rulings did not shape subsequent levels of
support for the Court. If opinion about the Court were fully determined by early political socialization and deeply rooted attachments
to democratic values, then justices would be free to intervene in controversial policy questions without risk that doing so would expend
political capital. Consistent with this perspective, a
long tradition of scholarship argues that the Supreme Court is
esteemed partly because it commands a bedrock of public support, or a reservoir of goodwill, which helps it to
remain legitimate despite occasional critical reaction to unpopular rulings (Murphy and Tanenhaus 1968; Easton
1965, 1975; Caldeira 1986; Caldeira and Gibson 1992). The sources of this diffuse support are usually seen as rather stable
and immune from short-term influences, implying that evaluations of specific decisions are of little or
no broad importance. For instance, Caldeira and Gibson (1992) find that basic democratic values, not reactions to decisions, act as the
strongest determinants of institutional support.
Capital is resistant – election 2K proves.
Gibson and Caldeira, ‘9
[James (Professor of Political Science at Washington University in St. Louis and Gregory (Professor of
Political Science at Ohio State University), January 2009, “Confirmation Politics and The Legitimacy of
the U.S. Supreme Court” American Journal of Political Science, Vol. 53, No. 1, January 2009, Pg. 139–
155]
A recently developed theory—the theory of positivity bias—may provide a useful framework for analyzing mass opinion formation.
This theory was created in part to account for the U.S. Supreme Court’s unexpected success at
protecting its institutional legitimacy even while awarding the presidency to George Bush in a bold and
highly controversial 5–4 decision (Bush v. Gore). According to Gibson, Caldeira, and Spence (2003a), when ordinary citizens
become motivated to pay attention to the U.S. Supreme Court—when their attitudes come out of hibernation—they
approach the context with preexisting beliefs about law and politics. Some have in the past developed strong
loyalty to judicial institutions, a loyalty that makes them particularly receptive to the legitimizing judicial
symbols that envelope any event or controversy attracting the attention of the mass media. These citizens may initially
pay attention to the court out of dissatisfaction and displeasure. But, because they are susceptible to (predisposed to) the
influence of strong legitimizing legal symbols, they tend to wind up accepting the argument that courts are
different from other political institutions and that “politics” plays a limited role in the judicial process. Suspicions about
partisan and ideological influences on legal processes are dispelled, owing to the frame created by standing commitments to the Court. In
this bias we see the powerful influence of institutional legitimacy: To the extent that an institution
has built a loyal constituency, it possesses a “reservoir of goodwill” that allows it to “get away with”
unpopular decisions. This is precisely what Gibson, Caldeira, and Spence (2003a) argue happened in the fabled Bush v. Gore.
Affirmative Action Good Impact Turn
Schuette case is a sweeping test of affirmative action.
Goldman, Contributor, 6-30
[LeRoy, “Affirmative action's neck is in a noose”, Blue Ridge Now, 6-30-13,
http://www.blueridgenow.com/article/20130630/ARTICLES/130629790?p=3&tc=pg, RSR]
The Supreme Court's forthcoming ruling in the Michigan case may be a blockbuster because, unlike the
Texas case, it "directly tests whether the Constitution's guarantee of equality bars a state from adopting
a flat ban on the use of race in public policy," according to Denniston on SCOTUSblog.¶
A decision in Schuette will spillover – it affects the future of affirmative action policy.
Sun, Associate Professor, Dept. of Educational Leadership, Affiliate Associate Professor, School of Law,
University of North Dakota, 4-7
[Jeff, “Not just "another" affirmative action case”, Higher Education Law, 4-7-13,
http://www.highereducationlaw.org/url/2013/4/7/not-just-another-affirmative-action-case.html, RSR]
At present, there are 8 states with legal bans on affirmative action, and while those bans do not necessarily have the
same set of facts to match this case, it’s quite possible that whatever happens in this case will alter the status of
those bans. Further, there are states that are considering bans on affirmative action or may consider
such bans depending on this case’s outcome. Equally important, the legal question may apply to other state
referenda besides affirmative action on college admissions. Suffice it to say, I would pay attention to this case.
