Judicial Capital DA
Dartmouth 2K9
1
Judicial Capital DA
Judicial Capital DA ................................................................................................................................................. 1
***NEG .................................................................................................................................................................. 4
1NC - Uighurs ......................................................................................................................................................... 5
1NC - Uighurs ......................................................................................................................................................... 6
1NC - Uighurs ......................................................................................................................................................... 7
1NC – ERISA ......................................................................................................................................................... 8
1NC - ERISA .......................................................................................................................................................... 9
1NC - ERISA ........................................................................................................................................................ 10
U – Will Reverse Kiyemba Now .......................................................................................................................... 12
L – Controv Cases................................................................................................................................................. 13
L – Controv Cases................................................................................................................................................. 14
L – Overrule .......................................................................................................................................................... 15
L - Overrule .......................................................................................................................................................... 16
L – Overruling Frequently .................................................................................................................................... 17
L – Split Rulings ................................................................................................................................................... 18
L – Opposing Other Branches ............................................................................................................................. 19
L – Reversing Laws .............................................................................................................................................. 20
L – Challenge Executive ....................................................................................................................................... 21
L – Unpopular Rulings ......................................................................................................................................... 22
L - Issuing Cert Costs Cap (1/2) ........................................................................................................................... 23
L - Issuing Cert Costs Cap (2/2) ........................................................................................................................... 24
L – Abortion.......................................................................................................................................................... 25
L – Abortion.......................................................................................................................................................... 26
L - Abortion .......................................................................................................................................................... 27
L – Social Policy ................................................................................................................................................... 28
L – Social Policy ................................................................................................................................................... 29
L – Economic Policy............................................................................................................................................. 30
L – Medical Policy ................................................................................................................................................ 31
L – Welfare ........................................................................................................................................................... 32
L – Affirmative Action ......................................................................................................................................... 33
L - Minorities ........................................................................................................................................................ 34
L – Gay Marriage .................................................................................................................................................. 35
L – Environment ................................................................................................................................................... 36
I/L – Will Rule on Nat’l Sec ................................................................................................................................. 37
I/L – Jud Cap Finite .............................................................................................................................................. 38
I/L - Jud Cap K2 Rulings ...................................................................................................................................... 39
I/L – Jud Cap Limited – Public Opinion............................................................................................................... 40
I/L – Pub Opinion Affects Capital ........................................................................................................................ 41
I/L – Pub Opinion Affects Rulings ....................................................................................................................... 42
I/L – Court Picks Battles ....................................................................................................................................... 43
I/L - Ct Limited by Capital ................................................................................................................................... 44
I/L – Enforcement & Opinion K2 Legitimacy...................................................................................................... 45
I/L – Kennedy = Swing Vote (1/2) ....................................................................................................................... 46
I/L – Kennedy = Swing Vote (2/2) ....................................................................................................................... 47
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I/L – Kennedy = Swing Vote ................................................................................................................................ 48
Kennedy will protect Legitimacy ......................................................................................................................... 49
I/L – Kennedy Changes if Overrule ...................................................................................................................... 50
Kennedy Votes Bc Stare Decisis .......................................................................................................................... 51
Kennedy Compensates for Overrule ..................................................................................................................... 52
I/L – Kennedy Votes for Detainees ...................................................................................................................... 53
I/L – Kennedy K2 Detainee Policy ....................................................................................................................... 54
I/L – Uighurs Need Capital ................................................................................................................................... 56
Perceived Cap Spillsover ...................................................................................................................................... 57
Uighurs K2 Detainee Policy ................................................................................................................................. 58
Uighurs K2 SOP ................................................................................................................................................... 59
Uighurs K2 Guantanamo ...................................................................................................................................... 60
Court fails  Pwrful Exec .................................................................................................................................... 61
No Release Undermines Article III ...................................................................................................................... 62
Uighurs K2 Soft Pwr............................................................................................................................................. 63
Uighurs k2 Habeas rts (1/3) .................................................................................................................................. 64
Uighurs K2 Habeas Rts (2/3) ................................................................................................................................ 65
Uighurs K2 Habeas Rts (3/3) ................................................................................................................................ 66
Habeas Rts check detention .................................................................................................................................. 67
Habeas K2 Check Gov’t ....................................................................................................................................... 68
SOP K2 liberty ...................................................................................................................................................... 69
Release K2 Check Exec ........................................................................................................................................ 70
Overrule K2 Chk Prez Pwrs.................................................................................................................................. 71
Spillover – Habeas ................................................................................................................................................ 72
Soft Power K2 Heg ............................................................................................................................................... 73
Impact – Heg Prev Nuc War ................................................................................................................................. 74
Impact – Nuc War ................................................................................................................................................. 75
Impact – Foreign Conflict ..................................................................................................................................... 76
Impact – Unchecked exec Fascism ................................................................................................................... 77
Impact – SOP breakdown  Tyranny/Wars ........................................................................................................ 78
Impact – No SOP  Wld Destruction .................................................................................................................. 79
Age Crisis Now ..................................................................................................................................................... 80
ERISA K2 Econ .................................................................................................................................................... 81
Turns Case - Pension Crisis .................................................................................................................................. 82
Age Crisis Outweighs ........................................................................................................................................... 83
Age Crisis  Econ Collapse ................................................................................................................................ 84
Age Crisis  Econ Collapse ................................................................................................................................ 85
Pension Crisis  Econ Crisis ............................................................................................................................... 86
Age Crisis  Culture War .................................................................................................................................... 87
Age Crisis  Wars ............................................................................................................................................... 88
Age Crisis Collapses Gov’ts ................................................................................................................................. 89
Age Crisis Collapses Democracy and Econ ......................................................................................................... 90
Youth Boom  Terrorism .................................................................................................................................... 91
A2: Voting Records Matter................................................................................................................................... 92
A2: Intrude on branches ........................................................................................................................................ 93
A2: One case = no threat....................................................................................................................................... 94
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A2: Uighurs = Terrorists ....................................................................................................................................... 95
A2: Other Branches Solve Uighurs ...................................................................................................................... 96
A2: Detention Pwr ................................................................................................................................................ 97
***AFF ................................................................................................................................................................. 98
N/U – Court Won’t Accept Uighurs ..................................................................................................................... 99
Capital Doesn’t Tradeoff .................................................................................................................................... 100
Decisions Don’t Affect Capital........................................................................................................................... 101
Court rules on Ideology ...................................................................................................................................... 102
Court Rules on Ideology ..................................................................................................................................... 103
Court Votes on Values ........................................................................................................................................ 104
Racism Hurts Legitimacy ................................................................................................................................... 105
L/Turn – Overruling bad Incr. Cap ..................................................................................................................... 106
Overruling Bad Incr. Cap.................................................................................................................................... 107
Overruling Costs no Cap..................................................................................................................................... 108
Overrule based on Ideology ................................................................................................................................ 109
Cap Doesn’t Spillover ......................................................................................................................................... 110
Cap No Effect on Rulings ................................................................................................................................... 111
Judges don’t consider capital when deciding.................................................................................................. 111
Jud Cap Resistant ................................................................................................................................................ 112
Capital is resistant – election 2K proves. ........................................................................................................ 112
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Judicial Capital DA
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***NEG
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Judicial Capital DA
Dartmouth 2K9
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1NC - Uighurs
1. The Supreme Court will grant cert to Kiyemba and hold for the Uighurs.
Steve Vladeck, J.D. (Yale), Assoc. Prof. of Law at American U. Washington College of Law, 2-22-2009. [PrawfsBlawg, Is
Kiyemba Cert.-Worthy?, p. lexis]
My initial reaction to the news of the D.C. Circuit's decision this Wednesday in Kiyemba v. Obama, holding that the federal
courts have no power to order the release of the Uighurs held at Guantanamo into the United States, was that the Supreme
Court would never go near this decision, especially given the sui generis nature of the case (since, unlike most of the
remaining Guantanamo detainees, there is nowhere for the Uighurs to go). Then, I read Judge Randolph's opinion. It was
mostly as expected, but one passage particularly caught my eye. Randolph rejects the detainees' due process claim because,
in his words, "Decisions of the Supreme Court and of this court . . . hold that the due process clause does not apply to aliens
without property or presence in the sovereign territory of the United States." He then cites a number of precedents in
supoort, including Zadvydas, Verdugo-Urquidez, and Johnson v. Eisentrager (and a bunch of D.C. Circuit decisions, among
others), and admonishes the district court for failing to follow binding precedent. What's fascinating--and ironic--of course,
is that he nowhere cites Boumediene in this discussion. To be sure, Justice Kennedy was extremely careful to limit his
analysis in Boumediene to the particular question of whether the Suspension Clause applies in Guantanamo, and to thereby
leave open the question of whether other constitutional protections apply to non-citizens detained there. But to say it's an
open question is not the same thing as concluding--as Randolph apparently must have--that Boumediene in no way calls
these earlier cases (Verdugo-Urquidez and Eisentrager, especially) into question. Indeed, as Orin already noted,
Boumediene was the third time that the Supreme Court has reversed a Randolph opinion taking a skeptical view of the
legal rights of the detainees (see also Rasul and Hamdan). At some point along the way, don't some of these precedents
become worth revisiting? All of this leads me to wonder if Randolph may have written an opinion that the Court--which
might otherwise have been inclined to duck this case--cannot ignore. To say that the Due Process Clause categorically
does not apply to Guantanamo is to suggest that the very review that Boumediene mandates need only be superficial.
What's more, such a conclusion wasn't necessary to reject the Uighur's claims, so long as Randolph's analysis of the
immigration laws is correct (my own view is that this, too, was an open question). It's a messy case with unique facts and a
very possible political solution in the offing that would moot the petitioners' claims. But I just can't see how Randolph's
cursory and wholly unconvincing analysis of the detainees' due process rights can be left intact, either by the en banc D.C.
Circuit or, if necessary, by his admirers on all-things-Gitmo: the Supreme Court.
2. Plan consumes court’s limited capital – controversial rulings cost capital.
Grosskopf and Mondak, Profs of Poli Sci Long Island U and U of Illinois, 19 98
(Anke Grosskopf, Assistant Prof of Political Science @ Long Island University, & Jeffrey Mondak, 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 September1998)
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 blockbusters-Brown 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.
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Judicial Capital DA
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1NC - Uighurs
3. Court won’t rule against executive detainees without institutional capital
Segal et al, polisci professor, 04. Jeffrey Segal et al., Prof. pol. sci. @ Stony Broon, 2004 “The effect of war on the U.S.
Supreme Court” www.nyulawglobal.org/workingpapers/detail/documents/GLWP0304Segal.pdf
In raising this question, Grossman suggests that the justices in Korematsu were forced to think long and hard
about President Roosevelt’s response to a decision adverse to his order. Apparently, though, pressure from the
same administration in the Nazi saboteur case, Ex Parte Quirin,130 avoided any need for Court members to cull subtle and
not-so-subtle historical signals.131 According to Turley: Roosevelt’s Attorney General Francis Biddle warned that
the president would not accept anything but total support from the court [in the Quirin case]. Justice Owen J.
Roberts conveyed this warning to the whole court in its conference on July 29, 1942. He informed his
colleagues that the President intended to have all eight men shot if the Court did not acknowledge his
authority, warning that they must avoid such a “dreadful” confrontation.132 Similar, though perhaps less overt, political
pressure continued with President George W. Bush’s Justice Department leveling threats against appellate
courts it believes have contravened anti-terrorism measures passed in the wake of September 11th . For
example, after the Fourth Circuit ruled, in United States v. Moussaoui,133 that the defendant facing trial for
the September 11th attacks should be allowed to interview a captured Al Qaeda member as a potential
witness to his case, the Justice Department defied the order in the name of national security. It also
threatened to move the prosecution to a military tribunal.134 What these stories suggest is that when the
political branches credibly threaten to circumvent or ignore disliked outcomes, the Supreme Court is
well advised to exercise “passive virtues.”135 Rather than squandering its resources on “ineffective
judgments,”136 as Alexander Bickel warned, the Court ought and does assume a more deferential stance.
Institutional legitimacy thereby may become an implicit decision calculus that leads justices to issue
decidedly different opinions during times of war.137 In addition, because concerns over institutional
legitimacy are constant, the Court must follow precedent established during wartime even after the
crisis dissipates. If it does not, it once again may risk undermining its fundamental efficacy. That is so for
several reasons, not the least of which is that members of legal and political communities base their future
expectations on the belief that others will follow existing rules. Should the Court make a radical change in
those rules, the communities may be unable to adapt, resulting in a decision that does not produce a (new) efficacious rule.
If a sufficient number of such decisions accumulate overtime, the Court will undermine its legitimacy.
Hence, the norm of stare decisis can constrain the decisions of all justices, even those who do not
believe they should be constrained by past decisions or who dislike extant legal principles.
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1NC - Uighurs
4. Reversal is necessary to preserve separation of powers.
Eric A. Tirschwell, J.D., attorney at Kramer, Levin, NAFTALIS & FRANKEL LLP, et al., April 2009. [
JAMAL KIYEMBA, et al., Petitioners, v. BARACK H. OBAMA, et al., Respondents. ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT PETITION FOR WRIT OF
CERTIORARI]
In a constitutional sense, the President’s discretionary release of a prisoner is no different from his discre- tionary
imprisonment: each proceeds from his un-checked power. The question presented here is whether the Third Branch may
check the Second at all. If ha- beas review may be shelved because one President may some day undo what his predecessor
did, then the law is whatever the sitting President says it is, and the ju- diciary is the handmaiden of the political branches.
Habeas and the separation of powers cannot wait for politics. Without the Court’s intervention now, in this case, six years of
excruciating appellate litigation will end with the evisceration of the Great Writ, and the separation of powers will be reduced
to quaint history. All relief would hereafter be diplomatic, and located entirely and completely within the discretion of the
jailer himself.
5. Breakdown of SOP leads to foreign conflicts.
Paul, prof of law UConn, 1998
(Joel R. Paul, Prof of law @ UConn, July 1998, “The Geopolitical Constitution: Executive Expediency and Executive Agreements”
86 Calif. L. Rev. 671)
The Constitution "diffuses power...to secure liberty." n27 Constitutional checks and balances create
resistance to the exercise of power. n28 [*679] So long as constitutional authority over foreign affairs
remained divided between the executive and Congress, neither branch was able to commit the nation
abroad without a popular consensus. n29 These institutional obstacles are not merely quaint vestiges of
an earlier era of relative isolationism. They serve the normative value of discouraging foreign adventures to which the
nation is not fully committed. The discourse of executive expediency undermined this constitutional structure. n30
Specifically, the expansion of executive power allowed Congress to avoid public accountability for U.S.
foreign policy, facilitated more frequent foreign interventions, undermined the coherence of our foreign policy,
and exposed foreign policy-making to "capture" by foreign governments.
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Judicial Capital DA
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1NC – ERISA
1. Supreme Court will hear the ERISA case this fall
LawMemo
6-30.
Ross
Runkel
at
LawMemo,
employment
lwa
site,
June
30,
2009.
http://www.lawmemo.com/blog/2009/06/cert_granted_in.html
The US Supreme Court has granted certiorari in an ERISA case that raises issues on (1) the extent to
which a district court must defer to the views of an ERISA plan administrator and (2) the appropriate
scope of appellate review. This case will be argued in the fall.
2. Plan consumes court’s limited capital – controversial rulings cost capital.
Grosskopf and Mondak, Profs of Poli Sci Long Island U and U of Illinois, 19 98
(Anke Grosskopf, Assistant Prof of Political Science @ Long Island University, & Jeffrey Mondak, 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 September1998)
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 blockbusters-Brown 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.
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Judicial Capital DA
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1NC - ERISA
3. ERISA costs judicial capital
Lenard, lawyer, 08. George Lenard: Labor and employment lawyer. 2-27-08. “Supreme Court Makes ERISA Sausage.”
http://www.employmentblawg.com/2008/supreme-court-makes-erisa-sausage/
“Laws are like sausages. It’s better not to see them being made.” Otto von Bismarck This quote came to mind
as my fatigued late-night-blogging mind struggled through last week’s Supreme Court decision in LaRue v. DeWolff,
Boberg & Assoc., Inc., et al. In Larue, The Court upheld the right of an individual participant in a 401(k) retirement plan to
sue under ERISA for a breach of fiduciary duty in the plan’s administration. Right result. But messy and costly process,
argumentation, and judicial reasoning to get there (the sausage making). In the common-law system, with law
made as much by court decisions as by legislation, the sausage-making analogy sometimes seems as
apt for all the legal maneuvering and argumentation going into appellate court decisions as for the
politics going into the passage of legislation. As I struggled through the detailed reasoning of the Supreme Court’s
three separate opinions in LaRue,all reaching the same result, my mind cleared for a moment and I saw how absurd this
case must look to a nonlawyer – because as a simple matter of fairness and justice the result seems an absolute no-brainer.
This is hardly unusual. Creative defense attorneys work hard to persuade courts of all manner of technical
legal reasons to prevent recovery. If the court believes that justice calls for allowing recovery, then it
must make the sausage – navigating around and disposing of all those creative arguments, and
articulating a rationale that can be squared with statutory language and/or past court decisions. ERISA,
the main federal law governing employee benefit plans, has proven particularly messy, with
issues coming to the Supreme Court quite regularly, often presenting relatively slight variations on
previously-decided issues — so that previous cases must be carefully parsed and extended or
distinguished.
4. Decision threatens the ability of tens of millions of Americans to save for retirement
Counsel for Amici Curiae Law Professors 09. Counsel for Amici Curiae Law Professors. BRIEF OF AMICI CURIAE
LAW PROFESSORS IN SUPPORT OF THE PETITION FOR PANEL REHEARING AND REHEARING EN BANC. March 17,
2009. http://law.marquette.edu/facultyblog/wp-content/uploads/2009/03/amicus-brief-of-law-professors.pdf
the panel’s decision drastically overstated the proper scope of the Section 404(c) safe harbor
for fiduciaries of 401(k) plans under ERISA and thereby threatens to undermine the ability of tens of
millions of Americans to save effectively for their retirements.4 The panel’s peremptory dismissal at this
Moreover,
stage of the proceedings rested upon a series of constructions of the fiduciary duty in the light least favorable to the
plaintiffs at several steps in an extensive syllogism and did so over the direct objections of the Department of Labor
(“DOL”), which filed as amicus in this case to argue strenuously in favor of the plaintiffs’ interpretation. The panel’s
confined view of a fiduciary duty in this context also contradicts leading scholarship into improving
the ways in which Americans can save for their retirements. Scholars such as Professor Cass Sunstein and
Professor Richard Thaler, as well as the renowned chief investment officer of the Yale University endowment,
David Swensen, have all called for greater care and duty by those charged with the administration of
retirement savings plans as a critical component of effective and secure investment.5 At a time of a
precipitous economic decline, which has already erased three trillion dollars from retirement accounts ,6
the panel’s conception of fiduciary duty moved in precisely the opposite direction. ERISA requires “care,
skill, prudence, and diligence” on the part of a fiduciary to select a suitable menu of investments, not to select a small
number of expensive options or to make essentially no selection at all. 29 U.S.C. § 1104(a)(1)(B).
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1NC - ERISA
5. Global age crisis risks collapsing global economy and democracy
Peterson, Economics Chairman, 99. Peter G. Peterson; author of Gray Dawn: How the Coming Age Wave Will Transform
America -- and the World, Chairman of The Blackstone Group (private investment bank), Chairman of The Institute for International
Economics, Deputy Chairman of The Federal Reserve Bank of New York, Co-founder and President of The Concord Coalition, and
Chairman of The Council on Foreign Relations. Foreign Affairs. January, 1999 / February, 1999.
http://www.foreignaffairs.com/articles/54620/peter-g-peterson/gray-dawn-the-global-aging-crisis
Global aging could trigger a crisis that engulfs the world economy. This crisis may even threaten
democracy itself. By making tough choices now world leaders would demonstrate that they genuinely
care about the future, that they understand this unique opportunity for young and old nations to work
together, and that they comprehend the price of freedom. The gray dawn approaches. We must establish
new ways of thinking and new institutions to help us prepare for a much older world.
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U – Cert to Kiyemba
Court will grant cert to Kiyemba.
Kristine Moore, Attorney at Howe & Russell, 6-25-2009. [Petitions to Watch: Conference of 6.25.2009, p.
http://www.scotusblog.com/wp/petitions-to-watch-conference-of-62509/#more-9981] [quals added]
This edition of “Petitions to Watch” features cases up for consideration at the Justices’ private conference on June 25, the final
conference of this Term. As always, the list contains the petitions on the Court’s paid docket that Tom [Goldstein, Partner at
Akin Gump] has deemed to have a reasonable chance of being granted. We’ve also listed the cases considered at this
conference in which the Solicitor General was invited to file a brief. Links to previous editions are available under the
“Petitions to Watch” tab or in our archives on SCOTUSwiki.
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U – Will Reverse Kiyemba Now
Supreme Court will grant cert and reverse.
Orin S. Kerr, J.D. (Harvard), Professor of Law at George Washington University Law School, 2-22/23-2009. [Prawfs Blawg,
Is Kiyemba Cert.-Worthy?: Comments, p. http://prawfsblawg.blogs.com/prawfsblawg/2009/02/is-kiyemba-cert-worthy.html]
I tend to agree. Call it the Judge Reinhardt Effect: If a lower court judge repeatedly thumbs his nose at the Supreme Court, the
Justices start paying extra special attention to his work. Posted by: Orin Kerr | Feb 22, 2009 11:50:45 PM (Oh, and I should add
that I am agreeing that the Supreme Court might very well grant cert because of the way Randolph was showing disdain for the
Justices' recent opinions, not that it's time to rethink Eisentranger or Verdugo.) Posted by: Orin Kerr | Feb 23, 2009 2:40:12
AM
Supreme Court will overrule Kiyemba—past decisions prove.
Lyle Denniston, SCOTUSblog reporter, 3-16-2009. [SCOTUSblog, Commentary: Widening impact for Kiyemba,
http://www.scotusblog.com/wp/commentary-widening-impact-for-kiyemba/]
As a team of lawyers ponders what to do next for 17 detainees who won a release order more than five months ago but still are
confined at Guantanamo Bay, a federal appeals court decision blocking their actual release is having a spreading impact. In the
process, it is becoming a key factor in the Obama Administration’s legal policy on detainees. The latest ruling from the D.C.
Circuit Court — Kiyemba v. Obama (Circuit docket 08-5424), issued Feb. 18 — found that 17 Chinese Muslim Uighurs could
not be transferred into the U.S. on a federal judge’s order issued in early October. The decision is on hold, until the detainees’
lawyers decide whether to seek en banc review by the full Circuit Court, or instead to take the case on to the Supreme Court.
The detainees’ counsel has tried twice to persuade the new Administration — the White House directly, or the Justice Department — to step in and give the
Uighurs clearance into the U.S., but so far those overtures have not settled their future. Their chances of getting en banc review in the D.C. Circuit appear
slim, since they did not win even the vote of the liberal member of the panel in February, and the full Circuit Court still has a conservative majority. In the
meantime, however, the Circuit panel’s Kiyemba decision is now being weighed in other detainee cases, affecting the possible
shutdown of federal court review of detainees’ cases, the basic definition of who may be detained, and the attempt by former
detainees to hold some Bush Administration officials to account for alleged torture during captivity at Guantanamo. That
spreading influence may make possible Supreme Court review of the Kiyemba decision more significant than it otherwise
might have been. The Circuit Court has been overturned three times by the Supreme Court in key cases on detainees’ rights,
and it has been told twice to reconsider other detainee rulings. The only major Supreme Court ruling in a case involving
detainees that upheld a lower court ruling in favor of government policy involved a Fourth Circuit Court ruling. All three of the
Supreme Court reversals involved opinions written by Circuit Judge A. Raymond Randolph, now serving on senior status, who
has become the most influential judge on the D.C. Circuit in detainee matters. In oral arguments, he aims most of his toughest
questions at detainees’ lawyers. The final opinions often reflect the views he has expressed during the arguments. He is also the
author of the Kiyemba ruling, a decision that swept so broadly that one District Court judge has questioned whether it may take
away the jurisdiction of federal judges to order any releases from Guantanamo — a point that Obama Administration lawyers
seemed to embrace, at least to a degree, last week.
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L – Controv Cases
Plan costs the court capital – controversial cases cost capital.
Grosskopf and Mondak, Profs of Poli Sci Long Island U and U of Illinois, 19 98
(Anke Grosskopf, Assistant Prof of Political Science @ Long Island University, & Jeffrey Mondak, 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 September1998)
Our empirical focus in this article may be specific, but, on a theoretical level, we see several components in the relationship
between public opinion and the Supreme Court. Discussion of this broad relationship thus provides context necessary to
understand the empirical contribution we hope to offer. We begin by noting that we presume there to be a bidirectional
link between opinion about Supreme Court decisions and support for the Court as an institution .
Support for the Supreme Court acts as a form of political capital (e.g., Choper 1980; Grosskopf 1996; Mondak 1992).
From this perspective, the Supreme Court "spends" a portion of its institutional support when it affixes its
imprimatur to controversial policy questions. In short, a popular Court can increase public support for
unpopular policy actions, but, by doing so, the Court exposes itself to the risk of diminished public esteem.
The Supreme Court's legitimating function has been demonstrated in several experimental and quasi-experimental studies
(Hoekstra 1995; Hoekstra and Segal 1996; Mondak 1990, 1992, 1994). This body of research, which draws heavily on
social-psychological theories of information processing, establishes that the Supreme Court can in at least some
circumstances elevate public support for a policy simply by issuing a decision. However, this effect does not
operate uniformly for all decisions or for all people. Instead, knowledge that the Supreme Court has ruled a particular way
increases the perceived legitimacy of a policy the most for those people for whom the issue is of the lowest salience or
personal relevance.
Controversial decisions cost court capital.
Grosskopf and Mondak, Profs of Poli Sci Long Island U and U of Illinois, 19 98
(Anke Grosskopf, Assistant Prof of Political Science @ Long Island University, & Jeffrey Mondak, 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 September1998)
The Supreme Court's public esteem has been posited to function as a form of political capital (Choper
1980; Mondak 1992). A central implication of this thesis is that the Court treads on dangerous ground in releasing
controversial edicts, because to do so may cause erosion of public support. Although results from laboratory
experiments have shown that unpopular rulings do expend political capital (Mondak 1991, 1992), analyses of
individual-level (Caldeira and Gibson 1992) and aggregate-level (Caldeira 1986) survey data suggest that the real-world
link between Supreme Court decisions and subsequent public attitudes toward the Court may be modest in strength. In
revisiting this issue, we have considered whether confidence in the Court's justices was influenced by two
controversial decisions in 1989, Webster and Texas v. Johnson. Strong evidence has emerged that response to the
rulings did yield a corresponding change in confidence, a finding that corroborates a central tenet of the political
capital hypothesis.
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Court’s capital limited – controversial decision cost capital.
