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Courts Counterplan
1NC Shell (1/4) .......................................................................................................................................................................................... 3
1NC Shell (2/4) .......................................................................................................................................................................................... 4
1NC Shell (3/4) .......................................................................................................................................................................................... 5
1NC Shell (4/4) .......................................................................................................................................................................................... 6
***COURTS SOLVENCY***
Courts Solvency – Social Services............................................................................................................................................................. 7
Courts Solvency - Abortion ....................................................................................................................................................................... 8
Courts Solvency – Implementation ............................................................................................................................................................ 9
Courts Solvency – Test Case Solvency.................................................................................................................................................... 10
Courts Solvency – Public Acceptance ..................................................................................................................................................... 11
Courts Solvency – Social Change ............................................................................................................................................................ 12
Courts Solvency – Social Change ............................................................................................................................................................ 13
Courts Solvency – Equal Rights .............................................................................................................................................................. 14
Courts Solvency – Equal Rights .............................................................................................................................................................. 15
Courts Solvency – Discrimination ........................................................................................................................................................... 16
Courts Solvency – K Advantages ............................................................................................................................................................ 17
Courts Overrule States ............................................................................................................................................................................. 18
Courts Overrule Congress ........................................................................................................................................................................ 19
Courts Better than Congress – Constitutionality ...................................................................................................................................... 20
Courts Better than Congress – State Backlash ......................................................................................................................................... 21
***BLOCK ANSWERS***
A2 Public Backlash .................................................................................................................................................................................. 22
A2 Court Stripping................................................................................................................................................................................... 23
A2 Court Stripping................................................................................................................................................................................... 24
A2 Court Stripping................................................................................................................................................................................... 25
A2 Hollow Hope ...................................................................................................................................................................................... 26
A2 Hollow Hope ...................................................................................................................................................................................... 27
A2 Perm – Constitution ........................................................................................................................................................................... 28
A2 Perm – Societal Violence ................................................................................................................................................................... 29
A2 Perm – Separation of Powers ............................................................................................................................................................. 30
A2 Perm – Judicial Legitimacy ................................................................................................................................................................ 31
A2 Perm – Rights ..................................................................................................................................................................................... 32
Impact – Separation of Powers ................................................................................................................................................................ 33
Impact – Separation of Powers ................................................................................................................................................................ 34
Impact – Constitution ............................................................................................................................................................................... 35
***NET BENEFIT***
Courts Key to Deliberation ...................................................................................................................................................................... 36
Courts Key to Deliberation ...................................................................................................................................................................... 37
Courts Key to Deliberation ...................................................................................................................................................................... 38
Deliberation Key to Democracy .............................................................................................................................................................. 39
Impact – Democracy ................................................................................................................................................................................ 40
No Link to Politics ................................................................................................................................................................................... 41
No Link to Politics ................................................................................................................................................................................... 42
No Link to Politics ................................................................................................................................................................................... 43
No Link to Politics – Obama ................................................................................................................................................................... 44
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***AFF ANSWERS***
Courts Links to Politics ............................................................................................................................................................................ 45
Courts Links to Politics ............................................................................................................................................................................ 46
Perm Card ................................................................................................................................................................................................ 47
No Solvency – Implementation................................................................................................................................................................ 48
No Solvency – Social Change .................................................................................................................................................................. 49
No Solvency – Social Change .................................................................................................................................................................. 50
Link – Unpopular Decisions  Court Stripping ..................................................................................................................................... 51
Link – Unpopular Decisions  Court Stripping ..................................................................................................................................... 52
Link – Abortion Rulings  Court Stripping ........................................................................................................................................... 53
Link – LSC Ruling  Court Stripping .................................................................................................................................................... 54
Link – Immigrants/Prisoners Rulings  Court Stripping ....................................................................................................................... 55
Impact – Court Stripping – Constitution .................................................................................................................................................. 56
Impact – Court Stripping – Constitution .................................................................................................................................................. 57
Impact – Court Stripping – Judicial Legitimacy ...................................................................................................................................... 58
Impact – Court Stripping – Separation of Powers.................................................................................................................................... 59
Stripping  No Solvency ........................................................................................................................................................................ 60
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Text: The United States Supreme Court should _________________________________________________
__________________________________________________________________________________________
_________________________________________________________________________________________.
Contention One – Solvency
The Supreme Court is the ultimate social service policymaker
DiNitto, Professor of Social Work, 01
(Diana DiNitto, Professor, School of Social Work, The University of. Texas at Austin, “An overview of American Social Policy”
2001, Editors: James Midgley, Dean of School of Social Welfare at Berkeley, Martin Tracy, Director of the School of Social Work
Souther Illinois University at Carbondale, and Michelle Livermore, Instructor in the Department of Sociology at Louisinana State
University, “The Handbook of Social Policy”)
When people are unhappy with a policy decision, they may appeal to the courts, and when they disagree with a lower court
decision, they try to appeal to a higher court. The Supreme Court is the ultimate authority. lt plays a critical
role in social policy. For example, in 1968, it ruled that "man-in·the-house rules" could not be used to "flatly deny"
children AFDC, and in 1979, it ruled that it was unconstitutional to pro- vide AF DC benefits to unemployed fathers but not
to unemployed mothers. The U.S. Supreme Court has also played a major role in the quest to end racial
discrimination and in the right to obtain an abortion. Without these decisions, social policy might be
quite different from what it is today. The role of judges is to interpret the laws and the constitutions of the federal and
state governments, but there are conservative justices, liberal justices, and those whose decisions are not so predictable.
Since many Supreme Court decisions are split, the high court offers majority and minority opinions
with its rulings. The president makes nominations to the Supreme Court and to other federal courts, and the Senate
decides whether or not to approve them. This is serious business because judges and Supreme Court justices are permitted
to serve for life. The nine Supreme Court justices have been called the most elite of policy makers (Dye &
Zeigler, 2006).
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Contention Two – Deliberation
1. Courts best promote national deliberation
Christine Bateup (historical scholar and JSD Candidate at NYU, 2006. (71 Brooklyn L. Rev. 1109, “The Dialogic Promise
Assessing The Normative Potential of Theories of Constitutional Dialogue,” ln)
The most prominent descriptions of constitutional dialogue in this vein have been developed by Barry Friedman and by
Robert Post and Reva Siegel. 184 Friedman's is the most positive account, as it is explicitly grounded in social
science studies regarding institutional interactions between the [*1158] judiciary, the political branches, and the people.
185 These studies show that while the Supreme Court has significant leeway in making pronouncements, if it strays too far
from what the other branches of government and the people accept, political constraints such as the power of judicial
appointments and popular backlash will bring the Court back into line. 186 Friedman relies on this evidence principally to
stress the role of public opinion as one of the principal forces controlling the Court. Although this mechanism is not
understood perfectly, social science evidence increasingly suggests that judicial outcomes tend to run in line with public
opinion over the longer term. 187 While these studies show that the Court is heavily constrained, Friedman argues that
judicial decisions still play an important function in the constitutional system as they serve to spark (or
continue) a broader national discussion about constitutional meaning. 188 As a result, the Court acts as the shaper
and facilitator of society-wide discussion about constitutional values. When it declares its own views about the meaning of
constitutional text, the Court actively channels and fosters ongoing societal debate by synthesizing the
various, and possibly disparate, views about constitutional meaning and by articulating that debate in an
explicitly constitutional form. 189 [*1159] In the process, the Court also mediates the views of different participants in the
debate and focuses the terms in which future debate might proceed. The Court's decisions then facilitate further
debate, either by acting as a catalyst for discussion along particular lines or by prodding other institutions
into deliberative action. As a result of these dynamics, Friedman describes the function of judicial review in the United
States constitutional system as one of promoting and facilitating constitutional dialogue. 190 The Court's participation in
this dialogue is dynamic -- not only does it spark a process of national discussion, but it is also, in turn, affected and shaped
by this conversation. 191 When a decision is rendered it is subject to discussion and debate within society. Over time, if
there is enough popular disagreement with the Court's ruling, new legislation may be passed and legal challenges brought
that test the finality of the decision in a more concrete sense. As a result of this dissent and debate, the Court may ultimately
come to reconsider and refashion its decision. Under this model, the perspectives of non-judicial actors may therefore
influence the Court as much, if not more, than the Court itself influences the rest of society. 192 Over time, this process
produces a relatively enduring constitutional equilibrium that is widely accepted by all the participants in the national
discussion. Friedman further argues that the dialogic role the judiciary performs is a valuable one, as it
"achieves the separation of constitutional requirements from immediate political preferences," 193 and, in the long
term, the production of [*1160] stable and broadly supported answers to questions of constitutional
meaning. 194
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2. Deliberation is key to maintaining democracy
Bianchi, Director of Department of Social and Biological Communication, 97
Gabriel Bianchi, Director of the Department of Social and Biological Communication at the Slovak Academy of Sciences in
Bratislava, July 1997, “STRENGTHENING TRANSITIONAL DEMOCRACIES THROUGH CONFLICT RESOLUTION:
CONFLICT RESOLUTION EDUCATION, TRAINING, AND GLOBAL DEVELOPMENT: Training in Skills for Coping with
Democracy”
The existence of the third sector (nongovernmental, nonprofit organizations) is one of the most significant
attributes of a modern democratic society. Third-sector organizations are active in the space between the first
(state) and second (free-market) sectors. There is, however, no agreement between theorists in evaluating the role of the
third sector. Some politicians consider the third sector to be "an inseparable part of a mature civil society, an indicator of its
maturity." n23 On the contrary, from a radical liberal-democratic view, through their activities, third-sector organizations
threaten political parties (which should be the genuine instruments representing citizens' interests) and thus disable the basic
mechanisms of a democratic state According to Fishkin, three conditions are necessary for a mature democracy:
equity, nontyranny, and deliberation. n24 Without deliberation to shape choices, the public's decisions
are prone to be ignorant and lose [*120] their political authority. Dahl n25 also sets criteria for democracy, but
his approach is aimed not at the "outcome" (a mature democracy) but at democratic processes. He suggests the following
rules: real participation, equality of votes, enlightened understanding, and control of program.
3. Lack of democracy leads to extinction
Diamond 95 (Larry Diamond, Hoover Institution senior fellow, co-editor of the Journal of Democracy, December 1995, A Report
to the Carnegie Commission on Preventing Deadly Conflict, “Promoting Democracy in the 1990s: Actors and Instruments, Issues and
Imperatives,” http://wwics.si.edu/subsites/ccpdc/pubs/di/1.htm)
OTHER THREATS This hardly exhausts the lists of threats to our security and well-being in the coming years and decades.
In the former Yugoslavia nationalist aggression tears at the stability of Europe and could easily spread. The flow of illegal
drugs intensifies through increasingly powerful international crime syndicates that have made common cause with
authoritarian regimes and have utterly corrupted the institutions of tenuous, democratic ones. Nuclear, chemical, and
biological weapons continue to proliferate. The very source of life on Earth, the global ecosystem, appears
increasingly endangered. Most of these new and unconventional threats to security are associated with or
aggravated by the weakness or absence of democracy, with its provisions for legality, accountability, popular
sovereignty, and openness. LESSONS OF THE TWENTIETH CENTURY The experience of this century offers important
lessons. Countries that govern themselves in a truly democratic fashion do not go to war with one
another. They do not aggress against their neighbors to aggrandize themselves or glorify their leaders. Democratic
governments do not ethnically “cleanse” their own populations, and they are much less likely to face ethnic
insurgency. Democracies do not sponsor terrorism against one another. They do not build weapons of mass
destruction to use on or to threaten one another. Democratic countries form more reliable, open, and enduring trading
partnerships. In the long run they offer better and more stable climates for investment. They are more environmentally
responsible because they must answer to their own citizens, who organize to protest the destruction of their
environments. They are better bets to honor international treaties since they value legal obligations and because their
openness makes it much more difficult to breach agreements in secret. Precisely because, within their own borders, they
respect competition, civil liberties, property rights, and the rule of law, democracies are the only reliable
foundation on which a new world order of international security and prosperity can be built.
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Contention Three – Politics
Court decisions facilitate policymaking without political backlash
Miller and Barnes, Associate Professors of Government and Political Science, 04
(Mark Miller, Associate Professor of Government Clark University, Making Policy, Making Law, Jeb Barnes, Assistant Professor of
Political Science at the University of Southern California, 2004
http://books.google.com/books?id=cuE9Ee5KU5IC&pg=PA68&lpg=PA68&dq=%22reverence+that+the+american+public+extends+t
o+the+judicial+branch%22&source=bl&ots=7C6lAB5VOz&sig=hbmeL9Lkl6qajHlNhn3kAHQX_Os&hl=en&ei=k0JnSszmAomnlA
f1m63dDA&sa=X&oi=book_result&ct=result&resnum=1)
ln the 1960s, the conventional wisdom among political scientists came to be that the ‘ federal courts
in general and the
U.S. Supreme Court in particular are protected from the most deadly of congressional attacks by the
high respect and reverence that the American public extends to the judicial branch . ln the early 1960s,
Murphy and Pritchett argued that "courts are protected by their magic; only rarely can a hand be laid on a judge without a
public outcry of sacrilege" (Murphy and Pritchett 1961, 554-55). ln the late 1960s, Nagel continued this theme when he
argued that milder forms of attacks on specific decisions of the Supreme Court had more chance of passing in Congress
than did more frontal attacks (Nagel 1969, 277). Others argue that many in Congress actually prefer that the federal courts
hand down decisions on extremely divisive issues (see, e.g., Dahl 1957; Bickel 1962; Graber 1993). As Graber explains this
line of reasoning, °‘Mainstream politicians may facilitate judicial policymaking in part because they have
good reason to believe that the courts will announce those policies they privately favor but cannot
openly endorse without endangering their political support" (1993, 43). Schubert (1960) and Miller (1995) have
argued that the presence of so many lawyers in Congress also protects the courts from serious institutional attacks. Harry
Stumpf summarizes this line of scholarship when he writes, "Tbe prestige or sacrosanctity argument in Congress is used
and used with some effectiveness in protecting the judiciary against anti-Court legislative reaction" (Stumpf 1965, 394).
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Courts Solvency – Social Services
The Supreme Court is the ultimate social service policymaker
DiNitto, Professor of Social Work, 01
(Diana DiNitto, Professor, School of Social Work, The University of. Texas at Austin, “An overview of American Social Policy”
2001, Editors: James Midgley, Dean of School of Social Welfare at Berkeley, Martin Tracy, Director of the School of Social Work
Souther Illinois University at Carbondale, and Michelle Livermore, Instructor in the Department of Sociology at Louisinana State
University, “The Handbook of Social Policy”)
When people are unhappy with a policy decision, they may appeal to the courts, and when they disagree with a lower court
decision, they try to appeal to a higher court. The Supreme Court is the ultimate authority. lt plays a critical
role in social policy. For example, in 1968, it ruled that "man-in·the-house rules" could not be used to "flatly deny"
children AFDC, and in 1979, it ruled that it was unconstitutional to pro- vide AF DC benefits to unemployed fathers but not
to unemployed mothers. The U.S. Supreme Court has also played a major role in the quest to end racial
discrimination and in the right to obtain an abortion. Without these decisions, social policy might be
quite different from what it is today. The role of judges is to interpret the laws and the constitutions of the federal and
state governments, but there are conservative justices, liberal justices, and those whose decisions are not so predictable.