Affirmative action policies are crucial to combat racism and promote equality
Bhutada, Undergrad at UMich, ‘13
[Yash, “Supreme Court Affirmative Action: Why We Still Need It Today”, PolicyMic, May 2013,
http://www.policymic.com/articles/43971/supreme-court-affirmative-action-why-we-still-need-ittoday, RSR]
There really isn’t a fair playing field for minority students who are flanked with cultural assimilation,
and who must overcome racial prejudice and battles with identity on a daily basis. One of the greatest
dilemmas that confronts affirmative-action proponents is whether or not leveling the playing field provides tangible benefits. Many
opponents of it argue that those who benefit from affirmative action actually end up not doing as
well, being fired from work, or unable to keep up with the rigor of the school. However, these arguments
are once again framed in a privileged mindset.¶ It is asinine to assume that acceptance into a program
implies that individuals can unfetter their pasts and immediately transition into a new lifestyle. A
common misconception is that affirmative action directly assists individuals. Rather, it is a tool that equalizes the playing
field, eliminates barriers, and creates a world where opportunity is equally accessible.¶ While the
consequences of banning affirmative action cannot be readily quantifiable, negative impacts on
college campuses are still discernible. Let’s take the University of Michigan as an example. Since the
implementation of Proposal 2, which is legislation that bans “the use of affirmative action programs that give preferential
treatment” in the state of Michigan, diversity at the university has plummeted . And due to the correlation between diversity
there is a visible deterioration in the campus climate .¶ When diversity inclusion is
hindered, and when the state structurally makes it okay keep up barriers and maintain the achievement gap
fueled by years of discrimination in this country, how can individuals be expected to be inclusive and understanding
of others’ identities and backgrounds? How can a student be expected to be empathetic and
understanding of another person’s experiences when the state doesn’t support that itself? How can a
and campus climate,
student be expected to get along with another person and deal with group dynamics when he or she isn’t in an environment that supports such
behavior?¶ When
the state does not recognize the experiences of disadvantaged individuals, it sets a
precedent for students on campus to do the same. It enables and perpetuates the fallacy that all
students have equal opportunities, and that disadvantage and discrimination are illusory concepts.¶
Higher education is critical in shaping one’s perspectives about the world . It is the opportunity to
immerse oneself in a diverse culture and learn the realities of life. Affirmative action combats the
injustices deeply entrenched in education and the workplace. Without it, we lose understanding and
promote exclusion. We foster marginalization and foment the gap that society has already created for
so many individuals for so many generations.
Rejection of racism comes first
Memmi, Professor Emeritus of Sociology @ Unv. Of Paris, 2000 Albert-; RACISM, translated by Steve
Martinot, pp.163-165
The struggle against racism will be long, difficult, without intermission, without remission, probably never achieved, yet for this very reason, it is
a struggle to be undertaken without surcease and without concessions. One cannot be indulgent toward racism. One
cannot even let
the monster in the house, especially not in a mask. To give it merely a foothold means to augment the
bestial part in us and in other people which is to diminish what is human. To accept the racist universe
to the slightest degree is to endorse fear, injustice, and violence. It is to accept the persistence of the dark history in
which we still largely live. It is to agree that the outsider will always be a possible victim (and which [person] man is
not [themself] himself an outsider relative to someone else?). Racism illustrates in sum, the inevitable negativity of the condition of the
dominated; that is it illuminates in a certain sense the entire human condition. The
anti-racist struggle, difficult though it is, and
always in question, is nevertheless one of the prologues to the ultimate passage from animality to
humanity . In that sense, we cannot fail to rise to the racist challenge. However, it remains true that one’s moral conduct
only emerges from a choice: one has to want it. It is a choice among other choices, and always debatable in its foundations and its
consequences. Let us say, broadly speaking, that the choice to conduct oneself morally is the condition for the establishment of a human order
