Ddw 09
Kim and Holguin
Courts vs. Congress CP
1
COURTS VS. CONGRESS
Court Good/Congres Bad ........................................................................................................................................................................ 2
Courts Best - Deliberation ......................................................................................................................................................................3-4
At: Congress  Deliberation ..................................................................................................................................................................5-8
Congress Power Bad………………………………………………………………………………………………………………………9
Congress Power Bad - Rights - At: Court Chilling .................................................................................................................................. 10
Courts Best - Movements......................................................................................................................................................................... 11
Courts Best - Minority Rights ...............................................................................................................................................................12-3
Courts Best - Prisoners............................................................................................................................................................................. 14
Courts Best - Police ................................................................................................................................................................................. 15
Courts Best - Democrcy .......................................................................................................................................................................... 16
Courts Best - Unbiased ............................................................................................................................................................................ 17
Congress Best/Courts Bad ..................................................................................................................................................................... 18
Courts Fail - Progressivism ................................................................................................................................................................. 19-21
Courts Fail - Implementation ................................................................................................................................................................22-3
Congress Best - Rights ............................................................................................................................................................................. 24
Congress Better - Liberal Moements ....................................................................................................................................................... 25
Congress Better - Class ............................................................................................................................................................................ 26
Congress Better - Race..........................................................................................................................................................................27-9
Congress Better - Prisons ......................................................................................................................................................................... 29
Congress Better - Judicial Tyrany ............................................................................................................................................................ 30
Congress Better - Environment ................................................................................................................................................................ 31
Congress Better - Public Perception .....................................................................................................................................................32-3
Courts Fail - Sop ...................................................................................................................................................................................... 34
At: Courts Best - Nonbiased .................................................................................................................................................................35-6
At: Perm - Judicial Overhang................................................................................................................................................................37-9
Ddw 09
Kim and Holguin
Courts vs. Congress CP
COURT GOOD/CONGRES BAD
2
Ddw 09
Kim and Holguin
Courts vs. Congress CP
3
COURTS BEST - DELIBERATION
Studies prove judicial Strength results in nation wide debate and political deliberation
Christine Bateup, Historical Scholar & JSD Candidate @ NYU, ‘6 [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 nonjudicial 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
A strong judiciary is vital for provoking thoughtful deliberation even if congress is competent and just
Christine Bateup, Historical Scholar & JSD Candidate @ NYU, ‘6 [71 Brooklyn L. Rev. 1109, “The Dialogic Promise Assessing The
Normative Potential of Theories of Constitutional Dialogue,” ln]
The judiciary also performs a special institutional function due to its comparative temporal advantage in [*1178] ensuring that
sufficient attention is paid to constitutional values. As previously observed, while recognizing that legislatures are motivated and
competent to engage in constitutional interpretation, the reality of the legislative process means that legislators may not always have
sufficient time to devote to complete constitutional exegesis on every issue. 256 Legislators have a variety of roles to perform in
addition to their function of enacting legislation, such as party functions, meeting with constituents, and overseeing government
administration, which may sometimes draw them away from core legislating. 257 Furthermore, the legislature's need to confront
seemingly urgent issues may sometimes result in hastily enacted laws, without sufficient attention paid to measures that may unduly
restrict rights. Without succumbing to generalized fears about legislative expediency and self-interest, judges can help ensure that
sufficient legislative attention is paid to constitutional values. Judges are able to assist in this way because they often have more time
to devote to this task without the immediate pressure of conflicting incentives in the context of their dispute resolution function. 258 In
common law systems, the judiciary's ability to make this contribution is bolstered by procedures, such as certiorari and the ability to
avoid constitutional questions where ordinary legal grounds of decision are available, which enable the Court to decide which, and
how many, constitutional cases it will focus on in detail. 259 [*1179]
Ddw 09
Kim and Holguin
Courts vs. Congress CP
COURTS BEST - DELIBERATION
The court supports powerful national consensus while ensuring democratic deliberation rather than
anger
Dale Carpenter, Prof. of Law @ Minnesotra, ‘3 [20 Const. Commentary 405, “Judicial Supremacy and Its Discontents,” ln]
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
4
Ddw 09
Kim and Holguin
Courts vs. Congress CP
5
AT: CONGRESS  DELIBERATION
The plans olive branch to the public fails due to public apathy and enhances ellite control over politics
Doni Gewirtzman, Prof of Law @ NYU, ‘5 [93 Geo. L.J. 897, “Glory Days: Popular Constitutionalism, Nostalgia, and the True
Nature of Constitutional Culture,” ln]
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.
Ddw 09
Kim and Holguin
Courts vs. Congress CP
6
AT: CONGRESS  DELIBERATION
Scholarly consensus that the public will not engage in deliberation despite the plan
Doni Gewirtzman, Prof of Law @ NYU, ‘5 [93 Geo. L.J. 897, “Glory Days: Popular Constitutionalism, Nostalgia, and the True
Nature of Constitutional Culture,” ln]
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 decisionmaking 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.
Ddw 09
Kim and Holguin
Courts vs. Congress CP
7
AT: CONGRESS  DELIBERATION
Legislative power results in checkbook populism – furthering inequalities and preventing true
deliberation
Doni Gewirtzman, Prof of Law @ NYU, ‘5 [93 Geo. L.J. 897, “Glory Days: Popular Constitutionalism, Nostalgia, and the True
Nature of Constitutional Culture,” ln]
These populist narratives serve to advance one of popular constitutionalism's primary normative goals: to transform the Constitution
from "a lawyer's contract" to "a layman's instrument of government" 217 through an interpretive process where the People engage in a
collective and ongoing redefinition of national values. 218 In today's world, the People's increasingly distant relationship with
political life leads constitutional culture to operate in ways that are descriptively different from these moments of constitutional
populism.
Consider, for example, how most Americans convey their interpretive preferences. Today, protesting is a comparatively rare event for
most citizens. A 1990 survey of 2517 citizens found that only 6% had attended a protest within the past two years. By contrast, 71% of
the survey participants reported voting in the previous presidential election, and 24% reported donating money to a campaign. 219
Indeed, campaign contributions -- a participatory act all but ignored by popular constitutionalists -- appear to be the mechanism of
choice for those who want to get their message heard. Today, a citizen who seeks to influence constitutional culture is far more likely
to write a check than take to the streets. 220 While fewer and fewer Americans engage politics at a grassroots level (by attending
political meetings or working for a political party), checkbook participation has exploded, growing from $ 35 million in 1964 to over
$ 700 million in 1996. 221 Between 1967 and 1987, Verba, Scholzman and Brady found a 77% increase in the number of Americans
who reported contributing money to a party or candidate. 222 Currently, somewhere between 4% and 12% of registered voters donate
money to federal campaigns. 223 Total spending on a single campaign increased to an all-time high of $ 717 million in the 2004
presidential election, more than ten times the $ 67 million spent in 1976. 224
Beyond the means of participation, limited participation and knowledge affect contemporary constitutional culture in at least two
significant ways. First, low knowledge levels create an environment where the People's interpretive input is often unstable and highly
malleable. Second, participation in constitutional culture is concentrated in ways that mirror larger power disparities in American
life. The result is a constitutional conversation where the People's interpretive voice is left in the hands of an unrepresentative group of
fairly well-off and well-educated citizens. This produces a constitutional culture that is highly susceptible to influence by political
elites, with the political energy of ordinary people strategically channeled by elite opinion makers. 225
Ddw 09
Kim and Holguin
Courts vs. Congress CP
8
AT: CONGRESS  DELIBERATION
increasing congressional power only displaces politics, replacing insurgency with political ellitism
Christopher Tomlins, American Bar Foundation @ Chicago, ‘6 [81 Chi.-Kent. L. Rev. 1007, “Politics, Police, Past and Present: Larry
Kramer’s The People Themselves,” ln]
Whether the text in question is that suggested here (the Preamble) or by Kramer (the collection of texts called "The Constitution"), the
question is the same: how to recover agentive capacity? The People Themselves points to politics as popular constitutionalism's means
to self-realization. As a general recommendation this seems quite noncontentious. But "politics" can often mean activity - theorizing,
organizational behavior - that in fact is dedicated to the displacement of politics, that is "the elimination from a regime of
dissonance, resistance, conflict or struggle," and the creation in its place of agencies of normalization - juridical, administrative,
regulative. 38 American legislative debates constantly invoke the superiority of "nonpartisanship" - the ending of politics, the
substitution of expertise. Indeed, the idea expresses what we have come to call "state building," with all its accompanying
connotations of enclosure and containment of the abnormal.