Young, Prof Law UT Austin, 2004
(Ernest A. Young, Prof of Law at UT Austin, November 2004, “The Rehnquist Court's Two Federalisms” 83 Tex. L. Rev. 1)
The courts' basis of legitimacy also arises from this notion that they decide according to law. That basis is
in some sense a mirror image of the legislature's: Legislators' legitimacy rests on their basic connection to the public will;
judicial legitimacy, however, arises from being cut off from that will from the institutional independence
that allows judges to seek the law rather than respond to possibly short-sighted public preferences. But of course this
notion of legitimacy can be viewed as fundamentally antidemocratic, leading to Alexander Bickel's famous "countermajoritarian difficulty." n442 It may also constrain the frequency of judicial action counter to majoritarian
preferences; that is, courts' nondemocratic nature may limit their "institutional capital" and, therefore, favor
doctrines of judicial restraint in most situations. n443
Controversial decisions burn court’s capital.
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 97
Legitimacy is tied to the Court’s visibility or lack thereof. Activism begets visibility. The Court has often
been responsible for placing the spotlight on itself by actively involving itself in the issues of the day. That activism has
threatened the Court on more than a few occasions. The Court shined a very public spotlight on itself in deciding
Bush v. Gore. Whether the enhanced visibility and the controversy that came with it has long-term effects remains to be
seen. The advent and increase of “reckless legislation” is a different phenomenon, but it could have similar results. A
hot··button issue can force the Supreme Court to take the unpopular, but the legally correct, position,
which raises the visibility of the Court and exposes it to attack from the elected branches and the public—a
clear threat to the Court’s legitimacy.
Controversial decisions burn court’s limited capital.
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 160
So how do we resolve the dilemma that faces the Supreme Court as an institution and the justices as individuals? The
Supreme Court has some inherent weaknesses that limit its ability to move away from the acceptable
boundaries established by public opinion and the elected branches of government. Lacking the “sword and the
purse,” the justices have to depend on the other branches of government to enforce their decisions, which is particularly
problematic when the Court makes a sweeping decision that affects many people or definable groups. The modern Supreme
Court has made a number of those types of decisions over the last half-century. While the institutional limitations
pose serious constraints, the Court has some reservoirs of power from which it can draw. Legitimacy, a
finite resource to be sure, is a powerful symbolic force that the Court can draw upon when necessary. The
Court has a great deal of diffuse support from the public, which means that the elected branches will be reluctant to
attack it, even when there are unpopular decisions. It is difficult for the elected branches, whose members are often
disdained as “politicians,” to go after a quasi-religious institution that claims to speak for the Constitution. If the Supreme
Court works at the margins and adopts a position of judicial restraint, then it is unlikely to confront its institutional
limitations. The Court runs the largest risks when it acts in an activist manner. Judicial activism occurs
when ‘ the Court reverses the elected branches, “rewrites" portions of the Constitution, or makes
sweeping decisions. Each of those aspects of judicial activism magnifies the institutional weaknesses of the
Court.
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Plan costs court capital - overruling cases costs capital.
Rehnquist, attorney from BU Law, 1986
(James C. Rehnquist, Attorney for Goodwin Proctor LLP, graduated from BU Law School, “THE POWER THAT SHALL BE
VESTED IN A PRECEDENT: STARE DECISIS, THE CONSTITUTION AND THE SUPREME COURT.” March 1986, 66 B.U.L.
Rev. 34)
A recurring argument is that overrulings of precedent jeopardize the Supreme Court's "legitimacy." n50 This
argument is rooted in the conception [*354] of the Supreme Court as a "deviant institution" n51 -deviant because it is
countermajoritarian. n52 The public will only grudgingly accept invalidations of the decisions of democratically elected
legislatures, the argument goes, so the Supreme Court must cautiously avoid any appearance of arbitrariness or
politicization lest its scarce political capital be squandered. n53 Professor Maltz addresses this concern in the
context of Mapp v. Ohio's n54 overruling of Wolf v. Colorado: n55 A pattern of such behavior [overruling precedent]
threatens to do serious damage to the unique position of the Supreme Court in the American governmental
structure. The Court's continued ability to function effectively depends on the willingness of the public to
accept the Court in this role; this acceptance in turn depends upon the public perception that in each case the majority
of the Court is speaking for the Constitution itself, rather than simply for five or more lawyers in black robes. n56 According
to this argument, the inherent fragility of a governmental organ that passes judgment on the popular will is mitigated
by adherence to the rule of stare decisis.
Overruling costs capital – opposition hurts legitimacy.
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 153
justices act strategically, taking into account the elected branches, their colleagues on the Court, or
public opinion. In doing so, the justices will blunt opposition and protect the institution’s legitimacy. In
Thus,
considering and deferring to the elected branches or following precedent, the justices may move a little closer to the legal
end of the continuum. ln constitutional interpretation, however, the justices have fewer constraints on their
decisions and may be closer to the political end of the political-legal spectrum. Even then, the justices may
show restraint and refuse to overturn precedents.
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Overruling precedent would cause massive public backlash and cost capital.
Rappaport, Prof Law U of San Diego, 2004
Michael B. Rappaport, Prof of Law @ U of San Diego School of Law, Fall 2004, “THE REHNQUIST COURT: IT'S THE
O'CONNOR COURT: A BRIEF DISCUSSION OF SOME CRITIQUES OF THE REHNQUIST COURT AND THEIR
IMPLICATIONS FOR ADMINISTRATIVE LAW” 99 Nw. U.L. Rev. 369
Kennedy's judicial behavior is that they appear especially concerned
with protecting the Court's political capital. Consequently, these Justices would be unlikely to reach too
many decisions that would lead to significant attacks on the Court. Many of the decisions that have been
criticized for excessive judicial supremacy are actually better understood as reflecting an undue concern with the
Court's political capital. For example, Larry Kramer portrays United States v. Dickerson, which held unconstitutional a
One important element of O'Connor and
congressional statute that conflicted with Miranda v. Arizona, as reflecting a judicially supremacist view that took umbrage
at, and refused to defer to, a constitutional interpretation by Congress. n46 In my view, however, Dickerson is better
understood as deriving from the Court's unwillingness to be seen as overruling Miranda. Miranda
arguably is the most famous decision in all of constitutional law. Citizens who know little else about constitutional law
know from television and movies about "the right to remain silent." If the Rehnquist Court had overruled Miranda,
it would have not only been criticized by elite opinion but also taken a highly visible action to
eliminate "a constitutional right." As a result, Dickerson could have been used to suggest that the Court
was demolishing the people's liberties generally. In this situation, the most politically sensitive "conservative"
Justices - O'Connor, Kennedy, and Rehnquist - bolted. A similar analysis applies to Planned Parenthood v.
Casey, where the joint opinion of Justices O'Connor, Kennedy, and Souter refused to overrule Roe v. Wade. n47 Kramer
again views this case as involving undue judicial supremacy because the joint opinion was concerned about the
appearance created to its independence and credibility if it were to "overrule under fire ... a watershed decision." n48 While I
certainly do not want to defend the joint opinion on legal grounds, I see no reason to doubt that it was motivated by its
stated fear for the political capital of the Court rather than disrespect for the public's constitutional views. Had
the Court overruled Roe v. Wade, it was likely to have been subjected to a vehement attack by the
political elite as well as by large numbers of ordinary citizens. These attacks could have charged not only that the Court had
mistakenly eliminated a constitutional right, but that it had responded to political pressure. [*378] It was much safer for
the Court to approve the precedent while suggesting that the decision was wrong as an original matter.
Overruling leads to criticism and limits other decisions.
Baxter, Assoc Prof BU, 1998
(Hugh Baxter, Assoc Prof Boston U, Dec. 1998, “Managing Legal Change: The Transformation of Establishment Clause Law” 46
UCLA L. Rev. 343)
Justices are further constrained - although again, not in a way officially enforceable against the Court - by
informal norms governing the Court's operation. One such norm is stare decisis. While as the Court has said
repeatedly, ""stare decisis is not an inexorable command,'" n7 and while the Court on occasion overrules its own
decisions, still, stare decisis limits - or at least influences - the Court's transformation of the law. n8 In some
cases when the Court's inclination toward legal change is weak, stare decisis likely prevents the Court
from overruling. And even when the impulse to change is stronger, overruling has costs for the prevailing
majority - perhaps impaired relations with fellow Justices who would have adhered to the precedent , n9
the sting of a dissenting opinion, professional criticism, and sometimes public disapproval. n10 While these
costs will not always deter the majority from executing its law-transforming project, at a minimum they affect the way
in which the majority manages its transformation.
The
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Overruling too frequently consumes capital and reduces legitimacy.
Spriggs and Hansford, PoliSci @ Wash U in St Louis and UC Merced, 20 01
(James F. Spriggs, II, PoliSci @ Wash U in St Louis, and Thomas G. Hansford, PoliSci @ UC Merced, Nov 2001, “Explaining the
Overruling of U.S. Supreme Court Precedent” The Journal of Politics, Vol. 63, No. 4 (Nov., 2001), pp. 1091-1111)
In addition to acting on their policy preferences, justices on
the Court re- spond to constraints imposed by formal
or informal rules. The Court, first of all, cannot realistically overrule all prior decisions with which it
disagrees. To do so could quite possibly undermine the Court's authority and legitimacy and thus reduce the
impact of its opinions (see Gibson, Caldeira, and Baird 1998; Knight and Epstein 1996; Mondak 1994). The Court may
also feel bound to follow precedent so that its decisions are respected by future Courts (Rasmusen 1994).
By changing law incrementally and, at some level heeding precedent, the Court maximizes the probability of
its opinions having greater impact. In this sense, stare decisis may constitute a self-enforcing norm
resulting from the justices' desire to write efficacious legal doctrine. In sum, the overuse of the power to overrule
precedent can erode the legitimacy of the Court and under- mine the impact of its opinions. For this reason, we
argue that justices abide by a set of informal norms regarding the limited appropriate context for the over- ruling of
precedent.
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Split rulings cost the court capital.
Spriggs and Hansford, PoliSci @ Wash U in St Louis and UC Merced, 20 01
(James F. Spriggs, II, PoliSci @ Wash U in St Louis, and Thomas G. Hansford, PoliSci @ UC Merced, Nov 2001, “Explaining the
Overruling of U.S. Supreme Court Precedent” The Journal of Politics, Vol. 63, No. 4 (Nov., 2001), pp. 1091-1111)
The most important opinion characteristic conditioning the information con- veyed by a Court opinion
is its voting and opinion coalitions. Non-consensus in a case signifies that the decision is weak in some
respect (Brenner and Spaeth 1995, 46) and affects how future decision makers view the viability of an opinion. If the justices did not strongly support an opinion, then actors are less likely to perceive the Court
as credibly committed to the legal rule. This dimin- ished expectation results because the presence of small majority
voting coali- tions or the existence of separate opinions leads to reduced compliance and an increased possibility of future
legal change (Danelski 1986; Johnson 1979, 1987). Separate opinions, for example, suggest alternative ways to interpret the
major- ity opinion. The size of the majority coalition also signals the potential of non- compliance and the
possibility of the Court dealing with the issue differently in the future (Murphy 1964, 66).
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Opposing other branches costs capital.
Spriggs and Hansford, PoliSci @ Wash U in St Louis and UC Merced, 20 01
(James F. Spriggs, II, PoliSci @ Wash U in St Louis, and Thomas G. Hansford, PoliSci @ UC Merced, Nov 2001, “Explaining the
Overruling of U.S. Supreme Court Precedent” The Journal of Politics, Vol. 63, No. 4 (Nov., 2001), pp. 1091-1111)
The third relevant institutional rule is the American political system's reli- ance on separation of powers
and checks and balances. These formal rules pro- vide the broader political environment with the
potential to constrain the Court and thus create a context in which the Court's behavior may be dependent on
the actions of the elected branches of government. Congress, in particular, pos- sesses a variety of tools that can
be used in response to a Court opinion (see Eskridge 1991). For this reason, scholars commonly argue that the Court acts
strategically to prevent negative responses from Congress. That is, while the Court makes decisions and writes
opinions as close as possible to its true pref- erences, it must also anticipate and preemptively defuse possible
congressional and presidential responses (Hansford and Damore 2000; Spiller and Gely 1992; cf. Segal 1997). The
Court may thus consider Congress' and the President's agreement with a precedent in deciding whether to overrule it. Thus,
we expect: Hypothesis 4. The closer ideologically the prevailing political environment is to the precedent, the less likely the
precedent will be overruled.
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Reversing congressional laws costs capital.
Stoutenborough et al., profs of polisci @ KU and CSU Chico, 2006
(James W. Stoutenborough and Donald P. Haider-Markel, Profs of polisci @ KU, and Mahalley D. Allen, Prof of polisci @ CSU
Chico, Sept 2006, “Reassessing the Impact of Supreme Court Decisions on Public Opinion: Gay Civil Rights Cases” Political
Research Quarterly, Vol. 59, No. 3 (Sep., 2006), pp. 419-433)
In fact, research does
suggest that the public is poorly informed about the Court and that confidence in the
Court does change over time (Adamany 1973; Casey 1976; Daniels 1973; Davis 1994; Dolbeare 1967; Jaros and Roper
1980; Kessel 1966; Kritzer 2001; Murphy and Tanenhaus 1968; Scherer 2003). For example, Caldeira (1986) concludes
that during periods when the Court invalidates a relatively high number of laws passed by Congress, public
confidence in the Court declines. Caldeira (1986) and Caldeira and Gibson (1992) argue that during these periods
the Court's base of diffuse good will or legitimacy among citizens is challenged.
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Defying the Executive weakens the Court’s legitimacy
Pushaw, law professor, 07. Robert J. Pushaw, Jr.: James Wilson Endowed Professor, Pepperdine University School of Law.
J.D., Yale, 1988. Notre Dame Law Review. March, 2007. Lexis
Finally, the judicial time lag is sometimes insufficient because a nation-threatening war
drags on, the President has charted an
irrevocable course, and he will defy any order requiring him to comply with the Court's legal views. n348 In such
critical situations, rendering a judgment seems pointless, for its only effect will be to compromise the [*1081]
Court's legitimacy. For instance, Chief Justice Taney's unheeded order to Lincoln to release a military prisoner
ended up highlighting the Court's own impotence. n349 It is worth remembering that today we revere Lincoln and
revile Taney. Nonetheless, the Chief Justice showed real courage in confronting Lincoln throughout the Civil War, as did Justice
Jackson in standing up to his patron Franklin Roosevelt during World War II in Korematsu. Such genuine acts of judicial valor should
not be cheapened by comparing them with the Court's exploitation of politically weak and unpopular Presidents like Andrew Johnson,
Harry Truman, and George W. Bush. In short, the Court has generally, and appropriately, recognized that separation of
powers dictates great respect for the military decisions of Congress and the President. Moreover, the Justices have
inevitably decided cases based not simply upon abstract rules of law, but also upon various political and
practical considerations. Operating within these constitutional and pragmatic confines, the Court has tried to articulate and
enforce individual rights and liberties to the extent possible, as it did recently in the "enemy combatant" litigation. On the
whole, I think the Court has performed about as well as can be expected, even though I disagree with many of its rulings. n350 n349.
See supra notes 94-99 and accompanying text; see also Cole, Judging, supra note 8, at 2570-71 (acknowledging that such defiance,
when the President has concluded that national security is at stake, weakens the Court's credibility).
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Unpopular rulings suck capital – public backlash.
McGuire and Stimson, profs PoliSci @ UNC Chapel Hill, 2004
(Kevin T. McGuire and James T. Stimson, profs of PoliSci @ 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)
We believe that there is good reason for the justices to be attentive to public opinion. Specifically, we posit that, since the
justices do not have the institutional capacities to give their rulings full effect, they must calculate the
extent to which popular decision makers will support their policy initiatives. Thus, while the Court is certainly
not electorally accountable, those responsible for putting its rulings into effect frequently are. For that reason, strategic
justices must gauge the prevailing winds that drive reelection-minded politicians and make decisions
accordingly (Murphy 1964). That is, justices who want to see their personal preferences expressed in public policy know
that the effectiveness of such policy depends upon whether it is accepted by its implementers and those to whom they are
responsible. By this logic, a Court that cares about its perceived legitimacy must rationally anticipate
whether its preferred outcomes will be respected and faithfully followed by relevant publics. Consequently, a
Court that strays too far from the broad boundaries imposed by public mood risks having its decisions
rejected. Naturally, in individual cases, the justices can and do buck the trends of public sentiment. In the aggregate,
however, popular opinion should still shape the broad contours of judicial policymaking.
Unpopular decisions cost capital – public opinion matters.
McGuire and Stimson, profs PoliSci @ UNC Chapel Hill, 2004
(Kevin T. McGuire and James T. Stimson, profs of PoliSci @ 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 Court’s policy outcomes are indeed affected by public
opinion, but to a degree far greater than previously documented. At the same time, we have hardly eliminated
Second and more substantively, we have found that
the indirect influence of mass opinion wrought by the appointment process. Reliance upon a better measure of the Court’s
behavior reveals the justices to be highly motivated by their personal preferences , even after the significant
effect of direct public preferences are held constant. That the justices rationally anticipate the future
consequences of their actions speaks well of the system of dynamic representation. After all, a Court that requires
the support of others to give life to its pronouncements must surely work within the broad boundaries of public
acceptability. We certainly do not expect this analysis to be the last word on the role of public opinion in the judicial
branch. Given our results, however, we do believe that a system of popular representation is alive and well in the Supreme
Court.
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Plan requires court to issue certiorari – burns capital.
Greenhouse, NYT, 12/7/06
(Linda Greenhouse, staff writer for New York Times, 12/7/06, “Dwindling docket mystifies Supreme Court”
http://www.nytimes.com/2006/12/07/washington/07scotus.html)
On the Supreme Court’s color-coded master calendar, which was distributed months before the term began on the first
Monday in October, Dec. 6 is marked in red to signify a day when the justices are scheduled to be on the bench, hearing
arguments. The courtroom, however, was empty on Wednesday, and for a simple reason: The court was out of cases. The
question is, where have all the cases gone? Last year, during his Senate confirmation hearing, Chief Justice John G.
Roberts Jr. said he thought the court had room on its docket and that it “could contribute more to the
clarity and uniformity of the law by taking more cases.” But that has not happened. The court has taken about
40 percent fewer cases so far this term than last. It now faces noticeable gaps in its calendar for late winter and early spring.
The December shortfall is the result of a pipeline empty of cases granted last term and carried over to this one. The number
of cases the court decided with signed opinions last term, 69, was the lowest since 1953 and fewer than half the number the
court was deciding as recently as the mid-1980s. And aside from the school integration and global warming cases the court
heard last week, along with the terrorism-related cases it has decided in the last few years, relatively few of the cases
it is deciding speak to the core of the country’s concerns. The reasons for the decline all grow out of forces
building for decades. The federal government has been losing fewer cases in the lower courts and so has less reason to
appeal. As Congress enacts fewer laws, the justices have fewer statutes to interpret. And justices who think they might end
up on the losing side of an important case might vote not to take it. In a divided court, in a divided country, the
court’s reduced role is perhaps not surprising, nor is it necessarily a bad thing. “In the post-Bush v. Gore era, the
court may be concerned about taking the wrong case and making an unpopular decision,” said Frederick Schauer, a
professor at the John F. Kennedy School of Government at Harvard, in an interview. Professor Schauer argued in a recent
and much-discussed Harvard Law Review article that the court’s work “had only minimal direct engagement
with the central issues of the nation’s public and policy agenda.” In an interview, he said, “I think they like being
under the radar.” In private conversations, the justices themselves insist that nothing so profound is going on, but rather
seem mystified at what they perceive as a paucity of cases that meet the court’s standard criteria. The most important of
those criteria is whether a case raises a question that has produced conflicting decisions among the lower federal courts. But
there are still plenty of lower-court conflicts that go unresolved, said Thomas C. Goldstein, a Supreme Court practitioner
and close student of court statistics who wrote last week on the popular Scotusblog that the justices were “on the cusp of the
greatest shortfall in filling the court’s docket in recent memory, and likely in its modern history.” “I don’t think we’re at the
end of history and have fixed all the problems,” Mr. Goldstein said in an interview. One theory is that the court is so
closely divided that neither the liberals nor the conservatives want to risk granting a case in which, at
the end of the day, they might not prevail. To grant a case takes four votes, which can be a heartbreaking distance from
the five votes it takes to win. Scholars of the court call this risk-averse behavior “defensive denial.” While such behavior
may account for a portion of the shortfall, it can hardly provide a global explanation, because only a relative handful of the
8,000 appeals that reach the court each term are ideologically charged. Other, more neutral explanations provide likely
pieces of the puzzle. One is the decreasing number of appeals filed on behalf of the federal government by the solicitor
general’s office. Over the decades, the Supreme Court has granted cases filed by the solicitor general’s office
at a high rate. In the mid-1980s, the office was filing more than 50 petitions per term. But as the lower federal courts
have become more conservative and the government has lost fewer cases, the number has plummeted, opening a substantial
hole in the court’s docket. As recently as the court’s 2000 term, the solicitor general filed 24 petitions, of which 17 were
granted. Last term, it filed 10, of which the court granted 4. This term, the solicitor general has filed 13 petitions; the court
has granted 5, denied 3 and is still considering the rest. Another explanation lies across the street from the
Supreme Court, in Congress. Over the years, about half the court’s docket has been made up not of
constitutional cases, but of cases requiring the justices to interpret federal statutes. Statutes from the 1970s,
including major environmental laws, antidiscrimination laws and Erisa, the employee-benefits law, have been staples of the
court’s docket for decades. But as Congress’s willingness to pass new laws has waned, the flow of statutory cases has
begun to dry up. Another possible explanation is the method by which the justices screen the thousands of petitions. Eight
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of the justices, all except Justice John Paul Stevens, pool their law clerks and have only one clerk make the
initial recommendation for each case. The recommendation is not binding, of course. But there is a built-in
“institutional conservatism” in which law clerks are afraid to look overly credulous and so are reluctant
to recommend a grant, according to Stephen M. Shapiro, a former deputy solicitor general who practices law in
Chicago with Mayer, Brown, Rowe and Maw. “Perhaps the clerks have been trained to be naysayers for so long that they
don’t know any other way,” Mr. Shapiro said in an interview. The sharpest drop in opinions came after William H.
Rehnquist became chief justice in 1986. He had made clear his belief that the court under Chief Justice Warren E. Burger
was taking too many cases, and Congress assisted in 1988 by eliminating from the court’s jurisdiction a category of
“mandatory” appeals to which the justices collectively had long objected. In the early 1990s, after the number of decisions
dropped to 107 from 145 in the space of five terms, Chief Justice Rehnquist responded to reporters’ questions by
commenting wryly that the Supreme Court would be the first institution of American government to fulfill Karl Marx’s
prophecy of the withering away of the state. He was kidding, of course. The late chief justice believed in a muscular role for
the court, and went on to show that he could accomplish more with less. The question now, on a docket dominated by cases
that only a law professor could love, is how much less. “ It’s not obvious to me that the court should be doing
more,” said Orin Kerr, a visiting professor at the University of Chicago Law School who wrote on his blog that
constitutional law scholars “are kind of bored these days.” In an interview, Professor Kerr said that while it was easy to say
that the court should be doing something different, “no two people would agree on how it should change.”
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Abortion decisions cost capital – empirically proven.
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. 133
The issue of reproductive rights is one of the classic examples of the dilemmas the Supreme Court faces as
an institution. There is no reference to reproductive rights or to privacy, the right that abortion is based upon, in
the Constitution. Rather, these rights were created by the Supreme Court out of whole cloth. At the state level,
the elected branches had passed laws forbidding the use of contraceptives and preventing abortions. At the national level,
Congress and the president had not acted. The Supreme Court ventured into this minefield and incurred the
wrath of a sizable portion of the public and many members of Congress. Roe v. Wade (1973) was the
type of decision that could have threatened the Court’s legitimacy. The Court ruled that existing state laws
prohibiting abortions, passed by duly constituted majorities, were unconstitutional, and that women had a qualified right to
control their own reproductive decisions. The justices had no specific authority upon which to base their
decision. Opponents charged that the justices were using the discredited doctrine of substantive due process, discussed in
Chapter 2, to justify their decision.
Abortion costs capital – court will compromise to protect legitimacy.
Dionne, Washington Post staff writer, 7/1/92
(E.J. Dionne, Washington Post staff writer, 7/1/92, “Justices' Abortion Ruling Mirrors Public Opinion; Polls Show Americans Would
Keep Procedure Legal, but Are as Divided as Court on Limits” lexis)
The Supreme Court, in theory the government's least political branch, closely mirrored public opinion polls in its
decision on abortion: Like the court, the public says abortion should remain legal, but should be restricted and
regulated. The court arrived at its view on Monday in a fractured decision in which a plurality of the justices made a
conscious reference to public opinion and "the terrible price" the court would pay with public opinion
if it overturned a 19-year-old precedent. The public's view is based less on precedent than on ambivalence about
abortion and about the proper role of the state in regulating it. Polls show individuals often are even divided within
themselves on abortion, generally suspicious of government involvement in such an intimate decision but also worried that
too many abortions are performed and sympathetic to some regulations. "What's quite interesting about the Supreme
Court's decision is that it seems to perfectly reflect the consensus opinion of mainstream America," said
Linda Di Vall, a Republican polltaker who has worked both for abortion-rights groups and for candidates opposed to
abortion. The mainstream view, Di Vall said, is that "abortion should not be made illegal, yet certain
restrictions ought to apply." The idea of the court responding to public opinion is enshrined in the famous maxim of
Finley Peter Dunne's "Mr. Dooley" character, who noted that "th' Supreme Court follows th' iliction [election] returns." In
his dissent in the latest abortion case, Justice Antonin Scalia offered an updated version, arguing that the court was
following "not a principle of law . . . but a principle of Realpolitik." But Paul Gewirtz, a professor at Yale Law School,
noted that the controlling opinion in the abortion case emphasized that the court's legitimacy rests on the
idea that constitutional principle, and not simply the political winds, determine the court's actions. The
court, he argued, can neither follow election returns nor entirely ignore them. "Paradoxically, the court found a
principle that happened to fit with public opinion polls, but I don't think it was actually following the polls,"
Gewirtz said. Whatever its intent, the court's thrust did parallel the findings of a number of recent surveys, including a
Washington Post poll conducted in March. That poll asked: "The U.S. Supreme Court ruled in 1973 that a woman can have
an abortion if she wants one at any time during the first three months of pregnancy. Do you favor or oppose that ruling?"
The public said it supported the ruling, as described in the question, by 55 percent to 38 percent.