for which racism is the very negation. This is almost a redundancy. One
cannot found a moral order, let alone a legislative
order, on racism because racism signifies the exclusion of the other and his or her subjection to
violence and domination. From an ethical point of view, if one can deploy a little religious language, racism is “the truly capital sin.”fn22 It is
not an accident that almost all of humanity’s spiritual traditions counsel respect for the weak, for orphans, widows, or strangers. It is not just a
question of theoretical counsel respect for the weak, for orphans, widows or strangers. It is not just a question of theoretical morality and
disinterested commandments. Such unanimity in the safeguarding of the other suggests the real utility of such sentiments. All things
considered, we have an interest in banishing injustice, because injustice engenders violence and death. Of course, this is debatable. There are
those who think that if one is strong enough, the assault on and oppression of others is permissible. But no one is ever sure of remaining the
strongest. One day, perhaps, the roles will be reversed. All unjust society contains within itself the seeds of its own death. It is probably smarter
to treat others with respect so that they treat you with respect. “Recall,” says the bible, “that you were once a stranger in Egypt,” which means
both that you ought to respect the stranger because you were a stranger yourself and that you risk becoming once again someday. It is
an
ethical and a practical appeal – indeed, it is a contract, however implicit it might be. In short, the
refusal of racism is the condition for all theoretical and practical morality. Because, in the end, the
ethical choice commands the political choice. A just society must be a society accepted by all. If this
contractual principle is not accepted, then only conflict, violence, and destruction will be our lot. If it is accepted,
we can hope someday to live in peace. True, it is a wager, but the stakes are irresistible.
No Impact to Federalism
No impact to federalism.
Blackmun ‘85 (Former Supreme Court Justice, Harry, 02/19, Opinion of the Court, Garcia v. San
Antonio Transit Authority, No. 82-1913, 469 U.S. 528,
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0469_0528_ZO.html)
Of course, we continue to recognize that the States occupy a special and specific position in our
constitutional system, and that the scope of Congress' authority under the Commerce Clause must
reflect that position. But the principal and basic limit on the federal commerce power is that inherent in
all congressional action -- the built-in restraints that our system provides through state participation in federal governmental action.
The political process ensures that laws that unduly burden the States will not be promulgated. In the
factual setting of these cases, the internal safeguards of the political process have performed as intended.
These cases do not require us to identify or define what affirmative limits the constitutional structure
might impose on federal action affecting the States under the Commerce Clause. See Coyle v. Oklahoma, 221
U.S. 559 (1911). We note and accept Justice Frankfurter's observation in New York v. United States, 326 U.S. 572, 583 (1946): The process
of Constitutional adjudication does not thrive on conjuring up horrible possibilities that never happen
in the real world and devising doctrines sufficiently comprehensive in detail to cover the remotest contingency. Nor need we go
beyond what is required for a reasoned disposition of the kind of controversy now before the Court.
No Impact to Heg
No impact to heg – best data goes neg.
Fettweis, Department of Political Science at Tulane University, ‘11
[Christopher, 9/26/11, Free Riding or Restraint? Examining European Grand Strategy, Comparative
Strategy, 30:316–332, EBSCO]
It is perhaps worth noting that there is no evidence to support a direct relationship between the relative level of U.S.
activism and international stability. In fact, the limited data we do have suggest the opposite may be
true . During the 1990s, the United States cut back on its defense spending fairly substantially. By 1998, the United States was spending $100
billion less on defense in real terms than it had in 1990. 51 To internationalists, defense hawks and believers in hegemonic stability, this
irresponsible “peace dividend” endangered both national and global security. “No serious analyst of American military capabilities,” argued
Kristol and Kagan, “doubts that the defense budget has been cut much too far to meet America’s responsibilities to itself and to world peace.”