Such eliminations and stabilizations frame a continuing confrontation over the nature of politics during the founding era, and more
recently, among historians. Witness, for example, the brief but sharp exchange between Staughton Lynd and Edmund Morgan in
December 2005's New York Review of Books over how the sphere of the political should be understood. 39 Lynd celebrates the
popular agitations of the Founding era - self-constituted egalitarian movements "of seamen, tenant farmers, city artisans, [*1015]
slaves, Native Americans, and women" - that required no lead from their betters. 40 He finds their counterpart in the insurgent politics of
1960s civil rights and antiwar movements. 41 Morgan expresses a certain polite puzzlement that Lynd should measure political influence or success
by any criteria other than "an effective role in national politics." 42 Lynd's popular movements - judged "disparate, local, and mostly unsuccessful"
43 - do not count. What counted was the Founders' nationwide movement to declare independence and subsequently create a national government "the only real republic" - that could "effect[] egalitarian reforms on a national scale." 44 What was true of the Founding era, Morgan suggests, was
true of the 1960s and is true now. 45
This exchange canvasses two distinct and now venerable understandings of politics and history - from below (insurgent) and from
above (normalizing). On the whole, The People Themselves seems to prefer the latter version. For the politics recommended here is
not, pace Kramer's critics, the politics of insurgency - or as they prefer to coarsen it, "mob rule" 46 - but the formal, representational
politics of parties contesting for legislative and executive power and institutionalizing the results. Early in the book we encounter certain
forms of popular action explored in the Thompsonian social history that has been so influential over the last forty years - rough music, charivari,
skimmington, stang-riding - usually local, sometimes playful, always strikingly purposeful, directed principally at enforcement of a locale's moral
and cultural economy. 47 But popular action could also be more serious and widespread, as in grain riots and other forms of crowd activity that
expressed the linked sensibility of popular right and rulers' obligation defining the acceptable "countenance" of authority, and amounting, where the
latter broke down, to an elaborated assertion of popular jurisdiction. 48 Kramer admires the revolutionary era crowd as a further advance on mass
action, one that was quite consistently self-conscious, [*1016] disciplined, and direct in its evocation of popular sovereignty. 49 But The People
Themselves does not follow extra-institutional popular mobilizations consistently in all their many and varied forms beyond the early nineteenth
century. The politics of the "murmuring commons," as David Rollison has so beautifully named the early-modern politically-active people, 50
"began falling out of favor" in the early years of the Republic 51 (though it is left unclear from whose favor it fell), and Kramer
switches his attention from the unruly to the design of expressly "party political" mobilizations, lionizing in particular Martin Van Buren, his
Albany Regency, and the foundation of the Democratic Party. 52 When "mob activity" resurfaces in the 1830s, Kramer no longer admires it. It has no
place in the normalized party politics of the Republic; indeed, it lacks a (recognizable) politics. 1830s "mobs" have lost the legitimacy of the
mythologically respectable, polite crowds of the Revolution: they have "evolved into a virulent expression of racial, religious, and class-based
resentments." 53 Apparently the people acting up have become a disease.
While the appellation, "we," is invoked throughout, therefore, the people for themselves take on in Kramer's book an increasingly mediated,
even spectral quality, spoken for by others. Eventually, in our era, that speech becomes so separated from the people as to be virtually
clandestine. It occurs "between individuals, by e-mail, through staff, and so on," 54 that is, bureaucratically, behind closed doors, in
deals with lobbyists for "interests," or between parties to create safe districts for themselves. 55 It appears Kramer sees no problem in
these displacements of politics. In his view current politics is nothing more than a new anthropology or technology of popular representation - the
disciplined republican citizenry has simply adopted new forms. Perhaps so. But to chart accurately the political activities of the people themselves
requires that the historian also follow the people outside that arena that politicians name politics for their own ends as well as within it, which means
following the people into their own "self-constituted" clubs and associations, societies and unions - all those "virulent" organizations called at one
time or another illegitimate confederacies, criminal conspiracies and so forth. For otherwise we are led ineluctably to [*1017] the grotesque
outcome that "popular constitutionalism" means the likes of Senator Patrick Leahy, and hinges upon his understanding that he should be speaking for
the people against juridical determination of electoral outcomes. 56 Why grotesque? Because political elites like Leahy will always
accommodate themselves to specific outcomes that they may not themselves prefer precisely because those outcomes are produced by
the actions of a conjoined political-legal structure in the propagation of which they, like juridical elites, have a deeply vested interest.
In the pursuit of outcomes, American party politics is quintessentially oriented to the production of institutional outcomes that end
politics in divisions of the spoils. I confess I found these later observations of politics in Kramer's book odd. As long as we look to
such men as Senator Leahy to stand for a "politics" that can express popular constitutionalism, let alone educate the people in it, the
people themselves will remain precisely the spectral presence, the empty and somewhat homogenized abstraction, we desire to
dispute. 57
Ddw 09
Kim and Holguin
Courts vs. Congress CP
9
CONGRESS POWER BAD - RIGHTS
Majority of evidence proves popular power causes opression
Erwin Chemerinsky, Prof. of Law @ Duke, ‘4 [92 Calif. L. Rev. 1013, “In Defense of Judicial Review: A Reply to Professor
Kramer,” ln]
Fourth, Professor Kramer assumes that because the elected branches sometimes protect liberties, they always can be trusted to do so.
Professor Kramer, for example, points to the 1964 Civil Rights Act as showing the willingness of Congress to advance equality. 24
Almost every state, however, has antidiscrimination laws that are often even more protective than federal statutes. Professor Kramer's
theory is based on a romantic assumption that elected officials can be trusted to advance the Constitution's values for all people all the
time. Certainly, popular constitutionalists are correct that this sometimes occurs. But at many other times tyranny of the majority
prevails. Laws enforcing segregation existed throughout the South and likely would have lasted long beyond their invalidation by the
Supreme Court if the change had been left to the political process. 25 Throughout history, majorities have persecuted racial, religious,
and political minorities. This, too, is "popular constitutionalism," but hardly the kind that any of us wants to preserve or promote.
Deliberation does not result in best practices – countless laws prove congress will be repressive
Erwin Chemerinsky, Prof. of Law @ Duke, ‘4 [67 Law & Contemp. Prob. 53, “Conservative And Progressive Legal Orders: Article:
Progressive And Conservative Constitutionalism As The United States Enters The 21st Century,” ln]
Several possibilities seem misguided. First, it does not seem possible or fruitful to try to generate a "neutral" theory of constitutional
interpretation that will generate liberal, but not conservative, results. Certainly, it is attractive to try to invent some method of
constitutional interpretation, analogous to the role originalism plays for conservatives, that will justify all the results progressives
want. But I believe that no such theory ever can exist. 40 Constitutional law is inherently about value choices, and no grand theory
can tell which values are so important as to be protected from majoritarian decisionmaking. Protecting abortion, allowing affirmative
action, and rejecting sovereign immunity are all choices, and no neutral interpretive methodology can be invented to justify them.
Second, I vehemently reject the approach of those who would turn against the courts as a solution to the reality of conservative courts.
Mark Tushnet, for example, has proposed the complete elimination of judicial review. 41 Larry Kramer has urged a substantial
lessening of the role of the courts in favor of what he terms "popular constitutionalism." 42 A full response to this movement is
beyond this short essay, but I believe that those who reject judicial review are making several errors. First, their argument against the
courts focuses only on the Supreme Court and ignores the tremendous importance of judicial review in lower federal and state courts
in invalidating unconstitutional laws. Advocates of popular constitutionalism are fond of dismissing judicial review by pointing to the
aberrational nature of the Warren Court. This, however, ignores all of the blatantly unconstitutional laws that are struck down by other
courts and that would be in effect without any judicial review. Second, the argument that judicial review is unnecessary, by scholars
such as Professors Tushnet and Kramer, focuses on Congress's willingness to abide by the Constitution. This, however, ignores the
need for judicial review of actions by state legislatures, city governments, public entities such as school boards, and acts of
government officers such as police officers. Constitutional cases, at all levels of courts, are far more likely to focus on these
government actions than on laws enacted by Congress. Third, popular constitutionalists fail to account for the much greater
willingness of governments at all levels to violate the Constitution if there is no judicial review. The existence of judicial review deters
governments from enacting laws that will be declared unconstitutional. Without any judicial review, governments can simply
disregard the Constitution when it is politically expedient to do so. Fourth, popular constitutionalists fail to realize that for many,
especially the most politically powerless, it is the courts or nothing. Unpopular minorities - criminal defendants, prisoners,
undocumented immigrants - must have judicial [*62] protection; there is no realistic chance that such individuals will succeed in the
majoritarian political process.