Since many Supreme Court decisions are split, the high court offers majority and minority opinions
with its rulings. The president makes nominations to the Supreme Court and to other federal courts, and the Senate
decides whether or not to approve them. This is serious business because judges and Supreme Court justices are permitted
to serve for life. The nine Supreme Court justices have been called the most elite of policy makers (Dye &
Zeigler, 2006).
Courts have jurisdiction over social policy
Horowitz, Professor of Law and Political Science, 77
(Donald L. Horowitz, Professor of Law and Political Science
http://www.brookings.edu/press/Books/1977/courtsandsocialpolicy.aspx)
at
Duke,
1977,
“Courts
and
Social
Policy”
the power of American judges to make social policy has been significantly broadened.
The courts have reached into many matters once thought to be beyond the customary scope of judicial
decisionmaking: education and employment policy, environmental issues, prison and hospital
management, and welfare administration—to name a few. This new judicial activity can be traced to various
In recent years,
sources, among them the emergence of public interest law firms and interest groups committed to social change through the
courts, and to various changes in the law itself that have made access to the courts easier. The propensity for bringing
difficult social questions to the judiciary for resolution is likely to persist.
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Courts Solvency - Abortion
Only judicial policymaking solves abortion liberalization
Lemieux, Assistant Professor of Political Science, 05
(Scott Lemieux, Assistant Professor of Political Science at Hunter College, "Why Roe was Not Counterproductive: A Reply" 3-22005)
Nathan argues that "[t]he strongest argument against Roe's baleful effect is the argument that abortion liberalization had stalled
in the year or two before Roe due to religious countermobilization that had preceded Roe. Now, this is a real argument, but no
one argues that legislative changes don't lead to resistance by opponents and occasional setbacks. After
the massive liberalization of abortion laws in the late 60s and early 70s, a year or two pause in abortion
rights advances is hardly a strong argument for the permanent strength of the religious right before Roe." I
don't believe that my argument is a strawman; Gorney is merely the most recent example of an abortion scholar who believes
that Roe "created" the pro-life movement. But, more importantly, once one has conceded that the liberalization at the
state level created a significant backlash, there's just not much of an argument left. Nathan argues that we shouldn't
have given up because of a bad year or two. But to turn that around: why should we give up in the face of a backlash
against Roe that has succeeded neither in getting the decision overturned nor changing public opinion
about abortion? Unless one simply has an a priori normative opposition to judicial policy-making, that's a
tough case to make.
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Courts Solvency – Implementation
Courts can legislate power from states to the federal government
Baldwin, Assistant Professor of Law, 08
(Bridgette Baldwin, Assistant Professor of Law at Western New England College School of Law, 2008, IN SUPREME JUDGMENT
OF THE POOR: THE ROLE OF THE UNITED STATES SUPREME COURT IN WELFARE LAW AND POLICY, Vol. 23, Law,
Gender, & Society)
Thus, despite the existence of the federal work incentive scheme, the Supreme Court ruled that there was no “clear
manifestation” of any Congressional intent to block state policies that required recipients to demonstrate efforts to work.247
Under new federalism, the Supreme Court was free to interpret how federal statutes—particularly those that
favored recipients—were implemented by the state.
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Courts Solvency – Test Case Solvency
Test cases are used to bring controversial issues before the court for interpretation
Antioch, Wasby, Professor of Political Science 2005 The Oxford Companion to the Supreme Court of the United States
A test case has usually been thought of as one in which an individual, but more likely an interest
group, initiates a case in order to challenge the constitutionality, or perhaps a particular disliked
interpretation, of a statute. There are other situations that, although somewhat different from this
traditional sense of “test case,” can also be loosely called “test cases.” Some people challenge laws, not necessarily with the thought of “going to the
Supreme Court,” but simply because the laws are thought improper, but their cases end up in the Supreme Court; examples are provided by civil rights
demonstrators who sat in at restaurants in the South in the 1950s and 1960s. Their convictions on a variety of misdemeanor charges provided convenient
opportunities for the federal courts to speak out against racial discrimination. Others might specifically provoke arrest under a statute, with the intention
that the case reach the high court, as occurred after Congress in 1989 passed a statute against flag burning. In still other situations, when individuals run
afoul of a law they did not specifically seek to break, a lawyer taking their case may challenge the statute's validity rather than try to avoid a conviction .
The examples just noted are relatively recent civil liberties or civil rights situations. Instances of test
cases are also found in economic regulation: many challenges to New Deal regulatory legislation were
intentionally brought by businesses, their trade associations, or conservative interest groups like the Liberty Lobby. Test cases can
be found much earlier as well. One example is the famous “separate but equal” case, Plessy v. Ferguson
(1896), which resulted from a concerted effort by some lawyers, joined by railroads, to invalidate Jim Crow statutes ; another was an effort by
conservatives to challenge the federal income tax through action masked in a collusive suit,
Pollock v. Farmers' Loan and Trust Company
(1895).
Test cases bring controversial issues before the court
Wasby, Professor of Political Science, 05
(Antioch, Wasby Professor of Political Science 2005 The Oxford Companion to the Supreme Court of the United States)
There are several reasons for frequent contemporary use of test cases. The Supreme Court has
broadened access to the courts by those seeking to challenge laws. Judges are also more willing to entertain
actions for declaratory judgments, that is, declarations of a party's rights before the person is charged with violation of a law; to
entertain attacks on a statute “on its face,” that is, on the statute as written, not as applied; to issue injunctions against
enforcement of a law; and to grant summary judgments, that is, to rule on the basis of affidavits rather than waiting until
extensive testimony has been taken about contested facts. As a result , few new controversial statutes last long before being
tested. Test cases serve to move political issues quickly into a legal setting and to accelerate their
arrival at the Supreme Court. Because the Supreme Court is a major political actor likely to confront any major current controversy in due
course, test cases are to be expected and are consonant with this view of the Court's role. However, some test
cases leave the justices without the benefit of seeing how a statute is applied and, however it may appear “on its face,” whether it might have been applied
in a constitutional manner. To the extent our adversary legal system is associated with cases heavily anchored in particular facts, the greater use of facial
The Court itself could make it harder to bring test cases lacking a
thorough factual development. One way would be to alter rulings on procedure, as the Burger Court
did by tightening rules on access to the courts, for example, limiting who had standing to challenge
zoning rules (Warth v. Selden, 1975). Another would be simply not to grant review in cases where a thorough factual record had not been
statutory challenges is a departure from that tradition.
developed.
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Courts Solvency – Public Acceptance
The Courts are more popular than congress.
Doni Gewirtzman, Prof of Law at NYU, 2005 “Glory Days: Popular Constitutionalism, Nostalgia, and the True Nature of
Constitutional Culture
First, many Americans simply want nothing to do with constitutional culture. Moreover, to the extent the
Court is engaging the People in a dialogue about constitutional aspirations, the People are not doing a particularly good job
of holding up their end of the conversation. Apathy, disengagement, and low levels of political knowledge are enduring
forces in modern political culture, and -- if generational trends remain consistent -- will continue to be for the foreseeable
future. Their omission, particularly in policentrist narratives, creates an inaccurate picture of constitutional
culture in practice, one that gerrymanders recent political history to highlight isolated moments of civic
engagement while whitewashing the distant relationship between large segments of the polity and the
interpretive process. Second, the People do not serve as a particularly stable or reliable check on the Court's interpretive
power. Popular interpretive preferences, where they exist, are often made without much awareness about politics generally,
or the Constitution and the Court in particular. A public that is unaware of constitutional culture cannot engage in a
conversation about shared constitutional values with the Court or any other interpretive actors. Further, once a preference is
ascertained, it often proves unstable and easily susceptible to elite influence, lending a distinctly dubious quality to
popular communications across the law-politics divide. Political institutions seeking to discern interpretive preferences are
left with a melange of conflicting information that is easily subject to manipulation. Third, constitutional culture
reflects the disparities of wealth and power that permeate our political culture. Popular input is derived
primarily from an unrepresentative minority of Americans that, curiously enough, shares many
demographic traits with constitutional theorists and Supreme Court judges. Knowledge of and participation
in constitutional culture are disproportionately concentrated among well-educated, financially secure individuals who are
highly attentive to political life. Moreover, the increased use of checkbook participation reinforces the upper-crust
complexion of popular constitutionalism in practice. Hence, while the composition of the Court is far from representative -under virtually any demographic metric -- granting the People heightened interpretive input presents its own set of
problems. Fourth, constitutional culture often acts to reinforce juricentric norms and legitimize judicial
authority. As a forum for disagreement, many Americans see the courts as a preferable alternative to
direct participation or a flawed political process. Even when the Court risks its political capital, as it
did with Bush v. Gore, its public support remains solid. 271 Further, a declining sense of external and internal
efficacy leaves the People predisposed to outsource constitutional disagreements to judicial fora. Finally, the contemporary
political environment presents a number of serious operational challenges for increased popular constitutionalism in the
foreseeable future. Younger generations disproportionately reflect overall declines in political interest, participation, and
efficacy. A citizen-interpreter who lacks faith in her own ability to master the skills necessary to participate in constitutional
dialogues, or believes that political institutions are unresponsive to popular input, is unlikely to participate in constitutional
culture. Moreover, a political culture that doubts the People's capacity for self-governance is unlikely to respond well to
heightened popular input in constitutional lawmaking outside Article V. In such a context, it is likely that Americans, who
already make interpretive decisions based on limited information, will doubt their ability to fully understand basic
constitutional issues and opt out of the interpretive process. As realist democratic theorists have long held, declining levels
of participation do not necessarily present an immediate threat to the People's ability to check institutional actors. 272
Indeed, a dramatic increase in political participation could present a potential threat to democratic stability. 273 Yet the
decline is worrisome, if not for the present then for the future. As participation declines, it heightens
the risk that constitutional meaning will reflect only the self-interest of a limited number of participants
-- primarily the rich and well-educated -- while effectively silencing the constitutional perspectives of a
large segment of the American population. 274 Decreased participation also means that constitutional culture will
become increasingly dominated by a small number of intense issue activists whose views differ substantially from those of
nonparticipants. 275 Further, if one of popular constitutionalism's primary normative virtues is its ability to initiate a
national conversation about constitutional values -- to give the People a sense of ownership over the document and its
meaning -- this virtue is at risk when fewer people participate in constitutional culture. If the People are ill-equipped,
unwilling, or unable to engage in a larger cultural dialogue about constitutional meaning, "constitutional culture" may
amount to little more than an academic construction or a series of observations by pundits on a Sunday morning talk show.
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Courts Solvency – Social Change
Courts resolve social issues when other agencies are unable to do so – historical examples
McGinni, Professor of Law, 07
(John O. McGinni, Professor of Law, Northwestern University and Charles W. Mulaney Associate, Perkins Coie LLP, 12-8-07,
“Judging Facts Like Law: The Courts versus Congress in Social Fact-Finding”)
I conclude with three broader consequences and implications. First, the institutional power of courts described in this article
is both historically situated and, in important ways, constant over time. Courts gained power when elected officials
were unable to respond on their own and looked to defer and displace political conflict onto the courts.
In this regard, my work agrees with Mark Graber's (1993, 36) argument that courts are historically most powerful
when “the dominant national coalition is unable or unwilling to settle some public dispute .” In addition,
courts gained influence at a time when lawyers and judges were greatly expanding their own professional opportunities.
Congress aided, but only tacitly, this expansion of the legal community. The specific historic nature of these reforms meant
that they could later be taken away. By the mid-1970s, Congress started to pay closer attention to the politics of legal rule
making. In 1973, Congress rejected rule changes for the first time and has since remained far more active in this process
(Bone 1999). Congress has also scaled back professional opportunities for lawyers, restricting class action and attorney fee
opportunities. The Supreme Court has also changed and now reviews legal and procedural matters differently. Many of the
Court's key decisions that put pressure on unions, from Griggs to Weber, have since been either overturned, severely
narrowed, or reinforced only by statute. At the same time, as American political development scholars have argued with
regard to other institutions, certain historical developments that increase an institution's power are not so easily displaced
even in times when electoral officials favor such changes (e.g., North 1990; Skowronek1993). Moreover, there are
features of U.S. legal systems and courts, such as their reliance on common law and the multitude of
judges and forums that are provided to civil rights litigants, which enable courts always to provide a
certain degree of malleability and dynamism that can give rise to political activism even in moments of
historical retrenchment (McCann 1994).
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Courts Solvency – Social Change
Courts act independent of political backlash to create social change
Lemieux, Assistant Professor of Political Science, 05
(Scott Lemieux, Assistant Professor of Political Science at Hunter College, "Why Roe was Not Counterproductive: A Reply" 3-22005)
The key argument at the heart of our theoretical disagreement, I think, is Nathan's claim that "[t]he case against Roe is that
the result of judicial activism was a particularly toxic form of counter-reaction that fused normal political disagreement into
a mode of rightwing conspiracy thinking that fused social conservatives into a much broader New Right alliance." These
kinds of qualitative arguments are hard to prove either way, and Nathan may be right, but I strongly believe that this is
incorrect. First of all, I just don't think that the many scholarly proponents of this thesis have made the case; abortion
rhetoric was quite toxic prior to 1973. More importantly, I think that the anti-elitist rhetoric of the New Right can
(and is) deployed against any and all institutions they perceive as being against them . Allow me to return
to Romer v. Evans. Again, this case arose out of an Amendment that resulted as a response to the
protection of gay rights by democratically elected city councils. In his dissent, Scalia fulminated against the
legislative success of a "geographically concentrated and politically powerful minority." Affirmative action is another
classic example; conservatives are able to mine fury against courts who refuse to overturn the policies
of democratically accountable officials. It seems to me that arguments against "judicial activism" are equally
applicable against "elites" and "Congress" and "those bureaucrats down at the state capitol." Cultural reactionaries,
angry at the disappearance of a past that in many cases never existed, can be a bottomless well of anger
and resentment, and as the mobilization against state liberalization of abortion laws (as well as any number of other
issues) makes clear. I simply don't believe that most conservative activists have a principled democratic
theory that will cause them to react more positively to political losses that don't occur in the courts.
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Courts Solvency – Equal Rights
Only the Supreme court can safeguard rights – the political process excludes them
Gershowitz, Law Professor, 05
(Adam M. Gershowitz, South Texas College of Law,
http://www.law.indiana.edu/ilj/volumes/v80/no3/gershowitz.pdf)
Summer
2005,
“The
Invisible
Pillar
of
Gideon”
The underlying premise of our democracy is that policy decisions should be made by politically accountable, elected
officials. Decisions made by unelected, life-tenured judges are “countermajoritarian.”161 The most prominent attempt to
circumvent the countermajoritarian difficulty is political process theory, and in particular the work of John Hart Ely. 162
Ely’s theory, which has been widely criticized 163 and less widely defended,164 posits that the Court should embroil
itself in the political process only to (1) protect the political access of minority groups, and (2)
invalidate legislative actions that are designed to prejudice discrete and insular minorities.165 Although
political process theory can be invoked in numerous fields of constitutional law, 166 it is perhaps most at home in the
criminal procedure arena.167 As Professor Michael Klarman has observed, “[b]ecause the political process does not
adequately represent the interests of those societal groups largely populating the criminal class,
political process theory demands judicial superintendence.”168 Put simply, elected officials typically have
little or no interest in protecting the rights of criminal defendants. Only a “counter-majoritarian”
institution—the Supreme Court—can safeguard their rights.