52 On the other hand, if the pacific trends were not based upon U.S. hegemony but a strengthening norm against interstate war, one would not
have expected an increase in global instability and violence. The verdict from the past two decades is fairly plain: The
world grew more
peaceful while the United States cut its forces. No state seemed to believe that its security was
endangered by a less-capable United States military, or at least none took any action that would suggest such a belief. No militaries
were enhanced to address power vacuums, no security dilemmas drove insecurity or arms races, and
no regional balancing occurred once the stabilizing presence of the U.S. military was diminished. The rest of the world
acted as if the threat of international war was not a pressing concern, despite the reduction in U.S.
capabilities. Most of all, the United States and its allies were no less safe. The incidence and magnitude of global conflict declined while the
United States cut its military spending under President Clinton, and kept declining as the Bush ramped the spending back up. No complex
statistical analysis should be necessary to reach the conclusion that the two are unrelated. Military spending figures by themselves are
insufficient to disprove a connection between overall U.S. actions and international stability. Once again, one could presumably argue that
spending is not the only or even the best indication of hegemony, and that it is instead U.S. foreign political and security commitments that
maintain stability. Since neither was significantly altered during this period, instability should not have been expected. Alternately, advocates of
hegemonic stability could believe that relative rather than absolute spending is decisive in bringing peace. Although the United States cut back
on its spending during the 1990s, its relative advantage never wavered. However, even if it is true that either U.S. commitments or relative
spending account for global pacific trends, then at the very least stability can evidently be maintained at drastically lower levels of both. In
other words, even if one can be allowed to argue in the alternative for a moment and suppose that there is in fact a level of engagement below
which the United States cannot drop without increasing international disorder, a rational grand strategist would still recommend cutting back
on engagement and spending until that level is determined. Grand strategic decisions are never final; continual adjustments can and must be
made as time goes on. Basic logic suggests that the United States ought to spend the minimum amount of its blood and treasure while seeking
the maximum return on its investment. And if the current era of stability is as stable as many believe it to be, no increase in conflict would ever
occur irrespective of U.S. spending, which would save untold trillions for an increasingly debt-ridden nation. It is also perhaps worth noting that
if opposite trends had unfolded, if other states had reacted to news of cuts in U.S. defense spending with more aggressive or insecure behavior,
then internationalists would surely argue that their expectations had been fulfilled. If increases in conflict would have been interpreted as proof
of the wisdom of internationalist strategies, then logical consistency demands that the lack thereof should at least pose a problem. As it stands,
the only evidence we have regarding the likely systemic reaction to a more restrained United States
suggests that the current peaceful trends are unrelated to U.S. military spending. Evidently the rest of the
world can operate quite effectively without the presence of a global policeman. Those who think otherwise
base their view on faith alone.
Reject their vague assertions for conflict scenarios absent hegemony – their authors
overestimate the importance of the US - star this card
Fettweis, Department of Political Science at Tulane University, ‘11
[Christopher, 9/26/11, Free Riding or Restraint? Examining European Grand Strategy, Comparative
Strategy, 30:316–332, EBSCO]
Assertions that without the combination of U.S. capabilities, presence and commitments instability would
return to Europe and the Pacific Rim are usually rendered in rather vague language. If the United States were to decrease
its commitments abroad, argued Robert Art, “the world will become a more dangerous place and, sooner or later, that will
From where would this danger arise? Who precisely would do the fighting,
and over what issues? Without the United States, would Europe really descend into Hobbesian anarchy?