Ddw 09
Kim and Holguin
Courts vs. Congress CP 10
CONGRESS POWER BAD - RIGHTS - AT: COURT CHILLING
Unjust congress policies are a result of electoral politics, not judicial supremacy
Norman R. Williams, Prof. of Law @ Wilamette, ‘4 [57 Stan. L. Rev. 257, “Book Review: The People’s Constitution,” ln]
Kramer concedes as much, but he has a ready-made explanation for the deliberative disparity between Congress and the Court: it's all
the Court's fault. Following Mark Tushnet, 100 Kramer contends that Congress's perceived inability or unwillingness to address
constitutional issues is the product of our regime of judicial supremacy - having been told by the Court that its views of the
Constitution are supreme, congressmen and presidents alike simply ignore constitutional issues, leaving them for the Court to resolve.
Once again, there is an element of truth to this argument, but not enough to prove the point that the judiciary is no better than
Congress (or the President) in addressing sensitive constitutional issues. Judicial supremacy may indeed suppress or distort
constitutional deliberations by the political branches, 101 but this does not mean that eliminating judicial supremacy would necessarily
guarantee that Congress and the President would equal the Court in sophistication or impartiality. Partisan political affiliations and
electoral accountability provide legislators and presidents little incentive to engage in serious constitutional analysis; rather, those
features of modern electoral politics encourage legislators and presidents simply to reflexively "vote" the view held by a majority of
their constituents. Thus, the most that can be fairly said, I think, is that judicial supremacy has exacerbated, not wholly caused, the
deliberative disparity between the judiciary and the political branches.
Ddw 09
Kim and Holguin
Courts vs. Congress CP 11
COURTS BEST - MOVEMENTS
Judicial Strength is not a cause of political apathy – it inspires popular movement
Robert Post, Prof. of Law @ Yale, Reva Siegaal, Prof. of Law @ Yale, ‘4 [92 Calif. L. Rev. 1027, “Popular Constitutionalism,
Departmentalism, and Judicial Supremacy,” ln]
The American constitutional order subordinates constitutional law to the Constitution. Through the appointment and confirmation
process, as well as through a variety of other mechanisms, the people in the end will have the form of constitutional law that they
deem fit. That is why our constitutional law has evolved in history as the values and beliefs of the American people have evolved. 72
There is in fact no danger that popular constitutionalism will be lost, in the sense that the people will relinquish the ultimate right and
authority to control the meaning of their Constitution.
Kramer's point, however, is far more subtle. Although the people may ultimately secure the Constitution that corresponds to their
values, their confidence in imagining and pursuing these values depends in no small measure on the boundaries they ascribe to
constitutional law. As Kramer writes:
Whether I would actively oppose a decision or course of decisions will depend on whether I think the decision or course of decisions
is legitimate; and my judgments about legitimacy turn not only on whether I agree or disagree with the Court's rulings, but also on
whether I feel entitled to disagree and, more important still, to act on my disagreement. 73
Framed in this way, judicial supremacy is less a concept of jurisprudence than of political theory. The danger of judicial supremacy is
not that the people will be deprived of the authority to decide a particular case, but rather that they will cease to maintain a vibrant and
energetic engagement with the process of constitutional self-governance. Even if the people retain [*1043] the last word on the
meaning of the Constitution, which they undoubtedly will, they may nevertheless no longer feel "entitled to disagree" with the
opinions of the Court and hence lose the vital motivation and will for civic participation.
We may thus interpret Kramer's call for popular constitutionalism as sounding in the register of political virtue, rather than of legal
rights. Kramer's fundamental indictment is that as federal courts have expanded and bureaucratized, and as the articulation of
constitutional law has become pervasive and routinized, the participation of the American people in the formation of their Constitution
has become correspondingly enervated and attenuated.
This indictment rests on a set of complex and contestable empirical claims. We know that the public and the Court understand the
Constitution in more court-centered ways than in the past, but do these changes reflect an actual decline in popular engagement with
the Constitution, as Kramer seems to suggest, or instead do they express evolving forms of American constitutional culture? If there
has in fact been a decline, we must ask whether judicial supremacy is the cause of this declension, or whether the decline has been
caused by other factors, as for example by a more general loss of political involvement. Beliefs associated with judicial supremacy
may not necessarily contribute to public disengagement with constitutional questions; in some circumstances they may actually
inspire popular involvement, as for example when citizens contesting same-sex marriage mobilize to establish judicially enforceable
constitutional rights or when citizens mobilize to alter or amend judicial decisions involving abortion.
Ddw 09
Kim and Holguin
Courts vs. Congress CP 12
COURTS BEST - MINORITY RIGHTS
Without judicial review, Constitution and minority will be ignored to support majority of the people.
Erwin Chemerinsky, Dean of University of California and Irvine School of Law, professor of constitutional law and civil precedure,
2004, In Defense of Judicial Review: A Reply to Professor Kramer, California Law Review, Vol. 92, No. 4, p. 1016
The first possible interpretation of popular constitutionalism is the elimination of constitutional judicial review, that is, abolishing the
authority of courts to declare legislative or executive acts unconstitutional. Professor Kramer says that he does not favor the complete
elimination of judicial review, but he frequently quotes Mark Tushnet, who has expressly advocated abolishing all constitutional
judicial review in a book entitled “Taking the Constitution Away from the Courts.”
An initial obvious problem with this approach is that it is unclear why the actions of unelected government officials-for example,
police officers, prison guards, or zoning administrators-should be equated with popular constitutionalism. Eliminating judicial review
would mean that courts could not declare the actions of these officials unconstitutional. But their decisions cannot be said to reflect
popular judgments or to be a reflection of the democratic process. Moreover, there are enormous problems with eliminating judicial
review of legislative acts by elected officials. Constitutional interpretation would be transferred from an institution largely insulated
from political pressure to one that is highly majoritarian. Checks and balances would be lost, most tragically in instances where the
legislature simply chooses to ignore the Constitution at the expense of unpopular groups.
Judicial supremacy is vital in protecting minority rights
Erwin Chemerinsky, Prof. of Law @ Duke, ‘4 [92 Calif. L. Rev. 1013, “In Defense of Judicial Review: A Reply to Professor
Kramer,” ln]
There are times when Professor Kramer's avowed trust in the people is misplaced. The famous Carolene Products footnote got it
exactly right: when it comes to politically powerless minorities, or ensuring the proper workings of the political process, or
safeguarding fundamental rights, the political process - and popular constitutionalism - cannot be trusted. 31 The absence of judicial
review or judicial supremacy dramatically reduces, if not eliminates, the checks on the persecution of minorities. Minorities should
not need to depend on the majority for their protection.
Judicial supremacy is ncessary to protect fundamental rights of minorities
Erwin Chemerinsky, Prof. of Law @ Duke, ‘4 [92 Calif. L. Rev. 1013, “In Defense of Judicial Review: A Reply to Professor
Kramer,” ln]
Almost thirty years ago, I decided to go to law school because I wanted to be a civil rights lawyer. Although I have been a law
professor for over two decades, at heart I am still very much the civil rights lawyer that I set out to be. Thus, as I read Professor
Kramer's stunning new book about popular constitutionalism, 1 I kept thinking about what his theory would mean for civil rights and
civil liberties litigation. The answer is chilling. Popular constitutionalism would mean that courts would be far less available to protect
fundamental rights. The rights of minorities would be largely left to the whims of the political majority with severe consequences for
racial, ethnic, sexual orientation, and language minorities as well as criminal defendants, public benefits recipients, and others.
Political strenghth blocks desegration, criminal rights, and reprodcutive rights
Erwin Chemerinsky, Prof. of Law @ Duke, ‘4 [92 Calif. L. Rev. 1013, “In Defense of Judicial Review: A Reply to Professor
Kramer,” ln]
A third possible meaning of popular constitutionalism is that it requires the judiciary to defer once another branch of government takes
deliberate steps to overturn a court decision. In other words, the elimination of "judicial supremacy," which Professor Kramer
espouses, 12 would literally mean that the other branches and levels of government get the last word. The judiciary, including the
Supreme Court, could speak, but other branches would be free to ignore the courts and functionally overrule their decisions. To be
clear, this would mean that Southern states should have been free to interpret the Constitution for themselves and disobey judicial
desegregation orders. Congress should have been accorded authority to overturn Miranda v. Arizona 13 by statute. States with
conservative majorities, such as Utah and Idaho, should be able to enact laws prohibiting abortion. The Supreme Court could say what
it wanted, but there would be no finality to the Court's decisions. Everything decided by the judiciary essentially would solely be an
"advisory opinion" to the other branches of government.