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Levy and Somek, Law @ Kansas, Vienna, 2001
Richard E. Levy, Law @ Kansas, and Alexander Somek, Law @ Vienna, Spring 2001 “Paradoxical Parallels in the American and
German Abortion Decisions” 9 Tul. J. Int'l & Comp. L. 109
while judicial decisions
of constitutional principle that run counter to powerful social forces may affect the social equilibrium
and produce a different balance, there is a corresponding institutional cost. For the Supreme Court, backlash
against Roe produced a concerted political effort to reconfigure the Court which was to some extent
successful, even if the "essential holding" of Roe remains intact. As a result, the judicial appointment process and
the Supreme Court itself have become increasingly politicized, with a resulting politicization of the
Court's decisions. n230 Although the impact of the political response to Abortion I on the Constitutional Court is less well
documented, to the casual observer Abortion II cannot be seen as [*166] anything other than a political
compromise. In any event, as our discussion of the three Paradoxical Parallels suggests, both Courts have been
forced to resort to convoluted and unconvincing analyses in an attempt to claim that their decisions
reflect a coherent and consistent exposition of their constitutions. Courts lack any political power to command
allegiance or to threaten the use of force to secure compliance. The effectiveness of their decisions depends upon
respect for the judiciary and the rule of law. This is their institutional capital, a valuable resource that
must be protected and used wisely. It is perhaps not so Paradoxical that for both the Supreme Court and the
Constitutional Court, the assertion of judicial authority over the troubling problem of abortion entailed a
sizable expenditure of their institutional capital.
This dialogic understanding of the relationship between courts and societies underscores that
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L - Abortion
Abortion rulings are highly controversial and cost massive capital.
Kloppenberg, Dean and Prof of Law @ Dayton, 2001
(Lisa Kloppenberg, Dean and Professor of Law @ Dayton, 2001 Playing It Safe p. 218-219)
The Court definitely has walked a tightrope in the abortion cases. It seems to be still reeling from Roe
v. Wade and is defensive about its app ropriate role. In many areas of law, the Court’s opinions are often dry, without
dramatic details about the parties or references to the political controversy surrounding cases. But in the abortion cases,
justices freq uently acknowledge the politics of abortion and the pressure on the Court . Roe begins by
citing the “sensitive and emotional nature of the abortion controversy,” the “vigorous opposing views,” and the “deep and
seemingly absolute convictions that the subject inspires.” Nearly thirty years later, in a 5-4 decision striking down a ban on
so-called partial birth abortions in 2000, the majority begins by recognizing the “controversial nature of the
problem” and the “virtually irreconcilable” views among Americans, while the dissenters warn that the
ruling will elicit a “firestorm of criticism.”47 One abortion opinion even referenced the prot estors who surround
the Court regularly. With combative sarcasm, Justice Scalia exclaimed, “We can now look forward to at least another term
with carts full of mail from the public and streets full of demonstrators.” The criticism can get personalized sometimes.
Justice Harry Blackmun, as the author of Roe, received threats and hate mail from members of the public because of his
rulings. Blackmun made the conclusion of his Webs ter dissent unusually personal: “In one sense, the Courts approach is
worlds apart from that of the Chief Justice and Justice Scalia. And yet, in another sense, the distance between the two
worlds is short—the distance is but a single vote. I am 83 years old. I can not remain on this Court for- ever, and
when I do step down, the confirmation process for my successor may well focus on the issue before us today. That, I regret
may be exactly where the choice between the two worlds will be made.”48 The justices’ discomfort with the topic and
unusual concern with the political ramifications of their decisions explain the Court’s inconsistent use of
avoidance techniques in this area of constitutional law. The Court’s abortion cases contain contradictory
applications of the avoidance doct rine that appear politically motivated and results oriented. The next
sect ion explores three important abortion cases to profile the Court’s incons istent use of avoidance strategies: Missouri’s
attempt to get the Court to overrule Roe in the late 1980s, a subsequent challenge to the “gag rules” on federal employees
who provide health care for indigent women, and the Court’s invalidation of a “partial birth abortion” law in 2000. Briefly,
the First Amendment challenges brought by anti-abortion protestors to restrictions on demonstrations at clinics will be
explored.
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L – Social Policy
Rulings on social policy suck judicial capital.
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 162
The other level to the capacity argument is relative capacity. The Court has real problems, but it is not alone in that
regard. Congress, the executive branch, and the bureaucracy, the alternative forums for policymakers, are constrained by
their own capacity problems. Relatedly, the issues that expose the vulnerability of the Supreme Court are
the intractable social problems that defy easy solutions, perhaps any solutions. Compounding the problems
for the Court is the allegation that the elected branches, the supposedly ideal places for policymaking, ignore
the difficult issues of the day—arguably because the members are elected and have to face the voters.
Ruling on social policy risks backlash
Reichman, Prof Law @ Haifa U, 2007
(Amnon Reichman, Prof Law @Haifa U and visiting prof UC Berkeley, Fall 2007, “The Dimensions of Law: Judicial Craft, Its Public
Perception, and the Role of the Scholar” 95 Calif. L. Rev. 1619)
Other less salient practices intersect with the law only to the extent that the law regulates activities within those practices.
For example, religion and the defense system are impacted by Supreme Court decisions, but primarily by those decisions
that pertain to matters of import to religion or to national security, respectively. Other systems may cross path with
the [*1636] law on even narrower grounds; while legal institutions are prevalent in all social systems, the
intersection between the law and these systems is limited to the subject matters around which these systems
are organized. For example, the law plays a role in regulating the medical system, but the intersection is of a limited
scope (and therefore many areas of the law, and consequently, most Supreme Court decisions, fall outside the overlap
between the two systems). In that respect, systems such as the medical system are situated more remotely from the law. As
concerned citizens, members of these practices may have strong convictions regarding the various social
issues decided by the courts (and therefore may be sensitive to the message embedded in judicial
decisions to the extent that such a message relates to their identity or values), but for their manifested conviction to
be captured by judicial legal lenses it must be put forward as part of a concrete legal case or
controversy n78 or be communicated via the systems situated in greater proximity to the law--i.e., systems whose degree
of intersection with the law is more comprehensive--such as party-politics or the media. Members of the more remote
practices may thus loosely be termed "the general public," although there is nothing "general" about these "publics." The
various social systems that comprise the polity are merely remote; it is assumed that there is little distinction between the
practices of medicine, education, sports, architecture, agriculture, and the like as far as the evaluation of the judicial
performance that does not directly regulate these practices is concerned.
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L – Social Policy
Rulings on social issues affect legitimacy because of popular opinion.
Reichman, Prof Law @ Haifa U, 2007
(Amnon Reichman, Prof Law @Haifa U and visiting prof UC Berkeley, Fall 2007, “The Dimensions of Law: Judicial Craft, Its Public
Perception, and the Role of the Scholar” 95 Calif. L. Rev. 1619)
the notion of "public confidence" is more complex than the ordinary or
conventional notion of "the opinion of the general public" on a given issue. It also suggests that legitimacy
is such a complex notion because each social system offers a distinct analytical framework from which
we can examine judicial legitimacy and often produces different interpretations of legitimacy. The performance
This Article suggests that
of the courts could thus be evaluated through different lenses, informed by different ideal types of the various metapractices. The dilemma Mishkin identified arises because several practices converge at the social "site" we call
constitutional adjudication, and the legal "events" that site generates are also events in intersecting practices. Thus, the
relevant interpretative communities within which the Court operates generate different pushes and pulls. The judiciary,
therefore, is caught between the commitment to standards of legal professionalism and the commitment
to perform as a political institution (broadly defined) whose products and pronouncements are adapted into the
language of other systems and evaluated according to their core values. The communication between the courts and the
different social systems is thus likely to implicitly or explicitly affect the judicial product. Perhaps what was unique about
the historical era addressed by Mishkin and his colleagues was that it was the legal profession - or a segment thereof - that
demanded that the courts partake in social change, [*1675] in part to redeem constitutional law from past wrongs
and in part to realize its promise. Professional legitimacy - at the time of Brown, Loving, Bakke, and Nixon - included
the demand for substantive justice, not only the demand for coherency and consistency. Lawyers, judges,
and academics - or at least, some of them - saw their role - or at least parts of it - as transformative. Aware of the realist
understanding that "it only takes five votes", progressive segments of the profession pushed for change. n232 As the
Rehnquist Court transformed the agenda of the federal judiciary by emphasizing the role of the states and by deemphasizing
the role federal judges should play as agents (or sites) of reform, our contemporary context is different. Yet the issues
addressed by Mishkin, such as affirmative action, remain and demand our continuous scholarly attention.
n233
Moreover, as the twenty-first century brings its own challenges - perhaps relating to the relationship between the
executive and the legislature or between the international community and the domestic legal system - the lessons learned
from Mishkin's careful approach to law (and to its neighboring systems) do not lose their force.
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L – Economic Policy
Rulings that have economic effects use capital.
Reichman, Prof Law @ Haifa U, 2007
(Amnon Reichman, Prof Law @Haifa U and visiting prof UC Berkeley, Fall 2007, “The Dimensions of Law: Judicial Craft, Its Public
Perception, and the Role of the Scholar” 95 Calif. L. Rev. 1619)
Judicial decisions are events in another important meta-practice or system: the economy (or the market).
Constitutional interpretation - while dealing with rights or the separation of powers, directly or indirectly (but
tangibly) - affects the market. n138 In addition to litigation costs and enforcement costs, court decisions often alter
economic relations by providing incentives or disincentives to the different market players. n139
Constitutional interpretation may result in groups of people migrating to or from certain areas; n140 it may regulate the
flow of money to the political [*1652] process; n141 it may burden the police with further costs; n142 or it may simply
deal with property rights and the freedom of contract as constitutional liberties, (as was common prior to the Lochner era).
Even matters closer to private law, such as punitive damages awarded in civil (or administrative) litigation, raise a
constitutional question. n143 It is difficult to think of Supreme Court cases without economic ramifications .
In fact, cases often get to the Supreme Court at least in part because of certain economic realities. n144 It is therefore not
surprising that economists search for the optimal level of rights protection. n145 Analyzing the economic implications of
judicial decisions would require exploring not only of the holding of the case, but also other factors, such as the structure of
the market within which the judicial decision takes place. n146 For example, First Amendment doctrines may seem blind to
the economic realities within which free speech occurs; however, a complete understanding of "prior restraint," n147
"overbreadth," n148 or the holding of New York Times v. Sullivan n149 cannot ignore the economic background [*1653]
within which the law operates and the possible effect judicial decisions may have on the market. n150 Market-based
public confidence in the courts may suffer if the courts are oblivious to the economic structures their
decisions reinforce, stymie, or facilitate. Fortunately, it is rare that judges turn a blind eye to the market system.
However, when changes in the market occur, judges are sometimes caught in a bind, creating a tension
between the law and the market. Lochner and subsequent Commerce Clause decisions during the New Deal era are
perhaps the clearest examples of events simultaneously situated in law and economics that directly affect the "public"
confidence in the courts (namely the reaction of market forces to the economic logic of the judicial performance). n152
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L – Medical Policy
Court uses capital in overruling medical welfare policies.
Gilman, Assis prof of Law @ U of Baltimore, 2001
(Michele Estrin Gilman, Assis prof Law @ U of Baltimore, May 2001, “Legal Accountability in an Era of Privatized Welfare” 89
Calif. L. Rev. 569)
Grijalva v. Shalala represents this approach.
n314
There, the plaintiffs, a class of Medicare beneficiaries enrolled in
HMOs, sued the Secretary of Health and Human Services (HHS) for failing to monitor denials of medical services by
HMOs and for failing to enforce due process protections. Specifically, the plaintiffs asserted that the HMOs denied
them medical services with inadequate notice of the basis for the denials, in violation of the Medicare Act's
procedural protections. HHS countered that the decisions by the HMOs did not constitute state action and, thus, could not
be attributed to HHS. The court disagreed, holding that the HMOs were state actors. n315 The court reasoned that HMOs and
the federal government "are essentially engaged as joint participants to provide Medicare services such that the actions of
HMOs in denying medical services to Medicare beneficiaries ... may fairly be attributed to the federal government." n316
The court pointed to the government's extensive regulation of the HMOs and the fact that the "federal government has
created the legal framework - the standards and enforcement mechanisms - within which HMOs make adverse
determinations, issue notices, and guarantee appeal rights." n317 Moreover, the statute provided that Medicare beneficiaries
enrolled in HMOs could appeal adverse decisions to the Secretary of HHS who had the power to reverse the HMOs
decision. The court expressly distinguished Blum, explaining that the decisions at issue in that case
hinged on the independent medical judgments of private doctors and could not be approved or disapproved by
state officials. n318 Rather, the state officials could only alter the level of Medicaid benefits in response to the doctors'
assessments. By contrast, in Grijalva, the court determined that the HMOs were making decisions as a
governmental proxy pursuant to congressional and administrative mandates. n319 Thus, the HMO decisions in
Grijvala were more akin to coverage decisions or interpretations of the Medicare statute, rather than purely medical
judgments. The court admonished that the government could not "avoid the due process requirements of the Constitution
merely by delegating its duty to determine Medicare coverage to private entities." n320 [*623] Grijalva gets the state action
analysis right. To begin with, the government was not held liable for actions outside of its control; indeed, HHS had direct
responsibility for ensuring that HMOs followed the law. Moreover, concern over the individual freedom of the HMOs was
misplaced; once they agreed to accept Medicare payments, they subjected themselves to strict regulatory controls as part of
the deal. They thus voluntarily gave up any claim to individual freedom. Grijalva also properly placed liability on a
culpable party, HHS. Importantly, Grijalva merged the standard for finding state action with the standard for establishing an
entitlement; both emphasize the constraints on the discretion of decision-makers. The logical extension of this
emphasis on discretion is that where an entitlement is at stake, a finding of state action should follow.
In other words, because an entitlement is created by a rule-based legal scheme, it is hard to see how a private person can
strip that entitlement away without becoming a state actor. After all, that actor is constrained by the same rules. The
incongruous result of the Supreme Court's approach is a decision like Blum, in which an acknowledged
entitlement (Medicaid) was stripped away by a private actor, who, as the dissent pointed out, was bound by
detailed regulatory provisions. n321 Grijalva suggests that it is entirely reasonable that the nexus inquiry include
consideration of the type of interest at stake. That is, where an entitlement is at issue, the presumption should be that
anyone affecting the status of that entitlement is a state actor. As Grijalva demonstrates, such a result is consistent with the
underlying purposes of the state action doctrine. Despite the logic and consistency of the Grijalva approach, it is
questionable whether it will carry the day. Indeed, Blum implicitly rejected such an approach by holding that an entitlement
can be lawfully stripped away by the discretionary decision of a private entity. As a result, and much to the surprise of
many lawyers and laypersons alike, the entitlement status of a piece of property does not necessarily
travel with the property. Notably, the Supreme Court reversed and remanded the Ninth Circuit's decision in
Grijalva for review in light of American Manufacturers and certain statutory changes. n322 Thus, the search for
accountability over private welfare providers may well have to continue elsewhere.
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L – Welfare
Welfare decisions cost court capital - need to force compliance.
Gilman, Assis prof of Law @ U of Baltimore, 2001
(Michele Estrin Gilman, Assis prof Law @ U of Baltimore, May 2001, “Legal Accountability in an Era of Privatized Welfare” 89
Calif. L. Rev. 569)
The federal and state statutes governing TANF programs are potential sources of procedural rights for
welfare beneficiaries. These statutes generally provide some notice and hearing requirements, even though some of
those requirements arguably fall short of constitutional due process norms. However, these statutory
requirements are not necessarily enforceable. Where statutes do not expressly provide for private enforcement , the
Supreme Court and the state courts have placed tight limits on their [*626] enforceability. Moreover, courts
are more likely to limit enforceability of rights asserted against private, rather than governmental, parties.
At the state level, other mechanisms for enforcing procedural rights include claims under state administrative procedure
acts and statutory mandamus claims (which are sometimes alternatively founded in common law). Both of these types of
claims are used to force government officials to comply with statutory duties. Yet it is not clear that they would be
effective against private entities. This Part discusses how privatization affects the availability of various statutory
theories for enforcing due process norms.
Court has ruled limiting government responsibility in welfare.
Gilman, Assis prof of Law @ U of Baltimore, 2001
(Michele Estrin Gilman, Assis prof Law @ U of Baltimore, May 2001, “Legal Accountability in an Era of Privatized Welfare” 89
Calif. L. Rev. 569)
The most relevant Supreme Court state action cases for the welfare privatization context are Blum v.
Yaretsky n273 and Rendell-Baker v. Kohn. n274 Both of these cases, handed down the same day in 1982,
involved private entities funded by the government, which provided public services to needy,
dependent populations pursuant to state law. In neither case did the court find state action. In Blum, a class of
Medicaid recipients challenged their private nursing homes' decisions to discharge or transfer them to a
[*613] lower level of care without notice or an opportunity for a hearing. n275 Although the state subsidized the costs of
the nursing homes, extensively regulated the operation of the homes, required the homes to periodically assess the
appropriate level of care for residents, paid the medical expenses of more than ninety percent of the patients, and licensed
the facilities, the Court held that these contacts were insufficient to make the nursing homes state actors.
n276
The Court's decision hinged on the fact that the challenged decisions turned on "medical judgments made by private
parties according to professional standards that are not established by the State." n277 The Court also made short shrift
of the assertion that the nursing homes performed a public function, stating that neither the state
constitution nor the Medicaid statute required New York to provide skilled nursing services. n278
Similarly, the Court's focus on the private actor's discretion in decision making and its rejection of
extensive regulation as a source of state action were determinative in Rendell-Baker. There, former
employees of a private, nonprofit school that served special needs students sued the school for firing them, allegedly in
violation of their free speech rights and without adequate procedural protections. n279 Public funds accounted for 90% of the
school's funding, state and local school districts regulated the school, and the school operated pursuant to a written contract
with the local school system and state agencies. n280 Nevertheless, the Court held that these contacts did not
amount to "coercive power" or "significant encouragement" sufficient to constitute state action. n281 The
Court also rejected the teachers' public function argument. Although it agreed that education of maladjusted high school
students is literally a public function, the Court held the fact "that a private entity performs a function which serves the
public does not make its acts state action." n282 Rather, "the question is whether the function performed has been
"traditionally the exclusive prerogative of the State.'" n283
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L – Affirmative Action
Affirmative action has been empirically shown to consume capital.
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 gender-based 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 genderbased 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’
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L - Minorities
Rulings on minorities consume judicial capital.
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 161
When the Court protects minorities and unpopular groups that
have no recourse to the elected branches, it risks incurring the wrath of the public, Congress, and the
president. Decisions that free a guilty person because of a police error or protect the rights of Nazis or Communists not
only are undemocratic, but they raise the specter of the institutional weaknesses. If the other branches, or state officials,
oppose Court decisions, there is a good chance that they will not faithfully implement them. This will
expose the Court to the potential loss of legitimacy and raise concerns with judicial capacity
As always, there is another side to the issue.
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L – Gay Marriage
Recognizing gay marriage would cost tremendous capital – its controversial.
Bartley, editor emeritus WSJ, 2003
(Robert L. Bartley, editor emeritus of Wall Street Journal, “Has the Supreme Court gone too far?” Commentary, Oct2003, Vol. 116
Issue 3, p25-48)
THE KEY is, as that great legal mind Mr. Dooley remarked, “di’ supreme coort follows th’ iliction returns. Despite
continuing frustration, we are alr eady beyond the activist assertiveness of the ‘Varr en era. Whatever it lacks
in legal logic, the majori ty opinion in Grutter is moderate in tone. It tries to put limits, in logic and time, on its own
activism (although we cannot be sure those limits will hold). In the same way, it is hard to get too excited about
court decisions overturning sodomy laws. Those laws are not really meant to be enforced anyway, and as Scalia
noted in his dissent in Lawr ence v. Texas, many conservatives, too, would opp ose them in a legislative forum. A much
more serious problem is a potential Supreme Court dec ision upholding interstate recognition of gay
marriages. Polls suggest that such a decision would cut divisively against the grain of Americ an
opinion.
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L – Environment
Environmental rulings cost capital.
New York Times, 7/4/09
(New York Times, 7/4/09, “Environment Groups Find Less Support on Court”
http://www.nytimes.com/2009/07/04/us/04scotus.html?_r=1&hp=&pagewanted=print)
At the same time, the principles announced in some of the court’s environmental rulings, which generally
favored presidential power, may aid the Obama administration as it moves away from the previous administration’s
policies. “It’s become a cliché to say the Roberts court is about the expansion of executive power,” Professor Sinden said,
“and I think it’s true of these environmental cases as well. The court gave the Bush administration discretion. That certainly
leaves the Obama administration with discretion to act as well.” While the court’s environmental rulings may help the
administration as it issues regulations to carry out existing laws, the harder questions will arise as Congress enacts
new laws. “The real test will come when the Obama administration tries to implement new legislation, like the climate
change legislation, assuming it passes” the Senate, said Professor Lazarus, who represented the losing side in one of the
recent environmental cases. The climate change law, he said, will “raise a huge number of legal issues when
implemented and will face of barrage of legal challenges from industry, some of which will find their way
to the high court.”
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I/L – Will Rule on Nat’l Sec
Court will rule on national security – Guantanamo proves.
Luppen, Candidate for J.D. Wash & Lee, 2007
(Luppe B. Luppen, Candidate for J.D. Wash & Lee U Law School, 2007, “Just When I Thought I Was out, They Pull Me Back In:
Executive Power and the Novel Reclassification Authority” 64 Wash. & Lee L. Rev. 1115)
A more explicit rejection of Executive deference can be found in Rauf’s companion case, Hamdi v.
Rumsfeld2 “Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations
or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual
Liberties are at stake.”” In other words, the Supreme Court will not simply defer to the President in national
security matters when individual liberties are at issue.”4 Finally, Hamdan v. Rumfeld’5 reaffirms the Court’s
enthusiasm for reviewing the Executive Branch’s conduct of national security affairs. The Hamdan
opinion a1 reveals the Court’s willingness to undertake such a review despite congressional roadblocks ”6
The Court in Hamdan considered the legitimacy of military commissions established to try Guantanamo
detainees.”7 The resulting opinion takes a constitutionally strict view of Executive authority in times of
national emergency “Exigency alone of course, will not justify the establishment and use of penal tribunals not
contemplated by [the judicial provisions of] the Constitution unless some other part of that document authorizes a response
to the felt need.”8 The Hamdan opinion’s stem insistence on constitutional authorization derives from the Court’s Civil
War jurisprudence, which condemned unchecked Executive power.”9 The resolution of the Hamdan merits is
notable for both its substance and for the fact of its existence. With the Detainee Treatment Act of 2005,
Congress arguably intended to prevent the Court from hearing Hamdan and cases like it’2° As a direct
result of joint congressional and presidential action, Hamdan presented the last habeas corpus issue that the Court was
likely to hear out of Guantanamo Bay.’2’ Nevertheless, the Hamdan opinion avoids all opportunities to
equitably abstain from reaching the merits in anticipation of either a more apposite procedural posture in light
of the Detainee Treatment Act’22 or a more conclusive resolution of the military’s process.’23 The Court’s
choice to use its last bullet to slay the Guantanarno military commissions’ system is further evidence of
the Court’s determination to make its voice heard on national security matters. The Hamdan decision, in
concert with other Guantanamo opinions, represents the logical conclusion of the assault on the deferential principle
discussed in this Part. A determination to discipline Executive authority, perhaps born in the shadow of Korematsu, has
found its fullest expression in the Judiciary’s mounting power over the sun-soaked prisons of Guantanamo Bay.’24 If the
Supreme Court is determined to confront the President wherever his national security activities collide
with individual liberties, it follows that the reclassification authority cannot be applied to individual citizens
without inviting judicial scrutiny. Judicial skepticism is likely to be intensified by the sense, discussed above, that the
Executive’s classification system is of minimal importance to Congress’s scheme for protecting sensitive national security
information.’25
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Judicial capital is finite – justices need to pick their fights.
Grosskopf and Mondak, Profs of Poli Sci Long Island U and U of Illinois, 19 98
(Anke Grosskopf, Assistant Prof of Political Science @ Long Island University, & Jeffrey Mondak, 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 September1998)
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 blockbusters-Brown 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.
Court needs to save capital – controversial decisions burn capital.
Peretti, Prof PoliSci Santa Clara U, 2001
(Terri Jennings Peretti, Prof of Poli Sci at Santa Clara University, 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 by-product of caring only about the logical or precedential consistency of an opinion or of worrying only
about deriving a decision from the Framers’ intentions.
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Judicial capital is key to rulings.
Gibson and Caldeira, Profs of Political Science at Wash U in St. Louis and Ohio State U, 20 09
(James L. Gibson, prof of PoliSci @ Wash U in St. Louis, and Gregory A. Caldeira, Prof of PoliSci @ Ohio State U, January 2009,
“Confirmation Politics and The Legitimacy of the U.S. Supreme Court” American Journal of Political Science, Vol. 53, No. 1,
January 2009, Pp. 139–155)
We reiterate our view that institutional legitimacy
The conventional hypothesis is that legitimacy is
is an enormously important source of political capital.
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.
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I/L – Jud Cap Limited – Public Opinion
Court capital is limited – public opinion matters
McGuire and Stimson, profs PoliSci @ UNC Chapel Hill, 2004
(Kevin T. McGuire and James T. Stimson, profs of PoliSci @ 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.
Supreme Court has capital built up – public opinion factors in.
Bragaw and Perry, profs of gov’t @ Sweet Briar College, 2002
Stephen G. Bragaw, Assis prof of gov’t @ Sweet Briar College, and Barbara A. Perry, prof of gov’t @ Sweet Briar College, 2002,
“The "Brooding Omnipresence" in Bush v. Gore” 13 Stan. L. & Pol'y Rev 19
Kennedy's testimony before the House of Representatives appropriations subcommittee achieved its most immediate
purpose, which obviously was to placate Congressman Serrano. In fact, a much subdued Serrano responded to Kennedy's
explanation by saying solicitously, "I think you just went a long way [in speaking to the American people]. And I certainly
respect your comments." n103 Thus, the strength of an institution such as the Supreme Court is that it can rely
on a reservoir of trust, as Kennedy described it, and that it is represented to the public by articulate, thoughtful jurists.
How much the high court had to draw down on its deposit of trust in issuing Bush v. Gore remains to be
seen. Public opinion polls will assuredly measure and track the American people's recent levels of faith and
confidence in their highest judicial institution. Before the recess, Justice Kennedy concluded his congressional
testimony with hope that the American people would accept his explanation that the Court only reluctantly waded into the
"political thicket" of Election 2000. n104 As Bush v. Gore's per curiam opinion had expressed it so agonizingly: None are
more conscious of the vital limits on judicial authority than are the Members of this Court, and none stand
more in admiration of the Constitution's design to leave the selection of the President to the people, through their
legislatures, and to the political sphere. [*32] Yet five of the current Court's conservative justices were
obviously unwilling to defer to Congress in this matter. Perhaps seeing Tocqueville's maxim that American
political conflicts inevitably transform into legal debates n106 as a prophecy, the majority thought they had to intercede.
After all, the U.S. Supreme Court has once again asserted itself as the final arbiter of constitutional
conflicts in the American political system, at all of its governmental levels. What an ironic legacy indeed for
President Ronald Reagan, who sought to appoint judicial restraintists and strict constructionists to the Court. His
appointees--Chief Justice Rehnquist and Associate Justices Scalia, O'Connor, and Kennedy--have not only presided over
the transformative jurisprudence n107 that opponents of Reagan nominee Robert Bork feared, but the quartet has also grown
comfortable with the mantle of their triumphalist Supreme Court.
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Public opinion affects capital – Bush v. Gore proves.