Would the Japanese attack mainland China again, to see if they could fare better this time around? Would the Germans and
French have another go at it? In other words, where exactly is hegemony is keeping the peace? With one exception,
these questions are rarely addressed. That exception is in the Pacific Rim. Some analysts fear that a de facto surrender of U.S.
redound to America’s detriment.”53
hegemony would lead to a rise of Chinese influence. Bradley Thayer worries that Chinese would become “the language of diplomacy, trade and
commerce, transportation and navigation, the internet, world sport, and global culture,” and that Beijing would come to “dominate science and
technology, in all its forms” to the extent that soon theworldwould witness a Chinese astronaut who not only travels to the Moon, but “plants
the communist flag on Mars, and perhaps other planets in the future.”54 Indeed Chin a is the only other major power that has increased its
military spending since the end of the Cold War, even if it still is only about 2 percent of its GDP. Such levels of effort do not suggest a desire to
compete with, much less supplant, the United States. The much-ballyhooed, decade-long
military buildup has brought
Chinese spending up to somewhere between one-tenth and one-fifth of the U.S. level. It is hardly
clear that a restrained United States would invite Chinese regional, must less global, political expansion. Fortunately
one need not ponder for too long the horrible specter of a red flag on Venus, since on the planet Earth, where war is no longer the dominant
form of conflict resolution, the threats posed by even a rising China would not be terribly dire. The dangers contained in the terrestrial security
Believers in the pacifying power of hegemony ought to keep in mind
a rather basic tenet: When it comes to policymaking, specific threats are more significant than vague, unnamed
dangers. Without specific risks, it is just as plausible to interpret U.S. presence as redundant, as overseeing a peace that has already arrived.
Strategy should not be based upon vague images emerging from the dark reaches of the
neoconservative imagination. Overestimating Our Importance One of the most basic insights of cognitive
psychology provides the final reason to doubt the power of hegemonic stability: Rarely are our actions
as consequential upon their behavior as we perceive them to be. A great deal of experimental evidence exists to
support the notion that people (and therefore states) tend to overrate the degree to which their behavior is
responsible for the actions of others. Robert Jervis has argued that two processes account for this overestimation, both
ofwhichwould seem to be especially relevant in theU.S. case. 55 First, believing that we are responsible for their actions
gratifies our national ego (which is not small to begin with; the United States is exceptional in its exceptionalism). The hubris of the
United States, long appreciated and noted, has only grown with the collapse of the Soviet Union.56 U.S. policymakers famously
have comparatively little knowledge of—or interest in—events that occur outside of their own
borders. If there is any state vulnerable to the overestimation of its importance due to the
fundamental misunderstanding of the motivation of others, it would have to be the United States.
environment are less severe than ever before.
Second, policymakers in the United States are far more familiar with our actions than they are with the decision-making processes of our allies.
Try as we might,
it is not possible to fully understand the threats, challenges, and opportunities that our
allies see from their perspective. The European great powers have domestic politics as complex as ours, and they also have
competent, capable strategists to chart their way forward. They react to many international forces, of which U.S.
behavior is only one. Therefore, for any actor trying to make sense of the action of others, Jervis notes, “in the absence of strong
evidence to the contrary, the most obvious and parsimonious explanation is that he was responsible.”57 It is natural, therefore, for U.S.
policymakers and strategists to believe that the behavior of our allies (and rivals) is shaped largely by what
Washington does. Presumably Americans are at least as susceptible to the overestimation of their ability as any other people, and
perhaps more so. At the very least, political psychologists tell us, we are probably not as important to them as we think.
The importance of U.S. hegemony in contributing to international stability is therefore almost
certainly overrated . In the end, one can never be sure why our major allies have not gone to, and do not even plan for, war. Like
deterrence, the
hegemonic stability theory rests on faith; it can only be falsified, never proven . It does not
seem likely, however, that hegemony could fully account for twenty years of strategic decisions made in allied capitals if the international
system were not already a remarkably peaceful place. Perhaps
these states have no intention of fighting one another
to begin with, and our commitments are redundant. European great powers may well have chosen strategic restraint because they feel
that their security is all but assured, with or without the United States.
Numerous empirical examples point to the limitation of US power.