Ddw 09
Kim and Holguin
Courts vs. Congress CP 13
COURTS BEST - MINORITY RIGHTS
Court decisions create a postive feedback – enhancing equality
Michael Kent Curtis, Prof. of Law @ Wake, ‘3 [38 Wake Forest L. Rev. 313, “Judicial Review: Blessing Or Curse? Or Both? A
Symposium In Commemoration Of The Bicentennial Of Marbury V. Madison: Judicial Review And Populism,” ln]
There is another way judicial review can support democracy. There can be a positive feedback loop between court decisions protecting
free speech or rejecting a government imposed racial caste system and public support for these values. In this sense, a Court
committed to broad free speech principles or racial equality can conduct a dialogue with the public and influence popular
constitutionalism. Justice Hugo Black used to insist that judicial decisions should be written so they could be understood by people at
the barber shop. 173 The increased public appreciation of free speech or racial equality principles in turn can influence the public,
legislators, and a later Court that might otherwise be less supportive. In that way, judicial review, if handled well, can reinforce
democracy.
Ddw 09
Kim and Holguin
Courts vs. Congress CP 14
COURTS BEST - PRISONERS
Judicial supremacy is critical for prisoners rights
Erwin Chemerinsky, Prof. of Law @ Duke, ‘4 [92 Calif. L. Rev. 1013, “In Defense of Judicial Review: A Reply to Professor
Kramer,” ln]
I have a request for those such as Professor Kramer who advocate popular constitutionalism: ask civil rights and civil liberties lawyers
what they think of such an approach to judicial review. Professor Kramer provides an elegant theory, but one that would be tragic in
the real world. In [*1025] Professor Mark Tushnet's book advocating popular constitutionalism and the end of judicial review, I
found this statement most telling: "My wife [Elizabeth Alexander] is Director of the National Prison Project of the American Civil
Liberties Union. She disagrees with almost everything I have written in this chapter [entitled "Against Judicial Review']." 41 Surely
this is not because prisoners' claims are doing very well in the courts right now. Rather, it is because a prisoner's only hope often lies
in the courts. It is highly unlikely that the majority of people, in their exercise of popular constitutionalism, will act to protect
prisoners and their rights.
Ddw 09
Kim and Holguin
Courts vs. Congress CP 15
COURTS BEST - POLICE
The court either creates a new judicial review or police abuse runs rampent
Erwin Chemerinsky, Prof. of Law @ Duke, ‘4 [2004 U. Ill. L. Rev. 673, “In Defense of Judicial Review,” ln]
Popular constitutionalists can respond to this argument in several ways. Professor Tushnet, for example, argues that the offending
actions of these officers can be struck down as "ultra vires," making constitutional judicial review unnecessary. 50 In fact, Professor
Tushnet contends that "the courts might be more willing to regulate police activities if they could do so without invoking the
Constitution. In this odd way, the existence of judicial review may actually reduce our protection against government overreaching."
51 This is a very clever argument because it keeps judicial review, albeit under another label, and contends to be even better than
constitutional enforcement. But Professor Tushnet offers no content for his theory of ultra vires. Would any action by police in
violation of the Fourth Amendment be deemed ultra vires? If so, then he is keeping constitutional judicial review. If not, then
Professor Tushnet never explains how courts will decide whether an action is ultra vires. Further, his assertion that this would be
better than judicial review has no support. Recall that prior to the incorporation of the Bill of Rights, many states failed to provide
counsel in felony cases or effectively check police abuses.
Popular constitutionalists might argue that elected officials ultimately oversee the actions of unelected officials and thus exists a
majoritarian process. This, too, seems untenable. Even if electoral accountability exists on paper, there is often little actual control
over actions by the police in particular cases, or of prison guards, or of the myriad of regulatory agencies that exist at all levels of
government.
Ddw 09
Kim and Holguin
Courts vs. Congress CP 16
COURTS BEST - DEMOCRCY
Judicial review, even if dangerous, is critical to prevent minority factions from destroying democratic
rights
Michael Kent Curtis, Prof. of Law @ Wake, ‘3 [38 Wake Forest L. Rev. 313, “Judicial Review: Blessing Or Curse? Or Both? A
Symposium In Commemoration Of The Bicentennial Of Marbury V. Madison: Judicial Review And Populism,” ln]
Subsequent history shows that the Leveller insight into the agency problems with representative government remains valid - even in a
nation with universal suffrage and a long history of elections. From the perspective of history, the claim that where basic rights were
violated, the people got to make their own mistake [*342] is less reassuring. For example, the Federalists who passed the Sedition
Act were not the people; they were a political faction seeking to perpetuate its power by jailing their critics and their political
opponents. They also believed that they were acting in the best interests of the nation. Many people approved, but many did not. The
people had voted for congressmen, not for the Sedition Act, and the Act was not an issue in the congressional election held before it
was passed.
Many historic abuses involve agency problems - the problem of the agent using the principal's power to feather the agent's nest or the
nest of the agent's friends to the disadvantage of the principal. The abuses sometimes blatantly robbed people of their democratic
rights and often deprived the people of full access to information. When that happens, the people's limited power to seek to chart their
course through elections is constricted.
Judicial review is a potential response to agency problems inherent in democracy. One solution to agency problems is to get the agents
to watch each other. Courts can perform a valuable service in keeping rogue agents in check. The problem, of course, is that the courts
themselves have often been rogue agents. Judges are not immune to agency problems. Their decisions can be distorted by narrow, and
probably unconscious, political or social class bias. 148 Unchecked power from any source is problematic. For that reason, people
have made various proposals to make it easier to amend the Constitution.
In any case, judicially enforced constitutional rights and limitations - such as the limited definition of treason, jury trial, and free
speech - have historically dispersed and limited power. Judicial review and enforceable constitutional limits on governmental power
have been positive as well as negative for popular democracy.
Judicially enforcable rights, even if imperfect, and critical to long term democracy
Michael Kent Curtis, Prof. of Law @ Wake, ‘3 [38 Wake Forest L. Rev. 313, “Judicial Review: Blessing Or Curse? Or Both? A
Symposium In Commemoration Of The Bicentennial Of Marbury V. Madison: Judicial Review And Populism,” ln]
In the United States, the system of constitutional and judicially enforceable protections for free speech, jury trial, and other criminal
procedure guarantees are imperfect, and judges often fall far short of the ideal. The question, however, is relative. Would abolition of
judicial review and the increase of unchecked power in the other branches be an improvement? In the long run, as the critics of
judicial review point out, no system of popular liberty will survive without popular support. In the short run, the guarantees may give
us a better long run. We need, as Jerome Frank once wrote, a government of the right sort of laws enforced by the right sort of people.
Ddw 09
Kim and Holguin
Courts vs. Congress CP 17
COURTS BEST - UNBIASED
Congress is manipulated by special interest groups, while the courts are outside of their influence.
Erwin Chemerinsky, Dean of University of California and Irvine School of Law, professor of constitutional law and civil procedure,
2004, In Defense of Judicial Review: A Reply to Professor Kramer, California Law Review, Vol. 92, No. 4, p. 1018-9
First, Professor Kramer focuses only on the federal government and its fidelity to the Constitution; he gives virtually no
attention to what popular constitutionalism would mean when it comes to state and local governments. Professor Kramer
extols the deliberative process in Congress and even suggests that it may be better than the Supreme Court's decisionmaking process. I believe that Professor Kramer has an idealized image of the federal legislative process-one that is
dramatically different from what public choice theorists have been telling us for decades. Common sense combined with
extensive research tells us that Congress often acts in response to direct pressures from special interest group. No one
suggests that judicial decision-making bows to the same forces. A basic difference between the judicial and the legislative
processes is that the former is supposed to involve decisions based on reasoned arguments; the latter is accepted as
involving decisions based entirely on political pressures and special interests. This is not to say that judicial review is
apolitical in the sense that it is value free, but rather, that judicial review is not the product of lobbying or direct pressure
from special interests.
Abolishing judicial review leads to poorly drafted laws and vulnerability to self-interest of a particular group.
Erwin Chemerinsky, Dean of University of California and Irvine School of Law, professor of constitutional law and civil precedure,
2004, In Defense of Judicial Review: A Reply to Professor Kramer, California Law Review, Vol. 92, No. 4, p. 1016-7
Most laws passed by state legislators and ballot initiatives are examples of popular law making, not popular constitutionalism.
Shielding this law making from judicial review prevents natural flaws in the law-making process from being corrected. As actually
used, initiatives cry out for more, not less, judicial review. The many steps of legislative drafting and review are eliminated, often
leading to poorly drafted, over-simplified language. Political minorities are especially vulnerable, as shown by California's initiatives
eliminating benefits for undocumented immigrants and abolishing affirmative action. Even though such initiatives may be popular
expressions of legal values, they can nevertheless result from underinformed decision-making based on interest-led campaigns rather
than principles. Similarly, though laws drafted by legislators may be technically superior to those drafted for initiatives, they are not
immune from the self-interest of a particular group or the individual legislators.