Courts solve rights
Gloppen, Prof of Political Science, 05
(Siri Gloppen, professor of political science at the department of comparative politics of the University of Bergen, 12-15-05,
“PUBLIC INTEREST LITIGATION, SOCIAL RIGHTS AND SOCIAL POLICY,”
http://siteresources.worldbank.org/INTRANETSOCIALDEVELOPMENT/Resources/Gloppen.rev.3.pdf)
public interest litigation is used – and proposed – as a strategy to influence
social policy in fields such as health, environment, housing, land, education and gender. Activists see it
as a channel through which the voice of the marginalized can be articulated into the legal-political
system and as a mechanism to make the state more responsive and accountable to their rights .
In a growing number of countries
International NGOs and networks specialise in particular areas of cause lawyering, in which they undertake and support
litigation efforts in various parts of the world. 3 And donors have been supportive of public interest litigation and encourage
it as a strategy, also in the least developed countries. This in turn has provided local NGOs and activists who have not
previously engaged in public interest litigation with incentives and inspiration to take up test cases.4
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Courts Solvency – Equal Rights
Courts have empirically ruled in favor of welfare
Baldwin, Assistant Professor of Law, 08
(Bridgette Baldwin, Assistant Professor of Law at Western New England College School of Law, 2008, IN SUPREME JUDGMENT
OF THE POOR: THE ROLE OF THE UNITED STATES SUPREME COURT IN WELFARE LAW AND POLICY, Vol. 23, Law,
Gender, & Society)
This article will examine the major Supreme Court rulings since the late 1960s that have directly addressed Aid to Families
with Dependent Children (AFDC), commonly known as welfare. The Supreme Court decided cases, such as King v.
Smith,10 Shapiro v. Thompson,11 and Goldberg v. Kelly,12 in favor of welfare recipients.13 The outcomes of
these cases suggest that while the Supreme Court viewed welfare policy as a negotiation between federal and state
governments,14 it reserved a special role for the judicial branch in protecting equal rights . The judicial
understanding of the relationship between federal and state government power within welfare policy ranged from
“cooperative federalism,” (expanding powers of the national government in areas traditionally left to the states) to fiscal
conservatism (privileging state power and proffering a hands-off approach). These conceptual rubrics do not follow a linear
narrative nor offer a story of change over time; instead they are competing approaches that can be implemented by the
Supreme Court simultaneously.
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Courts Solvency – Discrimination
Courts can intervene to challenge discrimination
Baldwin, Assistant Professor of Law, 08
(Bridgette Baldwin, Assistant Professor of Law at Western New England College School of Law, 2008, IN SUPREME JUDGMENT
OF THE POOR: THE ROLE OF THE UNITED STATES SUPREME COURT IN WELFARE LAW AND POLICY, Vol. 23, Law,
Gender, & Society)
However, the question still remains as to what specific role the Supreme Court has in this complex matrix of mediation. In the
case of welfare law, the Supreme Court was the instrument used by working poor and specifically working class
Black women to challenge acts of discrimination implemented through state policies.162 When it came to distribution of
welfare funds, state and local government officials were paternalistically involved in the lives of low-income Black
mothers.163 As in larger Civil Rights struggles, the call for “states’ rights” became the perfect foil to implement and
enforce “separate and unequal” under the law.164 In most cases, without the intervention of the Supreme Court
Black mothers were “at greater risk of being discriminated against because of personal and institutional
race bias.”165
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Courts Solvency – K Advantages
Court beliefs shape the ideological framing of laws
Baldwin, Assistant Professor of Law, 08
(Bridgette Baldwin, Assistant Professor of Law at Western New England College School of Law, 2008, IN SUPREME JUDGMENT
OF THE POOR: THE ROLE OF THE UNITED STATES SUPREME COURT IN WELFARE LAW AND POLICY, Vol. 23, Law,
Gender, & Society)
With such emphasis placed on “the law,” the Supreme Court appears to hold itself above the fray of public opinion, but welfare
policy exposes this perspective as a fallacy. As critical race scholars have long shown, the Supreme Court may not be able to
change the law, but the Justices’ beliefs about responsibility and deservedness heavily inform their decisions
about the spirit of the law.313 The inescapable conclusion is that a gendered and racially unequal pro-capitalist
socio-economy has profoundly shaped the “neutral” laws surrounding welfare policy. Pro-capitalism and
fiscal conservatism, for example, are at the intersection of a national attack on the “welfare queen”
albatross. The Supreme Court has both responded to and helped shape that intersection . . . and that attack.
Though political analysts and activists have so far been reluctant to acknowledge the Court’s role in welfare policy, welfare
advocates would be well-advised to plan future pro-welfare initiatives with a full understanding of the role the Supreme Court
might play in influencing the success of those efforts. 312.
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Courts Overrule States
Courts can legislate power from states to the federal government
Baldwin, Assistant Professor of Law, 08
(Bridgette Baldwin, Assistant Professor of Law at Western New England College School of Law, 2008, IN SUPREME JUDGMENT
OF THE POOR: THE ROLE OF THE UNITED STATES SUPREME COURT IN WELFARE LAW AND POLICY, Vol. 23, Law,
Gender, & Society)
In the context of welfare and federalism, it was also clear that the Supreme Court was limited in what could be offered by its
legal decisions. Scholar Polyvois G. Polyviou notes, “[t]he Constitution does not provide judicial remedies for every social and
economic ill.”166 However, the Supreme Court’s role did regulate “appropriate” levels of power between state
and federal governments. Under different theories of federalism, the federal or state government may hold stronger control
over issues relating to, for example, welfare, health, and/or education.167 Therefore, decisions by the Supreme Court
fluctuate between ideas of “cooperative federalism” (preference for a decentralized structure of government where
state and federal institutions work together to regulate policy implementation)168 to ideas of “new federalism”
(where federal government takes a hands off approach on matters relating to state governance).169 This section will
examine some Supreme Court decisions through the lens of federalism and see how changes in the inquiry of federalstate
relationships affected welfare law decisions.
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Courts Overrule Congress
Courts can overrule Congressional welfare legislation
Baldwin, Assistant Professor of Law, 08
(Bridgette Baldwin, Assistant Professor of Law at Western New England College School of Law, 2008, IN SUPREME JUDGMENT
OF THE POOR: THE ROLE OF THE UNITED STATES SUPREME COURT IN WELFARE LAW AND POLICY, Vol. 23, Law,
Gender, & Society)
The Supreme Court admonished that even if Congress had authorized California to impose residency
restrictions: [Congressional] legislative powers are however limited not only by the scope of the Framer’s
affirmative delegation, but also by the principle “that they may not be exercised in a way that violates other specific
provisions of the constitution.” . . . Congress has no affirmative power to authorize the states to violate the
Fourteenth Amendment and is implicitly prohibited from passing legislation that purports to validate any such
violation.147 Essentially, this passage was one of the Supreme Court’s clearest articulations of the limited powers of
Congress. Here the Supreme Court stated that any attempt by Congress to allow states to set residency
restrictions was in violation of the Constitution.148 The Supreme Court’s reading of the boundaries of
the Constitution continually served as a powerful force in restricting the reach of Congressional
decision-making in welfare policymaking.
Courts can overrule Congress to bring political and social change
Baldwin, Assistant Professor of Law, 08
(Bridgette Baldwin, Assistant Professor of Law at Western New England College School of Law, 2008, IN SUPREME JUDGMENT
OF THE POOR: THE ROLE OF THE UNITED STATES SUPREME COURT IN WELFARE LAW AND POLICY, Vol. 23, Law,
Gender, & Society)
The Supreme Court held that it was unconstitutional for Congress to provide funds for legal counsel to welfare mothers on
the condition that those funds were not used to challenge the authority of Congressional welfare policy.152 Further, the
Supreme Court found that it was impermissible for Congress to assume the traditional role of review
afforded to the judicial branch.153 Additionally, the Supreme Court noted that such a statute interfered
with the “‘unfettered interchange of ideas [used] for the bringing about of political and social changes
desired by the people’” and therefore violated the fundamental rights of the First Amendment.154 The Supreme Court
continued: Interpretation of the law and the Constitution is the primary mission of the judiciary when it acts within the
sphere of its authority to resolve a case or controversy . . . . “It is emphatically the province and the duty of the judicial
department to say what the law is.” An informed, independent judiciary presumes an informed, independent bar. Under §
504(a)(16), however, cases would be presented by LSC attorneys who could not advise the courts of serious questions of
statutory validity. . . . By seeking to prohibit the analysis of certain legal issues and to truncate presentation to the courts,
the enactment under review prohibits speech and expression upon which courts must depend for the proper exercise of the
judicial power. Congress cannot wrest the law from the Constitution which is its source . . . .
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Courts Better than Congress – Constitutionality
Congress cannot shape constitutional interpretations
Doni Gewirtzman, Professor of Law at NYU 2005 Glory Days: Popular Constitutionalism, Nostalgia, and the True Nature of
Constitutional Culture
Juridominants ask the People -- either directly or through their representatives -- to initiate a new
interpretive regime that directly challenges existing assumptions about the Court's role in defining constitutional
meaning. As Kramer puts it, "it means insisting that the Supreme Court is our servant and not our master: a
servant whose seriousness and knowledge deserves much deference, but who is ultimately supposed to yield to our
judgments about what the Constitution means and not the reverse." 108 Along with spawning a revolution in interpretive
responsibility, the People and their elected representatives are asked to assume a new role in the interpretive process, one
that requires a more active engagement with constitutional law and politics. 109
Yet this collides with studies showing that the People have little interest in increased civic
responsibility or greater popular accountability in politics. 110 In a recent book, political scientists John
Hibbing and Elizabeth Theiss-Morse sought to document Americans' perceptions and feelings about their
involvement in the political process. They concluded that "the last thing people want is to be more involved
in political decisionmaking: They do not want to make political decisions themselves; they do not want
to provide much input to those who are assigned to make these decisions; and they would rather not know all the details
of the decision-making process." 111
Their conclusions are backed up by numerous studies about political participation and knowledge that portray
current political conditions as particularly inhospitable to a juridominant revolution in interpretive responsibility. If
participation levels are any indication, exercising their interpretive influence is, at present, very low on the People's "to-do"
list. And if levels of political knowledge are any indication, the People appear content to allow constitutional
interpretation to exist largely off their radar screen. Moreover, these trends are [*914] prevalent in contemporary
American politics, and generational data suggest that they will remain in place for a long time to come.
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Courts Better than Congress – State Backlash
Only the Supreme Court can create uniformity among the states – state backlash to Congress inevitable
Gershowitz, Law Professor, 05
(Adam M. Gershowitz, South Texas College of Law, Summer 2005, “The Invisible Pillar of Gideon”
http://www.law.indiana.edu/ilj/volumes/v80/no3/gershowitz.pdf)
If Congress did decide to take it upon itself to bind all fifty states to a minimum definition of indigency, it
arguably would be defining the scope of the Sixth Amendment right to counsel.158 In other words, Congress, not the Court,
would be saying what the Constitution means. Of course, if the Court agreed with the precise contours of Congress’s
definition, then a legislative exposition of that definition would not be a problem. The rub would come if the Court
believed that Congress had adopted too broad of a definition of indigency. An aggrieved state would
complain that Congress had forced it to spend more money on indigent defense than is required by the Sixth
Amendment, and that such legislation is therefore unconstitutional. Given that the Rehnquist Court has sided with the
states and struck down approximately thirty federal statutes,159 the Court might be sympathetic to such a
federalism argument. Thus, in the unlikely event that Congress were inclined to define indigency, its
definition might be overruled by the Supreme Court. Legislators still smarting from previous overrulings might be
disinclined to invite another reversal. This is particularly true where there is no political gain to be had.
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A2 Public Backlash
No risk of backlash – high public acceptance of court rulings
Fontana, associate professor of law, 08
(David Fontana, associate professor of law at George Washington University Law, Spring 2008, “The Supreme Court: Missing in
Action”, http://dissentmagazine.org/article/?article=1165)
Second, Court decisions do not necessarily create the backlash that many on the left fear. If the Court had decided cases in
favor of rights before the tide had turned against the Bush administration, its decisions might have elicited formulaic and
near-obligatory compliance. There is considerable evidence suggesting a strong presumption in American
public opinion that the Court’s decisions should be widely accepted and then complied with by the
other branches of government. Even when citizens disagree with Supreme Court decisions, an
overwhelming majority of them are loyal to the Court and inclined to think that the less popular
branches of government should fall into line—even when the Court issues controversial decisions such as Bush v.
Gore.
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A2 Court Stripping
Empirically, court stripping fails
Ruth Bader Ginsburg; Associate Justice of the United States Supreme Court, served as a judge on the United States Court of
Appeals for the District of Columbia, law professor at Rutgers University School of Law and the Columbia Law School; September
27, 2007
I should mention, too, the
host of jurisdiction-curtailing measures lately placed in the congressional hopper.
One bill would have severely limited the scope of federal habeas corpus review.20 Another would have
removed federal courts’ authority to decide any case concerning the Ten Commandments, the Pledge of
Allegiance, and the National Motto, “In God We Trust.”21 Yet another would have taken away from the federal
courts authority to adjudicate free exercise or establishment of religion claims, privacy claims (including
those raising “any issue of sexual practices, orientation, or reproduction”), and any claim to equal protection of the
laws “based upon the right to marry without regard to sex or sexual orientation.”22 All these proposals, and other like-minded
bills, failed, as students of history could have predicted. Jurisdiction-stripping reactions to disliked decisions have
been proposed perennially. In the 1950s, desegregation and domestic-security cases were on some legislators’ strip lists;
in the 1960s, federal court review of certain criminal justice matters; in the 1970s, busing to achieve racial integration in
schools; in the 1980s, abortion and school prayer. None of these efforts succeeded, and most of the more recent
endeavors to curb federal court jurisdiction have fared no better. A simple truth has helped to spare the Federal
Judiciary from onslaughts of this character: It is easier to block a bill than to get it enacted. I note, finally, a CongressCourt confrontation proposed in 2004 and revived the next year. The most recent try, titled the “Congressional Accountability
for Judicial Activism Act of 2005,” would allow U.S. Supreme Court judgments declaring a federal law unconstitutional to be
overturned by a two-thirds vote of the House and Senate.23 (Canada’s Charter of Rights and Freedoms, if I recall the
“notwithstanding clause” correctly, 24 allows for a legislative override of a Supreme Court decision holding a statute
incompatible with a Charter-protected right. But the Parliament, is it not so, has yet to avail itself of that prerogative.)
Judicial independence already is under attack
William H. Pryor, Jr, circuit judge for the United States Court of Appeals for the Eleventh Circuit, September 20 07
http://www.alabar.org/publications/articles/Sept07/judicial_independence.pdf
Talk of judicial independence is all the rage. In
recent years, leaders of the bench and bar have decried what
they describe as unprecedented assaults on the independence of the federal judiciary. The most prominent
leader of this chorus has been a distinguished American and public servant, retired Associate Justice Sandra Day O’Connor.