Bragaw and Perry, profs of gov’t @ Sweet Briar College, 2002
Stephen G. Bragaw, Assis prof of gov’t @ Sweet Briar College, and Barbara A. Perry, prof of gov’t @ Sweet Briar College, 2002,
“The "Brooding Omnipresence" in Bush v. Gore” 13 Stan. L. & Pol'y Rev 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.
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Public opinion factors into court decisions.
Kramer, Prof Law NYU, 2004
(Larry D. Kramer, Prof Law @ NYU, 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 certainly overestimated 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 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
establishing and [*974] 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 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.
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Court needs to pick battles – capital is finite.
Young, Prof Law UT Austin, 2004
(Ernest A. Young, Prof of Law at UT Austin, 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.
Court needs to conserve capital.
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 162-3
The Court is supposed to be the voice of reason, charged with the creative function of articulating the durable
principles of government. The normative view is that the justices should be governed by principles of constitutional law
and statutory interpretation. The justices must respect the governmental structure and use reasoned principle and
societal moral tradition, as well as history, the text of the Constitution, and judicial precedent as sources of inspiration.
The justices need to pay attention to the broader context that Leslie Goldstein refers to as “the evolving morality of our
tradition? Because the Court stands outside popular control, it should refrain from taking and deciding
certain cases when it would be politically unwise. The justices need to find the underlying meaning embedded in
the plans behind the Constitution. To deny the existence of broader guiding principles is to make the Court “a naked power
organ” rather than a court of law (Goldstein 1995, 277--278). In Chapter 2, I argued that since the late 1980s, the Supreme
Court has begun to move away from the so-called double standard that dominated judicial decisionmaking for half a
century This move would help the Court resolve the dilemmas it faced. Part of the new role urges the Court to adopt
judicial restraint when it deals with the actions of the elected branches. To do so would mitigate concerns that
the Court is undemocratic. This new role also asks the Court to avoid making sweeping policy
pronouncements. That would reduce concerns over the Court°s institutional limitations and arguments
about capacity. However, the adoption of such a role would represent an abdication of the role of the Court as a protector of
minorities.
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Supreme court more limited than state courts
Lawrence, Prof of Law UNC, 1986
(David M. Lawrence, Professor of Public Law and Government at UNC Chapel Hill, Fall 1986, “Private Exercise of Governmental
Power” 61 Ind. L.J. 647)
Third, a recent discussion of state constitutional law suggested a number of institutional differences between the United
States Constitution and federal courts on the one hand, and the state constitutions and state courts on the other, that justified
a more expansive state judicial role even when the state and federal constitutional language was identical. n107 The
Supreme Court heads a national system of federal and state courts. Its inability actively to supervise this
enormous system leads it toward decisions that draw bright lines visible to the lower courts, rather than toward a
more accretive, fact-specific approach. In addition, as the court of last resort, it may seek to husband its political
capital, avoiding too many controversial decisions in too brief a time. Neither of these points applies as
strongly to a state supreme court, which therefore may be able to take more chances, to parry and thrust with
doctrine, as it takes account of the political reactions to and practical effects of its advances. Furthermore, almost all state
court judges are elected in some fashion, and so their use of judicial review is somewhat less open to attack as antimajoritarian. Finally, state constitutions themselves are considerably easier to amend than is the federal constitution, so
that state constitutional decisions can more easily be overruled. n108 On the basis of these [*675] institutional differences,
the authors concluded that "both the [state] constitution and the judiciary applying it are more responsive to political
pressures and more integrated into the policymaking process than are their federal counterparts," and thus some of the
concerns that restrain federal elaboration and enforcement of constitutional rights are less telling with state courts. n109
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I/L – Enforcement & Opinion K2 Legitimacy
Judicial legitimacy depends on branch enforcement and citizen opinion
Simad. law professor 08. Linda Sandstrom Simard: Associate Dean and Professor of Law, Suffolk University Law School.
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.
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Kennedy stays the swing vote – Sotomayor will vote like Souter.
Richey, staff writer Christian Sci Monitor, 7/17/09
Warren Richey, staff writer for Christian Science Monitor, 7/17/09, “Sotomayor on track to easy Supreme Court confirmation”
http://features.csmonitor.com/politics/2009/07/17/sotomayor-on-track-to-easy-supreme-court-confirmation/
Although there was never doubt that she’d be confirmed, the tone of the hearings shifted markedly by Thursday. Rather
than questioning her as a prospective justice, several senators seemed to be lobbying her as the newest member of the high
court. Sen. Arlen Specter (D) of Pennsylvania pushed hard for televising Supreme Court sessions, one of his pet proposals.
In the end, the hearings provided little real insight into what kind of justice Sotomayor will become ,
analysts say. Those answers will arrive soon enough – perhaps as early as September, when the Supreme Court is set to
hear an important challenge to the federal campaign-finance law. Once confirmed, Sotomayor will occupy the seat of
retiring Justice David Souter. Court-watchers say she will probably vote with the high court’s liberal wing in
ways similar to Justice Souter. As such, her confirmation is not expected to cause a sharp swing in the
high court’s jurisprudence. The nine-member court will continue to split 4 to 4 on hot-button social issues, with
conservative-centrist Justice Anthony Kennedy often providing the fifth and deciding vote, analysts say.
Kennedy still decides the rulings.
Toronto Star, 7/18/09
(Toronto Star, 7/18/09, “Will 'wise Latina' make a difference to U.S. court?” http://www.thestar.com/News/World/article/668323)
As Richard Land of the Southern Baptist Convention said when Sotomayor first was nominated: " One
of the longest
lasting and most painful penalties the American people will pay for their love affair with Barack
Obama are his judicial nominations. This is case one." Obama, however, would have to make two more
appointments during his time in office to redress the court's conservative bent. Stevens may be a venerable
89, but the next eldest justice is only 76 (young in Supreme Court terms), and it's a job for life. The 54-year-old chief
justice, John Roberts, an arch-conservative appointed in 2005 by George W. Bush, heads a notoriously divided
court – two blocs of four judges who generally vote the same way along left-right lines. Unanimous
rulings are rare. The pivotal figure is Justice Anthony Kennedy, who sits in the ideological middle. He's
been called the "most powerful jurist in America," because his is usually the deciding vote in the court's
frequent 5-4 rulings. Increasingly, Kennedy has been swinging to the right. Last term, he joined the liberal wing five
times and the conservatives 11 times.
Kennedy will stay the swing vote – Sotomayor won’t change the balance.
Cohen, CBS News Chief Legal Analyst, 6/30/09
(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)
Opponents of this brand of jurisprudence ought to realize that things are not about to change anytime soon. The
anticipated substitution of 2nd U.S. Circuit Court of Appeals Judge Sonia Sotomayor for outgoing Justice David H.
Souter almost certainly will not change the ideological balance on the Court. In fact, as some legal scholars
have noted, it is quite likely that Sotomayor will vote to the right of Souter in many cases, especially those involving Fourth
Amendment rights. We will, therefore, see many of the same 5-4 rulings next term that we saw this term with
Justice Kennedy determining the outcome. Same as it ever was.
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Kennedy is swing vote on court.
Cohen, CBS News Chief Legal Analyst, 6/30/09
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
Stewarded by some of the most conservative justices in its history, and making a mockery of accusations that it contains a
liberal, activist agenda, the good ship “Supreme Court” continued its relentless rightward tack this past term.
It entrenched Rehnquist-era notions of limited rights and remedies; set the stage for the further obliteration of Warren-era
doctrines and practices; and reminded politicians of all stripes that it alone among the current branches of
government hews Republican rather than Democrat. With only a few exceptions, the Court ruled against employees
to the benefit of employers, against environmentalists to the gain of polluters, and against suspects in favor of law
enforcement officials. The self-proclaimed “umpire” on the Court, Chief Justice John G. Roberts, Jr., continued his
unseemly pattern – first identified by writer Jeffrey Toobin – of calling only balls for one team and only strikes for another.
Justice Clarence Thomas shed any pretense of moderation and Justice Anthony M. Kennedy, the Court’s swing vote,
demonstrated over and over again that he’s a centrist only in relation to his conservative colleagues.
Kennedy still the swing vote - Sotomayor has low influence.
Boston Herald, 7/18/09
(Boston
Herald,
7/18/09,
“Sonia
Sotomayor
would
lend
different
experience
to
Supreme
Court”
http://news.bostonherald.com/news/us_politics/view.bg?articleid=1185773&format=&page=2&listingType=politics#articleFull)
Democratic Sen. Arlen Specter of Pennsylvania encouraged Sotomayor to "battle out the ideas that you believe in." Those
fights often play out in the justices’ majority opinions and dissents. But it might take years to find out whether
Sotomayor would be an effective negotiator and conciliator who can draw a wavering justice to her side. On the
current court, firmly divided between conservatives and liberals on so many cultural issues, Justice Anthony
Kennedy is the only one whose vote could be described as up for grabs. "Might she persuade Kennedy
to come out differently than what Souter could persuade him to do?" Erwin Chemerinsky, dean of the new law school
at the University of California at Irvine, said before the hearings. "Can Sotomayor by virtue of her life experiences move
Kennedy to join the more liberal bloc more often?" Chemerinsky said at week’s end, " There’s really no way to know
at this stage." John McGinnis, a Northwestern University law professor, agreed that it is hard to predict. But he thinks
Sotomayor was chosen because her heritage and gender are "useful politically" to President Barack Obama. McGinnis said
Obama passed over other candidates who might have been more influential. With the exception of a new
chief, justices rarely display much influence beyond their vote in their early years . Several justices have
quoted the old saw about how for the first five years a new justice wonders how he or she got there, then spends the rest of
the time wondering the same thing about the others.
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Kennedy will stay deciding vote as court splits on social issues.
The Economist, 7/4/09
(The Economist, 7/4/09, “Fairness for firefighters; A year at the Supreme Court”)
The ruling exemplified the cautious approach to judging championed by John Roberts, the chief justice
since 2005. Rather than seeking to scrap the whole notion of "disparate impact" law, as some of his more conservative
colleagues would have preferred, he was content to restrict the scope of its application. In general, he says that if a case
can be decided on narrow grounds, it should be, and he appears to mean it. Sometimes, his restraint is dictated by
circumstances--he cannot win a case without four other judges on his side, and the court is closely
divided on many issues. Roughly speaking, there are four liberals (Ruth Bader Ginsburg, John Paul Stevens, Stephen
Breyer and David Souter, who retired on June 29th and whom Ms Sotomayor is meant to replace), four conservatives
(Clarence Thomas, Antonin Scalia, Samuel Alito and Mr Roberts) and one swing voter (Anthony Kennedy). In close
cases, the court typically divides along ideological lines, with Mr Kennedy casting the deciding vote.
The court's most recent session, which ended this week, yielded more 9-0 decisions than 5-4 splits, though unanimity is
rarer now than it was during Mr Roberts's first year. But whereas past courts have sometimes been politically assertive, for
example by wresting control of abortion policy from the states in 1973, the Roberts court prefers to let elected
politicians sort out such contentious social issues. It seems in no hurry to rule on gay marriage, for example,
which some states have legalised without compulsion from judges.
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Kennedy will protect Legitimacy
Kennedy will change his vote in order to preserve the perception of 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.
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I/L – Kennedy Changes if Overrule
Kennedy would change his vote if an overrule occurred.
Hayes, staff writer Michigan Daily, 12/3/02
(Megan Hayes, staff writer Michigan Daily, 12/3/02, “Justices
http://www.michigandaily.com/content/justices-may-be-divided-issue)
may
be
divided
on
issue”
Michigan
Daily
All cert decisions are political," said Duke University law Prof. Jerome Culp. He said Chief Justice William
Rehnquist has been one of the leading opponents of affirmative action, and his rumored retirement in June may have
influenced his desire to have this case argued in front of him. "I can imagine that he might see ending affirmative action ...
as a wonderful swan song to his judicial career," he said. Culp said Rehnquist is one of three anti-affirmative action
justices. The other two are Justices Clarence Thomas and Antonin Scalia. He added that none of these justices will be
willing to shift their stance in the University's favor. "They've built their careers on running against
affirmative action," he said. "I don't think there's any question they will change their mind." He said Justices Ruth
Bader Ginsburg, Stephen Breyer and John Paul Stevens have been strong supporters of affirmative action. But he said it is
not clear whether the three votes in support of affirmative action will hold. That leaves Sandra Day O'Connor, Anthony
Kennedy and David Souter, who will most likely be the swing votes and determine the fate of diversity in higher education.
"The question is where will Kennedy and O'Connor come down," Culp said, adding that Kennedy has also been a
person who could change his vote for pragmatic issues. Supreme Court expert Henry Abraham, professor
emeritus of government and foreign affairs at the University of Virginia, said past Supreme Court decisions lead
him to believe that when the issue is resolved, it will be by a divided Court. "The most important vote will
come from O'Connor," he said. "She has been unwilling to permit the concept of affirmative action as applied to race when
it becomes the controlling factor - if race is considered (she has said) it must be one of many factors." Some legal experts
say that each side may try to word its arguments toward O'Connor, emphasizing the cautious approach they are taking.
"What she likes is the center, moderately conservative," experts said. "It's safe to say that any lawyer appealing to O'Connor
will present its side as cautious and moderate." "The Supreme Court has held that race could be a consideration, but only
one of many other factors," Abraham said. He said the Court is extremely reluctant to overrule past precedent,
but it has been done. The only case the Court has ruled on in regards to race in admission was Regents of the University of
California v. Bakke where the Court said race can be used in admissions as long as it furthers a compelling state interest
and avoids quotas.
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Kennedy Votes Bc Stare Decisis
Kennedy will vote left as long as stare decisis is in place.
Wall Street Journal, 10/7/06
Wall Street Journal, 10/7/06 “The Kennedy Court” http://www.opinionjournal.com/editorial/feature.html?id=110009060
It's unlikely we've seen the last one-man majority from Justice Kennedy. This possibility is not lost on the
political left, which explains the current publicity given to Justice Kennedy's role. The hope seems to be that Justice
Kennedy can be conditioned with carrots and sticks to make him the next Blackmun or Souter--earning
praise for his "moderation" if he votes with the liberal wing, but earning obloquy if he tacks right. Thus, we
can expect a good deal of hand-wringing about whether Justice Kennedy will take an "activist" view in
the partial-birth abortion case docketed for November. Here the Court will weigh the constitutionality of the 2003 PartialBirth Abortion Act. In 2000, the Court struck down a Nebraska law banning partial-birth abortions by a 54 vote. Justice Kennedy vigorously dissented from that decision, writing that the majority had
misinterpreted Planned Parenthood v. Casey, the 1992 decision that Justice Kennedy helped write. This would
seem to offer Justice Kennedy a clear rationale for upholding the federal ban on partial-birth abortions, which may be why
pundits are already wondering aloud whether Justice Kennedy will adhere to his "strong respect for stare
decisis." In December the court will hear two consolidated race-related cases; both deal with the use of race in assigning
public-school students to classrooms. In the 2003 University of Michigan affirmative-action cases, Sandra Day O'Connor
cast the deciding votes. The Court upheld the Michigan law school's racial-preference program. Justice Kennedy dissented
from that decision, but did so on the grounds that the decision didn't give judges adequate authority to review racialpreference programs in the future. Given this judicial-supremacist line of reasoning, it is difficult to know how
Justice Kennedy will approach the racial-preference cases the Court will hear this term. What is clear is that
Justice Kennedy enjoys being in the position of he who decides. It seems this term will offer him ample scope to
play Solomon. The problem with this "swing-vote" theory is that it trivializes the Court into a results-based political body
when there are real judicial disputes to settle. The Court would be best helped if Justice Kennedy pointed it toward clarity
rather than judicial confusion.
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Kennedy Compensates for Overrule
Kennedy wants to be perceived as centrist – he will compensate with voting.
Bilionis, Prof UNC, 2005
Louis D. Bilionis, Samuel Ashe Distinguished Professor @ UNC Chapel Hill, June 2005, “Grand Centrism and the Centrist Judicial
Personam” 83 N.C.L. Rev. 1353
We could say that Justice Kennedy is a switch-hitting centrist. When shared faith cannot serve as the centering
force, a more palatable, metaphorically centered and grounded framework that avoids the extremes of the competition
does. (Given his ability to produce rulings that please conservatives one day and liberals the next, we
also could say that Justice Kennedy can hit the ball to all fields.) It should interest us that an intelligent man
who obviously has devoted much thought to these matters has chosen to invoke both of these brands of
centrism to stake his ground in the areas that have proved most controversial during his years on the
Supreme Court. Justice Kennedy plainly perceives himself as a centrist and wishes to be perceived as one.
These are the ways he has chosen to construct a centrist judicial personam.
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I/L – Kennedy Votes for Detainees
Kennedy proven to vote in detainee cases for constitutional protection.
Feldman, Law @ Harvard, 9/28/08
(Noah Feldman, prof of Law @ Harvard, senior fellow @ Council on Foreign Relations, 9/28/08, “When Judges Make Foreign
Policy” The New York Times)
In light of these circumstances, the Bush administration seemed to believe it could treat Guantanamo as a law-free zone.
Unlike Iraq, which the administration conceded was a war zone in which the Geneva Conventions applied, Guantanamo
was initially considered legally off the grid. It is often said by liberal critics that Bush's anti-terror policies ignored the
Constitution and international law. But this is a misleading oversimplification. What the choice of Guantanamo
demonstrates, rather, is the profoundly legalistic way in which those policies were designed. Using the law itself, the
lawyers in the Bush administration set out to make Guantanamo into a legal vacuum. The court's decision in Boumediene
repudiated that attempt. The majority, led by Justice Kennedy, announced that for constitutional purposes,
Guantanamo Bay was part of the United States: the detainees there enjoyed the same rights as if they had been
held in Washington. The Boumediene decision was chiefly the accomplishment of Justice John Paul Stevens, who has
made overturning the Bush detention policies into the legacy-defining task of his distinguished career. In key opinions
issued in 2004 and 2006, Stevens chipped away at the special status asserted for Guantanamo, each time referring the
matter of judicial review for the detainees back to Congress. But Congress repeatedly approved the administration's
proposals to deny access to the courts. To win the fight even against Congress, Stevens needed Kennedy to provide the fifth
vote and hold that denying the Guantanamo detainees their day in court actually violated the Constitution. The opinion that
Kennedy wrote for the court's majority in Boumediene announced squarely that the Constitution applied to the detainees
being held in Guantanamo. Kennedy insisted that he was not overruling the precedent of the German
detainees who were denied review. Unlike the situation with the Germans after World War II, he argued, the
Guantanamo detainees had not received a hearing; the Guantanamo naval base was entirely under U.S. control; and
granting hearings was not so impractical that it would fundamentally disrupt the operation of the prison. In effect, however,
Kennedy's opinion rejected what the Bush administration claimed to be the rule that noncitizens held
outside the United States were not entitled to constitutional protection. Having refused to overturn Roe v.
Wade in the 1990s and having championed gay rights in recent years, Kennedy may now be depicted as an unlikely liberal
hero -- the latest in a line of Republican appointees (one of whom is John Paul Stevens) who gradually evolved into staunch
exponents of liberal rights. The key to Kennedy's reasoning in the Guantanamo case was his expansive
conception of the rule of law. In the central paragraph of the decision, Kennedy explained his underlying logic: if
Congress and the president had the power to take control of a territory and then determine that U.S. law does not apply
there, ''it would be possible for the political branches to govern without legal constraint ,'' he wrote.
Government without courts, Kennedy suggested, was not constitutional government at all. ''Our basic charter,'' he went on,
''cannot be contracted away like this.'' What seemed to most offend Kennedy about Guantanamo, then, was
precisely the effort by the executive branch, with the approval of Congress, to make Guantanamo into a place
beyond the reach of any law. By insisting on its own authority, the court was striking a blow for law itself. In this
way, the court embraced the ideal of the outward-looking Constitution: a document that protects the rights not
only of citizens within the United States but also of noncitizens outside its formal borders. This Constitution, by extension,
stands for the ideal of legal justice being made available to all persons -- no matter where they might be. Holding that the
Constitution did indeed follow the flag to Guantanamo was an act with tremendous international resonance. It can even be
read as an attempt to hold the Bush administration to its own rhetoric about democracy. The rule of law, after all, is not
solely an American ideal but one that is broadly shared globally. To insist that some law covers all people wherever they
may be found underscores the universality that law aims to create.
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I/L – Kennedy K2 Detainee Policy
Kennedy is crucial to ruling on detainee cases.
Greenstein, Law @ Yale, 9/17/08
(Linda Greenstein, Joseph M. Goldstein Senior Fellow in Law at Yale Law School, 9/17/08, “THE MYSTERY OF GUANTANAMO
BAY JEFFERSON LECTURE UNIVERSITY OF CALIFORNIA” 27 Berkeley J. Int'l L. 1)
[*16] For their part, Justices Stevens and Kennedy said that "despite the obvious importance of the issues raised in
these cases," the Court should follow its usual practice of withholding review until "the exhaustion of available
remedies." n79 The remedy at issue was the limited review that the Detainee Treatment Act provided in the District of
Columbia Circuit of determinations by the Combatant Status Review Tribunals that the individual detainees had been
properly classified as enemy combatants. n80 The two Justices held out the possibility that the Supreme Court would waive
the exhaustion requirement if it turned out that the government "has unreasonably delayed proceedings" or caused "some
other and ongoing injury" to the petitioners. n81 Here, indeed, was a puzzle. Justice Stevens, the author of the majority
opinions in both Rasul and Hamdan, surely agreed with the Breyer Three that Supreme Court review was appropriate at this
stage. His agreement would have provided a fourth vote, the number necessary for a grant of certiorari. The only plausible
explanation is that Justice Kennedy, who had voted with the majority in the earlier two cases, was wavering
this time. If he could not be counted on, there was nothing to be gained and much to lose by pushing him.
Justice Stevens must have decided to withhold his own vote and play for time. n82 In late April the detainees' lawyers
filed petitions for rehearing - that is, for reconsideration of the denial of certiorari - which the Administration, not
surprisingly, opposed. On June 22, with only days to go until the end of the term, the lawyers filed replies to the
government's opposition. To their reply brief, the lawyers for the Al Odah petitioners attached a document the court had not
yet seen. It was a sworn declaration filed in the District of Columbia Circuit, in another case, by Lieutenant Colonel
Stephen Abraham, a lawyer in private practice and an intelligence officer in the Army Reserve. n83 During a tour of active
duty, from September 2004 until March 2005, he served at Guantanamo Bay as a member of a Combatant Status Review
Tribunal. n84 His seven-page declaration recounted his experience and his conclusions about the serious deficiencies of the
process - the use of generic, often outdated intelligence; the denial of his request to see exculpatory information and even a
refusal by the government to acknowledge the existence of any exculpatory evidence. n85 "What were purported to be
specific statements of fact lacked even the most fundamental earmarks [*17] of objectively credible evidence," Lieut. Col.
Abraham reported. n86 In their brief, the Al Odah lawyers told the Court that as the result of the Abraham
declaration, "it is now clear that, not only is the remedy provided by the DTA inadequate, but also the
underlying CSRT process was an irremediable sham." n87 A grant of certiorari should not await
exhaustion of this flawed process, the brief maintained. n88 Justice Kennedy - perhaps others as well - was
evidently now persuaded. The Court granted rehearing on the final day of its term, June 29, 2007. n89 It is extremely
unusual for the Court to reconsider a denial of certiorari in the absence of an intervening court decision or some other
landscape-changing development. The 2007 edition of the authoritative Supreme Court Practice, noting the grant of
rehearing in these cases, calls it one of "the rare exceptions" in which such a petition has succeeded. n90 Only two other
examples are cited, one from 1930 and the other from 1947. n91 A petition for rehearing requires a majority vote
rather than the ordinary "rule of four." n92 So the Administration was now on notice that a majority of the Court was
sufficiently concerned by the sequence of events to make a once-in-a-generation reversal of course. In
granting certiorari, the Court vindicated Justice Breyer's declaration of more than five years earlier: "Our judicial system is
open." n93 From the opening pages of Justice Kennedy's 70-page opinion for the 5-to-4 court in Boumediene v.
Bush, it is apparent that something has changed. Gone is the modulated tone of the earlier opinions, replaced
by one of exasperation and something close to distress. In recounting the procedural history of the case, for example,
Justice Kennedy refers to Justice Breyer's concurring opinion two years earlier in Hamdan, which he had joined,
recalling that the opinion invited the President to go to Congress "to seek the authority he believes
necessary." n94 (This was the "democracy-forcing" aspect of Hamdan that Professor Balkin celebrated at the time. n95)
Justice Kennedy makes it clear that in the Court's view, the President and Congress misused, or at least
misconstrued that invitation: "The authority to which the concurring opinion referred was the authority to "create
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[Continued No text Omitted]
military commissions of the kind at issue' in the case. Nothing in that [*18] opinion can be construed as an
invitation for Congress to suspend the writ." n96 The change from the earlier opinions to Boumediene is much
deeper than one of tone, however. It is clear that the government's intransigence, its refusal to take a polite hint, forced the
Court to dig deeper than it originally cared to go, into the bedrock of separation-of-powers doctrine and the
sources of its own authority.
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I/L – Uighurs Need Capital
Court won’t rule against executive detainees without institutional capital
Segal et al, polisci professor, 04. Jeffrey Segal et al., Prof. pol. sci. @ Stony Broon, 2004 “The effect of war on the U.S.
Supreme Court” www.nyulawglobal.org/workingpapers/detail/documents/GLWP0304Segal.pdf
In raising this question, Grossman suggests that the justices in Korematsu were forced to think long and hard
about President Roosevelt’s response to a decision adverse to his order. Apparently, though, pressure from the
same administration in the Nazi saboteur case, Ex Parte Quirin,130 avoided any need for Court members to cull subtle and
not-so-subtle historical signals.131 According to Turley: Roosevelt’s Attorney General Francis Biddle warned that
the president would not accept anything but total support from the court [in the Quirin case]. Justice Owen J.
Roberts conveyed this warning to the whole court in its conference on July 29, 1942. He informed his
colleagues that the President intended to have all eight men shot if the Court did not acknowledge his
authority, warning that they must avoid such a “dreadful” confrontation.132 Similar, though perhaps less overt, political
pressure continued with President George W. Bush’s Justice Department leveling threats against appellate
courts it believes have contravened anti-terrorism measures passed in the wake of September 11th . For
example, after the Fourth Circuit ruled, in United States v. Moussaoui,133 that the defendant facing trial for
the September 11th attacks should be allowed to interview a captured Al Qaeda member as a potential
witness to his case, the Justice Department defied the order in the name of national security. It also
threatened to move the prosecution to a military tribunal.134 What these stories suggest is that when the
political branches credibly threaten to circumvent or ignore disliked outcomes, the Supreme Court is
well advised to exercise “passive virtues.”135 Rather than squandering its resources on “ineffective
judgments,”136 as Alexander Bickel warned, the Court ought and does assume a more deferential stance.