Ddw 09
Kim and Holguin
Courts vs. Congress CP 18
CONGRESS BEST/COURTS BAD
Ddw 09
Kim and Holguin
Courts vs. Congress CP 19
COURTS FAIL - PROGRESSIVISM
Court decisions cannot produce significant social reform
Gerald N. Rosenberg (University of Chicago political science and law professor, law degree from University of Michigan, PH. D.
from Yale), 2001. The Hollow Hope. Published by the University of Chicago Press. Page 9.
When and under what conditions will U.S. courts be effective producers of significant social reform? When
does it make sense for individuals and groups pressing for such charge to litigate? What kinds of effects from
court victories can they expect? Which view best captures the reality of American politics? Given the alleged
success of the social reform litigation of the last four decades, and the Americans’ attachment to the
Dynamic Court view, it is tempting to suggest that it always makes sense for groups to litigate. On the other
hand, our attachment to the vision of the Constrained Court, as well as knowledge of legal history, can
suggest that courts can never be effective producers of significant social reform. But “always” and “never”
are claims about frequency, not conditions. To fully understand the role of the courts in producing significant
social reform, we must focus on the latter. Many Scholars have turned their attention to the questions that
this litigation activity raises. However, their findings remain unconnected and not squarely centered on
whether, and under what conditions, courts produce significant social reform. Some writing has focused on
the determinants of winning court cases rather than on the effects of court decisions.
Courts limited by the public and political elite opposition
Gerald N. Rosenberg (University of Chicago political science and law professor, law degree from University of Michigan, PH. D.
from Yale), 2001. The Hollow Hope. Published by the University of Chicago Press. Page 16.
If the public or political elites are not ready or willing to make changes, the most elegant legal reasoning will
be for nought. This constraint may be particularly powerful with issues of significant social reform. It is
likely that as courts deal with issues involving contested values, as issues of significant social reform do
almost by definition, they will generate opposition. In turn, opposition may induce a withdrawal of the elite
and public support crucial for implementation. Thus, proponents of the Constrained Court view suggest that
the contested nature of issues of significant social reform makes it unlikely that the popular support
necessary for implementation will be forthcoming.
Ddw 09
Kim and Holguin
Courts vs. Congress CP 20
COURTS FAIL - PROGRESSIVISM
Courts incapable of producing significant social reform for three reasons
Gerald N. Rosenberg (University of Chicago political science and law professor, law degree from University of Michigan, PH. D.
from Yale), 2001. The Hollow Hope. Published by the University of Chicago Press. Page 10.
The view of courts as unable to produce significant social reform has a distinguished pedigree reaching back
to the founders. Premised on the institutional structure of the American political system and the procedures
and belief systems created by American law, it suggests that the conditions required for courts to produce
significant social reform will seldom exist. Unpacked, the Constrained Court view maintains that courts will
generally not be effective producers of significant social reform for three reasons: the limited nature of
constitutional rights, the lack of judicial independence, and the judiciary’s inability to develop appropriate
policies and its lack of powers of implementation.
The problem with the limited nature of rights
Gerald N. Rosenberg (University of Chicago political science and law professor, law degree from University of Michigan, PH. D.
from Yale), 2001. The Hollow Hope. Published by the University of Chicago Press. Pages 10 & 11.
The Constitution, and the set of beliefs that surround it, is not unbounded. Certain rights are enshrined in it
and others are rejected. In economic terms, private control over the allocation and distribution of resources,
the use of property, is protects (Miller 1968). “Rights” to certain minimums, or equal shares of basic goods,
are not. Further, judicial discretion is bound by the norms and expectations of the legal culture. The to
parameters, believers in the Constrained Court view suggest, present a problem for litigators pressing the
courts for significant social reform because most such litigation is based on constitutional claims that rights
are being denied. An individual or group comes into a court claiming it is being denied some benefit, or
protection from arbitrary and discriminatory action, and that it is entitled to this benefit or that protection.
Proponents of the Constrained Court view suggest that this has four important consequences for social
reformers.
Ddw 09
Kim and Holguin
Courts vs. Congress CP 21
COURTS FAIL - PROGRESSIVISM
Limitied Nature of Courts Rights Tank Progressivism
Gerald N. Rosenberg (University of Chicago political science and law professor, law degree from University of Michigan, PH. D.
from Yale), 2001. The Hollow Hope. Published by the University of Chicago Press. Pages 11 & 12.
First, they argue, it limits the sorts of claims that can be made, for not all social reform goals can be plausibly presented in the
name of constitutional rights. For example, there is not constitutional rights to decent housing, adequate levels of welfare, or clean
air, while there are constitutional rights to minimal governmental interference in the use of one’s property. This may mean that
“practically significant but legally irrelevant policy matters may remain beyond the purview of the court” (Note 1977, 436).
Further, as Gordon (1984, 111) suggests, “the legal forms we use set limits on what we can imagine as practical outcomes.” Thus,
the nature of rights in the U.S. legal system, embedded in the Constitution, may constrain the courts in producing significant social
reform by preventing them from hearing many claims. A second consequence from the Constrained Court perspective is that, even
where claims can be made, social reformers must often argue for the establishment of a new right, or the extension of a generally
accepted right to a new situation. In welfare rights litigation, for example, the Court was asked to find a constitutional right to
welfare (Krislov, 1973). This need to push the courts to read the Constitution in an expansive or “liberal” way creates two main
difficulties. Underlying these difficulties is judicial awareness of the need for predictability in the law and the politically exposed
nature of judges whose decisions go beyond the positions of electorally accountable officials. First, the Constitution, lawyers,
judges, and legal academics form a dominant legal culture that at any given time accepts some rights and not others and sets limits
on the interpretation and expansion of rights. Judicial discretion is bound by the beliefs and norms of this legal culture, and the
decisions that stray too far from them are likely to be reversed and severely criticized. Put simply, courts, and the judges that
compose them, even if sympathetic to social reform plaintiffs, may be unwilling to risk crossing this nebulous yet real boundary.
Second, and perhaps more important, is the rose of precedent and what Justice Traynor calls the “continuity scripts of the law”
(Traynor 1977, 11). Traynor, a justice of the California Supreme Court for twenty-five years, Chief Justice from 1964 to 1970, and
known as a judge open to new ideas, wrote of the “very caution of the judicial process” (1977, 7). Arguing that “a judge must plod
rather than soar,” Traynor saw that the “greatest judges” proceed “at the pace of a tortoise that steadily advances though it carries
the past on its back” (1977, 7, 6). Constrained by precedent and the beliefs of the dominant legal culture, judges, the Constrained
Court view asserts, are not likely to act as crusaders. Third, supporters of the Constrained Court view note, as Scheingold (1974)
points out, that to claim a right in court is to accept the procedures and obligations of the legal system. These procedures are
designed, in part, to make it difficult for courts to hear certain kinds of cases. As the Council for Public Interest Law (CPIL) puts
it, doctrines of standing and of class actions, the so-called political question doctrine, the need to have a live controversy, and other
technical doctrines can “deter courts from deciding cases on the merits” (CPIL 1986, 355) and can result in social reform groups
being unable to present their best arguments or even have their day in court. Once in court, however, the legal process tends to
dissipate significantly social reform my making appropriate remedies unlikely. This can occur, McCann (1986, 200) points out,
because policy-based litigation aimed at significant social reform is usually “disaggregate[d]… into discrete conflicts among
limited actors over specific individual entitlements.” Remedial decrees, it has been noted, “must not confuse what is socially or
judicially desirable with what is legally required” (Special Project 1978, 855). Thus, litigation seldom deals with “underlying
issues and problems” and is “directed more toward symptoms than causes” (Harris and Spiller 1976, 26). Finally, it has long been
argues that framing issues in legally sound ways robs them of “political purposive appeal” (Handler 1978, 33). In the narrow
sense, the technical nature of legal argument can denude issues of emotional, widespread appeal. More broadly, there is the danger
that litigation by the few will replace political action by the many and reduce the democratic nature of the American polity. James
Bradley Thayer, writing in 1901, was concerned that the reliance on litigation would sap the democratic process of its vitality. He
warned that the “tendency of a common and easy resort” to the courts, especially in asking them to invalidate acts of the
democratically accountable branches, would “dwarf the political capacity of the people” (Thayer 1901, 107). This view was
echoed more recently by McCann, who found that litigation-prone activists’ “legal rights approach to expanding democracy had
significantly narrowed their conception of political action itself” not only absorb scarce resources that could be used for popular
mobilization… [but also] make it difficult to develop broadly based multiissue grassroots associations of sustained citizen
allegiance” (McCann 1986, 200). For these reasons, the Constrained Court view suggests that the nature of rights in the U.S.
constrains courts from being effective producers of significant social reform.