Walt, American professor of international affairs at Harvard University's John F. Kennedy School of
Government, ‘11
[Stephen, “The End of the American Era”, The National Interest, November-December 2011,
http://nationalinterest.org/article/the-end-the-american-era-6037, RSR]
The rise of new powers is bringing the short-lived “unipolar moment” to an end, and the result will be
either a bipolar Sino-American rivalry or a multipolar system containing several unequal great powers. The United
States is likely to remain the strongest, but its overall lead has shrunk—and it is shrinking further still.¶
Of course, the twin debacles in Iraq and Afghanistan only served to accelerate the waning of American
dominance and underscore the limits of U.S. power. The Iraq War alone will carry a price tag of more
than $3 trillion once all the costs are counted, and the end result is likely to be an unstable quasi democracy that is openly
hostile to Israel and at least partly aligned with Iran. Indeed, Tehran has been the main beneficiary of this ill-conceived adventure, which is
surely not what the Bush administration had in mind when it dragged the country to war.¶ The
long Afghan campaign is even
more likely to end badly, even if U.S. leaders eventually try to spin it as some sort of victory . The Obama
administration finally got Osama bin Laden, but the long and costly attempt to eliminate the Taliban and build a Western-style state in
Afghanistan has failed. At this point, the only interesting question is whether the United States will get out quickly or get out slowly. In either
scenario, Kabul’s fate will ultimately be determined by the Afghans once the United States and its dwindling set of allies leave. And if failure in
Afghanistan weren’t enough, U.S.
involvement in Central Asia has undermined relations with nuclear-armed
Pakistan and reinforced virulent anti-Americanism in that troubled country. If victory is defined as achieving your
main objectives and ending a war with your security and prosperity enhanced, then both of these conflicts must be counted as expensive
defeats.¶ But
the Iraq and Afghan wars were not simply costly self-inflicted wounds; they were also
eloquent demonstrations of the limits of military power. There was never much doubt that the United States could
topple relatively weak and/or unpopular governments—as it has in Panama, Afghanistan, Iraq and, most recently, Libya—but the wars in
Iraq and Afghanistan showed that unmatched power-projection capabilities were of little use in
constructing effective political orders once the offending leadership was removed. In places where
local identities remain strong and foreign interference is not welcome for long, even a global
superpower like the United States has trouble obtaining desirable political results.¶ Nowhere is this
clearer than in the greater Middle East, which has been the main focus of U.S. strategy since the USSR
broke apart. Not only did the Arab Spring catch Washington by surprise, but the U.S. response further
revealed its diminished capacity to shape events in its favor. After briefly trying to shore up the Mubarak regime, the
Obama administration realigned itself with the forces challenging the existing regional order. The president gave a typically eloquent speech
endorsing change, but nobody in the region paid much attention. Indeed, with the partial exception of Libya, U.S. influence over the entire
process has been modest at best. Obama
was unable to stop Saudi Arabia from sending troops to Bahrain—
where Riyadh helped to quell demands for reform—or to convince Syrian leader Bashar al-Assad to
step down. U.S. leverage in the post-Mubarak political process in Egypt and the simmering conflict in
Yemen is equally ephemeral.¶ One gets a vivid sense of America’s altered circumstances by comparing the U.S. response to the Arab
Spring to its actions in the early years of the Cold War. In 1948, the Marshall Plan allocated roughly $13 billion in direct grants to restarting
Europe’s economy, an amount equal to approximately 5 percent of total U.S. GDP. The equivalent amount today would be some $700 billion,
and there is no way that Washington could devote even a tenth of that amount to helping Egypt, Tunisia, Libya or others. Nor does one need to
go all the way back to 1948. The United States forgave $7 billion of Egypt’s foreign debt after the 1991 Gulf War; in 2011, all it could offer
Cairo’s new government was $1 billion worth of loan guarantees (not actual loans) and $1 billion in debt forgiveness.¶ America’s
declining influence is also revealed by its repeated failure to resolve the Israeli-Palestinian dispute. It
has been nearly twenty years since the signing of the Oslo accords in September 1993, and the United States has had a monopoly on the “peace
process” ever since that hopeful day. Yet
its efforts have been a complete failure, proving beyond doubt that
Washington is incapable of acting as an effective and evenhanded mediator. Obama’s call for “two
states for two peoples” in his address to the Arab world in June 2009 produced a brief moment of
renewed hope, but his steady retreat in the face of Israeli intransigence and domestic political
pressure drove U.S. credibility to new lows .¶ Taken together, these events herald a sharp decline in
America’s ability to shape the global order. And the recent series of economic setbacks will place
even more significant limits on America’s ability to maintain an ambitious international role. The Bush
administration inherited a rare budget surplus in 2001 but proceeded to cut federal taxes significantly and fight two costly wars. The
predictable result was a soaring budget deficit and a rapid increase in federal debt, problems compounded by the financial crisis of 2007–09.