At the annual meeting of the American Law Institute in May of last year, Justice O’Connor thanked the Institute for its
defense of judicial independence, which she described as under “the most serious attack” in her lifetime.1 On September
27, 2006, in an op-ed entitled, “The Threat to Judicial Independence,” published in The Wall Street Journal, Justice
O’Connor stated that “the breadth and intensity of rage currently being leveled at the judiciary may be
unmatched in American history.”2 The next day, at a conference jointly sponsored by the Georgetown University
Law Center and the American Law Institute, Justice O’Connor complained of the “common mantra” about “activist judges”
and “a level of unhappiness today that perhaps is greater than in the past and is certainly cause for great concern.”3 Other
leaders of the bench and bar also recently have complained of attacks on judicial independence. Michael Greco, president
of the American Bar Association two years ago, addressed the House of Delegates of that association, and declared,
“Ironically, while American lawyers–and the American Bar Association–are helping to build
independent judicial systems in emerging democracies around the world, our own courts are under
unprecedented attack. They are being threatened by extremists, who would tear down our courts for
political, financial or other gain.”4 Last year,Michael Traynor, president of The American Law Institute, wrote in a
letter to the membership, “Judicial independence is especially important today because the judiciary and the rule of law are
under relentless and severe attacks from various quarters.”5
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A2 Court Stripping
Congress has been intervening with the judiciary since 2005
Ruth Bader Ginsburg; Associate Justice of the United States Supreme Court, served as a judge on the United States Court of
Appeals for the District of Columbia, law professor at Rutgers University School of Law and the Columbia Law School; September
27, 2007
A headline-producing case in point. Early in 2005, federal courts sitting in Florida confronted a cause célèbre. On
order of the Florida state courts, a hospital had removed the feeding tube from Terri Schiavo, a severely brain-damaged woman
whose situation sparked a huge controversy over the right to refuse life support. Congress entered the fray by passing a
most unusual statute giving the federal courts jurisdiction to hear the plea of Terry Schiavo’s parents, but not
altering the governing substantive law.5 The federal courts read the statute as it was written, and refused to override the
Florida courts by ordering restoration of the feeding tube. This was not the outcome wanted by a goodly number
of the members of Congress. In angry reaction, the then House Majority Leader accused federal judges of “thumb[ing]
their nose[s] at Congress and the [P]resident.”6 He warned: “[T]he time will come for the men responsible for this to answer
for their behavior.”7 “Congress,” he amplified, “for many years has shirked its responsibility to hold the
judiciary accountable. No longer.”8 Similarly unsettling, in the same year, 2005, two episodes of violence against judges
shocked the nation. A state court judge was murdered while on the bench in Atlanta and a federal judge’s mother and husband
were murdered at the judge’s home in Chicago.9 Shortly thereafter, a prominent Senator gave a widely reported speech on the
Senate floor. After inveighing against “activist jurists,” he suggested there may be “a cause and- effect connection” between
judicial activism and the “recent episodes of courthouse violence in this country.”10 The blasts from Congress were not
merely verbal. In May 2005, the House Judiciary Committee considered creating an “office of inspector
general for the federal judiciary.”11 The office would investigate allegations of judicial misconduct and report them to
Congress. The Committee’s chairman said, in announcing the proposal, that judges must “be punished in some capacity for
behavior that does not rise to the level of impeachable conduct.”12 If the then chairman’s subsequent action indicated the role
he envisioned for the proposed inspector general, judges had good cause for concern. In June 2005, that chairman’s office
dispatched a letter to a U.S. Court of Appeals, complaining that the court had affirmed an unlawfully low sentence for a
narcotics-case defendant. The letter called for a “prompt response . . . to rectify” the decision,13 even though the government
sought no further review of the sentence. Another troubling congressional initiative: proposals to prohibit federal
courts from relying on foreign law.14 A misunderstanding appears to underlie the opposition to foreign law citations. As
Justice Stephen Breyer explained in a recent interview, citations to foreign laws and decisions should not be controversial.15
“References to cases elsewhere are never bind- ing,” Justice Breyer emphasized. We interpret and apply only our own
Constitution, our own laws. But it can add to our store of knowledge “to look at how other people [with a commitment to
democracy similar to our own] solve similar problems.” (In this regard, I have found enlightening decisions of Canada’s
Supreme Court.) Justice Breyer compared references to the decisions of foreign and international tribunals to references to a
treatise or to a professor’s work.
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A2 Court Stripping
Congressional court stripping not happening - imbalance in political system
Ronald Weich. Partner in a Washington DC law firm. Upsetting Checks and Balances. 2001.
http://www.aclu.org/FilesPDFs/ACF47C9.pdf
Whether or not such laws are constitutional, Congress should pull back from the precipice and reconsider
the wisdom of these short-sighted laws it enacted five years ago. Court-stripping has created a
dangerous imbalance in the American political system. By undermining the integrity of the branch of
government established to preserve individual rights, Congress has exposed unpopular minorities to the
unmerciful vagaries of majori- ty rule and arbitrary administrative action. This is a development that
endangers the fun- damental rights of all Americans. Congress must also be vigilant in monitoring
implementation of the newly minted anti- terrorism law. That law limits the role that judges would ordinarily
play in ensuring that enforcement agencies abide by constitutional and statutory rules. Without judicial oversight, there is a real danger that the war on terrorism will have domestic consequences inconsistent with
American values and ideals.
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A2 Hollow Hope
Courts strengthen social movements – provide hope, solve backlash, and aid lobbying
McDonnell, associate professor of law, 97
(Brett McDonnell, associate professor of law at the University of Minnesota., California Law Review, “Dynamic Statutory
Interpretations and Sluggish Social Movements”, Vol. 85, No. 4, p. 921)
there are at least three ways in which civil rights litigation could help increase the
mobilization of civil rights supporters. First, where the Court is more inclined to be receptive to civil
rights arguments than Congress or the President, litigation may provide more hope of some immediate
success. We have seen that the prospect of success is important in motivating people to participate in social action. Some
have argued that courts played a major role in spurring social action by providing some hope of change.97 Second, once
civil rights supporters achieve some success in court, they may be even more willing to fight attempted
rollbacks than they were to fight for the gain in the first place. It is an accepted notion that political programs
are harder to defeat once installed than before they are adopted.98 Part of the strong reaction to the 1989 Court
cases may have been due to the perception that the Court was taking back gains already won. Third, the infrastructure
for litigation may help in legislative lobbying. The NAACP is at the center of both forms of action in the civil
rights movement. Expertise in litigation may carry over to some degree into expertise in lobbying-lawyers
are crucially involved in both.
However,
Empirical examples disprove hollow hope
McGinni, Professor of Law, 07
(John O. McGinni, Professor of Law, Northwestern University and Charles W. Mulaney Associate, Perkins Coie LLP, 12-8-07,
“Judging Facts Like Law: The Courts versus Congress in Social Fact-Finding”)
The history of union integration demonstrates the significance of judicial power on a matter of national
importance. Judges interpreted statutes in ways that denied unions the benefit of well-crafted loopholes. Judges and
lawyers helped devise and then aggressively implemented new courtroom procedures that made it easier for civil rights
plaintiffs to access the courtroom and achieve success once they were there. Civil rights lawyers besieged unions
with lawsuits and judges compelled compliance with the use of special masters and by ordering unions
to pay significant financial fees for back pay, attorneys' fees, and damage fees. Far from a “hollow
hope” (as Rosenberg [1991] labels them), courts acted independently and forcefully.
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A2 Hollow Hope
Litigation does not cause complacency
Lemieux, Assistant Professor of Political Science, 06
(Scott Lemieux, Assistant Professor of Political Science at Hunter College, " In Defense of Roe" 3 7-21-2006)
A related argument is the claim that the use of litigation has made pro-choice groups lazy and
complacent about reproductive freedom, and that returning abortion to the legislatures would mobilize
pro-choice voters and toughen the movement. To the extent that this argument relies on claims about the
demobilizing effect of litigation, the evidence is scant. Recent legal and political science scholarship has
convincingly rebutted assumptions that litigation and other forms of political activism exist in a zerosum struggle for resources; in fact, one often positively builds on the other. Nor is the argument persuasive
in the specific case of abortion. Bill Clinton's veto of legislation banning partial-birth abortion -- legislation that was
both very popular and likely to be struck down by the courts anyway -- was hardly a sign of a
movement lacking in political clout. Abortion was one of the few issues that Clinton never crossed his base on, a
fact that ill supports the notion that Roe has weakened the pro-choice movement.
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A2 Perm – Constitution
Independence is necessary to stop majoritarianism
Martin Redish, Law Professor, Northwestern, 1995, Mercer Law Review
the framers recognized the need for the federal courts to be
.insulate from the more representative political branches. Article ill therefore expressly guarantees to
federal judges protections of both salary and tenure. Such independence is necessary, so that the
federal courts may effectively check the possible excesses of the majoritarian branches by enforcing
the counter-majoritarian limits the Constitution imposes and maintaining the legitimacy of their
decisions in the eyes of the public.
In providing for the creation of the federal judiciary,
Congressional attempts to redefine constitutionality undercuts the constitution
Martin Redish Law Professor, Northwestern, 1995, Mercer Law Review
Congressional attempts are unconstitutional, because they undermine the essence of the countermajoritarian principle that underlies American political theory. That principle posits that the very
majoritarian bodies intended to be limited y the counter-majoritarian Constitution may not sit as the final
arbiter of the constitutionality of their own actions, lest the Constitution be effectively rendered a dead letter. This
conclusion, in short, describes what I refer to as the concept of counter-majoritarian independence.
These
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A2 Perm – Societal Violence
Supreme Court authority key to end societal violence
Van Mitiker, 94 (Van, Professor, U.C.L.A., 1994 (LEGAL STUDIES FORUM, April, p. 831))
supreme-inferior distinction concerns the
comparative status that the various tiers of courts enjoy in terms of their perceived importance to the
nation. Dodge argues at the Supreme Court's original jurisdiction includes cases involving sensitive
subject matter critical to the national interest: They "might involve the risk of war, discord among the
states, or violence among political factions." The Court must command sufficient respect from the
sovereign parties involved in order to resolve such volatile conflict.
The second approach, developed by William Dodge, posits that the
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A2 Perm – Separation of Powers
Counterplan resolves the aff’s legal question – perm violates the mootness doctrine
Thomas Baker, Alvin R. Allison Professor, Texas Tech University School of Law, 94 – 19 Nova L. Rev. 323
[*337] The mootness doctrine focuses judicial attention on "the sequence of litigation events out of a
traditional and constitutional concern for the very existence of a 'case or controversy' itself." n74 If a matter
earlier in controversy is somehow resolved, the judgment of the federal court has nothing to accomplish.
The lack of a judicial task ends the Article III power. Justiciability must be actual and present, not merely
speculative or historical. Legislation can overtake the litigation and render it moot. For example, in Lewis v.
Continental Bank Corp., n75 the Supreme Court declared the case moot due to amendments to a federal statute that were
enacted while the case was pending. Thus, the Eleventh Circuit's judicial handiwork, analyzing rather arcane issues of federal
banking law, was rendered a nullity. n76
Court review of congressional actions undermines separation of powers
Tribe, Professor of Constitutional Law @ Harvard, 83
Laurence H. Tribe, Tyler Professor of Constitutional Law, Harvard University, 1983, 97 Harv. L. Rev. 433, “COMMENT: A
CONSTITUTION WE ARE AMENDING: IN DEFENSE OF A RESTRAINED JUDICIAL ROLE”
Questions concerning the process of constitutional amendment are, of course, somewhat different -- but only somewhat.
Because of the interest in certainty that Professor Dellinger describes, and because judicial review of procedural questions
would allow courts to control the content of amendments only indirectly and only in part, courts may properly be less hesitant
to adjudicate procedural challenges to proposed amendments and ratification processes than to pass on the substantive
suitability of those amendments. Still, many of the concerns motivating judicial abstention from substantive
review of constitutional amendments counsel substantial, albeit less than total, deference when courts are
faced with challenges to ratification procedures approved by Congress. n47 In both types of cases, judicial
supervision would significantly undercut the independence of article V from normal legal processes and
erode its special role in the constitutional scheme. And in both types of cases, the Supreme Court would
frequently be asked to pass on the legitimacy of actions taken to correct perceived flaws in its own
jurisprudence -- a task with uncomfortable implications for the integrity of the judicial enterprise.
The permutation has the court rule on a controversial issue, violating separation of powers
Corey C. Watson, Professor at Northwestern, 1991 Northwestern Law Review
The danger of permitting Smith to pursue his claim without requiring that he have a personal stake in the outcome may
seem innocuous. Yet, the risk to separation of powers is greatest where the temptation exists to ignore the
requirements of justiciability and resolve a moot issue. n224 Perhaps the danger is difficult to understand
because such cases put the system at risk, rather than any particular person. n225 If the personal stake and live issue
requirements are not satisfied throughout a judicial proceeding, then the claim is within the legislative
province according to the argument set out in this Section. Therefore, a court that decides the issue and
administers a "remedy" when neither an actual harm nor a real plaintiff exists performs a legislative
function. To inflate the judicial power through prudential considerations (such as preserving judicial
resources) tips the balance of powers through these cases. n226 The constitutional constant becomes
variable when prudential factors become overreaching. This undermines our system of separated
powers.
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A2 Perm – Judicial Legitimacy
Simultaneous action shifts blame to the court – worse for capital
Heise, Professor of Law, 2000
Michael Heise, Professor of Law, Case Western Reserve University. A.B., Stanford University 2000 – Akron Law Review
Professor Paul Tractenberg, long active in the New Jersey school finance litigation, n81 identifies institutional credibility
as an important practical concern for courts. Tractenberg is acutely aware of the institutional stakes involved in active
judicial participation, particularly within the school finance setting. On the one hand he reasons that an active judicial
posture might provide political cover for reluctant legislators. After all, politically accountable legislators could
point to the state supreme court and suggest that the justices left them with little choice but to increase school spending. n82
Such a calculation, Professor Tractenberg correctly notes, risks [*87] depleting the court's limited and valuable
"political capital." n83 He goes on to note that: There are only so many times that the court [the New Jersey
Supreme Court] can be portrayed as the dictatorial villain forcing the State to do, in the name of a
constitutional mandate, what a majority of its citizens disfavor before judicial credibility is undermined.
Perm is perceived as pre-empting amendments – drains capital
Cass Sunstein, Felix Frankfurter Professor of Law at Harvard Law School, 2003 – Legal Affairs, March/April
On a different account, the word "activist" is purely descriptive, and a decision that is activist is not necessarily wrong. A court
that rejects its own precedents might be thought to be activist. Of course some courts should reject some precedents because
they are ludicrously mistaken or hopelessly outdated. A court that is activist, in this sense, might be entirely right. Or a court
might be described as activist if it strikes down the actions of other branches of government. No one thinks that a court
should uphold all actions of the other branches, and so a court that is activist, in this sense, might be something to
celebrate. People are free to use the term "activist" however they wish, so long as listeners understand what they mean. But
the risk of misunderstanding is very high. To reduce that risk and prevent confusion, I suggest that it is helpful to
measure judicial activism in the way just mentioned—by seeing how often a court strikes down the actions of other
parts of government, especially the actions of Congress. Such decisions preempt the democratic process—
they take decisions out of the hands of voters.