Ddw 09
Kim and Holguin
Courts vs. Congress CP 22
COURTS FAIL - IMPLEMENTATION
American courts limited and influenced by the other branches of government
Gerald N. Rosenberg (University of Chicago political science and law professor, law degree from University of Michigan, PH. D.
from Yale), 2001. The Hollow Hope. Published by the University of Chicago Press. Pages 13 & 14.
As the colloquy between Justice Jackson and the U.S. Attorney Rankin illustrates, reformers have often
turned to courts when opposition to significant social reform litigation takes place in the context of stalemate
within, or opposition from, the other branches. For courts to be effective in such situations, they must,
logically, be independent of those other branches. Supporters of the Constrained Court view point to a broad
array of evidence that suggests the founders did not thoroughly insulate courts or provide them with
unfailing independence. To start, the appointment process, of course, limits judicial independence. Judges do
not select themselves. Rather, they are chosen by politicians, the president and the Senate at the federal level.
Presidents, while not clairvoyant, tend to nominate judges who they think will represent their judicial
philosophies. Clearly, changing court personnel can bring court decisions into line with prevailing political
opinion (and dampen support for significant social reform). Thus, the Constrained Court perspective sees the
appointment as limiting judicial independence. Judicial independence requires that court decisions, in
comparison to legislation do not invariably reflect public opinion. Supporters of the Constrained Court view
note, however, that Supreme Court decisions, historically, have seldom strayed far from what was politically
acceptable (McCloskey 1960, 223-24). Rather than suggesting independence, this judicial unwillingness to
often blaze its own trail perhaps suggests, in the words of Finley Peter Dunne’s Mr. Dooley, that “th’
supreme coort follow th’ iliction returns” (Dunne 1901, 26). In at least two important ways, the Constrained
Court view suggests, Congress may constrain court actions. First, in the statutory area, Congress can override
decisions, telling the courts they misinterpreted the intent of the law. That is, Congress may rewrite a
provision to meet our court objections or simply state more clearly what it meant so that the courts’ reading
of the law is repudiated. Second, although congress cannot directly reverse decisions based on constitutional
interpretations, presumably untouchable by the democratic process, it may be able to constrain them by
threatening certain changes in the legal structure. A large part of the reason, of course, is that appointment
process. But even without the power of appointment, the Court may be susceptible to credible threats against
it. Historical review of the relations of the Court to the other branches of the federal government suggests
that the Court cannot for long stand alone against such pressure. From the “Court-packing” plan of FDR to
recent bills proposing to remove federal court jurisdiction over certain issues, court-curbing proposals may
allow Congress to constrain courts as producers of significant social reform (Nagel; Rosenberg 1985; cf.
Lasser 1988).
Ddw 09
Kim and Holguin
Courts vs. Congress CP 23
COURTS FAIL - IMPLEMENTATION
Courts lack implementation power
N. Rosenberg (University of Chicago political science and law professor, law degree from University of Michigan, PH. D. from
Yale), 2001. The Hollow Hope. Published by the University of Chicago Press. Page 15.
For courts, or any other institution, to effectively produce significant social reform, they must have the
ability to develop appropriate policies and the power to implement them. This, in turn, requires a host of
tools that courts, according to proponents of the Constrained Court view, lack. In particular, successful
implementation requires enforcement powers. Court decisions requiring people to act, are not self-executing.
But as Hamilton pointed out two centuries ago in The Federalist Papers (1787-88), courts lack such powers.
Indeed, it is for this reason more than any other that Hamilton emphasized the courts’ character as the least
dangerous branch. Assuaging fears that the federal courts would be a political threat, Hamilton argues in
Federalist 78 that the judiciary “has no influence over either the sword or the purse; no direction either of the
strength or the wealth or society; and can take no active resolution whatever. It may truly be said to have
neither FORCE not WILL, but merely judgment; and must ultimately depend upon the aid of the executive
arm even for the efficacy of its judgments” (The Federalist Papers 1961, 465). Unlike Congress and the
executive branch, Hamilton argues, the federal courts were utterly dependent on the support of the other
branches and elite actors. IN other words, for Court orders to be carried out, political elites, electorally
accountable, must support them and act to implement them. Proponents of the Constrained Court view point
to historical recognition of this structural “fact” of American political life by early Chief Justices John Jay
and John Marshall, both of whom were acutely aware of the Court’s limits.
Ddw 09
Kim and Holguin
Courts vs. Congress CP 24
CONGRESS BEST - RIGHTS
IN EVERY instance the court has clashed with congress, the court has been morally wrong
Michael W. McConnell, Prof. of Law @ Univ. of Utah, 4 [That Eminent Tribuna: Judicial Supremacy and the Constitution, p. 155-6]
As of 1940, Attorney General Robert Jackson, later to become one of the more distinguished members of the Court, offered this
assessment of the Supreme Court's historic role in the constitutional order. Jackson wrote that "time has proved that [the Supreme
Court's judgment] was wrong on the most outstanding issues upon which it has chosen to challenge the popular branches." He
continued
[The Court's] judgment in the Drcd Scott case was overruled by war. Its judgment that the currency that preserved the Union could not
he made legal tender was overruled by Grant's selection of air additional justice. Its judgment invalidating the income tax was
overruled by the Sixteenth Amendment. Its judgments repressing labor and social legislation are now abandoned. Many of the
judgments against New Deal legislation are rectified by confession of error. In no major conflict with the representative branch on
queestion of social or economic policy has time vindicated the Court.
This is not the 60’s – the court will not use the constitution to help powerless groups
Lawrence Marshall, Prof. of Law @ NWern, ’90 [66 Chi.-Kent. L. Rev. 481, “Divesting the courts: Breaking the Judicial monopoly
on constituional interpretation,” ln]
The federal judiciary has changed dramatically in the past decade. In 1980, 60% of sitting federal judges had been appointed by
Democratic presidents; by 1990, 60% were Republican appointees. n3 In 1980, the United States Supreme Court had both a core
"conservative" block of two (Burger and Rehnquist), and a core "liberal" block of two (Brennan and Marshall); five justices (Stewart,
White, Blackmun, Powell, and Stevens) occupied positions at various points in between. In 1990 it appears that the Court has a core
conservative block of five (Rehnquist, O'Connor, Scalia, Kennedy & Souter), with one other (White) providing a rather consistent
conservative vote. No matter what ultimately happens to Roe v. Wade, n4 it seems fair to say that we now have a Supreme Court
that will be extremely reluctant to use the Constitution to shield traditionally powerless groups and individuals from majoritarian
decisions, much less to provide these groups and individuals positive entitlements to governmental benefits and protection. The
Warren Court's jurisprudence may well have survived Earl Warren's and Warren Burger's tenure; but it most assuredly will not
survive William Rehnquist's.
no logical reason why court are essential to ensure fundamental rights
Travis Christopher Barham, JD @ Washington & Lee, ‘5 [62 Wash & Lee L. Rev. 1139, “Congress Gave and Congress Hath Taken
Away,” ln]
However, this argument depends on several shaky assumptions. First, it assumes that unless a federal court hears a case, then those
rights remain unprotected. But the federal courts are not the guarantors of personal freedoms. 558 If they were, then they should have
full constitutional jurisdiction, but this has never been true. 559 The Founders primarily relied on competing interests in society and on
federalism to protect freedoms. 560 State courts are not only fully capable of protecting individual liberties, 561 they may also be their
primary guarantors. 562
Second, by equating constitutional decisions with the Constitution, the Bill of Rights objection presumes that "the Constitution is what
the judges say it is." 563 The Founders did not agree with this, 564 and neither did most of this [*1210] nation's leaders through
history. 565 This would elevate the Court above Congress and the Constitution, contrary to that document's foundational principles.
566 Ironically, proponents of this argument attempt to trump Congress's explicit, textual power to make exceptions with the implied
doctrine of judicial review. 567 But the Constitution and federal courts are not the same, and only the former is supreme.
Third, when advocates of this objection argue that Congress might abuse its exceptions power, they prove nothing. During the
Founding era, many objected to federal power for this reason, but the Founders dismissed the argument because it applied equally to
any constitution. 569 The argument applies equally to the President's executive privilege or commander in chief duties. Congress
arguably came close to abusing its impeachment power with President Andrew Johnson, 570 but its power is still constitutional. The
Supreme Court might occasionally abuse its power of judicial review, 571 but these abuses [*1211] do not nullify the power. 572
While this abuse argument may create good sound bites, it is a tautology that proves nothing.