Institutional legitimacy thereby may become an implicit decision calculus that leads justices to issue
decidedly different opinions during times of war.137 In addition, because concerns over institutional
legitimacy are constant, the Court must follow precedent established during wartime even after the
crisis dissipates. If it does not, it once again may risk undermining its fundamental efficacy. That is so for
several reasons, not the least of which is that members of legal and political communities base their future
expectations on the belief that others will follow existing rules. Should the Court make a radical change in
those rules, the communities may be unable to adapt, resulting in a decision that does not produce a (new) efficacious rule.
If a sufficient number of such decisions accumulate overtime, the Court will undermine its legitimacy.
Hence, the norm of stare decisis can constrain the decisions of all justices, even those who do not
believe they should be constrained by past decisions or who dislike extant legal principles.
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Perceived Cap Spillsover
Perceived institutional capital with the executive spills over to other decisions
Friedman, NYU Law Professor, 05. Barry Friedman, Law @ NYU, December 2005 “The politics of judicial review” 84 Tex.
L. Rev. 257
Even a quick glance at history, however, suggests that there is something to the constitutional separation-of-powers game.
Although amending the Constitution is difficult, the political branches retain a broad arsenal of weapons to use
against a troublesome judiciary. Judges may be impeached, jurisdiction may be stripped, courts may be
packed, and judicial [*314] budgets may be cut. 313 It is not as if the other players have no moves in response to
constitutional decisions they dislike. 314 It is true that the other branches rarely deploy these weapons against the judiciary
- at least in recent memory - but the doctrine of anticipated reaction holds that the political branches can
both keep the powder dry and the judiciary in check. History is certainly replete with instances in which
these measures have been employed. 315 A candid view of that history, as well as some empirical study, compel the
conclusion that judicial change in constitutional doctrine is correlated with utilization of these courtdisciplining measures, or the threat to do so. Under threat of judicial impeachments, John Marshall
offered to give up the judiciary's last word on constitutional questions. 316 Jurisdiction was stripped in
a manner that prevented the Supreme Court from ruling on the constitutionality of Reconstruction at a
critical moment, and the Court acquiesced. 317 The Court's size was changed at several points during the Civil
War and Reconstruction and, in at least one famous instance, this had an immediate and substantial impact. 318 Roosevelt's
Court-packing plan did not succeed in changing the size of the Court, but the doctrine itself changed quickly enough [*315]
thereafter. 319 Congress threatened to strip jurisdiction after Red Monday and the Court moderated its
views. 320 To this day, Justices demonstrate an awareness of these historical events as a nod toward the
Court's relatively fragile position. 321 The game need not be one of all sticks and no carrots. The Court has more
at stake than avoiding attack. Preserving institutional integrity and power requires judges to ensure that
their orders are implemented by the other branches. 322 The Supreme Court can bluster all it wants about its
place as ultimate interpreter of the Constitution, but implementation is not guaranteed, and the Court is unlikely
to go ordering a lot of things that are just not going to happen. 323 Andrew Jackson's apocryphal quip, "John
Marshall has made his order, now let him enforce it," captures the sentiment, as did Georgia's hanging of Corn Tassels after
Marshall's Court ordered it not to. 324 In recent memory, the Court was careful to ensure that Richard Nixon
would comply with its order compelling the production of the tapes before issuing it. 325 As with the
sticks, there is evidence that implementing the carrot has its influence on the Court. 326 [*316] There are reasons to believe
the separation-of-powers game actually is easier to play in the constitutional than in the statutory area. William Eskridge
and Phillip Frickey explain the importance of "signals" to the interbranch game. 327 Signals by the players permit
the other players to calculate what the response to a given decision might be. In the constitutional area
the issues are often quite salient, so the Court receives lots of information about what reaction to
anticipate. 328 This is particularly the case if one takes account of the President's role in the separation-of-powers game,
which much of the positive literature does not. The President not only fills an essential institutional role with
regard to implementation of judicial orders and challenges to judicial authority, but he also has the bully
pulpit and plays a clear leadership role. 329 The President also has an agent - the Solicitor General - who appears
regularly before the Court and whose influence there is demonstrable. 330 Thus, in constitutional cases the Justices
have plenty of leads to follow, enough so it would seem that they could coordinate their behavior tacitly.
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Uighurs K2 Detainee Policy
Kiyemba having big influence on detainee policy.
Lyle Denniston, SCOTUSblog reporter, 3-16-2009. [SCOTUSblog, Commentary: Widening impact for Kiyemba,
http://www.scotusblog.com/wp/commentary-widening-impact-for-kiyemba/]
Kiyemba was broad enough that another District judge has wondered whether it left lower court
judges any discretion about how to define the category of terrorism suspects who may be detained. Judge
Randolph also is serving on the panel that is now weighing whether to permit four former detainees at
Guantanamo to go ahead with their claims of illegal torture while being held at the U.S. Navy prison in Cuba.
That is the case of Rasul v. Myers (Circuit docket 06-5209). Last week, Obama Administration lawyers urged the
Rasul panel to impose a sweeping ban on lawsuits against U.S. military officials , claiming constitutional
violations by those officials. In doing so, those lawyers relied in part on Judge Randolph’s Kiyemba opinion,
And
citing it for the proposition that “aliens held at Guantanamo” do not have any constitutional due process right to challenge
the conditions of their confinement. The Administration also noted — without contesting it — that the Kiyemba
opinion had found that the Supreme Court’s Boumediene v. Bush decision last June was limited only to
one constitutional finding: that detainees may challenge their detention, leaving open to lower courts whether detainees
have any other constitutional rights. (When the Boumediene decision was at the Circuit Court level, before the Supreme
Court took it on, Judge Randolph wrote the opinion concluding that Guantanamo detainees have no
constitutional rights of any kind, including habeas.) As of now, the only legal rights that Guantanamo
detainees definitely have is the habeas right, although that is now facing perhaps considerable narrowing. The
other legal right that detainees formerly had — a right to challenge detention decisons made by military panels, under a law
passed by Congress (the 2005 Detainee Treatment Act) — has now been cast aside by the Circuit Court (Bismullah v.
Gates, docket 06-1197, decided Jan. 9.) Judge Randolph was not on the Bismullah panel, but that outcome was triggered
mainly by a decision last November by a panel on which Randolph was a joint author (Basardh v. Gates, 07-1192).
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If Kiyemba is not reversed, it will give the executive a blank check of power.
Eric A. Tirschwell, J.D., attorney at Kramer, Levin, NAFTALIS & FRANKEL LLP, et al., April 2009. [
JAMAL KIYEMBA, et al., Petitioners, v. BARACK H. OBAMA, et al., Respondents.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT PETITION FOR WRIT OF CERTIORARI]
In the decision below (“Kiyemba”), a panel major- ity of the court of appeals held that Article III courts are powerless to
remedy indefinite and illegal Execu- tive detention of prisoners within their habeas jurisdic- tion. If allowed to stand, the
decision would eviscerate this Court’s landmark decision in Boumediene v. Bush, 553 U.S. ---, 128 S. Ct. 2229 (2008).1 In
this case, the Executive presented for payment, and the Kiyemba majority honored, the “blank check” the Court forbade five
years ago. See Hamdi v. Rums- feld, 542 U.S. 507, 536 (2004) (plurality). Notwith- standing Hamdi, Rasul v. Bush, 542
U.S. 466 (2004), and Boumediene, the panel majority inverted the Court’s decree that the Executive cannot “switch the
Constitution on or off at will.” Boumediene128 S. Ct. at 2259. Indeed, the Executive has construed Kiyemba in precisely this
way, contending in recent filings that habeas proceedings brought by prisoners approved for transfer should be stayed
because, after Kiyemba, no court can relieve a Guantánamo detainee’s imprisonment.2 The Great Writ requires the jailer to
identify in a return to the petition the law that justifies imprison- ment. Kiyembar everses this burden. Under Kiyemba, the
jailer needs no legal authorization to deny freedom, and the prisoner needs the express authorization of Congress to claim it.
And while these Petitioners are aliens, the question whether it is for the prisoner to jus- tify release or the jailer to justify
imprisonment arises from every detention. It would be hard to overstate the importance of the question presented in this
case— to the rule of law and to the public. The question is fundamental, and there is every need for this Court’s immediate
intervention.
Reversal is necessary to preserve separation of powers.
Eric A. Tirschwell, J.D., attorney at Kramer, Levin, NAFTALIS & FRANKEL LLP, et al., April 2009. [
JAMAL KIYEMBA, et al., Petitioners, v. BARACK H. OBAMA, et al., Respondents.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT PETITION FOR WRIT OF CERTIORARI]
In a constitutional sense, the President’s discretionary release of a prisoner is no different from his discre- tionary
imprisonment: each proceeds from his un-checked power. The question presented here is whether the Third Branch may
check the Second at all. If ha- beas review may be shelved because one President may some day undo what his predecessor
did, then the law is whatever the sitting President says it is, and the ju- diciary is the handmaiden of the political branches.
Habeas and the separation of powers cannot wait for politics. Without the Court’s intervention now, in this case, six years of
excruciating appellate litigation will end with the evisceration of the Great Writ, and the separation of powers will be reduced
to quaint history. All relief would hereafter be diplomatic, and located entirely and completely within the discretion of the
jailer himself.
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Uighurs K2 Guantanamo
Uighur release key to closing Guantanamo.
Ritt Goldstein, staff writer, 5-12-2009. [Christian Science Monitor, Diplomatic memos reveal Chinese effort to block
Guantánamo prisoner's asylum bid, p. http://www.csmonitor.com/2009/0512/p06s13-woeu.html]
Resettling the remaining 17 Uighur prisoners is widely viewed as a critical milestone in the Obama
administration's plan to close the prison camp. If Sweden's example is any indication, the imprisoned Uighurs
present a foreign-policy Gordian knot.
The men are members of a largely Muslim minority in western China. They have been ruled innocent, but are
considered terrorists at home. And while they are among the 30 of Guantánamo's 241 remaining prisoners
who have been cleared for release, they remain behind bars.
Circuit decision means no detainees can be freed, blocking Obama’s efforts to end Guantanamo.
Lyle Denniston, SCOTUSblog reporter, 6-29-2009. [SCOTUS Blog, Detainees’ case put off
http://www.scotusblog.com/wp/detainees-case-put-off/]
In the meantime, the D.C. Circuit Court’s ruling in the Kiyemba case — a declaration that no federal judge has any authority to
order the release of Guantanamo detainees, at least when the prisoners seek to be transferred to the U.S. — will remain
unreviewed and thus fully intact. Although it applies formally only to an order to transfer the Uighurs to the U.S. to live,
federal District judges in other habeas cases have interpreted the Circuit Court decision to mean that they can not order the
actual release of any Guantanamo detainee, but can only urge the government to take diplomatic steps to release those who are
eligible. Thus, the combined effects of the Kiyemba decision by the Circuit Court and the new legislative limits imposed by
Congress may seriously complicate President Obama’s efforts to fashion new detention policy and to take control over the fate
of the 229 detainees remaining at Guantanamo.
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Court failure to remedy indefinite detention
Brennan Center 08. 11-24-08. Amicus Brief from the Brennan Center for Justice at New York University School of Law, The
Constitution Project, The Rutherford Institute, and the National Association of Criminal Defense Lawyers in Support of PlaintiffsAppellees and Urging Affirmance. http://ccrjustice.org/files/Brennan%20Center%20-%20Amicus%20Brief.pdf
This appeal presents a challenge to the Judiciary’s central role in the Constitution’s Separation of Powers. The Suspension
Clause prohibits the Executive Branch entirely, and the Legislative Branch except in declared instances of “Rebellion or
Invasion," from intruding on the Judiciary’s power to decide habeas petitions and to grant habeas relief where liberty has
been denied without lawful basis. U.S. Const. art. I, § 9, cl. 2. The essence of habeas is a court’s power to order
release if no lawful basis for the continued denial of liberty exists. The Executive claims here that the
courts have no effective power to remedy the indefinite detention of conceded non-enemy-combatants
who were forcibly taken into U.S. custody. This claim is inconsistent with the Suspension Clause and
with Boumediene v. Bush. 128 S. Ct. 2229 (2008). Habeas without a remedy is nothing but the issuance of an advisory
opinion—and if accepted would amount to a forbidden Executive suspension of the Great Writ. The Great
Writ—which is integral to the Constitution’s system of checks and balances—requires a meaningful remedy
if it is to serve its core purpose of checking unlawful Executive action. The Executive’s "wind up" argument,
moreover, is little more than a euphemism for indefinite detention in defiance of final judgment from a habeas court and, in
effect, an executive suspension of the Writ.
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No Release Undermines Article III
Denial of release seriously undermines Article III
Brennan Center 08. 11-24-08. Amicus Brief from the Brennan Center for Justice at New York University School of Law, The
Constitution Project, The Rutherford Institute, and the National Association of Criminal Defense Lawyers in Support of PlaintiffsAppellees and Urging Affirmance. http://ccrjustice.org/files/Brennan%20Center%20-%20Amicus%20Brief.pdf
The Executive’s claim conflicts with the Separation of Powers in two ways. First, the Executive’s
argument would mean that federal courts lack the ability to provide meaningful redress for these
petitioners. But this would violate Article lll, under which courts can only entertain cases or
controversies in which they are able to redress the wrongs asserted. In the case of these habeas petitioners,
who are deprived of their liberty without any legal justification, the sole remedy that will redress their injury is release. The
Executive’s argument would deprive the federal courts of the ability to grant redress, threatening to turn habeas proceedings
into advisory proceedings—a result clearly at odds with the Supreme Court’s holding that the Suspension Clause and
habeas rights apply to the Guantanamo detainees. Boumediene, l28 S. Ct. at 2262. Second, the Executive seeks to
interfere with the Court's Article lll authority in another way: The {judicial power" to adjudicate cases
and controversies provides the power to issue final judgments not subject to revision by the Executive.
Hayburn 's Case, 2 U.S. (2 Dall.) 408 (l792). By insisting that a habeas court’s release order is subject to the
superior authority of the Executive to refuse release or to release at its will in the exercise of “wind-up” authority,
the Executive branch effectively would eliminate the Court’s power to issue final and dispositive rulings
in violation of both Article III and the Suspension Clause.
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Uighur case requires court to stand up to political pressure—key to US soft power
Sloan 7-2 — Ginny Sloan, Huffington Post, 7-2-9 “A Gitmo Tragedy: The Uighurs”
http://www.huffingtonpost.com/ginny-sloan/a-gitmo-tragedy-the-uighu_b_225008.html
In an unexpected move on Monday, the United States Supreme Court put off deciding whether to hear the remaining
Uighurs' case, Kiyemba v. Obama, until they convene again in the fall. The Uighurs seek review of a D.C. Circuit
decision holding that courts lack the power to order the executive branch to release them, even though a court has found that
their detention lacks any legal basis. After years of delay and disappointment, the Kiyemba case represented a glimmer of
hope for the wrongfully imprisoned men. The Supreme Court's failure to take decisive action--while not an
outright rejection of the Uighurs' petition--leaves the promise of their release unfulfilled, a dream deferred.
Before the case is even considered, the Uighurs will remain at Guantanamo for several more months, unless either political
branch steps up. Thus far, however, the legislative and executive branches have been moving in the opposite direction.
Congress has created a culture of fear in Washington, with members rushing to introduce bills that would prevent any
detainees from being transferred into their districts. Just last week, Congress passed a supplemental appropriations measure
that included provisions severely restricting the president's authority to bring any of the Guantanamo detainees into the
United States - for trial or release. The Uighurs, who cannot be repatriated to China, their homeland, due to state-sponsored
persecution, are now prohibited from being released into the United States, at least until the appropriations bill expires at the
end of the fiscal year. President Obama, for his part, has not done much better. Reacting to political pressure, he
signed the supplemental appropriations bill into law, undermining his efforts to shut down Guantanamo in the
process. And he continues to assert the authority to detain the Uighurs though they have won their habeas cases and pose no
security threat to our country. While his administration successfully resettled four Uighur detainees in Bermuda, attempts to
move the remaining detainees to the island nation of Palau or other countries have been unsuccessful thus far. The president
missed his opportunity, before this bill became law, to resettle some of the remaining Uighurs in the United States. Local
Uighur communities offered to help these men integrate into our society. Of more strategic importance, by accepting
its share of responsibility, the United States would have sent a clear signal to our allies, encouraging
other countries to partner with us to fulfill the promise to close the Guantanamo detention facility in one year's
time. Instead, the administration now faces an uphill battle in any efforts to find alternative homes for these
wrongfully detained men. At this rate, it may still be up to the Supreme Court next fall to finally provide
justice for the Uighurs.
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Uighur case k2 habeas rights
Constitution project 5-7. 5-7-09. “Constitution Project Files Brief Urging Supreme Court to Hear Uighur Detention Case.”
Constitution
Project
[independent
think
tank
that
promotes
and
defends
constitutional
safeguards].
http://www.commondreams.org/newswire/2009/05/07-12
The groups argue that in order to give effect to the Supreme Court's 2008 Boumediene decision recognizing
the rights of Guantanamo detainees to file habeas corpus petitions, courts must have the power to order
the release of detainees admitted not to be enemy combatants. The Constitution Project filed the brief along
with the Brennan Center for Justice, the Rutherford Institute, the National Association of Criminal Defense Lawyers, and
the City of New York Bar Association. The Constitution Project also calls on the Obama administration to release the
Uighurs now, without waiting for action by the Supreme Court. The United States cannot repatriate them to China because
of state-sponsored persecution and it has not found another country willing to accept them. The following may be
attributed to Sharon Bradford Franklin, Senior Counsel with the Constitution Project: "If left in force, the
D.C. Circuit's decision would completely undermine the habeas rights recognized by the Supreme Court last
year. The trial court and the prior Bush administration both recognized that the Uighurs are not enemy
combatants and therefore the executive branch lacks the authority to continue to detain them at
Guantanamo. Our brief urges the Supreme Court to accept review and make clear that habeas review includes the
power to order release where appropriate.
Uighur case already setting sweeping precedents for disregarding habeas rights – only reversal restores
those rights as well as federal checks and balances
Rosdeitcher, Oh, and Russell 5-7. SIDNEY S. ROSDEITCHER , ALEX YOUNG K. OH , WHITNEY D. RUSSELL. May 7,
2009. “On Petition for Writ of Certiorari to the United States Court of Appeals for the District of Columbia,” BRIEF FOR THE
ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK, THE BRENNAN CENTER FOR JUSTICE AT THE NEW YORK
UNIVERSITY SCHOOL OF LAW, THE CONSTITUTION PROJECT, THE RUTHERFORD INSTITUTE, AND THE NATIONAL
ASSOCIATION OF CRIMINAL DEFENSE LAWYERS AS AMICI CURIAE IN SUPPORT OF PETITIONERS.
http://www.constitutionproject.org/manage/file/145.pdf
Amici demonstrate the following: first, the remedy of release is inherent in the Great Writ; second, the power
to order release is pivotal to the function of the Suspension Clause in the Separation of Powers as a
check on unlawful Executive detention; and third, without the authority to order release in this case, the
judicial power of Article III courts to enter binding judgments not subject to revision by the political
branches is vitiated. Finally, Amici submit that there is an urgent need for this Court’s review because the
court of appeals’ erroneous decision, as binding circuit precedent to the lower courts now entertaining
more than 200 habeas petitions in the District of Columbia, compels the lower courts to disregard
Boumediene. Indeed, one district court already has held that although there is no lawful basis to detain
the petitioner in the case before it, it has no power to order his release in light of Kiyemba. See Basardh
v. Obama, No. 05-889, 2009 WL 1033193, at *4 (D.D.C. Apr. 15, 2009). Sound principles of judicial economy therefore
require this Court’s intervention to restore the full meaning of Boumediene.
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Uighurs K2 Habeas Rts (2/3)
The power of release disputed in the Uighur case is central to and necessary for habeus rights and Article
III powers
Rosdeitcher, Oh, and Russell 5-7. SIDNEY S. ROSDEITCHER , ALEX YOUNG K. OH , WHITNEY D. RUSSELL. May 7,
2009. “On Petition for Writ of Certiorari to the United States Court of Appeals for the District of Columbia,” BRIEF FOR THE
ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK, THE BRENNAN CENTER FOR JUSTICE AT THE NEW YORK
UNIVERSITY SCHOOL OF LAW, THE CONSTITUTION PROJECT, THE RUTHERFORD INSTITUTE, AND THE NATIONAL
ASSOCIATION OF CRIMINAL DEFENSE LAWYERS AS AMICI CURIAE IN SUPPORT OF PETITIONERS .
http://www.constitutionproject.org/manage/file/145.pdf
THE POWER TO ORDER RELEASE IS INHERENT IN THE GREAT WRIT, IS REQUIRED BY
SEPARATION OF POWERS PRINCIPLES, AND IS NECESSARY FOR THE PROPER EXERCISE
OF ARTICLE III JURISDICTION. The Suspension Clause plays a critical role in the Constitution’s Separation of
Powers architecture. U.S. Const. art. I, § 9, cl. 2 (“The Privilege of the Writ of Habeas Corpus shall not be suspended,
unless when in Cases of Rebellion or Invasion the public Safety may require it.”). If courts have no ability to order a
meaningful remedy in the face of unlawful Executive detention, as the court of appeals held, the Great
Writ has no function in the Separation of Powers, and the Article III power of the courts is undermined.
Only through certiorari review of the court of appeals’ decision can this Court effectively preserve the full
panoply of Article III powers as a check on unlawful Executive detention.
Habeus rights would be useless if the Court didn’t respect them in the Uighur case
Rosdeitcher, Oh, and Russell 5-7. SIDNEY S. ROSDEITCHER , ALEX YOUNG K. OH , WHITNEY D. RUSSELL. May 7,
2009. “On Petition for Writ of Certiorari to the United States Court of Appeals for the District of Columbia,” BRIEF FOR THE
ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK, THE BRENNAN CENTER FOR JUSTICE AT THE NEW YORK
UNIVERSITY SCHOOL OF LAW, THE CONSTITUTION PROJECT, THE RUTHERFORD INSTITUTE, AND THE NATIONAL
ASSOCIATION OF CRIMINAL DEFENSE LAWYERS AS AMICI CURIAE IN SUPPORT OF PETITIONERS.
http://www.constitutionproject.org/manage/file/145.pdf
The central function of habeas — to liberate those subject to illegal detention — would be rendered
meaningless if courts were powerless to order release in a case to which habeas jurisdiction extended
under the Suspension Clause. As Chief Justice Marshall warned in Ex parte Bollman, 8 U.S. (4 Cranch) 75, 95
(1807), the privilege of the Great Writ embodied in the Suspension Clause would be “lost” if there were no
“efficient means by which this great constitutional privilege should receive life and activity.” Id.; see also
Brief of Amici Curiae, Legal and Historical Scholars, in Support of Pet’rs at 8-12, Kiyemba v. Bush, No. 08-5424-29, 2008
WL 4809207 (D.C. Cir. Oct. 31, 2008) (describing the history of the Great Writ in colonial American courts to demonstrate
that the writ is meaningless without a remedy).
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Uighurs K2 Habeas Rts (3/3)
Release is critical to habeas rights
Brennan Center 08. 11-24-08. Amicus Brief from the Brennan Center for Justice at New York University School of Law, The
Constitution Project, The Rutherford Institute, and the National Association of Criminal Defense Lawyers in Support of PlaintiffsAppellees and Urging Affirmance. http://ccrjustice.org/files/Brennan%20Center%20-%20Amicus%20Brief.pdf
At bottom, therefore, the Executive’s breathtaking claim is that it can subject any Guantanamo
detainee to “indefinite detention" despite a federal-court release order because of a remedial vacuum.
Gov’t Br. at 32-34 (emphasis added).° This claim is inconsistent with the Suspension Clause. The essence of
habeas is the court’s power to order release if no basis for a continued denial of liberty exists. The
power to order release follows inexorably from the Great Writ’s practical function in our Separation of
Powers-—ending unlawful executive detention. "The very core of liberty secured by our Anglo-Saxon system of
separated powers has been freedom from indefinite imprisonment at the will of the Executive" Hamdi, 542 U.S. at 554-55
(Scalia, J., dissenting); see also INS v. Sr. Cyr, 533 U.S. 289, 301 (2001) ("At its historical core, the writ of habeas corpus
has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been
strongest?). Hence, as the Supreme Court recently explained, to play its necessary constitutional function, the
"typical remedy" in habeas is “release” for a petitioner whose detention has been found to be unlawful.
See Munqf 128 S. Ct. at 221 l; Preiser v. Rodriguez, 4l l U.S. 475, 484 (1973) (“[T]he traditional function of the writ is to
secure release from illegal custody.").
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Habeas Rts check detention
Only habeas rights check lawless Executive detention
Rosdeitcher, Oh, and Russell 5-7. SIDNEY S. ROSDEITCHER , ALEX YOUNG K. OH , WHITNEY D. RUSSELL. May 7,
2009. “On Petition for Writ of Certiorari to the United States Court of Appeals for the District of Columbia,” BRIEF FOR THE
ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK, THE BRENNAN CENTER FOR JUSTICE AT THE NEW YORK
UNIVERSITY SCHOOL OF LAW, THE CONSTITUTION PROJECT, THE RUTHERFORD INSTITUTE, AND THE NATIONAL
ASSOCIATION OF CRIMINAL DEFENSE LAWYERS AS AMICI CURIAE IN SUPPORT OF PETITIONERS.
http://www.constitutionproject.org/manage/file/145.pdf
A federal court properly exercising jurisdiction under the Suspension Clause must have the practical power to
remedy a concededly illegal detention in order to give effect to the Great Writ’s crucial function in the
Separation of Powers scheme. See Boumediene, 128 S. Ct. at 2246 (“[T]he Framers deemed the writ to be an essential
mechanism in the separation-of-powers scheme.”). As its common law history suggests, see supra, the Framers
selected the Great Writ for inclusion in the Constitution because it alone among the prerogative writs could
provide a practical and efficacious remedy against lawless Executive detention. The Great Writ “allows
the Judicial Branch to play a necessary role in maintaining [the] delicate balance of governance, serving as an
important judicial check on the Executive’s discretion in the realm of detentions.” Hamdi v. Rumsfeld, 542 U.S.
507, 536 (2004) (plurality).
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Habeas K2 Check Gov’t
Habeas rights key to freedom from arbitrary government action
Brennan Center 08. 11-24-08. Amicus Brief from the Brennan Center for Justice at New York University School of Law, The
Constitution Project, The Rutherford Institute, and the National Association of Criminal Defense Lawyers in Support of PlaintiffsAppellees and Urging Affirmance. http://ccrjustice.org/files/Brennan%20Center%20-%20Amicus%20Brief.pdf
The release power is how habeas safeguards not just physical liberty, but also the freedom from
arbitrary government action that is the essence of a Gee society. To achieve this end, habeas "cuts through all the
forms and goes to the very tissue of the structure." Frank v. Mangum, 237 U.S. 309, 346 (I9l5) (Holmes, J.,
dissenting); accord Hensley v. Municpal Court, 4l l U.S. 345, 350 (l973 ). The heart of the matter here is the
Executive’s claim to be able to indefinitely detain non-enemy-combatants whose detention has been
found un1awful—a claim that is fundamentally inconsistent with the basic structures of our democratic
and free society.