Perm nullifies court rulings – destroys separation of powers
Baker, Professor of Law @ Texas Tech, 94
Thomas E. Baker, Alvin R. Allison Professor, Texas Tech University School of Law, 1994, “FEATURE ARTICLE: THE
ELEVENTH CIRCUIT'S FIRST DECADE CONTRIBUTION TO THE LAW OF THE NATION, 1981-1991,” 19 Nova L. Rev. 323
[*337] The mootness doctrine focuses judicial attention on "the sequence of litigation events out of a traditional and
constitutional concern for the very existence of a 'case or controversy' itself." n74 If a matter earlier in controversy is
somehow resolved, the judgment of the federal court has nothing to accomplish. The lack of a judicial task
ends the Article III power. Justiciability must be actual and present, not merely speculative or historical.
Legislation can overtake the litigation and render it moot. For example, in Lewis v. Continental Bank Corp., n75 the
Supreme Court declared the case moot due to amendments to a federal statute that were enacted while the case was pending.
Thus, the Eleventh Circuit's judicial handiwork, analyzing rather arcane issues of federal banking law, was
rendered a nullity. n76
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A2 Perm – Rights
An independent judiciary is key to guard fundamental rights
Rosenberg, Law Professor, 01
(Gerald Rosenberg, Law Professor, Northwestern, 2001 (EMORY LAW JOURNAL, Spring, p. 622)
If the Supreme Court is understood as a political institution, and as a national policy-maker, the question naturally arises as
to how it relates to other political, policy-making institutions. The conventional and classic view is that the Court is
structurally independent from the other branches of the federal government. Indeed, the independence of
the judiciary from political control is a hallmark of the American legal system. Institutionally separate and
distinct from the other branches of the federal government, the federal judiciary is electorally unaccountable. Federal
judges and justices re insulated from the political process through constitutional guarantees of life
appointments and salaries that may no be diminished during their terms of office. In theory, this independence, plus
the power to hold legislative and executive acts unconstitutional, allows courts to "stand as the ultimate
guardians of our fundamental rights." An independent federal judiciary, Chief Justice Rehnquist said in 1996, is
"one of the crown jewels of our system of government today."
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Impact – Separation of Powers
Seperation of powers key to preserve liberty
Gary Lasinn, Professor, JD. Yale Law School, 1996 Iowa University Law Review
Many of these criticisms of departmentalism, however, can also be raised against a system of separation
of powers. Dividing power across jurisdictions and among institutions is a recipe for uncertainty and
conflict. One cannot be sure that a bill that passes one house will pass another, that a bill that passes Congress
will be signed by the President, that legislation once enacted will be enforced in a particular or predictable way, or that enacted
and enforced legislation will be interpreted and applied by the courts in a particular or predictable way. Moreover, the
division of powers is consciously designed to place the government in an ongoing state of tension, with
each institution in a constant struggle with the others for power and prestige; such is the clear message of
Madison's brilliant essay on governmental structure in the Federalist. All of this chaos and conflict was
deliberately left to us by the founders because they deemed it necessary to preserve liberty.
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Impact – Separation of Powers
Separation of powers breakdown results in wars and tyranny
Redish and Cisar, prof law @ Northwestern and Law clerk to US Court Appeals, 1991
(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 – Constitution
Strong constitution needed to prevent on the fly decisions risking nuclear war
Hemesath, J.D./M.S.F.S. Georgetown, 2k
(J.D./M.S.F.S. Georgetown University Law Center, School of Foreign Service, 2001; B.A. University of California at Los Angeles,
1996.88 Geo. L. J. 2473. Lexis Nexis Academic)
Politically, nuclear weapons wield such powerful and unique symbolic effects n70 that a decision
regarding their offensive use--outside the context of a declared war or defensive maneuver--may fall under the ambit
of congressional control as an act tantamount to a declaration of war. n71 Such political consequences may place
the nuclear decision beyond mere tactical strategy intended for the judgement of the Commander in Chief alone. Professor
Louis Henkin believes that Congress has the authority to decide the essential character of a war, and specifically, whether the
conflict should be escalated to a nuclear level or not. n72 President Lyndon Johnson admitted that the decision to go nuclear is
a "political decision of the highest order." n73 That nuclear engagement connotes a political decision, as opposed to a mere
choice of weaponry, may place the nuclear decision beyond the scope of military decisions normally reserved for the President
alone. Regardless, proponents of the Executive position insist that nuclear weapons [*2484] are not constitutionally unique.
n74 In support of their claim, nothing in the text of the Constitution indicates a special classification for particularly destructive
weaponry, nor does the Constitution allow the Congress to override the President's choice of weapons. n75 Decisions regarding
the type of weapons used in war are considered tactical--of a type supposed to be well within the scope of the Commander in
Chief's power. n76 Furthermore, no congressional law or judicial decision has drawn an instructive distinction
between nuclear and conventional weaponry. n77 Such a distinction would require artificial constructions
distinguishing weapons systems that, despite differences of magnitude and technology, are basically
designed to do the same thing. However, the lack of textual references to nuclear weapons in the Constitution does not
adequately resolve the question of nuclear war authority. Although nuclear weapons as weapons are indistinguishable in
literal constitutional terms, their uniquely pernicious and lingering effects may nevertheless define their offensive
use as a quintessential act of war and thus constitutionally place them within the sphere of congressional
war power via the War Powers Clause. As critics have noted, there currently exists no source of constitutional authority or
judicial reasoning that would resolve this debate in favor of either side. n78
Strong constitution needed to prevent on the fly decisions risking nuclear war—Cold War proves.
Hemesath, J.D./M.S.F.S. Georgetown, 2k
(J.D./M.S.F.S. Georgetown University Law Center, School of Foreign Service, 2001; B.A. University of California at Los Angeles,
1996.88 Geo. L. J. 2473. Lexis Nexis Academic)
It is possible that the heightened tensions of the Cold War also tainted judicial treatment of executive war powers questions.
Thomas Franck has observed that a judicial decision finding nuclear weapons unconstitutional during the Cold War would
have constituted the functional equivalent of unilateral disarmament, thus leaving the United States open to Soviet attack. n94
Although the unconstitutionality of nuclear weapons is a dubious proposition for a litany of other reasons,
Franck's observation demonstrates that the Cold War may have had a profoundly chilling effect on the
judiciary's attitude towards policing the war powers during an era when U.S.-Soviet tensions were
running high. Fierce Cold War tensions thus dulled congressional and judicial concerns about executive
aggrandizement because of the need for a perfectly responsive counter-threat in the form of the President.
As a result, the constitutional question of whether the President had the power to launch a nuclear weapon was simply not a
viable issue during the Cold War.
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Courts Key to Deliberation
Courts support national deliberation
Christine Bateup (historical scholar and JSD Candidate at NYU, 2006. (71 Brooklyn L. Rev. 1109, “The Dialogic Promise
Assessing The Normative Potential of Theories of Constitutional Dialogue,” ln)
The most prominent descriptions of constitutional dialogue in this vein have been developed by Barry Friedman and by
Robert Post and Reva Siegel. 184 Friedman's is the most positive account, as it is explicitly grounded in social
science studies regarding institutional interactions between the [*1158] judiciary, the political branches, and the people.
185 These studies show that while the Supreme Court has significant leeway in making pronouncements, if it strays too far
from what the other branches of government and the people accept, political constraints such as the power of judicial
appointments and popular backlash will bring the Court back into line. 186 Friedman relies on this evidence principally to
stress the role of public opinion as one of the principal forces controlling the Court. Although this mechanism is not
understood perfectly, social science evidence increasingly suggests that judicial outcomes tend to run in line with public
opinion over the longer term. 187 While these studies show that the Court is heavily constrained, Friedman argues that
judicial decisions still play an important function in the constitutional system as they serve to spark (or
continue) a broader national discussion about constitutional meaning. 188 As a result, the Court acts as the shaper
and facilitator of society-wide discussion about constitutional values. When it declares its own views about the meaning of
constitutional text, the Court actively channels and fosters ongoing societal debate by synthesizing the
various, and possibly disparate, views about constitutional meaning and by articulating that debate in an
explicitly constitutional form. 189 [*1159] In the process, the Court also mediates the views of different participants in the
debate and focuses the terms in which future debate might proceed. The Court's decisions then facilitate further
debate, either by acting as a catalyst for discussion along particular lines or by prodding other institutions
into deliberative action. As a result of these dynamics, Friedman describes the function of judicial review in the United
States constitutional system as one of promoting and facilitating constitutional dialogue. 190 The Court's participation in
this dialogue is dynamic -- not only does it spark a process of national discussion, but it is also, in turn, affected and shaped
by this conversation. 191 When a decision is rendered it is subject to discussion and debate within society. Over time, if
there is enough popular disagreement with the Court's ruling, new legislation may be passed and legal challenges brought
that test the finality of the decision in a more concrete sense. As a result of this dissent and debate, the Court may ultimately
come to reconsider and refashion its decision. Under this model, the perspectives of non-judicial actors may therefore
influence the Court as much, if not more, than the Court itself influences the rest of society. 192 Over time, this process
produces a relatively enduring constitutional equilibrium that is widely accepted by all the participants in the national
discussion. Friedman further argues that the dialogic role the judiciary performs is a valuable one, as it
"achieves the separation of constitutional requirements from immediate political preferences," 193 and, in the long
term, the production of [*1160] stable and broadly supported answers to questions of constitutional
meaning. 194
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Courts Key to Deliberation
Court action spurs a national dialogue and social movements
Barry Friedman, NYU law professor, 2004, The Importance of Being Positive: The Nature and Function of Judicial Review
the Supreme Court acts as
a catalyst for debate, fostering a national dialogue about constitutional meaning. Prompting,
maintaining, and focusing this debate about constitutional meaning is the primary function of judicial
From a descriptive posture then, the Supreme Court is not the Supreme Ruler that poses a hope or a threat; rather,
[*1296] review. n147 The claim is not that the country is incapable of having a constitutional discussion absent a Supreme Court pronouncement, only
that constitutional dialogue seems the inevitable result of an important or controversial constitutional decision. The debate over slavery is just one example
of a national conversation about constitutional meaning that, while helped along by a judicial decision, was not only a result of judicial intervention. n148
However, because the nature of a judicial decision is to cast something in constitutional terms, when that decision is debated, the Constitution more
typically plays a central role. Congressional debates, to pick a counter-example, less commonly display this constitutional nature, even if that would be
warranted. n149 At least it seems that way, absent some empiricism that suggests otherwise. Perhaps this is to be expected, even preferred, given the exact
when the Constitution does appear in congressional debate,
typically it is because of a question of how the Court will react much as what the Constitution should
mean. Nothing here is intended to speak to the counterfactual-that is, what if there was no judicial review. Thayer famously took the view that too
much judicial review dampened broader constitutional debate. n150 Maybe this is so, maybe not . But in the world in which we live, the
courts foment and sustain constitutional dialogue. This is the central role of judicial review. Although this
nature of Congress's task, i.e., doing the nation's business. And
largely has been a positive account, it is worth making the normative turn, if ever so briefly. On examination, it is possible to see that the positive account
points to a role for judicial review that [*1297] disarms complaints about judicial review. It ought to be clear from this account that although the hope of
judicial review may be overstated, the threat is overstated as well. Critics challenge the hegemony of judicial interpretations of the Constitution, but this
drastically overstates the case.
Many judicial interpretations raise no controversy. n151 But when they do, what
occurs is not obeisance to the courts, but a healthy process of constitutional debate and often
constitutional change. This process of constitutional dialogue and constitutional change matters,
because this ultimately ensures that the Constitution is owned by all of us. n152 As Richard Fallon says, with regard
to constitutional legitimacy, "the first crucial point is the fact of widespread acceptance." n153 Some judicial decisions do strike a national nerve, and
when they do, they rouse opposition. That opposition invites participation in the process of reaching consensus about constitutional meaning. Participation
The cumulative effect of this political
activity concerning a constitutional issue may be a shift and coalescing of public opinion. However-and this is
can occur at great levels but also trivial ones, like sending a small check to an interest group.
important-the Supreme Court's responsiveness to public opinion is not to immediate popular preference so much as to a body of opinion that endures over
The
conversation can be short-lived but intense enough to generate an immediate supermajority, such as
when a constitutional amendment is passed in response to a court decision. Or, constitutional law can
change-as it more typically does -only after a long, drawn-out process of political engagement. The
benefit of the process of constitutional change is that it serves the separating function, of helping to
determine and distinguish between immediate political preference and deeper commitments. The stickiness
time. This is the case precisely because constitutional law is sticky, changing only after an appropriately intense national conversation occurs.
of constitutional law means that most political change occurs only after a sustained campaign during which public opinion can become educated and
coalesce, a period of time over which immediate popular preference becomes tested. Alternatively, new constitutional law comes [*1298] about because
immediate preference is so intense as to do what so rarely is done: forge a constitutional amendment.
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Courts Key to Deliberation
Courts support national deliberation
Dale Carpenter, Professor of Law at Minnesotra, 2003. Judicial Supremacy and Its Discontent.
It is true the Court has rarely resisted a powerful national consensus and so is clearly influenced by majority
will. But at least the Court is more likely to stem the tide until the momentary consensus erodes or
becomes a more fully deliberated one. The controversy over flag-burning comes to mind. The Court held
unconstitutional a state law criminalizing flag-burning. 104 The representative branches (reflecting strong public
opinion) reacted by passing new federal legislation criminalizing it, legislation the Court also struck down. 105
Many members of Congress supported a constitutional amendment to overrule the Court's decision, an action that might
have weakened the First Amendment, but fell just short of the necessary votes in the Senate. In time public and
congressional passions have subsided, the flag remains venerated, and free-speech principles protecting unpopular
expression remain intact. Under Paulsenian executive review the President might to this day be bringing prosecutions
of flag-burners under his independent "interpretation" that the Constitution permits criminalization of their acts. 106
Court actions incorporate rights into constitutional theory
Christine Bateup (historical scholar and JSD Candidate at NYU, 2006. (71 Brooklyn L. Rev. 1109, “The Dialogic Promise
Assessing The Normative Potential of Theories of Constitutional Dialogue,” ln)
Theories of constitutional dialogue have proliferated in recent times because of the potential that many see in them to
resolve the democratic legitimacy concerns associated with judicial review. Within constitutional theory, contemporary
scholars have tended to fixate upon finding an objective theory of interpretation that provides an appropriate methodology
for judges to follow when interpreting constitutional provisions in order to enhance their legitimacy. Theories of
constitutional dialogue offer an alternative way of filling the legitimacy lacuna, because if the political branches of
government and the people are able to respond to judicial decisions in a dialogic fashion, the force of the
countermajoritarian difficulty is overcome, or at the very least, greatly attenuated. 1 Of particular interest, many theories
claim that dialogue between the judiciary and other constitutional actors is a structural feature of the
United States constitutional system. This would appear to alleviate much of the anxiety about judicial
review that is expressed by popular constitutionalists, who call for a reassertion of the American
historical tradition of the involvement of the People in constitutional interpretation.2 Dialogue theorists,
in contrast, assert that this involvement already occurs.3 If anything, theories of constitutional dialogue are even more
widespread outside the United States. The concept of dialogue has been popularized to the greatest extent in countries,
such as Canada,4 which have more recently adopted Bills of Rights.5 Scholars frequently state that these “modern” or
“weak form” Bills of Rights contemplate dialogue, due to the fact that they contain deliberate mechanisms enabling
legislative responses to judicial decisions about rights.6 In this context, not only does conceiving of constitutionalism
as involving a dialogue between courts and the political branches of government temper concerns
about the democratic deficit of judicial review, but it also enables the innovative institutional features
of these Bills of Rights to be better incorporated into normative constitutional theory.