Ddw 09
Kim and Holguin
Courts vs. Congress CP 25
CONGRESS BETTER - LIBERAL MOEMENTS
Only the counterplan can move liberals away from court dependency – this is critical to combat the
religious right*
Sam Rosenfeld, @ American Prospect, ‘5 [July, Disorder in the Court, “How serious is the right about going after "activist judges"?”
ln]
Though that is a line that could easily have been uttered by a panelist at the JCCCR conference, it's important to dispel the notion of a
real convergence of prescriptive analysis between liberal critics of judicial review and modern religious-right judge-bashers. Tushnet
takes an extreme but principled stance against judicial activism, based on a serious commitment to notions of democratic participation
and legitimacy; the religious right, like virtually every other political movement, adopts the appearance of "originalism" and crows
about the evils of activism for largely opportunistic reasons. As Tushnet puts it, "Their complaint is of activist judges doing things
they don't like. They'd be perfectly happy with their own activist judges." Principles aside, what the liberal debate over judicial
review reflects more than anything else is a sense of disillusionment with the potential for progressive judicial action once
embodied by the Warren Court, and with the legalistic path that liberalism charted in the last few decades of the 20th century.
According to Berkeley political scientist Gordon Silverstein, whose forth-coming book, How Law Kills Politics, chronicles the
"legalization of politics and policy" and the judicial strategy pursued by liberal activists during those decades, a focus on advancing
policy agendas through the courts had the effect of sapping liberal and Democratic movements of much of their grass-roots
strength and political appeal. "Liberals became entirely too dependent on the [Supreme] Court," Silverstein says. "It was a failure of
organizational will -- 'We'll turn to the courts, let them do our work for us.'" The notion is a familiar one on the left -- and in due
time, the religious right might sing the same tune. For several decades now, that movement has provided the national GOP's
electoral muscle while consistently failing to achieve any of its most important policy objectives. Christian conservatives provide the
feet on the ground and the physical hands on the voting levers; for their efforts they are rewarded, at best, with half-hearted
symbolic gestures and some orchestrated election-eve Sturm und Drang, while Republicans mainly concern themselves in office with
the business of business.
The plan, even if liberal, cannot change conservative court supremacy – only pushing the envope
through congress can solve
Mark Tushnet, Prof. of Con Law @ Georgetown, ‘3 [78 Ind. L.J. 47, “Alarmism Versus Moderation in Responding to the Rehnquist
Court,” ln]
What are the implications of the foregoing description of the present political system? 90 I doubt that the present system leaves much
room for creative advocacy directed at the courts by the liberal side. Ingenious arguments are unlikely to change the minds of today's
Justices. The Court's liberals do not need to be told that some new way of thinking about the Constitution will lead to liberal
conclusions; for them, the old ways of thinking do so anyway. And, the Court's conservatives will not suddenly see the light when
presented with a new way of thinking that, it is said, leads to liberal conclusions. 91 What advocates should do is pretty much slog
along with the [*71] standard tools of doctrinal argument, liberals pressing the courts to adopt modest interpretations of the Supreme
Court's recent decisions and conservatives urging the courts to push those decisions more vigorously in a conservative direction. 92
Legislative advocacy is both similar and different. Advocates of new statutes can urge Congress to do almost anything, which is why
legislative advocacy is different, and explain to legislators, who might think that the Supreme Court stands in their way, that the
decisions, properly interpreted, in fact do not stand in the way, which is why legislative advocacy is similar. Of course advocates of
substantial innovative legislation should not expect much to come of their efforts until the political system changes. But, advocating
large changes can lead to small ones with which the advocates might be pleased.
The implications for scholars are, I think, more interesting. Working within the outlines of existing law is likely to be extremely
boring, because the lines of argument are well-known. 93 What might be valuable are works pushing the envelope. One model here
might be conservative scholarship of the 1970s and 1980s. As Professor Jack Balkin has said in a slightly different context, the
sensible reaction to that scholarship when written was that it was, well, crazy. 94 Or, to use a less pejorative term, it was utopian,
having only the most remote connection to what seemed possible within the political and legal system as then contoured.
Ddw 09
Kim and Holguin
Courts vs. Congress CP 26
CONGRESS BETTER - CLASS
Court supremacy is the strongest bulwark of class privilege
Robert N. Strassfeld, Prof. of Law @ Case Western, ‘6 [56 Case W. Res. 899, “Judicial Independence and Judicial Accountability,”
Searching For the Right Balance: Introduction: “Atrocious Judges” and “Odious” Courts Revisted,” ln]
Progressives attacked the courts as antidemocratic and counter-majoritarian. In 1912, New York lawyer, Gilbert Roe, condemned the
"judicial oligarchy" in a book bearing that title. 7 In his introduction to Roe's book, the Progressive Wisconsin Senator, Robert La
Follette wrote: [*901]
Evidence abounds that, as constituted to-day, the courts pervert justice almost as often as they administer it. Precedent and procedure
have combined to make one law for the rich and another for the poor. The regard of the courts for fossilized precedent, their
absorption in technicalities, their detachment from the vital, living facts of the present day, their constant thinking on the side of the
rich and powerful and privileged classes have brought our courts into conflict with the democratic spirit and purposes of this
generation. Moreover, by usurping the power to declare statutes unconstitutional and by presuming to read their own views into
statutes without regard to the plain intention of the legislators, they have become in reality the supreme law-making and law-giving
institution of our government. They have taken to themselves a power it was never intended they should exercise; a power greater than
that entrusted to the courts of any other enlightened nation. And because this tremendous power has been so generally exercised on
the side of the wealthy and powerful few, the courts have become at last the strongest bulwark of special privilege. 8
Ddw 09
Kim and Holguin
Courts vs. Congress CP 27
CONGRESS BETTER - RACE
The Brown example helps us out
Robert Justin Lipkin, Professor of Law, Widener University School of Law, Ph.D., ‘6. [28 Cardozo L. Rev. 1055, “Which
Constitution? Who Decides? The Problem of Judicial Supremacy and the Interbranch Solution,” ln]
Some might complain that a congressional override might have slowed the progress of extirpating American apartheid. The schools
might not have been desegregated in 1954. Reaching the promised land might have been delayed for another decade or more. 183 The
problem with this complaint is that segregated schools were not abolished in 1954 in either the South or the North. Had the worst-case
scenario occurred - Congress's overriding Brown - the ultimate cure would have been electorally driven, not Court decreed. The
electorate, in the end, would have been the prime mover in freeing this nation from the grips of American apartheid. 184 In this case,
the character of American politics would have been drastically altered. Electoral constitutional change would have been revivified. 185
My point is that, electorally, desegregationists were in a win-win situation. If Congress had rejected a congressional override of
Brown that too would have become an issue in electoral politics. However, given the circumstances surrounding Brown, it is unlikely
that subsequent electoral politics would have succeeded in finally overriding Brown. However, if that occurred, electoral politics
would once again be used to resurrect Brown.
Electoral politics will always have losers. But the law resulting from fair political processes should inhibit resentment, the attitude
responsible for political backlash. By contrast, resentment is inevitable when an electoral winner loses through the courts. Without
significant resentment, the chances for sustained polarization appear to be less likely. Republican democrats, on whatever side of the
political divide, must accept the possibility of losing not only as a necessary evil, but more importantly as a positive good. In a
community of equals, reasonable disagreement will be a permanent feature of constitutional reality. And no one but the arrogant will
insist that they cannot be wrong, even about a pressing constitutional controversy.
By contrast, given the moral correctness of desegregation, not only in terms of general morality, but especially constitutional morality,
it is difficult to see how those favoring segregation could have ultimately succeeded in defeating Brown. One further benefit of
electoral constitutional change is that Brown would not have then served as precedent for constitutionally rejecting affirmative
action. Instead, Congress's intent in defending Brown might have become dispositive. Consequently, congressional approval of
affirmative action - even one permitting the remediation of past injustice to count as a compelling interest - might have quieted some
of the fractious resentment of using racial preferences. Progressives - some of whom are passionately committed to judicial supremacy
- must be happy over the prospect of eliminating cases that arguably preclude affirmative action. In other words, if Congress had the
ultimate constitutional authority to supervise the Court's handling of affirmative action, then, at least in the early cases, affirmative
action would have been the law of the land. 186 If access to a congressional override would not have been an insurmountable obstacle
in extirpating American apartheid, two other cases show how congressional overrides might have operated with a Court that
understood its subordinate institutional role.