The latter disaster required a massive federal bailout of the financial industry and a major stimulus package, leading to a short-term budget
shortfall in 2009 of some $1.6 trillion (roughly 13 percent of GDP). The
United States has been in the economic doldrums
ever since, and there is scant hope of a rapid return to vigorous growth. These factors help explain Standard &
Poor’s U.S. government credit-rating downgrade in August amid new fears of a “double-dip” recession.
No Impact to Economy
No risk of econ collapse now – Best indicators prove risk of recession is 0.20%
Perry 13 [Mark, Chart of the day: US recession probability is down to 0.20%, AEIdeas, The public policy
blog of the American Enterprise Institute, http://www.aei-ideas.org/2013/02/chart-of-the-day-usrecession-probability-is-down-to-0-20/]
The chart above shows University of Oregon economics professor Jeremy Piger’s “Recession Probability Index”
from January 1990 to November 2012, based on the 4 monthly variables used by the NBER to determine U.S.
recessions: 1) non-farm payroll employment, 2) the index of industrial production, 3) real personal
income excluding transfer payments, and 4) real manufacturing and trade sales.¶ According to Professor Piger,
“Historically, three consecutive months of recession probabilities exceeding 0.8 (see graph) has been a good indicator that an
expansion phase has ended and a new recession phase has begun, while three consecutive months of recession probabilities below
0.2 has been a good indicator that a recession phase has ended and a new expansion phase has
begun.Ӧ Based on an update yesterday, the Recession Probability Index has been trending downward for the
last three months and fell to 0.20% in November, the lowest level since June and July when the probability was also 0.20%.
Based on this historically accurate measure of the probability of a US recession, the US economy is
not even close to being in the early stages of an economic contraction.
Even massive economic decline has zero chance of war
Robert Jervis 11, Professor in the Department of Political Science and School of International and
Public Affairs at Columbia University, December 2011, “Force in Our Times,” Survival, Vol. 25, No. 4, p.
403-425
Even if war is still seen as evil, the security community could be dissolved if severe conflicts of interest were to arise. Could the more
peaceful world generate new interests that would bring the members of the community into sharp disputes? 45 A zero-sum sense of status
would be one example, perhaps linked to a steep rise in nationalism. More likely would be a
worsening of the current
economic difficulties, which could itself produce greater nationalism, undermine democracy and bring
back old-fashioned beggar-my-neighbor economic policies. While these dangers are real, it is hard
to believe that the conflicts could be great enough to lead the members of the community to
contemplate fighting each other. It is not so much that economic interdependence has proceeded to the
point where it could not be reversed – states that were more internally interdependent than anything seen internationally have
fought bloody civil wars. Rather it is that even if the more extreme versions of free trade and economic
liberalism become discredited , it is hard to see how without building on a preexisting high level of political conflict
leaders and mass opinion would come to believe that their countries could prosper by
impoverishing or even attacking others. Is it possible that problems will not only become severe, but that people will
entertain the thought that they have to be solved by war? While a pessimist could note that this argument does not
appear as outlandish as it did before the financial crisis, an optimist could reply (correctly, in my view)
that the very fact that we have seen such a sharp economic down-turn without anyone suggesting
that force of arms is the solution shows that even if bad times bring about greater economic conflict ,
it will not make war thinkable .