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Deliberation Key to Democracy
Deliberation is key to maintaining democracy
Bianchi, Director of Department of Social and Biological Communication, 97
Gabriel Bianchi, Director of the Department of Social and Biological Communication at the Slovak Academy of Sciences in
Bratislava, July 1997, “STRENGTHENING TRANSITIONAL DEMOCRACIES THROUGH CONFLICT RESOLUTION:
CONFLICT RESOLUTION EDUCATION, TRAINING, AND GLOBAL DEVELOPMENT: Training in Skills for Coping with
Democracy”
The existence of the third sector (nongovernmental, nonprofit organizations) is one of the most significant
attributes of a modern democratic society. Third-sector organizations are active in the space between the first
(state) and second (free-market) sectors. There is, however, no agreement between theorists in evaluating the role of the
third sector. Some politicians consider the third sector to be "an inseparable part of a mature civil society, an indicator of its
maturity." n23 On the contrary, from a radical liberal-democratic view, through their activities, third-sector organizations
threaten political parties (which should be the genuine instruments representing citizens' interests) and thus disable the basic
mechanisms of a democratic state According to Fishkin, three conditions are necessary for a mature democracy:
equity, nontyranny, and deliberation. n24 Without deliberation to shape choices, the public's decisions
are prone to be ignorant and lose [*120] their political authority. Dahl n25 also sets criteria for democracy, but
his approach is aimed not at the "outcome" (a mature democracy) but at democratic processes. He suggests the following
rules: real participation, equality of votes, enlightened understanding, and control of program.
Deliberation is a vital habit of democracy
Ian Jack, Staff writer for the Guardian, 3-21-09, “Saturday: Who will protect the vital habits of democracy?: The demise of local
papers means the official version of events may soon be the only version”
The pattern isn't worldwide. In India, for example, a growing population with rising levels of disposable income and
literacy has made newspapers more prosperous than ever before. But in Britain the signs are ominous. The plight of
national newspapers - that is, those published from London - tend to command the most attention: can the Independent
survive? In fact, throughout the rest of the UK about 60 newspapers have already closed over the past 14 months. More
than 900 regional journalists have lost their jobs since July. Nearly every newspaper that has closed so far is a freesheet,
founded on the now vanished profits of property advertising. They will hardly be missed. The next round of closures,
if they come, will have more serious consequences; not just for the people who'll be fired, but for our
understanding of where we live and what another American writer called "the vital habits of democracy", which
are based around reliable sources of information, and then deliberation and debate.
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Impact – Democracy
Lack of democracy leads to extinction
Diamond 95 (Larry Diamond, Hoover Institution senior fellow, co-editor of the Journal of Democracy, December 1995, A Report
to the Carnegie Commission on Preventing Deadly Conflict, “Promoting Democracy in the 1990s: Actors and Instruments, Issues and
Imperatives,” http://wwics.si.edu/subsites/ccpdc/pubs/di/1.htm)
OTHER THREATS This hardly exhausts the lists of threats to our security and well-being in the coming years and decades.
In the former Yugoslavia nationalist aggression tears at the stability of Europe and could easily spread. The flow of illegal
drugs intensifies through increasingly powerful international crime syndicates that have made common cause with
authoritarian regimes and have utterly corrupted the institutions of tenuous, democratic ones. Nuclear, chemical, and
biological weapons continue to proliferate. The very source of life on Earth, the global ecosystem, appears
increasingly endangered. Most of these new and unconventional threats to security are associated with or
aggravated by the weakness or absence of democracy, with its provisions for legality, accountability, popular
sovereignty, and openness. LESSONS OF THE TWENTIETH CENTURY The experience of this century offers important
lessons. Countries that govern themselves in a truly democratic fashion do not go to war with one
another. They do not aggress against their neighbors to aggrandize themselves or glorify their leaders. Democratic
governments do not ethnically “cleanse” their own populations, and they are much less likely to face ethnic
insurgency. Democracies do not sponsor terrorism against one another. They do not build weapons of mass
destruction to use on or to threaten one another. Democratic countries form more reliable, open, and enduring trading
partnerships. In the long run they offer better and more stable climates for investment. They are more environmentally
responsible because they must answer to their own citizens, who organize to protest the destruction of their
environments. They are better bets to honor international treaties since they value legal obligations and because their
openness makes it much more difficult to breach agreements in secret. Precisely because, within their own borders, they
respect competition, civil liberties, property rights, and the rule of law, democracies are the only reliable
foundation on which a new world order of international security and prosperity can be built.
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No Link to Politics
Courts shield politicians from political backlash
Whittington, Professor of Politics at Princeton, 07
(Keith E. Whittington, William Nelson Cromwell Professor of Politics at Princeton University and currently director of graduate
studies in the Department of Politics, 2007, “Political foundations of judicial supremacy” )
An active and independent Court can assume the blame for advancing constitutional commitments that
might have electoral costs. The relatively obscure traceability chain between elected officials and judicial
action allows coalition members to simultaneously achieve certain substantive goals while publicly
distancing themselves from electoral responsibility for the Court and denouncing it for its actions.
Elected officials have an incentive to bolster the authority of the courts precisely in order to distance
themselves from the responsibility for any of its actions. As long as the Court is acting in concert with basic
regime commitments, and thus not imposing serious electoral or policy costs on pother affiliated political actions, it may
enjoy substantial autonomy in interpreting those commitments.
Courts allow politicians to avoid controversial issues
Solum, Professor of Law, 05
(Lawrence Solum, Professor of Law at Loyola Law School in Los Angeles, "Legal Theory Lexicon 047: The Counter-Majoritarian
Difficulty" 6-19-2005 http://lsolum.typepad.com/legal_theory_lexicon/2005/06/legal_theory_le_1.html)
elected politicians prefer for the Supreme Court to
“take the heat” for some decisions that are controversial. When the Supreme Court acts, politicians
may be able to say, “It wasn’t me. It was that darn Supreme Court.” And in fact, the Supreme Court’s
involvement in some hot button issues may actually help political parties to mobilize their base: “Give
There is another side to this story. There may be reasons why
us money, so that we can [confirm/defeat] the President’s nominee to the Supreme Court, who may cast the crucial vote on
[abortion, affirmative action, school prayer, etc.].” In other words, what appears to be counter-majoritarian may actually
have been welcomed by the political branches that, on the surface, appear to have been thwarted.
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No Link to Politics
Courts rulings shield congress members from political blame
Evensky, Professor of Economics at Syracuse, 07
(Jerry Evensky, Professor of Economics and Laura J. and L. Douglas Meredith Professor for Teaching Excellence at Syracuse
University, 2007, “ Adam Smith's Moral Philosophy”)
The question of why Congress has tended to devolve quasi-legislative powers to agencies and the courts remains. Plainly,
institutional politics has become quite complex. Some commentators argue that members of Congress often use the
agencies and the courts to avoid difficult choices and political blame. Members, according to this view, often are
unable or unwilling to resolve their differences so they give up and leave legislation ambiguous or include contradictory
provisions, a practice which sometimes leaves interested parties no option but to take the matter to court. Other observers note
that Congress and the courts have largely been willing allies in the expansion of the federal bench into the
legislative arena. Unwilling to trust agency regulators under Republican administrations. Democratic majorities in
Congress repeatedly turned to the courts to help put teeth into increasingly complex and detailed
legislation in the 1970s and 1980s. Yet other analysts emphasize the influence of interest groups to whom Congress and
the president are responding when they approve legislation. Each of these interpretations seems to fit at least some major
legislation. Members of Congress have certainly tried to use the courts when they have lacked the political
support to secure policy goals through legislation. As just discussed, failed efforts by members to enforce the War
Powers Resolution in the courts show the limits of enticing the courts to resolve political controversies. But Congress’s
tendency to draw the courts into the policy arena also reflects the cumbersome nature of legislating under divided government.
Unable to procure favorable outcomes from regulators, members of Congress and organized groups have deliberately sought
the assistance of the courts in battling administrations.
Court decisions facilitate policymaking without endangering political support
Miller and Barnes, Associate Professors of Government and Political Science, 04
(Mark Miller, Associate Professor of Government Clark University, Making Policy, Making Law, Jeb Barnes, Assistant Professor of
Political Science at the University of Southern California, 2004
http://books.google.com/books?id=cuE9Ee5KU5IC&pg=PA68&lpg=PA68&dq=%22reverence+that+the+american+public+extends+t
o+the+judicial+branch%22&source=bl&ots=7C6lAB5VOz&sig=hbmeL9Lkl6qajHlNhn3kAHQX_Os&hl=en&ei=k0JnSszmAomnlA
f1m63dDA&sa=X&oi=book_result&ct=result&resnum=1)
ln the 1960s, the conventional wisdom among political scientists came to be that the ‘ federal
courts in general and the
U.S. Supreme Court in particular are protected from the most deadly of congressional attacks by the
high respect and reverence that the American public extends to the judicial branch . ln the early 1960s,
Murphy and Pritchett argued that "courts are protected by their magic; only rarely can a hand be laid on a judge without a
public outcry of sacrilege" (Murphy and Pritchett 1961, 554-55). ln the late 1960s, Nagel continued this theme when he
argued that milder forms of attacks on specific decisions of the Supreme Court had more chance of passing in Congress
than did more frontal attacks (Nagel 1969, 277). Others argue that many in Congress actually prefer that the federal courts
hand down decisions on extremely divisive issues (see, e.g., Dahl 1957; Bickel 1962; Graber 1993). As Graber explains this
line of reasoning, °‘Mainstream politicians may facilitate judicial policymaking in part because they have
good reason to believe that the courts will announce those policies they privately favor but cannot
openly endorse without endangering their political support" (1993, 43). Schubert (1960) and Miller (1995) have
argued that the presence of so many lawyers in Congress also protects the courts from serious institutional attacks. Harry
Stumpf summarizes this line of scholarship when he writes, "Tbe prestige or sacrosanctity argument in Congress is used
and used with some effectiveness in protecting the judiciary against anti-Court legislative reaction" (Stumpf 1965, 394).
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No Link to Politics
Courts shield legislators from political backlash
Whittington, Professor of Politics at Princeton, 07
(Keith E. Whittington, William Nelson Cromwell Professor of Politics at Princeton University and currently director of graduate
studies in the Department of Politics, 2007, “Political foundations of judicial supremacy” )
Effective political leaders find the means for achieving the policy results that they want while
protecting legislators from any political backlash that might result from those policies (and insuring
that legislators reap any political rewards that might result). As Doug Arnold has explained, voters can
only hold legislators accountable for their past performance if their can follow a “traceability chain”
between the actions of the legislator and policy outcomes. When the policy is a popular one,
legislators strive to “strengthen” the traceability chain (they engage in highly visible position taking).
When the policy is unpopular, they take steps to “weaken” or “break” it. Coalition leaders can manipulate the
timing of unpopular votes, for example, so that legislators need not cast too many at once or too close to an election. They
can avoid putting the unpopular actions of individual legislators on record. They can bundle legislative proposals so as to
avoid separate votes on unpopular items. They can create complex and indirect mechanisms for implementing unpopular
policies, such as automatic cost-of-living increases for congressional salaries. They can delegate unpopular policy
decisions to others, such as bureaucrats or special commissions, allowing legislators to avoid blame themselves while
shifting blame to others.
Position taking is fundamentally about taking actions without policy
consequences. In order to take an electorally advantageous position, politicians need only posture, not
achieve results. Legislators on the losing side of an issue still score political points with their
constituents by taking the “right” stance, even if the policy outcome goes against the preferences of the
voters. Because legislators also have policy preferences of their own, as well as longer-term concerns
about how voter attitudes might be affected by real events, they cannot simply take the electorally
popular position. Sometimes legislators believe taxes need to be raised despite voter hostility. If legislators could
simply posture without consequence, then they could always vote against taxes, but their responsibility for policy outcomes
constrains their position taking. The more pivotal a legislator’s vote becomes to determining policy outcomes, then the
more the value of the substantive policy outcome must be weighed against the value of the position taking. When
legislators know that a president will veto a given piece of legislation, for example, they may be free to vote in favor of it in
order to satisfy constituents (or perhaps, some particular group of constituents). When the threat of a presidential veto is
removed, however, legislators may be forced to switch their own votes in order to prevent an undesired bill from becoming
law.
Independent and active judicial review generates position-taking opportunities by reducing the
policy responsibility of the elected officials. They may vote in favor of a bill that they personally
dislike secure in the knowledge that it will never be implemented. State statutes regulating abortion after the
Roe decision, for example, were often pure symbolism, though they could also play a more productive role in pressing the
Court to refine its doctrine or in filling in the lacuna left by the judicial decisions.
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No Link to Politics – Obama
Court decisions shield presidents’ political capital
Jennifer Greenstein Altmann, assistant editor at the Princeton Weekly Bulletin, 2007 – News At Princeton, http://www.princeton
.edu/main/news/archive/S18/17/72G06/?section=featured)
In his new book, "Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court and Constitutional
Leadership in U.S. History," Whittington argues that in recent years the court has become the key player in an
important political tussle: Who has the final say in constitutional matters? Whittington asserts that the court has
become the final arbiter, but that status did not result from a power grab by the court. Its power, remarkably, has come
from politicians, who have pushed onto the court the responsibility for making final rulings on constitutional
matters because, paradoxically, it benefits the politicians. "Presidents are mostly deferential to the court,"
said Whittington. "They have pushed constitutional issues into the courts for resolution and encouraged others to do the
same. That has led to an acceptance of the court's role in these issues." It seems counterintuitive that politicians would want
to defer to the court on some of the most high-stakes decisions in government, but Whittington has found that they do so
because the court often rules in the ways that presidents want — and provides politicians with the
political cover they need. In 1995, the Clinton administration faced a proposal from the Senate to
regulate pornography on the Internet. The president thought the bill was unconstitutional, but he didn't
want to risk appearing lenient on such a hot-button issue right before he was up for re-election, Whittington said.
Clinton signed the legislation with the hope that the Supreme Court would strike it down as
unconstitutional, which it later did.
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Courts Links to Politics
Courts create political conflict – decisions draw in other institutions and amplify public attention
Flemming, Political scientist Texas A&M, 97
(Roy Flemming, John Bohte, Dan Wood, Political scientists at Texas A&M University, October 1997, “One Voice Among Many: The
Supreme Court's Influence on Attentiveness to Issues in the United States, 1947-92”)
In this study we focus on the United States Supreme Court as a bell-wether of systemic attention to policy
issues. In Federalist 78, Hamilton offered his by now famous and often repeated opinion that the Court would be "the least
dangerous branch." Without the power of the sword or purse at its disposal, the Court’s authority in American politics
would ultimately depend on its ability to persuade. The Supreme Court, however, may be more effective in drawing
attention to issues and identifying problems than in changing preferences about them (cf. Franklin and Kosaki 1989;
Hoekstra l995). The judicial venue may increase issue visibility and legitimacy for issue advocates. As with
other United States political institutions, Supreme Court decisions confer and remove benefits, both material and symbolic,
and can under some circumstances rearrange the distribution of political influence. When decisions rearrange
political benefits and influence, the response is predictably a continuation of conflict. Decisions that
rearrange political benefits or influence in the extreme, as for example in cases involving school desegregation, flagburning, or public school prayer, often expand the scope of conflict by activating new groups and accentuating old rivalries.