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SOP K2 liberty
Separation of Powers k2 individual liberty and freedom from unlawful restraint
Rosdeitcher, Oh, and Russell 5-7. SIDNEY S. ROSDEITCHER , ALEX YOUNG K. OH , WHITNEY D. RUSSELL. May 7,
2009. “On Petition for Writ of Certiorari to the United States Court of Appeals for the District of Columbia,” BRIEF FOR THE
ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK, THE BRENNAN CENTER FOR JUSTICE AT THE NEW YORK
UNIVERSITY SCHOOL OF LAW, THE CONSTITUTION PROJECT, THE RUTHERFORD INSTITUTE, AND THE NATIONAL
ASSOCIATION OF CRIMINAL DEFENSE LAWYERS AS AMICI CURIAE IN SUPPORT OF PETITIONERS.
http://www.constitutionproject.org/manage/file/145.pdf
The Constitution’s Separation of Powers secures individual liberty from unlawful or arbitrary restraint
and is one of freedom’s first principles. Cf. Boumediene, 128 S. Ct. at 2277 (“Security subsists, too, in fidelity to
freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty
that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to
consider petitions for habeas corpus relief derives.”); Hamdi, 542 U.S. at 554-55 (Scalia, J., dissenting) (“The
very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from
indefinite imprisonment at the will of the Executive.”); accord INS v. St. Cyr, 533 U.S. 289, 301 (2001).
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Release K2 Check Exec
Release is the only way to ensure a law-abiding Executive
Rosdeitcher, Oh, and Russell 5-7. SIDNEY S. ROSDEITCHER , ALEX YOUNG K. OH , WHITNEY D. RUSSELL. May 7,
2009. “On Petition for Writ of Certiorari to the United States Court of Appeals for the District of Columbia,” BRIEF FOR THE
ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK, THE BRENNAN CENTER FOR JUSTICE AT THE NEW YORK
UNIVERSITY SCHOOL OF LAW, THE CONSTITUTION PROJECT, THE RUTHERFORD INSTITUTE, AND THE NATIONAL
ASSOCIATION OF CRIMINAL DEFENSE LAWYERS AS AMICI CURIAE IN SUPPORT OF PETITIONERS.
http://www.constitutionproject.org/manage/file/145.pdf
Only Congress can suspend the constitutional guarantee against arbitrary detention, and only under specific, narrow
circumstances not present here. See U.S. Const. art. I, § 9, cl. 2. The Suspension Clause thus applies to Petitioners with
undiminished force. To effectuate the role of the Great Writ within the scheme of Separation of Powers,
therefore, the district court must have power to end Petitioners’ concededly unsupportable detention. See
Boumediene, 128 S. Ct. at 2269 (for the writ to have meaning and fulfill its constitutional role, it “must be effective”).
Only release effectuates the Great Writ’s constitutional function of ensuring that the Executive acts in
accordance with law, and does not abuse the awesome powers delegated to it by the People in 1789. See
Wales v. Whitney, 114 U.S. 564, 572 (1885) (any time there is “actual confinement or the present means of enforcing it,”
the Writ may issue, commanding release).
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Overrule K2 Chk Prez Pwrs
Court of appeals decision gives too much judicial power to the executive – violates fundamental principle
of the Constitution
Rosdeitcher, Oh, and Russell 5-7. SIDNEY S. ROSDEITCHER , ALEX YOUNG K. OH , WHITNEY D. RUSSELL. May 7,
2009. “On Petition for Writ of Certiorari to the United States Court of Appeals for the District of Columbia,” BRIEF FOR THE
ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK, THE BRENNAN CENTER FOR JUSTICE AT THE NEW YORK
UNIVERSITY SCHOOL OF LAW, THE CONSTITUTION PROJECT, THE RUTHERFORD INSTITUTE, AND THE NATIONAL
ASSOCIATION OF CRIMINAL DEFENSE LAWYERS AS AMICI CURIAE IN SUPPORT OF PETITIONERS.
http://www.constitutionproject.org/manage/file/145.pdf
The court of appeals upended these principles. Without disturbing the district court’s finding with respect to the
Executive’s lack of authority to hold Petitioners as “enemy combatants,” the court of appeals nonetheless held that
the district court erred because it failed to acknowledge the Executive’s authority to deprive that
judgment of effect on immigration grounds. In short, in the court of appeals’ judgment, the Executive
has the option not to give effect to a district court’s judgment that Petitioners may not be detained so
long as the Executive “continu[es] diplomatic attempts to find an appropriate country willing to admit
petitioners.” Kiyemba, 555 F.3d at 1029.4 The court of appeals’ judgment represents an impermissible
abdication of responsibility to the Executive to revise, suspend, or simply disregard the final judgment
of a federal court in violation of the principles of Separation of Powers embodied in Hayburn’s Case and over
200 years of subsequent jurisprudence. Because Article III does not permit the political branches to undo a
final judgment without violating a “fundamental principle” of the Constitution, Plaut, 514 U.S. at 219, the
court of appeals’ contrary decision must be reversed as a threat to the autonomy of Article III courts.
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Kiyemba spills over – over 200 habeas petitions pending.
Rosdeitcher, Oh, and Russell 5-7. SIDNEY S. ROSDEITCHER , ALEX YOUNG K. OH , WHITNEY D. RUSSELL. May 7,
2009. “On Petition for Writ of Certiorari to the United States Court of Appeals for the District of Columbia,” BRIEF FOR THE
ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK, THE BRENNAN CENTER FOR JUSTICE AT THE NEW YORK
UNIVERSITY SCHOOL OF LAW, THE CONSTITUTION PROJECT, THE RUTHERFORD INSTITUTE, AND THE NATIONAL
ASSOCIATION OF CRIMINAL DEFENSE LAWYERS AS AMICI CURIAE IN SUPPORT OF PETITIONERS.
http://www.constitutionproject.org/manage/file/145.pdf
The court of appeals’ holding that there is no remedy available to Petitioners under the Suspension Clause
despite their detention by the Executive without authority directly conflicts with this Court’s holding in
Boumediene. The decision also erroneously forces the district court judges in the D istrict of C olumbia
who are currently hearing the 200+ habeas petitions that have been filed by detainees at Guantánamo to
disregard Boumediene.6 See Basardh, 2009 WL 1033193, at *4 (“[T]he Court grants the petition for a writ of habeas
corpus. The court further orders the government to take all necessary and appropriate diplomatic steps to facilitate
petitioner’s release forthwith. The Court, however, must deny petitioner’s request that he be released into this country or be
transported to a safe haven in light of Kiyemba”). This Court should grant certiorari and exercise its
supervisory powers to ensure that the lower courts follow Boumediene. As Amici have shown, the court of
appeals’ judgment is plainly inconsistent with the Boumediene decision. Without overtly repudiating that binding
authority, the Court of Appeals has rendered it a nullity. But Article III of the Constitution establishes one court that is
“supreme” to the “inferior” courts that “Congress may from time to time ordain and establish.” U.S. Const. art. III, § 1.
This system of courts relies on the Supreme Court to play a supervisory role to ensure definitive
settlement of legal issues and uniform application of federal law. See, e.g., Larry Alexander & Frederick
Schauer, On Extrajudicial Constitutional Interpretation, 110 Harv. L. Rev. 1359, 1371 (1997) (noting that the Supreme
Court performs an important coordination function by settling what the law dictates); Evan H. Caminker, Why Must
Inferior Courts Obey Superior Court Precedents?, 46 Stan. L. Rev. 817 (1994) (setting out historical, formalist, and
consequentialist reasons why lower federal courts are bound by Supreme Court precedent). Accordingly, holdings of
Supreme Court decisions are binding on the federal appellate and trial courts. Thurston Motor Lines Inc. v. Jordan K.
Rand, Ltd., 460 U.S. 533, 535 (1983) (“[O]nly this court may overrule one of its precedents.”); see Hutto v. Davis, 454 U.S.
370, 375 (1982) (per curiam) (“[U]nless we wish anarchy to prevail within the federal judicial system, a
precedent of this Court must be followed by the lower federal courts no matter how misguided the
judges of those courts may think it to be.”). The court of appeals’ opinion undermines that careful
hierarchy. In Boumediene, the Court expressly held that the Suspension Clause extends to detainees
held at Guantánamo Bay, and that “the habeas court must have the power to order the conditional
release of an individual unlawfully detained. . . .” 128 S. Ct. at 2238 (internal citations omitted).7 Indeed, this
Court found the judicial review procedure outlined in the Detainee Treatment Act, Pub. L. No. 109-148, 119 Stat. 2680
(2005) (“DTA”) — which Congress intended as a substitute for habeas at Guantánamo — to be an inadequate substitute, in
part, because of its ambiguity with respect to the courts’ power to order the “constitutionally required” remedy of release.
See Boumediene, 128 S. Ct. at 2271. Defying this holding of Boumediene, however, the court of appeals stated, “it ‘is not
within the province of any court, unless expressly authorized by law,’” to order Petitioners’ release into the United States.
Kiyemba, 555 F.3d at 1026. The Court of Appeals’ ruling is a naked repudiation of the Boumediene
judgment.8 As circuit precedent, Kiyemba also undermines the more than 200 petitions for writs of
habeas corpus that have been filed by detainees at Guantánamo in the D istrict C ourt for the District of
Columbia. Unless this Court grants certiorari and reverses Kiyemba, the district courts hearing these
habeas petitions will be left with no role but issuing advisory opinions. See Parhat v. Gates, 532 F.3d 834,
850 (D.C. Cir. 2008) (Garland, J.) (stating that the court’s authority to order the release of a detainee is implicit in the DTA,
for “[w]ere that not the case, the DTA would consign the court to issuing an endless series of effectively advisory opinions
on the quality of the government’s evidence”).
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Soft Power K2 Heg
Soft power key to hegemony
Nye, Prof Int’l Rel’ns Harvard, 4/13/04
Joseph Nye, Distinguished Service Professor and Sultan of Oman Professor of International Relations at Harvard’s John F. Kennedy
School of Government, 4-13-2004. [Carnegie Council Transcript: Soft Power: The Means to Success in World Politics, p.
http://www.cceia.org/resources/transcripts/4466.html]
But if you go to the middle board, of economic relations between states, there is already a balance of power. The United
States cannot get a trade agreement or an antitrust solution if the European Union acts collectively, and without that balance
and agreement, you can’t achieve the desired outcomes. It is a bit anomalous to call international economic relations
“American hegemony” or “empire.” But if you go to the bottom board of transnational relations, problems
across borders outside the control of governments, whether it’s infectious diseases or drug smuggling or
terrorism, no one is in charge; power is chaotically organized or distributed. The only ways to deal with these
issues is by cooperation among governments. To call that “American empire” or “American hegemony” or
“unipolarity” makes no sense at all. You are taking a metaphor from the top board and applying it to the bottom board, and
it doesn’t fit. New threats are arising from the bottom board of transnational relations. While military power can
be of some use occasionally on the bottom board, more often you will need other forms of power, particularly
soft power. The trouble is that a group of people within the Administration, who came into power and looked at
American military preeminence, devised the view that Charles Krauthammer has called “the new unilateralism:” that
the United States is so powerful that we can do as we wish and others have no choice but to follow. They have
used that view as a way of applying American military power to all sorts of problems. The problem is that this is a
one-dimensional view in a three-dimensional world. If you play one-dimensional chess on one board only and
it’s a three-dimensional game, in the long run you will lose. That is my great fear about the way in which we have
implemented the strategy. What about soft power? The basic concept of power is the ability to influence others to get them
to do what you want. There are three major ways to do that: one is to threaten them with sticks; the second is to pay them
with carrots; the third is to attract them or co-opt them, so that they want what you want. If you can get others to be
attracted, to want what you want, it costs you much less in carrots and sticks. The Bush Administration has
neglected using our American soft power. In this new world of transnational threats and the information age, it is
not just whose army wins, it’s whose story wins. They have not been very attentive to the question of whose story
wins. If you look at the results of their strategy, the polls are quite chilling. Not only do you find situations like Europe,
where the United States has lost on average thirty points of attractiveness in all European capitals, including countries that
supported us in the Iraq war, but if you go beyond that to the Islamic world, the decline of American attraction is quite
appalling. In 2000, in Indonesia, the largest Islamic country, three-quarters of the people said they were attracted to the
United States. By May 2003, that had dropped to 15 percent. And yet these are the people that we will need for
cooperation against organizations like al-Gama’a at-al-Islamiyya and other offshoots of al Qaeda in the region. If you
look at trends in polls in countries like Jordan or Pakistan, which are allegedly somewhat more friendly towards the United
States, we see that larger majorities are attracted to Osama bin Laden than to George Bush or Tony Blair. Again, this is a bit
chastening when those are the people whose cooperation we will need to deal with this new type of threat. The new
unilateralists’ reaction is: “Not to worry. You should never base foreign policy on polls. Popularity is
ephemeral. We have been unpopular in the past -- look how unpopular the Americans were during the Vietnam War, and
yet we recovered. We should keep on track and decide what we think is right, pursue it, and then let the chips fall as they
may.” This skepticism about the role of soft power, quite frequent among neo-conservatives, is a very powerful
view. The great danger is that it sells short the importance of being able to attract others. And it ignores the
fact that a country’s soft power can affect its hard power. If you take the example of Turkey a year ago, the
Americans wanted to persuade the Turkish government to send the Fourth Infantry Division across
Turkey to enter Iraq from the north. The Turkish government might have been willing to concede, but the Turkish
parliament said, “No,” because the United States had become so unpopular, its policies perceived as so
illegitimate, that they were not willing to allow this transfer of troops across the country.
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Impact – Heg Prev Nuc War
POWER PROJECTION SOLVES GLOBAL NUCLEAR WAR
(Zalmay Khalilzad, (Former Assist Prof of Poli Sci at Columbia), 1995 Spring, The Washington Quarterly, Vol. 18, No. 2; Pg. 84)
the United States would seek to retain global leadership and to preclude the rise of
a global rival or a return to multipolarity for the indefinite future. On balance, this is the best long-term
guiding principle and vision. Such a vision is desirable not as an end in itself, but because a world in which the
United States exercises leadership would have tremendous advantages. First, the global environment
would be more open and more receptive to American values -- democracy, free markets, and the rule
of law. Second, such a world would have a better chance of dealing cooperatively with the world's major
problems, such as nuclear proliferation, threats of regional hegemony by renegade states, and low-level
conflicts. Finally, U.S. leadership would help preclude the rise of another hostile global rival, enabling
the United States and the world to avoid another global cold or hot war and all the attendant dangers,
including a global nuclear exchange. U.S. leadership would therefore be more conducive to global stability than a
Under the third option,
bipolar or a multipolar balance of power system.
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Impact – Nuc War
Loss of legitimacy prevents court from checking military, ensuring nuclear war.
Kellman, prof of law @ DePaul, 1989
(Barry Kellman, prof of law @ DePaul, Dec 1989, “JUDICIAL ABDICATION OF MILITARY TORT ACCOUNTABILITY: BUT
WHO IS TO GUARD THE GUARDS THEMSELVES?” 1989 Duke L.J. 1597)
In this era of thermonuclear weapons, America must uphold its historical commitment to be a nation of
law. Our strength grows from the resolve to subject military force to constitutional authority. Especially
in these times when weapons proliferation can lead to nuclear winter, when weapons production can cause
cancer, when soldiers die unnecessarily in the name of readiness: those who control military force must be held
accountable under law. As the Supreme Court recognized a generation ago, the Founders envisioned the army as a
necessary institution, but one dangerous to liberty if not confined within its essential bounds. Their fears were
rooted in history. They knew that ancient republics had been overthrown by their military leaders. . . . . . . . We cannot close
our eyes to the fact that today the peoples of many nations are ruled by the military. We should not break faith with
this Nation's tradition of keeping military power subservient to civilian authority, a tradition which we
believe is firmly embodied in the Constitution. n1 Our fears may be rooted in more recent history. During the decade
of history's largest peacetime military expansion (1979-1989), more than 17,000 service personnel were
killed in training accidents. n2 In the same period, virtually every facility in the nuclear bomb complex has
been revealed [*1598] to be contaminated with radioactive and poisonous materials; the clean-up costs are
projected to exceed $ 100 billion. n3 Headlines of fatal B-1B bomber crashes, n4 the downing of an Iranian passenger plane,
n5
the Navy's frequent accidents n6 including the fatal crash of a fighter plane into a Georgia apartment complex, n7 remind
Americans that a tragic price is paid to support the military establishment. Other commentaries may distinguish
between the specific losses that might have been preventable and those which were the random consequence of what is
undeniably a dangerous military program. This Article can only repeat the questions of the parents of those who have died:
"Is the military accountable to anyone? Why is it allowed to keep making the same mistakes? How many more lives must
be lost to senseless accidents?" n8 This Article describes a judicial concession of the law's domain, ironically
impelled by concerns for "national security." In three recent controversies involving weapons testing,
the judiciary has disallowed tort accountability for serious and unwarranted injuries. In United States v.
Stanley, n9 the Supreme Court ruled that an Army sergeant, unknowingly drugged with LSD by the Central Intelligence
Agency, could not pursue a claim for deprivation of his constitutional rights. In Allen v. United States, n10 civilian victims
of atmospheric atomic testing were denied a right of tort recovery against the government officials who managed and
performed the tests. Finally, in Boyle v. United Technologies, n11 the Supreme Court ruled that private weapons
manufacturers enjoy immunity from product liability actions alleging design defects. A critical analysis of these
decisions reveals that the judiciary, notably the Rehnquist Court, has abdicated its responsibility to review
civil matters involving the military security establishment. n12 [*1599] Standing at the vanguard of "national
security" law, n13 these three decisions elevate the task of preparing for war to a level beyond legal [*1600]
accountability. They suggest that determinations of both the ends and the means of national security are
inherently above the law and hence unreviewable regardless of the legal rights transgressed by these
determinations. This conclusion signals a dangerous abdication of judicial responsibility. The very underpinnings of
constitutional governance are threatened by those who contend that the rule of law weakens the
execution of military policy. Their argument -- that because our adversaries are not restricted by our Constitution, we
should become more like our adversaries to secure ourselves -- cannot be sustained if our tradition of adherence to the rule
of law is to be maintained. To the contrary, the judiciary must be willing to demand adherence to legal principles by
assessing responsibility for weapons decisions. This Article posits that judicial abdication in this field is not compelled and
certainly is not desirable. The legal system can provide a useful check against dangerous military action, more so than these
three opinions would suggest. The judiciary must rigorously scrutinize military decisions if our 18th century
dream of a nation founded in musket smoke is to remain recognizable in a millennium ushered in under the
mushroom cloud of thermonuclear holocaust.
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Impact – Foreign Conflict
Breakdown of SOP leads to increased foreign conflict.
Paul, prof of law UConn, 1998
(Joel R. Paul, Prof of law @ UConn, July 1998, “The Geopolitical Constitution: Executive Expediency and Executive Agreements”
86 Calif. L. Rev. 671)
The Constitution "diffuses power...to secure liberty." n27 Constitutional checks and balances create
resistance to the exercise of power. n28 [*679] So long as constitutional authority over foreign affairs
remained divided between the executive and Congress, neither branch was able to commit the nation
abroad without a popular consensus. n29 These institutional obstacles are not merely quaint vestiges of
an earlier era of relative isolationism. They serve the normative value of discouraging foreign adventures to which the
nation is not fully committed. The discourse of executive expediency undermined this constitutional structure. n30
Specifically, the expansion of executive power allowed Congress to avoid public accountability for U.S.
foreign policy, facilitated more frequent foreign interventions, undermined the coherence of our foreign policy,
and exposed foreign policy-making to "capture" by foreign governments.
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Impact – Unchecked exec Fascism
Unchecked executive leads to fascism.
Ball, Prof Poli Sci @ U of Utah, 1987
(Howard Ball, Prof PoliSci @ U of Utah, Fall 1987, “Review Essay of To Chain the Dog of War: The War Powers of Congress in
History and Law” Weber Studies Volume 4.2 http://weberstudies.weber.edu/archive/archive%20A%20%20Vol.%20110.3/Vol.%204.2/4.2ball.htm)
Left unchecked by voices arguing for constitutional balance between the Chief Executive and the
Congress, this tendency toward presidential domination, given a "conjunction of circumstances, the office and
the man may produce" another "Mussolini, Hitler, Franco, Stalin"--other Chief Executives who had "faithfully
fulfilled the promises of power." Powerful, frightening words from these two scholars! The "Constitution," they
conclude, "offers the nation and the world some protection from the potential of such a conjuction, through
the dispensation of the power to declare and make war, but that protection is only as strong as the will of the
legislative and judicial branches to invoke and enforce it." The theme is clear and shocking: The U.S.
Constitution is a prescription for the legitimate use of power by political branches of government. Separated
constitutional institutions share power and check and balance each other's use of power, thus preventing the
unadulterated, unconstitutional use of power--called tyranny by James Madison in the Federalist Papers. Article I,
Section 8 grants to Congress the "power to declare war." Article II clearly labels the President the Commander-In-Chief of
the Armed Forces. The legislature initiates war while the executive, as the "highest officer in a chain of command," is
charged with successfully waging the war.
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Impact – SOP breakdown  Tyranny/Wars
Separation of powers breakdown results in wars and tyranny.
Redish and Cisar, prof law @ Northwestern and Law clerk to US Court of Appeals, 19 91
(MARTIN H. REDISH, prof law and public policy @ Northwestern; ELIZABETH J. CISAR, Law Clerk to Chief Judge
William Bauer, United States Court of Appeals, Seventh Circuit, Dec 1991, “CONSTITUTIONAL PERSPECTIVES:
ARTICLE: "IF ANGELS WERE TO GOVERN" *: THE NEED FOR PRAGMATIC FORMALISM IN SEPARATION OF
POWERS THEORY.” 41 Duke L.J. 449)
In any event, the political history of which the Framers were aware tends to confirm that quite often concentration of
political power ultimately leads to the loss of liberty. Indeed, if we have begun to take the value of separation of
powers for granted, we need only look to modern American history to remind ourselves about both the
general vulnerability of representative government, and the direct correlation between the
concentration of political power and the threat to individual liberty. n127 [*473] The widespread violations of
individual rights that took place when President Lincoln assumed an inordinate level of power, for example, are well
documented. n128 Arguably as egregious were the threats to basic freedoms that arose during the Nixon
administration, when the power of the executive branch reached what are widely deemed to have been
intolerable levels. n129 Although in neither instance did the executive's usurpations of power ultimately
degenerate into complete and irreversible tyranny, the reason for that may well have been the resilience of our
political traditions, among the most important of which is separation of powers itself. In any event, it would be
political folly to be overly smug about the security of either representative government or individual
liberty. Although it would be all but impossible to create an empirical proof to demonstrate that our constitutional
tradition of separation of powers has been an essential catalyst in the avoidance of tyranny, common
sense should tell us that the simultaneous division of power and the creation of interbranch checking
play important roles toward that end. To underscore the point, one need imagine only a limited modification of the
actual scenario surrounding the recent Persian Gulf War. In actuality, the war was an extremely popular endeavor, thought
by many to be a politically and morally justified exercise. But imagine a situation in which a President, concerned
about his failure to resolve significant social and economic problems at home, has callously decided to engage [*474]
the nation in war, simply to defer public attention from his domestic failures. To be sure, the President was presumably
elected by a majority of the electorate, and may have to stand for reelection in the future. However, at this particular point
in time, but for the system established by separation of powers, his authority as Commander in Chief n130
to engage the nation in war would be effectively dictatorial. Because the Constitution reserves to the arguably
even more representative and accountable Congress the authority to declare war, n131 the Constitution has attempted
to prevent such misuses of power by the executive. n132 It remains unproven whether any governmental structure
other than one based on a system of separation of powers could avoid such harmful results. In summary, no defender of
separation of powers can prove with certitude that, but for the existence of separation of powers, tyranny would
be the inevitable outcome. But the question is whether we wish to take that risk, given the obvious severity of the
harm that might result. Given both the relatively limited cost imposed by use of separation of powers and the great severity
of the harm sought to be avoided, one should not demand a great showing of the likelihood that the feared harm would
result. For just as in the case of the threat of nuclear war, no one wants to be forced into the position of saying, "I told you
so."
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Impact – No SOP  Wld Destruction
Separation of powers checks world destruction.
Forrester, Prof Law U of Cal, 1989
Ray Forrester, Professor of Law, Hastings College of Law, University of California and fmr dean of the law schools at Vanderbilt,
Tulane, and Cornell, August 1989. [57 George Washington Law Review 1636, p. Lexis]
[*1637] As a result, the "football," just like the missiles in their silos, has become a part of the U.S. deterrent to Soviet
attack. Because it exists, the President maintains the ability, wherever he is, to order a nuclear attack within 30
minutes. In the most basic terms, the "football" contains the authentication code that the President would
use in the outbreak of nuclear war to verify to the Joint Chiefs of Staff that he had ordered the use of atomic
weapons. Abramson, Wherever President Goes, the Nuclear War 'Football' is Beside Him, Los Angeles Times, April 3,
1981, at 10, col. 1 (copyright, 1981, Los Angeles Times. Reprinted by permission). On the basis of this report, the startling
fact is that one man alone has the ability to start a nuclear war. A basic theory--if not the basic theory of our
Constitution--is that concentration of power in any one person, or one group, is dangerous to mankind .
The Constitution, therefore, contains a strong system of checks and balances, starting with the separation
of powers between the President, Congress, and the Supreme Court. The message is that no one of them is safe with
unchecked power. Yet, in what is probably the most dangerous governmental power ever possessed, we find the
potential for world destruction lodged in the discretion of one person.
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Age Crisis Now
Current global response to the age crisis is inefficient
Peterson, Economics Chairman, 99. Peter G. Peterson; author of Gray Dawn: How the Coming Age Wave Will Transform
America -- and the World, Chairman of The Blackstone Group (private investment bank), Chairman of The Institute for International
Economics, Deputy Chairman of The Federal Reserve Bank of New York, Co-founder and President of The Concord Coalition, and
Chairman of The Council on Foreign Relations. Foreign Affairs. January, 1999 / February, 1999.
http://www.foreignaffairs.com/articles/54620/peter-g-peterson/gray-dawn-the-global-aging-crisis
From private discussions with leaders of major economies, I can attest that they are well briefed on the stunning
demographic trends that lie ahead. But so far they have responded with paralysis rather than action. Hardly any
country is doing what it should to prepare. Margaret Thatcher confesses that she repeatedly tried to raise the aging
issue at G-7 summit meetings. Yet her fellow leaders stalled. "Of course aging is a profound challenge," they replied, "but it
doesn't hit until early in the next century -- after my watch." Americans often fault their leaders for not acknowledging
long-term problems and for not facing up to silent and slow-motion challenges. But denial is not a peculiarly
American syndrome. In 1995, Silvio Berlusconi's Forza Italia government was buffeted by a number of
political storms, all of which it weathered -- except for pension reform, which shattered the coalition.
That same year, the Dutch parliament was forced to repeal a recent cut in retirement benefits after a strong Pension Party,
backed by the elderly, emerged from nowhere to punish the reformers. In 1996, the French government's modest
proposal to trim pensions triggered strikes and even riots. A year later the Socialists over-turned the ruling
government at the polls.