Economic decline wouldn’t cause conflict.
Drezner 11 [Daniel, Professor of International Politics at the Fletcher School of Law and Diplomacy at
Tufts University, 8-12-11, “Please come down off the ledge, dear readers”, Foreign Policy,
http://drezner.foreignpolicy.com/posts/2011/08/12/please_come_down_off_the_ledge_dear_readers,
RSR, (Charts Not Included)]
So, when we last left off this debate, things were looking grim. My concern in the last post was that the persistence of hard times would cause
governments to take actions that would lead to a collapse of the open global economy, a spike in general riots and disturbances, and eerie
echoes of the Great Depression. Let's
assume that the global economy persists in sputtering for a while, because
won't these other bad things happen? Why isn't it 1931? Let's start
with the obvious -- it's not gonna be 1931 because there's some passing familiarity with how 1931 played
out. The Chairman of the Federal Reserve has devoted much of his academic career to studying the Great Depression. I'm gonna go out
on a limb therefore and assert that if the world plunges into a another severe downturn, it's not
gonna be because central bank heads replay the same set of mistakes. The legacy of the Great
Depression has also affected public attitudes and institutions that provide much stronger cement for
the current system. In terms of public attitudes, compare the results of this mid-2007 poll with this mid-2010 poll about which economic
that's what happens after major financial shocks. Why
system is best. I'll just reproduce the key charts below: The headline of the 2010 results is that there's eroding U.S. support for the global
economy, but a few other things stand out. U.S. support has declined, but it's declined from a very high level. In contrast, support
for free
markets has increased in other major powers, such as Germany and China. On the whole, despite the
worst global economic crisis since the Great Depression, public attitudes have not changed all that
much. While there might be populist demands to "do something," that something is not a return to autarky or anything so drastc. Another
big difference is that multilateral economic institutions are much more robust now than they were in
1931. On trade matters, even if the Doha round is dead, the rest of the World Trade Organization's corpus of tradeliberalizing measures are still working quite well. Even beyond the WTO, the complaint about trade is not the deficit of freetrade agreements but the surfeit of them. The IMF's resources have been strengthened as a result of the 2008
financial crisis. The Basle Committee on Banking Supervision has already promulgated a plan to
strengthen capital requirements for banks. True, it's a slow, weak-assed plan, but it would be an improvement over the status
quo. As for the G-20, I've been pretty skeptical about that group's abilities to collectively address serious macroeconomic problems. That is
setting the bar rather high, however. One
could argue that the G-20's most useful function is reassurance. Even if
there are disagreements, communication can prevent them from growing into anything worse. Finally, a note about the
possibility of riots and other general social unrest. The working paper cited in my previous post noted the links between
austerity measures and increases in disturbances. However, that paper contains the following important paragraph on page 19: [I]n
countries with better institutions, the responsiveness of unrest to budget cuts is generally lower.
Where constraints on the executive are minimal, the coefficient on expenditure changes is strongly
negative -- more spending buys a lot of social peace. In countries with Polity-2 scores above zero, the coefficient is about
half in size, and less significant. As we limit the sample to ever more democratic countries, the size of the
coefficient declines. For full democracies with a complete range of civil rights, the coefficient is still
negative, but no longer significant. This is good news!! The world has a hell of a lot more democratic governments now than it did
in 1931. What happened in London, in other words, might prove to be the exception more than the rule. So yes, the recent economic news
might seem grim. Unless
political institutions and public attitudes buckle, however, we're unlikely to
repeat the mistakes of the 1930's. And, based on the data we've got, that's not going to happen.