These processes may, in turn, draw other political institutions into the fray, as well as amplify both public
and media attention. Thus, under certain circumstances the Supreme Court may profoundly affect the agenda
setting process in the United States, and in doing so constitute an institutional source of change in
American public policy and politics.
Courts are not insulated from politics – congressional and presidential appointments have turned courts
into politicized bodies
Harrison, Lecturer in Law, 05
(Lindsay Harrison, Lecturer in Law at the University of Miami School of Law "Does the Court Act As "Political Cover" for the Other
Branches?"11-18-2005 http://legaldebate.blogspot.com/2005/11/does-court-act-as-political-cover-for.html)
While the Supreme Court may have
historically been able to act as political cover for the President and/or Congress, that is not true in a
world post-Bush v. Gore. The Court is seen today as a politicized body, and especially now that we are in the
era of the Roberts Court, with a Chief Justice hand picked by the President and approved by the Congress,
it is highly unlikely that Court action will not, at least to some extent, be blamed on and/or credited to the
President and Congress. The Court can still get away with a lot more than the elected branches since people don't
Does the Court Act as "Political Cover" for the Other Branches?
understand the technicalities of legal doctrine like they understand the actions of the elected branches; this is, in part,
because the media does such a poor job of covering legal news. Nevertheless, it is preposterous to argue that the
Court is entirely insulated from politics, and equally preposterous to argue that Bush and the Congress
would not receive at least a large portion of the blame for a Court ruling that, for whatever reason, received
the attention of the public.
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Courts Links to Politics
Court decisions affect Congress and the President
McDonnell, associate professor of law, 97
(Brett McDonnell, associate professor of law at the University of Minnesota., California Law Review, “Dynamic Statutory
Interpretations and Sluggish Social Movements”, Vol. 85, No. 4, p. 921)
Court decisions may affect public opinion, which may in turn
eventually affect the positions of Congress and the President. Similarly, political mobilization to change
a law may change the views of political actors. Over a long period, the political branches' dissatisfaction with the
The changes may actually be partly endogenous.
Court may lead to appointments which change the view of the Court. Such long-term effects should be of interest for the
theory of statutory interpretation. Moreover, insofar as the actors themselves take into account these future effects, their
present behavior may change, leading to different predictions for the theory.
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Perm Card
Simultaneous action allows a shift in political responsibility from congress to the courts – multiple
empirical examples prove
Lazarus, federal prosecutor, 05
(Edward Lazarus, former law clerk on Supreme Court and federal prosecutor, 3-31-05, “Why Congress's Intervention Predictably
Didn't Help the Schindlers:
Putting Federal Judges In an Unfair Pressure Cooker In the Terri Schiavo Case,”
http://writ.news.findlaw.com/lazarus/20050331.html)
When Congress Makes the Courts Play Politics, It's Deeply Unfair to the Judges Involved By and large, federal judges
do not like being thrown political footballs. Yet in passing "Terri's Law," that's exactly what Congress
did. Without any serious consideration of the legality of what it was doing, in order to score political points, Congress
put the federal courts on the hot seat, making them involuntarily accountable for Schiavo's fate. As the
affected federal judges no doubt recognized, this unsought unaccountability had only a downside for their
judicial institutions. As the abortion wars have shown, the reputation of the federal courts takes a terrible
beating whenever they are called upon to decide profoundly divisive moral and emotional issues . There
is simply no reconciling or mediating between the contending sides on such issues, and thus, the consequence of judicial
involvement is inevitably charges of institutional illegitimacy from the losing side. If both sides lose at various times, then
resentment of the court system ends up being general and pervasive. Terri's Law, of course, does not represent the
first time that Congress has played the trick of making federal courts pay the reputational price for
Congress's political point-scoring. After the Supreme Court struck down Texas' ban on burning the
American flag, in Texas v. Johnson, Congress made the Court reiterate this unpopular stand by passing a
nearly identical federal anti-flag burning law - even though it knew full well this law, too, would inevitably be
struck down. More recently, after the Court struck down Nebraska's ban on partial birth abortion in Stenberg v. Carhart,
Congress passed a similarly unconstitutional federal law -- thus forcing a predictable but nonetheless wrenching re-run of
this litigation. That political hot potato is headed back to the Supreme Court soon. But if you don't like the
Court's decision - which is a foregone conclusion, don't blame the Court: Blame Congress for forcing the Court into
the position where it must take political heat for a constitutional decision. Federal judges hate this kind of
symbolic, politicized legislating. Rightly so: These kind of laws force federal courts to strike down laws that are
clearly unconstitutional but enjoy a passionate constituency - and thus to incur political costs for no reason.
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No Solvency – Implementation
Courts empirically fail to create social change – no implementation mechanism
Berenji, BA in Political Science, 08
Shahin Berenji, USC Bachelor of Arts in Political Science, The US Supreme Court :A "Follower, not a Leader" of Social Change.
Lethbridge Undergraduate Research Journal. 2008. Volume 3 Number 1.
Similar to its dependency upon the “test case,” the
enforce its Court precedents. Although
Supreme Court also needs societal support to implement and
it issues decisions, the Supreme Court cannot directly
implement them, which severely constrains their impact upon society. Unlike the executive or the legislative
branches of government, the Supreme Court cannot appropriate money to ensure the application of its
policies. In addition, the Supreme Court cannot use the police or other law-enforcing entities to
execute its decisions. As a result, the Supreme Court must rely on societal support, particularly the
federal government, to ensure the implementation of its decisions. According to Alexander Hamilton, “[the
Supreme Court] may truly be said to have neither force nor will, but merely judgment; and must ultimately depend upon the
aid of the executive arm even for the efficacy of its judgments” (Rosenberg 15). This dependency truly limits the
power of the Court by making it difficult for the judicial institution to oppose the policies of society. In 1830, for
instance, at President Andrew Jackson's urgency, Congress passed the Indian Removal Act, which allowed the relocation of
most tribes in the eastern United States to reservations west of the Mississippi River. Following the impetus from this act,
Georgia passed a series of state laws which enabled white settlers to seize Cherokee territory in the northwestern frontier of
that state. The Cherokee Nation, however, made the claim that they were a sovereign political entity within the boundaries
of Georgia. In the 1832 case of Worcester vs. Georgia, the Supreme Court sided with the Cherokee Indians, ruling that
Georgia superceded federal jurisdiction over the Cherokee Nation. This decision marked the first time that the Court
actively sought to protect a minority group from the ruling majority. Moreover, this decision declared that the actions of
Georgia as well as those actions that were permissible under the 1830 Indian Removal Act were illegitimate and
unconstitutional.
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No Solvency – Social Change
Courts insufficient at social change – only respond to public sentiments
Klarman, Professor of Law, 05
Michael J. Klarman, Kirkland and Ellis Professor of Law at Harvard Law School, Civil Rights Litigation and Social Reform, Yale L.J.
(The Pocket Part), Nov. 2005, http://www.thepocketpart.org/2005/11/klarman.html.
it is this same heroic quality that has enabled Brown to distort our views of constitutional
theory, the Supreme Court’s role in effecting social change, and the history of civil rights litigation .
Legal historians have frequently exaggerated Brown’s contributions to the civil rights movement,
occasionally going so far as to claim that the movement would not have occurred without Brown. The Justices who
decided the case knew better. They acknowledged that Brown was possible only because of antecedent
changes in American racial attitudes and practices. Justice Robert Jackson observed in connection with Brown
Yet perhaps
that segregation "has outlived whatever justification it may have had,” and Justice Felix Frankfurter later noted that he
would have voted to sustain school segregation had it been challenged in the 1940s, because “public opinion had not then
crystallized against it.”
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No Solvency – Social Change
Legal mobilization insufficient – long timeframe and empirical failure
Peters, Professor of Political Science , 07
(C. Scott Peters, Professor of Political Science at University of Northern Iowa, September 2007, “The Effect of Legal Mobilization on
the U.S. Supreme Court's Attention to Issues”, Political Research Quarterly Volume 60 Number 3)
These findings also present a new challenge to scholars. Specifically, we must now explain how salient Court decisions lead to
more Court attention even though they do not lead to more legal mobilization. One possible pathway is suggested by the
relationship between congressional attention, Court attention, and legal mobilization uncovered here. Congressional
committees increase their attention to issues in response to Court decisions at a lag of three years. This
increased congressional attention may lead to more legal mobilization--cert. petitions and publication of law review
articles are positively influenced by Congress's attention to the issue four or five years earlier. This may also
explain the consistent finding of a five-year lag between salient Supreme Court decisions and increased Court attention. Baird.
(2004) originally reported this pattern but had no concrete explanation for why it would take five years for litigants to react to
signals from the Court. Indeed, if legal mobilization alone were central to this process, we might expect it to happen much
more quickly than five years-at any given time litigants could have many cases in the pipeline and could adjust their legal
arguments (and perhaps even the basic legal questions they ask) in reaction to new Supreme Court decisions. If, however,
Court signals get translated into Court attention via congressional reaction or a larger process of political
mobilization, this process could take quite some time. Scheingold (1974) argued that successful use of the
courts to achieve political goals in the 1950s and 1960s had created a myth that political goals can be
achieved through legal mobilization alone, through appealing to rights and relying exclusively on the courts. The
reality, he argued, is that political movements must mobilize politically to secure their goals; legal
mobilization may play a role, but it will only be a part of a larger political strategy. These results may reinforce
Scheingold's observation and certainly remind us that the lesson for activists of victories are not sufficient to bring
about social change. Analyzing the relationship between high courts and litigants might, therefore, require an accounting of
the broader political goals and tactics that litigants are pursuing.
Courts can’t create social change – only respond to existing demands
Berenji, BA in Political Science, 08
Shahin Berenji, USC Bachelor of Arts in Political Science, The US Supreme Court :A "Follower, not a Leader" of Social Change.
Lethbridge Undergraduate Research Journal. 2008. Volume 3 Number 1.
In conclusion, the
Court is a somewhat constrained institution in that it only responds to the demands and
whims of society. The Court's dependency upon society for case initiation as well as case enforcement
prevents the Court from rendering decisions entirely opposed to societal opinion, thus why the Court
can never fully lead social change within the United States. This is why, “at its best the Court operates to confer
legitimacy, not simply on the particuar and parochial policies of the dominant alliance, but upon the basic patterns of
behavior required for the operation of a democracy” (Dahl 295).
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Link – Unpopular Decisions  Court Stripping
Unpopular decisions provoke court stripping.
Marc O. DeGirolami, Clerk @ U.S. Court of Appeals – 9th Circuit, 2005. [10 Tex J. on C.L. & C.R. 111, “Congressional Threats
of Removal Against Federal Judges,” p. lexis]
The natural progression of these tendencies may or may not be toward more frequent impeachment of federal judges; the central
claim of this article is that it is nevertheless probable that the future holds more threats of removal.8 This article explores the use of
threats of removal against federal judges and why their incidence is likely to increase. In Part I, after presenting the textual sources
authorizing judicial removal, I survey briefly the history and quality of certain judicial impeachments and threatened removals. In
Part II, I examine two recent pieces of legislation, the Feeney Amendment and House of Representatives Resolution 568 (which
has not yet been enacted), that serve as able vehicles for legislators to threaten judges with removal for noncompliance with certain
political ideologies or objectives. In Part III, I ask what may explain the increased prevalence of threats of removal by legislators
against judges. In answer, I advance two theories, the first of which posits that the threat of judicial removal is a perfectly rational
choice for legislators given the power structure between the branches as it has developed in modern times; therefore, such threats
will become an increasingly frequent occurrence even though they are not necessarily followed by impeachment. The second
explanatory theory is based on the growing public perception (from within and outside the legal profession) of the judiciary as
incapable of credibly performing its judging function. I argue that some of the traditional beliefs about the role of judges have been
irremediably undermined by a culture that deems criticism, in as great an abundance as possible, a paramount virtue. I submit that
the legislature has capitalized on both the popularity of judicial criticism and the lack of public confidence in the judiciary to
advance its own political ends. These two theories, working in conjunction, provide a basis for understanding the increased
incidence of legislative threats of removal against judges and for the belief that the present sociopolitical climate will conduce to
more frequent and forceful threats of removal in the future. After considering and rejecting several commonly voiced remedies for
the current state of congressional and public hostility toward the judiciary, I conclude in Part IV that the relationship between the
legislative and judicial branches will continue to deteriorate, and that congressional threats of removal will play an increasingly
central role in this dissolution.
Backlash against a controversial plan causes court stripping.
Helen Norton, Prof. of Law at the University of Maryland, 2006 Reshaping Federal Jurisdiction
Not only are these efforts increasingly successful, they are likely to reemerge in future proposals to shape subject matter
jurisdiction and thus the balance of judicial power. The House's passage of two separate court-stripping bills in the same
Congress represents a high-water mark in the court-shaping movement, as does its passage of the Pledge Protection Act in
successive Congresses. Indeed, some of the dynamics that helped thwart earlier court-stripping measures appear to have
diminished or disappeared altogether. 97 In the past, for example, the courts - and especially the Supreme Court - may
have survived congressional attack due to their comparatively strong public reputation. 98 Shifting perceptions of
government institutions may weaken that shield, as one survey found that a majority of respondents agreed "that "judicial
activism' has reached the crisis stage, and that judges who ignore voters' values should be impeached. Nearly half agreed
with a congressman who said judges are "arrogant, out-of-control and unaccountable.'" 99 Other recent polls also suggest a
drop in public support for the courts, including the Supreme Court, at least in some quarters. 100 Changes in public opinion,
accompanied by proponents' sheer political power, may encourage further jurisdictional realignment.
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Link – Unpopular Decisions  Court Stripping
Congress will respond to public pressure to strip the court
Washington Times 10-7-2003 [Article III, Section 2, http://www.takebackourrights.org/docs/washtimes1003.htm]
In the 107th Congress (2001-2002), Congress used the authority of Article III, Section 2, clause 2 on 12 occasions to limit the
jurisdiction of the federal courts. Sen. Thomas A. Daschle, South Dakota Democrat, used the exception authority of Article III,
2.2 in order to cut some timber in South Dakota. Congress responds to pressure from the public. Call, write, e-mail or fax
your senator or member of the House to enact 51558 by Sen. Allard, Colorado Republican, and HR 3190 by Rep. Pickering
Mississippi Republican. These bills allow the Ten Commandments to be displayed and retain God in the Pledge of Allegiance
and use Article III, Sec. 2.2.
Public approval is key—legislators will respond by stripping the courts.
Bert Brandenburg, J.D., 2004 [Association of Trial Lawyers of America, “Keep the courts free and fair,” p. lexis]
Since court-stripping efforts and other attacks on our courts come primarily from legislators, the remedy is both easy and hard.
Lawmakers know that courts and judges are useful political punching bags, but they are also sensitive to public disapproval.
As officers of the court, attorneys have a special role in teaching the public about these threats. Lawyers can be a powerful
force forpublic education, speaking before associations, writing op-ed articles and letters to the editor, and urging legislators to
respect the unique role of our courts. In this election year, all who value fair, impartial courts shouldhelp educate the public on
the importance and fragility of what Chief Justice Rehnquist calls the "crown jewel" of our democracy--an independent
judiciary.