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ERISA K2 Econ
Killing ERISA hurts businesses and puts the insurance plans of 132 million people at risk
Wall Street Journal 7-20. The Wall Street Journal. July 20 2009.
http://online.wsj.com/article/SB10001424052970203946904574298661486528186.html?mod=googlenews_wsj
Erisa allows employers that self-insure—that is, those large enough to build their own risk pools and pay benefits
directly—to offer uniform plans across state lines. This lets thousands of businesses avoid , for the most
part, the costly federal and state regulations on covered treatments, pricing, rate setting and so on. It also
gives them flexibility to design insurance to recruit and retain workers in a competitive labor market .
Roughly 75% of employer-based coverage is governed by Erisa’s “freedom of purchase” rules. Goodbye to all
that. The House bill says that after a five-year grace period all Erisa insurance offerings will have to win
government approval—both by the Department of Labor and a new “health choices commissioner” who will
set federal standards for what is an acceptable health plan. This commissar—er, commissioner—can fine
employers that don’t comply and even has “suspension of enrollment” powers for plans that he or she has
vetoed, until “satisfied that the basis for such determination has been corrected and is not likely to recur.” In other words,
the insurance coverage of 132 million people—the product of enormously complex business and health-care
decisions—will now be subject to bureaucratic nanomanagement. If employers don’t meet some still-tobe-defined minimum package, they’ll have to renegotiate thousands of contracts nationwide to
Washington’s specifications. The political incentives will of course demand an ever-more generous “minimum” benefit and
less cost-sharing, much as many states have driven up prices in the individual insurance market with mandates. Erisa’s
pluralistic structure will gradually constrict toward a single national standard. Yet a computer programming
firm, say, and a grocery store chain have very different insurance needs, and in any case may not be able to
afford the same kind and level of benefits. Innovation in insurance products will also be subject to political
tampering. Likely casualties include the wellness initiatives that give workers financial incentives to take more
responsibility for their own health, such as Safeway’s. Some politicians will claim that’s unfair. High-deductible plans with
health savings accounts are also out of political favor, therefore certain to go overboard. If you have one of those and like it,
too bad. The new Erisa regime will be especially difficult to meet for businesses that operate with very
slim profit margins or have large numbers of part-time or seasonal workers. They may simply “cash
out” and surrender 8% of their payroll under the employer-mandate tax. A new analysis by the Lewin Group,
prepared for the Heritage Foundation, finds that some 88.1 million people will be shifted out of private
employer health insurance under the House bill. If those people preferred their prior plan, well, too bad again. The
largest employers—though not all—may clear the minimum bar, at least at first. But in addition to the “health choices”
administrative burden, the cost of labor will rise because the House guts another key section of Erisa.
Currently, lawsuits about employee benefits are barred under the law, allowing large employers to avoid the state tort
lotteries in disputes over coverage. No longer. As a gratuity to the trial bar, Democrats will now subject businesses to these
liabilities in the name of health “reform.” So when Mr. Obama says that “If you like your health-care plan, you’ll be able to
keep your health-care plan, period. No one will take it away, no matter what,” he’s wrong. Period. What he’s not telling the
American people is that the government will so dramatically change the rules of the insurance market that employers
will find it impossible to maintain their current coverage, and many will drop it altogether. The more we
inspect the House bill, the more it looks to be one of the worst pieces of legislation ever introduced in Congress.
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Turns Case - Pension Crisis
Pension crisis severely burdens retirees and threatens a decades-long social crisis, turns the case
Giles, financial editor, 09. Chris Giles, Economics Editor for the Financial Times. 6-23-09. “OECD warns on pensions crisis”
http://www.ft.com/cms/s/0/4301d326-5feb-11de-a09b-00144feabdc0.html?nclick_check=1
Strains in pensions systems, in both private and public provision, threaten to turn the financial crisis of
the past two years into a social crisis lasting for decades, the Organisation for Economic Co-operation and
Development warned on Tuesday. In its annual analysis of the health of pensions systems globally, the Paris-based
organisation found private pension plans lost 23 per cent of their value last year, while higher
unemployment “leaves little room for more generous public pensions”. Angel Gurría, the OECD secretarygeneral said: “Reforming pension systems now to make them both affordable and strong enough to
provide protection against market swings will save governments a lot of financial and political pain in
the future”. Pensioners hit hardest include those heavily dependent on defined contributions, where
people save to build up a personal fund, those near retirement and those heavily invested in equities. This
applies to many US citizens who have large pension pots, known as 401(k) retirement plans. For these individuals
and for the recently retired who have not bought an annuity, losses will be greatest, the OECD said,
exacerbating the sense of a looming pensions crisis worldwide. Those with defined-benefit private pensions are not
immune from potential losses, as companies are increasingly restricting the amounts paid. By contrast, younger workers have time to
repair the damage to their pensions. Their losses are also smaller compared with their annual contributions than for those near retirement
who have already built up a big pension pot. Losses in private pension schemes were highest – at over 25 per cent – in countries such as
Ireland, Australia and the US, where the greatest proportion was invested in equities. Losses in Germany, Mexico and the Czech
Republic, however, were under 10 per cent as private pensions there were heavily invested in bonds. Future incomes from public
pensions are not immune from the financial crisis, the OECD warned, because stretched public finances will prevent countries
augmenting public provision and might lead to cuts. Canada, Germany and Sweden, for example, already adjust public pensions in
payment according to their schemes’ performance. The OECD said this form of adjustment “needs a rethink” to prevent cuts in pensions
exacerbating the recession. But it does not suggest reversing the proposed cuts, suggesting they are merely postponed until economies
recover. Some countries provide extremely low incomes for poor pensioners with a history of low-income employment. The OECD
singles out Germany, Japan and the US as countries where deficiencies in “old-age safety nets are a concern”. For private pensions, the
recommendation is that governments should ensure most members of defined-contribution pensions gradually reduce the proportion of
equities and other risky investments in their portfolios as retirement nears. Planned increases in pensionable age, restricting the
generosity of early retirement schemes, less generous public pensions, even cuts in pay for Irish public officials. These are all examples
of strategies advanced countries are using to reduce the financial burden of pensions as their population ages. The financial crisis will
focus policymakers’ attention on the short term, warns the Organisation for Economic Co-operation and Development, threatening to
postpone long-term strategic planning. Officials in the Paris-based organisation are most concerned about a repetition of the mistakes of
the 1980s, encouraging early retirement, which improves unemployment figures today at the cost of fewer workers and a greater pensions
burden tomorrow. The OECD describes these changes over the past five years as “one of evolution rather
than revolution in pension systems”. Over the next 40 years it still expects population ageing, which
will create a demographic transformation and increase the burden of pensions on the public purse.
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Age Crisis Outweighs
The graying of the world’s population is comparatively more dangerous, probable, and fast approaching
than any other global challenge AND spars economic crises
Peterson, Economics Chairman, 99. Peter G. Peterson; author of Gray Dawn: How the Coming Age Wave Will Transform
America -- and the World, Chairman of The Blackstone Group (private investment bank), Chairman of The Institute for International
Economics, Deputy Chairman of The Federal Reserve Bank of New York, Co-founder and President of The Concord Coalition, and
Chairman of The Council on Foreign Relations. Foreign Affairs. January, 1999 / February, 1999.
http://www.foreignaffairs.com/articles/54620/peter-g-peterson/gray-dawn-the-global-aging-crisis
The list of major
global hazards in the next century has grown long and familiar. It includes the proliferation of
nuclear, biological, and chemical weapons, other types of high-tech terrorism, deadly superviruses, extreme
climate change, the financial, economic, and political aftershocks of globalization, and the violent
ethnic explosions waiting to be detonated in today's unsteady new democracies. Yet there is a lessunderstood challenge -- the graying of the developed world's population -- that may actually do more to
reshape our collective future than any of the above Over the next several decades, countries in the
developed world will experience an unprecedented growth in the number of their elderly and an
unprecedented decline in the number of their youth. The timing and magnitude of this demographic
transformation have already been determined. Next century's elderly have already been born and
can be counted -- and their cost to retirement benefit systems can be projected. Unlike with global
warming, there can be little debate over whether or when global aging will manifest itself. And unlike
with other challenges, even the struggle to preserve and strengthen unsteady new democracies, the costs
of global aging will be far beyond the means of even the world's wealthiest nations -- unless retirement
benefit systems are radically reformed. Failure to do so, to prepare early and boldly enough, will spark
economic crises that will dwarf the recent meltdowns in Asia and Russia. How we confront global
aging will have vast economic consequences costing quadrillions of dollars over the next century.
Indeed, it will greatly influence how we manage, and can afford to manage, the other major challenges that
will face us in the future. For this and other reasons, global aging will become not just the transcendent
economic issue of the 21st century, but the transcendent political issue as well. It will dominate and
daunt the public-policy agendas of developed countries and force the renegotiation of their social
contracts. It will also reshape foreign policy strategies and the geopolitical order. The U nited S tates has
a massive challenge ahead of it. The broad outlines can already be seen in the emerging debate over
Social Security and Medicare reform. But ominous as the fiscal stakes are in the U nited S tates, they loom
even larger in Japan and Europe, where populations are aging even faster, birthrates are lower, the
influx of young immigrants from developing countries is smaller, public pension benefits are more
generous, and private pension systems are weaker. Aging has become a truly global challenge, and
must therefore be given high priority on the global policy agenda. A gray dawn fast approaches. It is
time to take an unflinching look at the shape of things to come.
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Age Crisis  Econ Collapse
Global life expectancy will rapidly increased, causing unprecedented global economic strain
Peterson, Economics Chairman, 99. Peter G. Peterson; author of Gray Dawn: How the Coming Age Wave Will Transform
America -- and the World, Chairman of The Blackstone Group (private investment bank), Chairman of The Institute for International
Economics, Deputy Chairman of The Federal Reserve Bank of New York, Co-founder and President of The Concord Coalition, and
Chairman of The Council on Foreign Relations. Foreign Affairs. January, 1999 / February, 1999.
http://www.foreignaffairs.com/articles/54620/peter-g-peterson/gray-dawn-the-global-aging-crisis
Global life expectancy has grown more in the last fifty
years than over the previous five thousand. Until the Industrial Revolution, people aged 65 and over never
amounted to more than 2 or 3 percent of the population. In today's developed world, they amount to 14 percent.
By the year 2030, they will reach 25 percent and be closing in on 30 in some countries. An unprecedented
economic burden on working-age people. Early in the next century, working-age populations in most
developed countries will shrink. Between 2000 and 2010, Japan, for example, will suffer a 25 percent drop in the
number of workers under age 30. Today the ratio of working tax-payers to nonworking pensioners in the
developed world is around 3:1. By 2030, absent reform, this ratio will fall to 1.5:1, and in some
countries, such as Germany and Italy, it will drop all the way down to 1:1 or even lower. While the longevity
Societies much older than any we have ever known.
revolution represents a miraculous triumph of modern medicine and the extra years of life will surely be treasured by the
elderly and their families, pension plans and other retirement benefit programs were not designed to provide
these billions of extra years of payouts. The aging of the aged: the number of "old old" will grow much faster than
the number of "young old." The U nited N ations projects that by 2050, the number of people aged 65 to 84
worldwide will grow from 400 million to 1.3 billion (a threefold increase), while the number of people aged 85
and over will grow from 26 million to 175 million (a sixfold increase) -- and the number aged 100 and over
from 135,000 to 2.2 million (a sixteenfold increase). The "old old" consume far more health care than the
"young old" -- about two to three times as much. For nursing-home care, the ratio is roughly 20:1. Yet little of
this cost is figured in the official projections of future public expenditures. Falling birthrates will
intensify the global aging trend. As life spans increase, fewer babies are being born. As recently as the late
1960s, the worldwide total fertility rate (that is, the average number of lifetime births per woman) stood at about 5.0, well
within the historical range. Then came a behavioral revolution, driven by growing affluence, urbanization, feminism, rising
female participation in the workforce, new birth control technologies, and legalized abortion. The result: an unprecedented
and unexpected decline in the global fertility rate to about 2.7 -- a drop fast approaching the replacement rate of 2.1 (the
rate required merely to maintain a constant population). In the developed world alone, the average fertility rate has
plummeted to 1.6. Since 1995, Japan has had fewer births annually than in any year since 1899. In Germany, where the rate
has fallen to 1.3, fewer babies are born each year than in Nepal, which has a population only one-quarter as large.
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Age Crisis  Econ Collapse
Failure to respond to the global aging crisis collapses the global economy
Peterson, Economics Chairman, 99. Peter G. Peterson; author of Gray Dawn: How the Coming Age Wave Will Transform
America -- and the World, Chairman of The Blackstone Group (private investment bank), Chairman of The Institute for International
Economics, Deputy Chairman of The Federal Reserve Bank of New York, Co-founder and President of The Concord Coalition, and
Chairman of The Council on Foreign Relations. Foreign Affairs. January, 1999 / February, 1999.
http://www.foreignaffairs.com/articles/54620/peter-g-peterson/gray-dawn-the-global-aging-crisis
Official projections suggest that within 30 years, developed countries will have to spend at least an extra 9 to
16 percent of GDP simply to meet their old-age benefit promises. The unfunded liabilities for pensions
(that is, benefits already earned by today's workers for which nothing has been saved) are already almost $ 35 trillion.
Add in health care, and the total jumps to at least twice as much. At minimum, the global aging issue
thus represents, to paraphrase the old quiz show, a $ 64 trillion question hanging over the developed world's
future. To pay for promised benefits through increased taxation is unfeasible. Doing so would raise the
total tax burden by an unthinkable 25 to 40 percent of every worker's taxable wages -- in countries where
payroll tax rates sometimes already exceed 40 percent. To finance the costs of these benefits by borrowing
would be just as disastrous. Governments would run unprecedented deficits that would quickly
consume the savings of the developed world. And the $ 64 trillion estimate is probably low. It likely
underestimates future growth in longevity and health care costs and ignores the negative effects on the
economy of more borrowing, higher interest rates, more taxes, less savings, and lower rates of
productivity and wage growth. There are only a handful of exceptions to these nightmarish forecasts. In Australia,
total public retirement costs as a share of GDP are expected to rise only slightly, and they may even decline in Britain and
Ireland. This fiscal good fortune is not due to any special demographic trend, but to timely policy reforms -- including tight
limits on public health spending, modest pension benefit formulas, and new personally owned savings programs that allow
future public benefits to shrink as a share of average wages. This approach may yet be emulated elsewhere. Failure to
respond to the aging challenge will destabilize the global economy, straining financial and political
institutions around the world. Consider Japan, which today runs a large current account surplus making up well over
half the capital exports of all the surplus nations combined. Then imagine a scenario in which Japan leaves its retirement
programs and fiscal policies on autopilot. Thirty years from now, under this scenario, Japan will be importing
massive amounts of capital to prevent its domestic economy from collapsing under the weight of
benefit outlays. This will require a huge reversal in global capital flows. To get some idea of the potential
volatility, note that over the next decade, Japan's annual pension deficit is projected to grow to roughly 3
times the size of its recent and massive capital exports to the U nited S tates; by 2030, the annual deficit is
expected to be 15 times as large. Such reversals will cause wildly fluctuating interest and exchange
rates, which may in turn short-circuit financial institutions and trigger a serious market crash.
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Pension Crisis  Econ Crisis
Strain of pension crisis causes new widespread public and private sector financial crisis
Motley Fool 09. Dan Caplinger. The Motley Fool: investment news. 4-23-09. Prepare for the Looming Pension Crisis.
http://www.fool.com/retirement/general/2009/04/23/prepare-for-the-looming-pension-crisis.aspx
Recently, workers with employer-sponsored 401(k) plans have taken it on the chin. The bear market has hurt anyone who
invested their 401(k) money in stocks, and many employees who invested too much in their employer's stock have seen
huge losses. 401(k) plans have behaved so badly that many are now calling for significant reform, or even these plans'
outright abolition. Yet before you decide that worker-controlled retirement plans can't stand up to real pensions, here's some
bad news: Underfunded pensions could well be the last straw that moves the U.S. into a brand-new
financial crisis light-years beyond what we've seen so far. A recent study from Standard & Poor's indicates that
America's retirement safety net is in worse shape than many probably thought. Even as companies
have seen their own share prices plummet, and had to cut costs through layoffs and pay cuts, they've
also seen many of the investments they've made toward meeting their pension obligations get slammed.
As a result, the overall shortfall among pension funds has grown substantially. According to Standard &
Poor's, those companies in the S&P 500 index have only $1.1 trillion in assets to meet estimated future
obligations worth $1.4 trillion in current dollars. That shortfall comes to a little more than two years' worth of
earnings for those 500 companies. Moreover, the problem is widespread. A report from Wilshire Associates found
that 92% of the 323 companies in the S&P 500 with traditional defined-benefit pensions were
underfunded. The median funding ratio was just 73.3%, indicating that the amounts by which these plans fall short are
generally quite significant. At the very least, pension shortfalls could force companies to divert earnings to increase pension
reserves, forcing them to take charges against earnings. That could disappoint investors, although savvy companies that
take the opportunity to bundle one-time charges into already subpar quarterly results might effectively keep their full
impact under the radar. Pension shortfalls could have a much greater effect on companies that are already
feeling the strain of the recession on their balance sheets. Take a look at the financial condition of some
companies the report cites as having shortfalls: Not all of these companies are in terrible shape. Companies like
ExxonMobil and Hershey could fund their shortfalls with just a fraction of their 2008 earnings. Others, such as GM, face
the triple whammy of big debt, huge earnings losses, and major pension shortfalls. Investors can only expect bad
news to get worse for these companies and their stocks. Moreover, the problems go well beyond the
private sector. State and local governments, large colleges and universities, and other public pension
systems have lost unprecedented amounts during the bear market, creating a potential trilliondollar shortfall that could go well beyond their ability to raise revenue to remedy the situation
successfully. A collapse of the public pension system could overwhelm local economies that are
already struggling to survive, even with huge inflows of funds from the federal government. A
cascading loss of confidence could make the recession we've seen thus far look like a walk in the
park compared to the real depression that could follow.
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Age Crisis  Culture War
Age crisis causes massive immigration pressure, risking culture war
Peterson, Economics Chairman, 99. Peter G. Peterson; author of Gray Dawn: How the Coming Age Wave Will Transform
America -- and the World, Chairman of The Blackstone Group (private investment bank), Chairman of The Institute for International
Economics, Deputy Chairman of The Federal Reserve Bank of New York, Co-founder and President of The Concord Coalition, and
Chairman of The Council on Foreign Relations. Foreign Affairs. January, 1999 / February, 1999.
http://www.foreignaffairs.com/articles/54620/peter-g-peterson/gray-dawn-the-global-aging-crisis
From worker shortage to rising immigration pressure. Perhaps the most predictable consequence of the
gap in fertility and population growth rates between developed and developing countries will be the
rising demand for immigrant workers in older and wealthier societies facing labor shortages.
Immigrants are typically young and tend to bring with them the family practices of their native culture -including higher fertility rates. In many European countries, non-European foreigners already make up
roughly 10 percent of the population. This includes 10 million to 13 million Muslims, nearly all of whom are workingage or younger. In Germany, foreigners will make up 30 percent of the total population by 2030, and over half the
population of major cities like Munich and Frankfurt. Global aging and attendant labor shortages will therefore
ensure that immigration remains a major issue in developed countries for decades to come. Culture wars
could erupt over the balkanization of language and religion; electorates could divide along ethnic lines;
and emigre leaders could sway foreign policy.
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Age Crisis  Wars
Global aging kills GDP and global defense, forcing developed countries to extreme military options
Peterson, Economics Chairman, 99. Peter G. Peterson; author of Gray Dawn: How the Coming Age Wave Will Transform
America -- and the World, Chairman of The Blackstone Group (private investment bank), Chairman of The Institute for International
Economics, Deputy Chairman of The Federal Reserve Bank of New York, Co-founder and President of The Concord Coalition, and
Chairman of The Council on Foreign Relations. Foreign Affairs. January, 1999 / February, 1999.
http://www.foreignaffairs.com/articles/54620/peter-g-peterson/gray-dawn-the-global-aging-crisis
economic consequences of global aging deserve serious discussion, other important
consequences must also be examined. At the top of the list is the impact of the age wave on foreign policy
and international security. Will the developed world be able to maintain its security commitments? One
need not be a Nobel laureate in economics to understand that a country's GDP growth is the product of workforce
and productivity growth. If workforces shrink rapidly, GDP may drop as well, since labor productivity
may not rise fast enough to compensate for the loss of workers. At least some developed countries are
therefore likely to experience a long-term decline in total production of goods and services -- that is, in
While the fiscal and
real GDP. Economists correctly focus on the developed world's GDP per capita, which can rise even as its workforce and
total GDP shrink. But anything with a fixed cost becomes a national challenge when that cost has to be
spread over a smaller population and funded out of shrinking revenues. National defense is the classic
example. The West already faces grave threats from rogue states armed with biological and chemical
arsenals, terrorists capable of hacking into vulnerable computer systems, and proliferating nuclear
weapons. None of these external dangers will shrink to accommodate our declining workforce or GDP.
Leading developed countries will no doubt need to spend as much or more on defense and international
investments as they do today. But the age wave will put immense pressure on governments to cut back.
Falling birthrates, together with a rising demand for young workers, will also inevitably mean smaller
armies. And how many parents will allow their only child to go off to war? With fewer soldiers, total
capability can be maintained only by large increases in technology and weaponry. But boosting military
productivity creates a Catch-22. For how will governments get the budget resources to pay for high-tech
weaponry if the senior-weighted electorate demands more money for high-tech medicine? Even if
military capital is successfully substituted for military labor, the deployment options may be
dangerously limited. Developed nations facing a threat may feel they have only two extreme (but
relatively inexpensive) choices: a low-level response (antiterrorist strikes and cruise-missile diplomacy) or a
high-level response (an all-out attack with strategic weapons).
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Age Crisis Collapses Gov’ts
The costs of the age wave could collapse economies and governments
Peterson, Economics Chairman, 99. Peter G. Peterson; author of Gray Dawn: How the Coming Age Wave Will Transform
America -- and the World, Chairman of The Blackstone Group (private investment bank), Chairman of The Institute for International
Economics, Deputy Chairman of The Federal Reserve Bank of New York, Co-founder and President of The Concord Coalition, and
Chairman of The Council on Foreign Relations. Foreign Affairs. January, 1999 / February, 1999.
http://www.foreignaffairs.com/articles/54620/peter-g-peterson/gray-dawn-the-global-aging-crisis
The total projected cost of the age wave is so staggering that we might reasonably conclude it could
never be paid. After all, these numbers are projections, not predictions. They tell us what is likely to happen if current
policy remains unchanged, not whether it is likely or even possible for this condition to hold. In all probability,
economies would implode and governments would collapse before the projections ever materialize. But
this is exactly why we must focus on these projections, for they call attention to the paramount
question: Will we change course sooner, when we still have time to control our destiny and reach a more
sustainable path? Or later, after unsustainable economic damage and political and social trauma cause a
wrenching upheaval?
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Age Crisis Collapses Democracy and Econ
Global age crisis risks collapsing global economy and democracy
Peterson, Economics Chairman, 99. Peter G. Peterson; author of Gray Dawn: How the Coming Age Wave Will Transform
America -- and the World, Chairman of The Blackstone Group (private investment bank), Chairman of The Institute for International
Economics, Deputy Chairman of The Federal Reserve Bank of New York, Co-founder and President of The Concord Coalition, and
Chairman of The Council on Foreign Relations. Foreign Affairs. January, 1999 / February, 1999.
http://www.foreignaffairs.com/articles/54620/peter-g-peterson/gray-dawn-the-global-aging-crisis
Global aging could trigger a crisis that engulfs the world economy. This crisis may even threaten
democracy itself. By making tough choices now world leaders would demonstrate that they genuinely
care about the future, that they understand this unique opportunity for young and old nations to work
together, and that they comprehend the price of freedom. The gray dawn approaches. We must establish
new ways of thinking and new institutions to help us prepare for a much older world.
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Youth Boom  Terrorism
Youth boom focused in unstable countries that breed terrorism and anarchy
Peterson, Economics Chairman, 99. Peter G. Peterson; author of Gray Dawn: How the Coming Age Wave Will Transform
America -- and the World, Chairman of The Blackstone Group (private investment bank), Chairman of The Institute for International
Economics, Deputy Chairman of The Federal Reserve Bank of New York, Co-founder and President of The Concord Coalition, and
Chairman of The Council on Foreign Relations. Foreign Affairs. January, 1999 / February, 1999.
http://www.foreignaffairs.com/articles/54620/peter-g-peterson/gray-dawn-the-global-aging-crisis
As Samuel Huntington recently put it, " the
juxtaposition of a rapidly growing people of one culture and a
slowly growing or stagnant people of another culture generates pressure for economic and/or political
adjustments in both societies." Countries where populations are still exploding rank high on any list of
potential trouble spots, whereas the countries most likely to lose population -- and to see a weakening
of their commitment to expensive defense and global security programs -- are the staunchest friends of
liberal democracy. In many parts of the developing world, the total fertility rate remains very high (7.3
in the Gaza Strip versus 2.7 in Israel), most people are very young (49 percent under age 15 in Uganda), and the
population is growing very rapidly (doubling every 26 years in Iran). These areas also tend to be the poorest,
most rapidly urbanizing, most institutionally unstable -- and most likely to fall under the sway of rogue
leadership. They are the same societies that spawned most of the military strongmen and terrorists who
have bedeviled the U nited S tates and Europe in recent decades. The Pentagon's long-term planners
predict that outbreaks of regional anarchy will occur more frequently early in the next century. To
pinpoint when and where, they track what they call "youth bulges" in the world's poorest urban centers.
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A2: Voting Records Matter
Justices’ records don’t matter – protection of legitimacy supercedes.
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 134)
A funny thing happened on the way to the demise of Roe. justice Blackmun, the author of Roe, and justice Stevens
voted to uphold reproductive rights, consistent with their support of Roe. As expected, Rehnquist, Scalia,
Thomas, and White voted to overturn the decision. The anti-Roe forces needed only one vote to con- stitute a
majority. O’Connor and Kennedy were on record as opposing Roe, and at least one seemed certain to provide that vote.
Instead, O’Connor, Kennedy, and Souter voted to sustain Roe. This was curious on a number of levels. Most
significantly, perhaps, there has long been an argument that Supreme Court. justices consistently decide cases on the basis
of their values and attitudes (Segal and Spaeth l993). Liberals tend to vote in a liberal fashion and conservatives in a
consistent conservative manner. O’Connor and Kennedy had been fairly conservative in their decisionmaking. More
particularly, both had consistently supported restrictions on reproductive rights. Yet, in a case that seemed to
be teed up for a reversal, they joined with Souter to protect Roe. In their joint opinion, O’C0nnor, Kennedy, and
Souter adopted judicial re- straint, reaffnrming Roe by saying that “principles of institutional integrity and the rule of
stare decisis" (precedent) mandated the holding. Thus, the three justices put aside their values and personal
preferences and supported the existing prece- dent because it was settled law. In their opinion, they
openly discussed protecting the Court’s legitimacy.