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Link – Abortion Rulings  Court Stripping
Abortion rulings provoke court stripping.
Lawrence G. Sager, J.D., Law Professor at UT, March 2005. [Fordham Law Review, "Theories of Taking the Constitution Seriously
Outside the Courts: Courting Disaster," p. lexis]
These concerns about the completeness and fairness of the historical record in Kramer's hands are, as I have said, pretty
obvious, and they are likely to be common critical grist in responses to The People Themselves. But let us take the record as
given, for a moment, and consider how it should be read. There is one not-so-obvious feature of that record that goes
unremarked by Kramer and which may be quite important. Suppose we draw a rough distinction between two sorts of
constitutional disagreements. In "Alpha" conflicts, a governmental act or practice is found by the Supreme Court to be
unconstitutional, but other governmental actors disagree. In "Beta" conflicts, a governmental act or practice is found by the
Supreme Court to be constitutional, and other governmental actors disagree. Alpha and Beta disagreements have very different
valences in our constitutional practice. Alpha disagreements are where the wild things are. They create true conflicts
between the Court, which mandates X, and another governmental actor that insists on doing something at sharp odds
with X. Alpha disagreements are often driven by strong popular resistance to the Court's rulings. And it is Alpha
disagreements-over the pledge of allegiance, gay rights, flag burning, abortion, school prayer, and racial integration of the
public schools-that can produce the impulse to strip the courts of jurisdiction, to pack the Court, to impeach a Justice or
two, or to order National Guard troops to brace themselves against the peril of black students entering a racially-pristine high
school.
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Link – LSC Ruling  Court Stripping
Court decisions on legal services cause court stripping.
ACLU 2001 [Upsetting Checks and Balances: Congressional Hostility to the Courts in Times of Crisis, p.
http://www.aclu.org/FilesPDFs/ACF47C9.pdf]
One reason immigrants and prisoners have so little voice in the political process (apart from the fact that they are almost
always barred from voting) is that they are typically poor. So it is also no accident that at the same time Congress sought
to limit the power of federal judges to vindicate the rights of immigrants and prisoners, it also enacted severe
restrictions on legal services for the poor, and explicitly prohibited legal services lawyers from representing these
vulnerable populations. These restrictions compound the harm caused by more direct forms of court-stripping. The courtstripping movement has so far targeted death row inmates, immigrants, prisoners and now suspected terrorists. But the
procedural devices employed against these vulnerable targets could ultimately be used to limit the rights of less
narrowly defined groups as well. The constitutional chain is only as strong as its weakest link, and in 1996 the chain
began to give way.
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Link – Immigrants/Prisoners Rulings  Court Stripping
Court rulings on immigrants and prisoners rights cause court stripping.
ACLU 2001 [Upsetting Checks and Balances: Congressional Hostility to the Courts in Times of Crisis, p.
http://www.aclu.org/FilesPDFs/ACF47C9.pdf]
One reason immigrants and prisoners have so little voice in the political process (apart from the fact that they are almost
always barred from voting) is that they are typically poor. So it is also no accident that at the same time Congress sought
to limit the power of federal judges to vindicate the rights of immigrants and prisoners, it also enacted severe
restrictions on legal services for the poor, and explicitly prohibited legal services lawyers from representing these
vulnerable populations. These restrictions compound the harm caused by more direct forms of court-stripping. The courtstripping movement has so far targeted death row inmates, immigrants, prisoners and now suspected terrorists. But the
procedural devices employed against these vulnerable targets could ultimately be used to limit the rights of less
narrowly defined groups as well. The constitutional chain is only as strong as its weakest link, and in 1996 the chain
began to give way.
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Impact – Court Stripping – Constitution
Court stripping creates loss of judicial supremacy
Christopher T. Handman, JD at Yale, 1996 The Doctrine of Political Accountability and Supreme Court
Jurisdiction
The seemingly unbridled power unanimously affirmed in Ex parte McCardle n64 has not gone unnoticed by essential
functions critics. n65 Indeed, the opinion erects a large doctrinal obstacle to any internal constraint
argument. However, pointing to the divisive political context in which the McCardle decision was
written, internal constraint theorists argue that the decision should not be afforded great precedential
value. Professor Lawrence Gene Sager, for example, has suggested that " the Court acted in a highly unusual
historical context," and therefore its "dicta...cannot be given much weight ." n66 Although McCardle should
be considered in its historical context, it nevertheless remains in the United States Reports. Insofar as McCardle is the only
case in which the Court has addressed Congress's authority under the Exceptions Clause, it is difficult to imagine that a
federal court would reject the decision out of hand. In the end, the Exceptions Clause's sweeping language, the equivocal
historical record, and the Court's affirmation of plenary congressional power in McCardle undermine internal constraint
theories. While essential function [*208] concerns for supremacy and uniformity of law offer salutary
arguments for why Congress should not strip the Court of jurisdiction, it does not explain why
Congress may not do so.
Judicial supremacy is a part of our constitutional practice.
Lawrence G. Sager (constitutional theorist and scholar). Fordham Law Review. March 2005. Theories of Taking the
constitution seriously outside the courts: courting disaster.
http://www.lexisnexis.com:80/us/lnacademic/search/journalssubmitForm.do
We need to be clear on where we are in the historical bidding: Kramer
is arguing that "judicial supremacy" in our
constitutional practice has always been balanced or overwhelmed by various forms of popular
constitutionalism, in particular by departmentalism. n39 On the Mount Rushmore of popular constitutionalism,
Kramer would carve the visages of Jefferson, Jackson, and Van Buren. n40 But, on Kramer's report, Jackson and Van
Buren, the heroes of departmentalism, are classic Beta lambs, not Alpha lions. Lincoln is almost everyone's hero; but his
example lends no serious support to Kramer's call for attacking the Court.
Now it may or may not be that the dense tapestry of our constitutional experience would yield convincing instances of
Alpha disagreement were Kramer to take a second look. But whether Kramer could succeed in a second look is beside the
point. Kramer's history surely cannot persuade us as a matter of direct authority: Lots of things happened in our past,
including quite bad things that we should not be tempted to repeat. That the Court was defied at some
point in the past is not a claim for how the Court should be regarded today. But Kramer is not, I think,
offering the past as authority for his complaint about the present. Kramer echoes Richard Parker in suggesting that at
bottom these questions about the division of constitutional labor are "a matter of sensibility." n41 The examples of Jackson
and Van Buren are meant to stoke our popular political sensibilities. To do that, they have to be appealing events, not
merely past events. But if Jackson and Van Buren are appealing, it is precisely because they represent Beta redundancy of
judgment, not Alpha defiance and disorder. And for just that reason, they cannot offer support for the litany of
Alpha strokes of discord, the absence of which is lamented by Kramer - impeaching the Justices,
packing the Court, stripping it of jurisdiction, blighting it with consuming burdens, or neutering it with
disabling procedures.
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Impact – Court Stripping – Constitution
Stripping the courts of authority would collapse the Fourteenth Amendment.
Michael Peabody, lawyer working as a legislative liaison, 2006 Toward a Midieval Model,
http://www.libertymagazine.org/article/articleview/561/1/89
If passed, the
CRA could also eliminate that portion of the Fourteenth Amendment that operates to apply
the Constitution’s Bill of Rights to the state and local governments, and send the nation into a
methodical tailspin when it comes to individual rights. Prior to the ratification of the due process and equal
protection clauses of the Fourteenth Amendment in 1868 (following the Civil War), the Bill of Rights was thought to apply
only to actions of the federal government. And state and local abuses did occur. In 1857 the Supreme Court, in Dred Scott
v. Sandford, ruled that it did not have jurisdiction, even if a slave started in a slave state and moved to a free state,
reasoning that the federal court could not step in and take away the “property rights” of the owners in the originating state.
By failing to apply the Bill of Rights to state actions, the Scott Court galvanized the nation by effectively spreading slavery
across state lines. During an 1866 debate over the postwar Fourteenth Amendment, which in part was responsive to Scott,
future U.S. president James Garfield warned of the abuses of local politics when he said, “In reference to persons, we must
see to it that, hereafter, personal liberty and personal rights are placed in the keeping of the nation; that the right to life,
liberty, and property shall be guaranteed to the citizen in reality as they are now in the words of the Constitution, and no
longer left to the caprice of mobs or the contingencies of local legislation…. We must make it as true in fact as it is in law,
that ‘the citizens of each State shall be entitled to all the privileges and immunities of the citizens in the several states.”
Although representatives from the Southern states initially opposed the Fourteenth Amendment as infringing upon their
local autonomy, the courts have applied the amendment to set precedent extending all of the provisions of the Bill of Rights
to citizens at the state and local level, beginning with the freedom of speech in Gitlow v. New York (1925), and including
free exercise of religion in Hamilton v. Regents of the University of California (1934). The Constitution Restoration
Act of 2005 would, and in fact is designed to, reverse nearly 140 years of legal actions to the states, whereby
religious fundamentalists can have more control over the outcome of decisions. State supreme court decisions would be the
final word when it comes to the way that local governmental officials apply the “sovereignty of God” to their decisions, and
would erase many constitutional protections that the CRA claims to restore. Or perhaps more accurately, the CRA would
indeed “restore” the Constitution to the Dred Scott days.
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Impact – Court Stripping – Judicial Legitimacy
Court stripping destroys judicial legitimacy
Andrew D. Martin, Prof of Political Science at Washington University. 2001. Statuatory Battles and Constitutional Wars: Congress
and the Supreme Court
What does the ability of the President and Congress to
attack through overrides or other means constitutional court decisions imply in terms of the cost of the
justices bear? If an attack succeeds and the court does not back down, it effectively removes the court
from the policy game and may seriously or, even irrevocably harm its reputation, credibility, and
legitimacy. Indeed, such an attack would effectively remove the court from policy making, thus incurring an infinite
cost. With no constitutional prescription for judicial review, this power is vulnerable, and would be
severely damaged if congress and the president were effective in attack on the Court. But even if the
attack is unsuccessful, the integrity of the court may be damaged, for the assault may compromise its
ability to make future constitutional decisions and, thus, more long-lasting policy. One does not have to
But the large policy payoff in the constitutional cases.
peer as far back as scott v. sandford to find examples; Bush v. Gore (2000, U.S.) may provide one. To be sure, the new
President and Congress did not attack the decision, but other memebers of government did of course, unsuccessfully at least
in terms of the ruling’s impact. Yet, there seems little doubt that the critics (not to mention the decision itself) caused some
major damage to the reputation of the cout, the effects of which the justeces may feel in the not-so-distant future.
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Impact – Court Stripping – Separation of Powers
Court stripping destroys separation of powers
Ira Mickenberg, Assistant Professor of Law, U. Dayton School of Law, Winter 19 83. [32 Am. U.L. Rev. 497, ABUSING THE
EXCEPTIONS AND REGULATIONS CLAUSE: LEGISLATIVE ATTEMPTS TO DIVEST THE SUPREME COURT OF
APPELLATE JURISDICTION, p. lexis
In discussing the proper scope of the first amendment as a defense against disorderly conduct prosecutions, Justice Jackson felt
compelled [*532] to warn the Court against converting the Bill of Rights into "a suicide pact." n191 This warning is equally
valid when discussing the permissible uses of the exceptions and regulations clause. A finding of absolute congressional
control over Supreme Court appellate jurisdiction would cause fundamental changes in our system of government. n192 Given
a plenary exceptions power, Congress could, by majority vote, eliminate the Supreme Court's right of judicial review. Congress
could attach to every bill riders that would deny the Court's jurisdiction to review the law that was the subject matter of the bill.
n193 Statutes could be passed removing entire areas of constitutional adjudication from judicial review. The intricate system of
checks and balances by which each branch of government regulates and is regulated by each of the others would be destroyed.
Judicial regulation of the legislature through the review of the constitutionality of statutes would be eliminated. Congressional
control of the judiciary would go unchecked -- possibly to the point of complete destruction of the court system.
Court stripping violates separation of powers
ACLU 01 Upsetting Checks and Balances: Congressional Hostility Toward the Court in Times of Crisis.
http://www.aclu.org/FilesPDFs/ACF47C9.pdf
As a practical matter, court-stripping may be self-defeating. Such legislation is typically motivated by congressional
anger toward the content of certain court rulings. But removing future jurisdiction over the issue may simply
serve to lock in “bad” precedent – a conundrum even some critics of so-called activist judging have acknowledged.
Former Judge Bork notes that: Some state courts would inevitably consider themselves bound by the federal precedents;
others, no longer subject to review, might not. The best that Congress could hope for would be lack of uniformity. This is
a far cry from amending the Constitution or even overruling a case. While it may seem preferable to
some to lack uniformity on a particular issue rather than to have a repugnant uniform rule, the
government could not easily bear many such cases and certainly could not long endure a complete lack
of uniformity in federal law. Thus there are practical limitations on excessive use of the Exceptions Clause.165 More
troublesome is that court-stripping defeats the spirit of the Constitution. The Framers took care to create an
independent judiciary to safeguard individual liberty. Removing important issues from the purview of
the courts, especially those concerning the rights of unpopular minorities, is a direct assault on these
constitutional protections. By the same token, Congress does great harm to the integrity of the federal
judiciary when it leaves issues before the courts, but attempts to manipulate how judges may remedy
violations of constitutional or statutory rights. Even scholars who believe that the Constitution allows significant
congressional control of federal jurisdiction generally agree it would be unwise to invoke it over any significant category of
federal law or use it to achieve a desired substantive outcome.166 Thus Professor Gerald Gunther, writing at the time
Congress was considering court-stripping bills in the early 1980s regarding abortion, busing and school prayer, concluded
“I would urge the conscientious legislator to vote against the recent jurisdiction-stripping devices because they are unwise
and violate the ‘spirit’ of the Constitution, even though they are, in my view, within the sheer legal authority of
Congress.”167 Put another way, “[w]hat may be conceivable in theory would be devastating in practice to
the real world system of checks and balances that has enabled our constitutional system to function for
200 years.”168
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Stripping  No Solvency
Even stripping threats ensure judicial compliance—means plan can’t solve
Keith E. Whittington, Ph.D. Professor of Politics at Princeton, 200 5. [American Political Science Review 99(4), “Interpose Your
Friendly Hand: Political Supports for the Exercise of Judicial Review by the United States Supreme Court,” p. 583—96]
Though federal judges are protected by such securities as lifetime tenure and guaranteed salaries from political retaliation for
their decisions, the judiciary as a whole is still vulnerable to politics (Ferejohn 1999). Most routinely, the political
appointments process creates regular opportunities for elected officials to bring the Court into line with political preferences
(Dahl 1957; Stimson, Mackuen, and Erikson 1995). Despite the life-tenure of judges, a variety of legislative sticks are available
to punish the Court for politically unpopular decisions. Court-curbing actions, by constitutional amendment, statute, or
impeachment, have been frequently threatened over the course of American history, and often that threat has been sufficient to
alter judicial behavior (Epstein and Knight 1998; Nagel 1965; Rosenberg 1992). Government officials can also limit the power
of the Court by simply evading judicial edicts, which highlights the vulnerability of a judiciary that lacks, as Alexander
Hamilton promised, both the executive sword and the legislative will (Hamilton 1961; Rosenberg 1991; Vanberg 2001).
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