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A2: Intrude on branches
A2: intrude on the political branches’ plenary immigration authority (multiple warrants)
Rosdeitcher, Oh, and Russell 5-7. SIDNEY S. ROSDEITCHER , ALEX YOUNG K. OH , WHITNEY D. RUSSELL. May 7,
2009. “On Petition for Writ of Certiorari to the United States Court of Appeals for the District of Columbia,” BRIEF FOR THE
ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK, THE BRENNAN CENTER FOR JUSTICE AT THE NEW YORK
UNIVERSITY SCHOOL OF LAW, THE CONSTITUTION PROJECT, THE RUTHERFORD INSTITUTE, AND THE NATIONAL
ASSOCIATION OF CRIMINAL DEFENSE LAWYERS AS AMICI CURIAE IN SUPPORT OF PETITIONERS.
http://www.constitutionproject.org/manage/file/145.pdf
First, the court of appeals needlessly conjured a potential conflict between the Suspension Clause and
the political branches’ plenary powers by portraying Petitioners as aliens seeking admittance to the
U nited S tates. Petitioners are not seeking to immigrate to the United States; they only seek freedom from
concededly unlawful custody. It is specious to equate Petitioners — who were brought to Guantánamo
against their will, and kept in shackles for eight years — with garden variety visa or asylum applicants.
Second, this Court’s precedents leave no doubt that both Congress’s plenary powers and the
Executive’s authority in immigration matters must be exercised consistently with important constitutional
checks, such as the Suspension Clause. For example, in INS v. St. Cyr, this Court expressly held that “[b]ecause of
[the Suspension Clause], some ‘judicial intervention in deportation cases’ is unquestionably ‘required by the Constitution.’”
533 U.S. at 300(quoting Heikkila v. Barber, 345 U.S. 229, 235 (1953) (emphasis added)). The Court repeatedly has
held that, even when they act in tandem, the political branches’ plenary power in immigration matters
is “subject to important constitutional limitations.” Zadvydas v. Davis, 533 U.S. 678, 695 (2001); accord INS v.
Chadha, 462 U.S. 919, 941-42 (1983) (Congress must choose “a constitutionally permissible means of implementing” its
plenary power) (citing Buckley v. Valeo, 424 U.S. 1, 132 (1976)); Chae Chan Ping v. United States, 130 U.S. 581, 604
(1889) (The Chinese Exclusion Case) (congressional authority limited “by the constitution itself and considerations of
public policy and justice which control, more or less, the conduct of all civilized nations”); see also Landon v. Plasencia,
459 U.S. 21, 34 (1982) (the adequacy of procedures at an exclusion hearing of a resident alien must conform to the
requirements of the Mathews v. Eldridge, 424 U.S. 319 (1976), due process test); Tuan Anh Nguyen v. INS, 533 U.S. 53,
72-73 (2001) (a citizenship statute must satisfy “conventional equal protection scrutiny”).
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A2: One case = no threat
A2: this one case doesn’t threaten the whole Constitution
Rosdeitcher, Oh, and Russell 5-7. SIDNEY S. ROSDEITCHER , ALEX YOUNG K. OH , WHITNEY D. RUSSELL. May 7,
2009. “On Petition for Writ of Certiorari to the United States Court of Appeals for the District of Columbia,” BRIEF FOR THE
ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK, THE BRENNAN CENTER FOR JUSTICE AT THE NEW YORK
UNIVERSITY SCHOOL OF LAW, THE CONSTITUTION PROJECT, THE RUTHERFORD INSTITUTE, AND THE NATIONAL
ASSOCIATION OF CRIMINAL DEFENSE LAWYERS AS AMICI CURIAE IN SUPPORT OF PETITIONERS.
http://www.constitutionproject.org/manage/file/145.pdf
Instead of looking to the history and function of the Suspension Clause as Boumediene directed, the court
of appeals relied on an abstract principle that has no application to the scope of constitutional habeas
jurisdiction: that “[n]ot every violation of a right yields a remedy, even when the right is
constitutional.” Kiyemba, 555 F.3d at 1027. In so doing, it not only eviscerated the Suspension Clause’s express
guarantee of a remedy and this Court’s holding in Boumediene, but also triggered grave constitutional questions that should
be resolved in the first instance by this Court. While it is true that an individual whose constitutional rights have been
violated may not be entitled to a particular remedy (e.g., damages), this Court has cautioned repeatedly that a
constitutional violation entitles the individual to some remedy. Any effort to eliminate all effectual
remedies for a constitutional violation raises grave constitutional concerns. See Marbury v. Madison, 5 U.S.
(1 Cranch) 137, 163 (1803) (“The government of the U nited S tates has been emphatically termed a
government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws
furnish no remedy for the violation of a vested legal right.”); Webster v. Doe, 486 U.S. 592, 603 (1988) (stating
that a “serious constitutional question” would arise if the Court were to construe a federal statute as
denying “any judicial forum for a colorable constitutional claim”) (citing Bowen v. Mich. Acad. of Family
Physicians, 476 U.S. 667, 681 n.12 (1986)); Johnson v. Robison, 415 U.S. 361, 366-67 (1974) (same); Weinberger v. Salfi,
422 U.S. 749 (1975) (same); accord Demore v. Kim, 538 U.S. 510, 517 (2003); see also Bell v. Hood, 327 U.S. 678, 684
(1946) (“[W]here federally protected rights have been invaded, it has been the rule from the beginning that courts will be
alert to adjust their remedies so as to grant the necessary relief.”). 3 The cases on which the court of appeals relied do not
support that court’s conclusion that not every constitutional violation has a remedy. Indeed, they do not even concern
habeas jurisdiction. Towns of Concord, Norwood & Wellesley v. FERC, 955 F.2d 67 (D.C. Cir. 1992), for example,
involved the scope of remedies available under a complex federal regulatory regime, and did not hold that a remedy did not
exist for a constitutional violation. Similarly, the Court in Wilkie v. Robbins, 127 S. Ct. 2588 (2007), denied Bivens
damages, but recognized that other judicial remedies were available. Id. at 2600-01. See generally Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 404 (1971) (Harlan, J., concurring) (stating that the “availability
of federal equitable relief against threatened invasions of constitutional interests” is presumed). Moreover, contrary to the
court of appeals’ belief, Alden v. Maine, 527 U.S. 706 (1999), explicitly reaffirmed the availability of relief against state
officers as a means to ensure some effectual remedy for states’ constitutional violations. Id. at 757. Whatever
significance a hoary adage like “no remedy for every rights violation” might have in the common law,
it has no place in habeas jurisprudence under the Suspension Clause — a constitutional provision that
enshrines beyond doubt the availability of a judicial remedy.
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A2: Uighurs = Terrorists
Uighurs aren’t terrorists.
Ginny Sloan, J.D., founder of the Constitution Project, Executive Director of the Task Force on Gender, Race, and Ethnic
Bias of the U.S. Court of Appeals for DC, former counsel to the House of Representatives Committee on the Judiciary, 7-22009. [Huffington Post, A Gitmo Tragedy: The Uighurs, p.
http://www.huffingtonpost.com/ginny-sloan/a-gitmo-tragedy-the-uighu_b_225008.html]
Of the many Guantanamo tragedies, perhaps none has been greater than our handling of the Uighurs, a
group of Chinese Muslim detainees. Picked up, detained, and wrongly classified as dangerous terrorists, 17
Uighurs spent more than seven years wrongfully imprisoned. Four were finally released last month, but 13
remain locked up at Guantanamo. The courts, the United States military, and the executive branch dating back to the former administration - have long recognized that these men are not "enemy combatants"
and do not pose a threat to the nation. No moral, legal, or security grounds exist for holding these men
a single day longer. This is not a partisan issue. It is one of due process, civil liberties, and fundamental
fairness.
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A2: Other Branches Solve Uighurs
Only the Supreme Court can bring justice to Uighurs.
Ginny Sloan, J.D., founder of the Constitution Project, Executive Director of the Task Force on Gender, Race, and Ethnic
Bias of the U.S. Court of Appeals for DC, former counsel to the House of Representatives Committee on the Judiciary, 7-22009. [Huffington Post, A Gitmo Tragedy: The Uighurs, p.
http://www.huffingtonpost.com/ginny-sloan/a-gitmo-tragedy-the-uighu_b_225008.html]
In an unexpected move on Monday, the United States Supreme Court put off deciding whether to hear the remaining
Uighurs' case, Kiyemba v. Obama, until they convene again in the fall. The Uighurs seek review of a D.C. Circuit decision
holding that courts lack the power to order the executive branch to release them, even though a court has found that their
detention lacks any legal basis. After years of delay and disappointment, the Kiyemba case represented a glimmer of hope
for the wrongfully imprisoned men. The Supreme Court's failure to take decisive action--while not an outright rejection of
the Uighurs' petition--leaves the promise of their release unfulfilled, a dream deferred. Before the case is even considered,
the Uighurs will remain at Guantanamo for several more months, unless either political branch steps up. Thus far, however,
the legislative and executive branches have been moving in the opposite direction. Congress has created a culture of fear
in Washington, with members rushing to introduce bills that would prevent any detainees from being transferred into their
districts. Just last week, Congress passed a supplemental appropriations measure that included provisions severely
restricting the president's authority to bring any of the Guantanamo detainees into the United States - for trial or release.
The Uighurs, who cannot be repatriated to China, their homeland, due to state-sponsored persecution, are now prohibited
from being released into the United States, at least until the appropriations bill expires at the end of the fiscal year.
President Obama, for his part, has not done much better. Reacting to political pressure, he signed the supplemental
appropriations bill into law, undermining his efforts to shut down Guantanamo in the process. And he continues to assert
the authority to detain the Uighurs though they have won their habeas cases and pose no security threat to our country.
While his administration successfully resettled four Uighur detainees in Bermuda, attempts to move the remaining
detainees to the island nation of Palau or other countries have been unsuccessful thus far. The president missed his
opportunity, before this bill became law, to resettle some of the remaining Uighurs in the United States. Local Uighur
communities offered to help these men integrate into our society. Of more strategic importance, by accepting its share of
responsibility, the United States would have sent a clear signal to our allies, encouraging other countries to partner with us
to fulfill the promise to close the Guantanamo detention facility in one year's time. Instead, the administration now faces an
uphill battle in any efforts to find alternative homes for these wrongfully detained men. At this rate, it may still be up to the
Supreme Court next fall to finally provide justice for the Uighurs.
State Department efforts empirically fail—stalled for years.
Lyle Denniston, SCOTUSblog reporter, 6-29-2009. [SCOTUS Blog, Detainees’ case put off
http://www.scotusblog.com/wp/detainees-case-put-off/]
For the 13 men involved, of course, the postponement means that, even though they are no longer considered to be dangerous
or enemies, they will continue to be confined at Guantanamo Bay under conditions that their lawyers contend are little better
than those faced by prisoners still regarded as enemies. They will gain relief from their captivity over the summer months only
if the State Department succeeds in efforts – stalled for years — to re-settle all of them.
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A2: Detention Pwr
A2: Wind up detention power
Brennan Center 08. 11-24-08. Amicus Brief from the Brennan Center for Justice at New York University School of Law, The
Constitution Project, The Rutherford Institute, and the National Association of Criminal Defense Lawyers in Support of PlaintiffsAppellees and Urging Affirmance. http://ccrjustice.org/files/Brennan%20Center%20-%20Amicus%20Brief.pdf
At the eleventh hour, the Executive throws a Hail Mary, and conjures a novel claim of power to "wind up" detentions
never before presented in this litigation. Gov’t Br. at 47-50. Its claim has no basis in law and should be
rejected} No statute or law-of-war authority allows the Executive to detain habeas petitioners “indefinitely,” or even for
an uncertain term of years, under the pretense of an orderly wind up. Any power the Executive had to hold habeas
petitioners militarily derives from the Authorization for the Use of Military Force (“AUMF”), I IS Stat. 224, note following
50 U.S.C. § 1541 (2000 ed., Supp. V); accord Hamdi, 542 U.S. at 52l (plurality op.). The Supreme Court in Hamdi
instructed that the AUMF should be interpreted to include the "fundamental incident[s] of waging war.” ld at 5 l 8-19. But
there is no law-of-war authority for the indefinite detention of civilians who are not determined to be a
danger. Indeed, even “[d}etainees [properly classified as combatants] in the ‘war on terror’ may not be
held until the ‘cessation of hostilities} They may only be held so long as the particular detainee at issue
represents a danger or threat to the detaining power." Sean D. Murphy, Evolving Geneva Convention Paradigms
in the ‘War on Terrorism Applying the Core Rules to Persons Deemed "Unprivileged Combatants,” 75 Geo. Wash. L.
Rev. 1105, l 164 (2007) (emphasis added).° A fortiori, habeas petitioners—whom the Executive has no authority to
detain under the AUMF—must now be released from military custody because a judicial determination
(unchallenged by the Executive) has already been made that their detention is unlawful. The Nation, and the
courts, faced a choice like this one once before. The situation of Jamal Kiyemba and his co-petitioners can be analogized to
that of a post-World War II detainee: Mitsuye Endo} Adjudicating her habeas action, the Supreme Court held that even
though Endo might have been lawfully detained initially under the March l942 internment statute, once her loyalty had
been established, the Executive lacked any authority to hold her even with the war ongoing. Exparre Endo, 323 U.S. 283,
302 (1944). As in the case at bar, the Government argued that even though no doubt lingered as to Endo’s loyalty, it
nonetheless “maintain[ed] that detention [was allowed] for an additional period after leave clearance has been granted is an
essential step in the evacuation program" because of the necessity of a “planned and orderly relocation." Id at 295-96. That
is, Endo’s jailors’ claimed authority to “wind up" her internment in an orderly way. A unanimous Court curtly dismissed
this “wind-up” claim: We are of the view that Mitsuye Endo should be given her liberty. In reaching that conclusion we do
not come to the underlying constitutional issues which have been argued. For we conclude that, whatever power the War
Relocation Authority may have to detain other classes of citizens, it has no authority to subject citizens who are concededly
loyal to its leave procedure. Id at 297. At a minimum, Endo reinforces the rule that absent a clear statement
from Congress, executive detention—especially of “concede[d]" non-enemy-combatants innocent of
any hostility to the U.S.-is illegal, if not unconstitutional. See Patrick O. Gudridge, Remember Endo?, 116 Harv.
L. Rev. l933, 1953 (2003) (“[l]n Justice Douglas’s analysis, the Constitution prompted the construction of the order and the
statute, and thus the conclusion that Endo's detention was illegal."). The District Court here, therefore, simply followed the
Supreme Court‘s lead in Endo in ordering expeditious release. Kiyemba and his co-petitioners, to be sure, are not
U nited S tates citizens as Endo was. But this distinction makes no difference to the constitutional calculus
when it comes to the Due Process and habeas rights at issue here. See Yick Wo v. Hopkins, 1 18 U.S. 356, 36869 (1884) (confirming constitutional rights extend to non-citizens); see also Boumediene, 128 S. Ct. at 2262 (extending
Suspension Clause to encompass instant habeas petitioners). Endo’s holding is confirmed by countless cases where
federal courts have directed that a person who cannot lawfully be detained must be "unconditionally
released.” Endo, 323 U.S. at 297; see also Nelson v. Day, No. CV-00-00145·RFC, 76 Fed. App. 213, 214 (9th Cir. Sept.
29, 2003) (finding it "certain1y disturbing” that Plaintiff remained in custody 54 days following successful habeas petition).
Detention thereafter violates tl·•e Due Process Clause. See Young v. City of Little Rock. 249 F .3d 730, 735-36 (8th Cir.
2001) (sustaining substantial jury verdict in favor of an unlawfully detained § 1983 plaintiff who, after being ordered
released at a probable cause hearing, was detained for approximately three hours, despite the city’s argument that it must be
allowed time to carry out certain administrative formalities or "out-processing" procedures); Slone v. Herman, 983 F.2d
107, 110 (8th Cir. 1993) (noting that once "the state lost its lawful authority to hold Slone . . . any continued detention
unlawfully deprived Slone of his liberty, [which] . . . is protected from unlawful state deprivation by the due process clause
of the Fourteenth Amendment?).
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N/U – Court Won’t Accept Uighurs
Court hasn’t accepted cert on Uighur case and won’t.
Lyle Denniston, SCOTUSblog reporter, 6-29-2009. [SCOTUS Blog, Detainees’ case put off
http://www.scotusblog.com/wp/detainees-case-put-off/]
Lawyers for 13 Guantanamo Bay prisoners learned Monday that the Supreme Court has put off any action on their case
until its next Term. After noticing that the Court had issued no order on the case of Kiyemba, et al., v. Obama, et al. (081234), the attorneys checked with Court aides and were told there would be no decision “until October at the earliest.” That
apparently means that the Court will not consider granting or denying the case until it next assembles for a private
Conference on Sept. 29. Because the Court took no formal action on Kiyemba Monday, there was no explanation. It is
possible to speculate on the reasons. Among them could be that the Court did not want to be seen to be interfering with
diplomatic efforts to arrange the re-settlement of the 13 men in the case — Chinese Muslims who are members of the
Uighur sect. The U.S. Solicitor General had told the Court that four of 17 Uighurs originally involved in the case had been
released, and that diplomatic efforts would go on to try to place the other 13. Another possible reason was that the Court
was unwilling, while the new Obama Administration was sorting out its overall detention policy, to engage in a
confrontation over presidential or congressional war powers of the kind that had led to four earlier rulings limiting
detention authority. The prospect that the remaining 13 might yet be placed in another country perhaps made it seem that
the case simply would become moot in a matter of weeks. Still another factor in the postponement decision could have
been Congress’ passage this month of new legislation that severely restricts the President’s power to order the release of
any detainees at Guantanamo, to live in the U.S. or to be re-settled in any other country. That legislation raises significant
new constitutional questions, and the Court may have been reluctant to take them on if, in fact, they would not have to do
so because the case might become moot.
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Capital Doesn’t Tradeoff
Capital doesn’t tradeoff between issues – public has different opinions.
Redish and Cisar, prof law @ Northwestern and Law clerk to US Court of Appeals, 19 91
(MARTIN H. REDISH, prof law and public policy @ Northwestern; ELIZABETH J. CISAR, Law Clerk to Chief Judge
William Bauer, United States Court of Appeals, Seventh Circuit, Dec 1991, “CONSTITUTIONAL PERSPECTIVES:
ARTICLE: "IF ANGELS WERE TO GOVERN" *: THE NEED FOR PRAGMATIC FORMALISM IN SEPARATION OF
POWERS THEORY.” 41 Duke L.J. 449)
Choper's assumption that the judiciary's institutional capital is transferable from structural cases to
individual rights cases is no more credible. Common sense should tell us that the public's reaction to controversial individual rights cases-for example, cases concerning abor- tion,240 school prayer,241 busing,242 or
criminal defendants' rights243- will be based largely, if not exclusively, on the basis of its feelings concerning those particular issues. It is unreasonable to assume that the public's acceptance or rejection of
these individual rights rulings would somehow be affected by anything the Court says about wholly
unrelated structural issues.
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Decisions Don’t Affect Capital
Individual decisions don’t affect capital.
Gibson et al., PoliSci @ Wash U in St. Louis and Ohio State, 2003
James L. Gibson, PoliSci @ Wash U in St. Louis, Gregory A. Caldeira, PoliSci @ Ohio State, Lester Kenyatta Spence,
Poli Sci @ Wash U in St. Louis, Apr. 2003, “Measuring Attitudes toward the United States Supreme Court” American
Journal of Political Science, Vol. 47, No. 2 (Apr., 2003), pp. 354-367
more important is the rather limited rela- tionship 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. Insti- tutional loyalty is valuable to
the Court precisely because it is so weakly related to actions the Court takes at the moment.
Perhaps
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Court rules 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, 6/30/09
(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 Supreme Court proved again in its 2009-2010
that its 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 fooling ourselves into
thinking that things will be different. They never are.
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Court Rules on Ideology
Capital irrelevant - Consensus shows decisions based on ideology, not capital.
Cross and Nelson, Biz Law @ UT and PoliSci @ Penn State, 2001
(Frank B. Cross, Biz Law @ UT, Blake J. Nelson, Assis prof PoliSci @ Penn State, 2001, “STRATEGIC INSTITUTIONAL
EFFECTS ON SUPREME COURT DECISIONMAKING” 95 Nw. U.L. Rev. 1437)
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.
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Court Votes on Values
Justices use values and attitudes in important decisions.
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 152
There are theories that seem to combine some of the legal and attitudinal models. One holds that the justices have a
bifurcated agenda. There are issues that the justices care about deeply and, as such, they use their values
and attitudes to make decisions in those areas. Then there are cases that are not central to the concerns of
individual justices and so they follow precedent. Certain issue areas, for the most part in the economic
realm, do not seem to elicit policy responses from the justices. Cases in those areas may be accepted because
there is a lower court conflict or because the Court feels that there is an institutional obligation to settle the dispute. Those
decisions are often narrow and unanimous, suggesting that legal factors are overcoming extralegal
considerations (Pacelle 1991, 80-84; Perry 1991, 277-282).
Justices decide based on values.
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 13)
Despite the public protests and statements to the contrary by virtually every nominee to the Supreme Court, particularly
when addressing the Senate Iudiciary Committee} justices are in an institutional position to make public policy
and their decisions contribute to the authoritative allocation of values that emanate from the Supreme
Court. Furthermore, their behavior once they reach the Court belies their statements that they come with no agenda and no
preconceived no- tions about the issues that reach them as cases. In most issue domains, research shows that justices
exhibit consistency in their decisionmaking that reflects their long-held values and attitudes (Segal and
Spaeth 1993).
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Racism Hurts Legitimacy
Perceived racism hurts court legitimacy.
Eskridge, Yale Law School Prof, 2004
(William Eskridge, John A. Garver Professor of Jurisprudence at Yale Law School, May 2004, Minnesota Law Review 88 Minn L
Rev 1021)
So Brown, Casey, and Lawrence are all consistent with a meta-principle of stare decisis in identity-politics
cases: Once national citizenship has expanded to include a new identity group, and social norms have
changed to accept the group's defining trait as at least tolerable, the Court ought to presume in favor of
expanding the liberties and contracting the exclusions suffered by the once-denigrated group. The Court
should do this not simply because it is just, or even simply because it contributes to the orderly evolution of our pluralist
system - but the Court must do this for its own survival as a neutral arbiter of the rule of law. A Court
perceived as racist, sexist, or (now) homophobic is a Court that cannot do the business the Constitution charges it with and
cannot command the respect of the lower court judges under its supervision. It will be a Court beset [*1063] with
nasty charges, political attacks, and mutinies by lower court judges, until it accommodates the new group.
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L/Turn – Overruling bad Incr. Cap
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 three-fourths 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
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Overruling Bad Incr. Cap
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)
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
In theory at least,
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.
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Overruling Costs no Cap
Overruling when court in flux does not effect credibility.
Banks, Assis Prof PoliSci U of Akron, 1999
(Christopher P. Banks, Assistant Prof of Political Science @ University of Akron, J.D., PhD., 1999, “REVERSALS OF PRECEDENT
AND JUDICIAL POLICY-MAKING: HOW JUDICIAL CONCEPTIONS OF STARE DECISIS IN THE U.S. SUPREME COURT
INFLUENCE SOCIALCHANGE” Akron Law Review Vol. 32 No. 2)
This article analyzes if Justice Marshall is correct in castigating the Rehnquist Court and asserting that it is destroying the
rule of law through its stare decisis jurisprudence. It concludes that Justice Marshall is only partially correct. While the
ideological direction of its jurisprudence has shifted to the right, the Court’s behavior in reversing itself
is normal and does not endanger the Court’s legitimacy or its faithful adherence to law. A fair assessment of the
Rehnquist Court’s precedent cases indicates that they are reversals which were decided in times of
natural court instability and rapid membership change. As a result, the Rehnquist Court’s behavior is not
that unusual because it is merely re-examining precedent in periods of constitutional “flux” and legal
policy change.5
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Overrule based on Ideology
Judges overrule based on ideology.
Spriggs and Hansford, PoliSci @ Wash U in St Louis and UC Merced, 20 01
(James F. Spriggs, II, PoliSci @ Wash U in St Louis, and Thomas G. Hansford, PoliSci @ UC Merced, Nov 2001, “Explaining the
Overruling of U.S. Supreme Court Precedent” The Journal of Politics, Vol. 63, No. 4 (Nov., 2001), pp. 1091-1111)
The first and most obvious factor affecting the Court's decision to overrule a precedent is the ideological compatibility of
the Court with the precedent. Decades of judicial research demonstrate an undeniable causal connection
between the justices' ideological orientations and their votes (see Segal and Spaeth 1993). Scholars also
provide some evidence that the Court's decision to overrule a case depends on the justices' attitudes .
Brenner and Spaeth (1995), for example, conclude that the overruling of precedent occurs in large measure due
to the changing ideological orientation of the Supreme Court over time (see also Banks 1992). Even Supreme
Court justices admit (and sometimes lament) that policy preferences matter. Thurgood Marshall's dissent in Payne v.
Tennessee (1991, 850) criticized the majority for overruling Booth v. Maryland (1987) and South Carolina v. Gathers
(1989) based on ideological reasons: " It takes little detective work to discern just what has changed in Booth
and Gathers: this Court's own personnel." Marshall, of course, was referring to Justice Kennedy's and Souter's
replacement of, respectively, Powell and Brennan between the time when the Court decided and subsequently overruled the
two precedents. Since justices make decisions based on their policy preferences, we expect: Hypothesis 1. The
greater the ideological disparity between a precedent and a subsequent Court, the more likely the precedent will be
overruled.
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Cap Doesn’t Spillover
Capital doesn’t spill over to other decisions.
Redish, Law @ Northwestern U, 1997
Martin Redish, Law @ Northwestern U, Summer 1997, “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
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]
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Cap No Effect on Rulings
No clear connection between capital and decisionmaking.
Grosskopf and Mondak, Profs of Poli Sci Long Island U and U of Illinois, 1998
(Anke Grosskopf, Assistant Prof of Political Science @ Long Island University, & Jeffrey Mondak, 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 September1998)
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)
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
Theoretically,
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 institutional environment leaves at least those judges that they study - generally U.S. 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.
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Jud Cap Resistant
Judicial capital is resistant – one controversial decision won’t destroy it.
Grosskopf and Mondak, Profs of Poli Sci Long Island U and U of Illinois, 19 98
(Anke Grosskopf, Assistant Prof of Political Science @ Long Island University, & Jeffrey Mondak, 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 September1998)
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 shortterm 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, Profs of Political Science at Wash U in St. Louis and Ohio State U, 20 09
(James L. Gibson, prof of PoliSci @ Wash U in St. Louis, and Gregory A. Caldeira, Prof of PoliSci @ Ohio State U, January 2009,
“Confirmation Politics and The Legitimacy of the U.S. Supreme Court” American Journal of Political Science, Vol. 53, No. 1,
January 2009, Pp. 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.
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