Courts are not effective For Minorities
Gerald N. Rosenberg (University of Chicago political science and law professor, law degree from University of Michigan, PH. D.
from Yale), 2009. “Romancing the Court”.
http://www.bu.edu/law/central/jd/organizations/journals/bulr/volume89n2/documents/ROSENBERG.pdf
Ultimately, Guinier has produced another, albeit creative, law review article in a long line of seemingly endless
attempts to portray the Court as an effective and powerful agent of change and defender of minorities. But
this analysis cannot be reconciled with decades of social science research that questions and qualifies claims
of judicial efficacy. Ignoring social science data is nothing new in legal scholarship. For example, it took
decades for the attitudinal model of Supreme Court jurisprudence to gain a beachhead among legal academics
JUDICIAL SUPREMACY IS WORSE FOR MINORITIES
Phyllis Schlafly, American conservative political activist, founder and president of Eagle Forum, 2004, “The Judges are the
Problem”, http://www.citizenlink.org/CLFeatures/A000000439.cfm
The historical fact is that the supremacist decisions have been very anti-minority. The famous case, the Dred Scott case, said that
blacks have no rights that white men need to respect. It declared unconstitutional the congressional law that banned slavery in the
territories. It was a terrible decision. The segregation decision was also a Supreme Court decision. The minorities attain their rights
through the 13th, 14th and 15th amendments, which were designed to overturn these bad Supreme Court decisions, and also through
the civil rights law of 1964, the Voting Rights Act and other civil rights laws. Minorities got recognition of their civil rights through
constitutional amendments and through statutes. The courts have not been their friends.
Ddw 09
Kim and Holguin
Courts vs. Congress CP 28
CONGRESS BETTER - RACE
Judicial independence empirically bad for minorities
Richard Delgado, Prof. of Law @ Univ. of Colorado, ’99 [72 S. Cal. L. Rev. 425, “Rodrigo’s Committee Assignment: A
Skeptical Look at Judicial Independence,” ln]
“On the subject of courage, consider courts’ race jurisprudence. I know you may feel differently in light of
your own experience, but history shows that judicial independence has not been of great help to minorities.
Courts sometimes hand down helpful opinions, to be sure. But some of the worst — Plessy,107 Dred
Scott,108 McClesky v. Kemp,109 Bowers v. Harwick110 — came down when the Court was not under great
pressure. And some of the best decisions — Brown,111 Hernandez,112 and in Australia, Mabo113 — were
handed down when it was. Pressure can, of course, make courts rule even more regressively than they
ordinarily would — consider how right-wing pressure or Southern resistance brought about the Adarand114
decision, the reversal of Metro Broadcasting,115 or Brown II116. Liberals who worry about judicial
independence seem to assume that without pressure, courts will do the right thing. But unpressured,
business-as usual judging is the real problem, not the pressured kind.” “You and I once discussed how
systemic evils, like racism, that are deeply imbedded in the fabric of society, are very hard to see and
correct.117 We called it the empathic fallacy, if I recall.”118
Court supported by government during the civil rights movement; support later withdrawn
Gerald N. Rosenberg (University of Chicago political science and law professor, law degree from University of Michigan, PH. D.
from Yale), 2001. The Hollow Hope. Published by the University of Chicago Press. Page 74.
In the years leading up to Brown, the Court was aided by several factors. The rhetoric of the Cold War, for
example, highlighted racial discrimination as a blight on American democracy in its fight against
communism. In addition, starting with Shelley v. Kraemer in 1948, the U.S. enterest many of the cases as
amicus curiae, essentially supporting the NAACP. The government’s presence in these cases could have
suggested to the Court that decisions ordering an end to segregation would be supported by the federal
government. Thus, in the years leading up to Brown the Court’s lack of meaningful independence was
overcome. In the years following Brown, however, that support was withdrawn. Court decisions in free
speech and subversion, criminal procedure, and of course, desegregation, enraged many members of
Congress and a concerted attack on the court was launched. Over fifty Court-curbing bills were introduced
into Congress as an alliance of segregationists, cold warriors, and right-to-work advocates teamed up to curb
the Court (Murphy 1962).
Ddw 09
Kim and Holguin
Courts vs. Congress CP 29
CONGRESS BETTER - PRISONS
The court is irrelevent for criminal rights – all liberal precidents have been undone
John A. Ferejohn, Prof. of Poli Sci @ Stanford, Larry D. Kramer, Prof. of Law @ NYU, ‘2 [77 N.Y.U.L. Rev. 962, “Independent
Judges, Dependent Judiciary: Institutionalizing Judicial Restrain,” ln]
The Court has been more aggressive with some provisions of the Constitution. There is the law of privacy, and, as Sager suggests, the
Court's equal protection jurisprudence has been quite aggressive in the areas of race and gender. 342 First Amendment doctrine is
similarly robust, both as to matters of speech and religion. But the Court's once equally robust criminal-procedure jurisprudence has
fallen on hard times, 343 and most of the rights recognized in the halcyon days of the 1960s have long since been undone. In much
the same way, while adhering to its practice of policing the political system on matters of race, the Court has retreated from more
daunting problems like political gerrymandering. 344 On the whole, then, if one considers how easily the Justices could make their
presence felt over a much broader range of governmental activity, it is hard not to agree with Sager that the domain the Court has put
beyond the reach of constitutional case law is "considerable." 345
Ddw 09
Kim and Holguin
Courts vs. Congress CP 30
CONGRESS BETTER - JUDICIAL TYRANY
Judiciary’s exclusive dominion makes it difficult for people to play a role in constitutional enforcement
Doni Gewirtzman 05, Prof of Law @ NYU, ‘5 [93 Geo. L.J. 897, “Popular Constitutionalism and Nostalgia”]
Each argues that the People and their elected representatives should—and often do—play a substantial role in
the creation, interpretation, evolution, and enforcement of constitutional norms. This popular involvement takes
place through the political process, but outside the formal confines of an Article V amendment or a “constitutional
moment.”24 At times, the People’s interpretive expression takes place through direct action, like protests,
boycotts, and petitioning. At other times, the People act through electorally accountable institutions and
political parties. These alternative narratives seek to remove the constitutional lawmaking process
from the judiciary’s exclusive dominion. Constitutional interpretation— in real or idealized form—is
envisioned as the product of a “constitutional culture,”25 a larger community-wide discourse that includes judicial and
nonjudicial actors, a mixture of legal norms and political actions, and a wide range of interpretive expression.
Checking judicial supremacy and enusring public involvement is necessary for planatary survival
Kenneth M. Dolbeare, Prof. of Political Econ. @ Evergreen, Linda Medcalf, Prof. of Poli Sci @ Evergreen , ’87 [The Case Against
the Constitution, “Class and Pluralism in America: the Constitution Reconsidered,” p. 138-140
Where have all the voters gone? They have caught on that the system is rigged. Popular majorities' efforts to change either the
distribution of wealth and power or the basic policies that seem necessary to maintain that structure of wealth and power simply don't
seem possible. To be sure, decades of accomplishment by the ideological defenders and celebrants of this system have encouraged
Americans to accept it as "democracy." Americans learn to want or, more likely, consider inevitable whatever is produced, to settle for
various diversionary satisfactions, and/or to fear change and even suspect that those who do seek change must have self-interested and
unpatriotic motives. These are ideological rationalizations for the central fact that the Hamiltonian Constitution excludes people from
directly affecting important public policy outcomes. This is not to say that there is no history of popular impact on government, or that
the Supreme Court is merely a tool of the corporations. Either such caricature of our argument would be silly. What is important is
that popular impact, such as it is, can be made effective only in very limited ways through the electoral process. For the most part, it
must come through disruptionriots, massive strikes, demonstrations involving the threat of violence, and other attacks on the social
order itself. What does it mean for a popular government that its people are politically effective only when they threaten to destroy it?
The Supreme Court has made many decisions, particularly in the middle years of this century, that advanced basic democratic rights.
But that was a result of judicial appointments, not an attribute of the institution. The Supreme Court has, and can, and may well again,
make precisely the opposite kinds of decisions. What does it mean for a popular government that its basic policies can be set by a
transitory majority drawn from a body of nine life-appointed lawyers? What we are saying is that the Framers' two major goals are
threatened today by the success with which Hamilton and his followers implemented those goals. We do not have a stable political
economic system, and we do not have the capacity to make the choices necessary to assure a strong and successful American political
economy. Our political system works by fits and starts. It is neither responsive nor accountable and it lacks solid grounding in the
body of its people. It sits and waits for the next crisis. Unfortunately, to solve that crisis, it may have to transform itself into something
that will be very difficult to rationalize as "democracy." We have not addressed the great issues of nuclear war, planetary survival,
or even American economic viability in a drastically changing world economy-not because the people don't care, but because there is
no linkage between the people's felt needs and their policymakers. No such basic policies can be implemented, even if policymakers
were to concur, without the sustained support of some major portion of the people. To solve our problems, or merely to fulfill the
Framers' goals in the wholly different conditions of our times, we will have to come to terms with Hamilton's Constitution in a
realistic manner. Perhaps the best way to honor the Framers' work is not to join in obfuscating celebrations, but to act as they did
under like circumstances. We might start by critically exploring the ways in which today's analogue of the Articles of Confederation is
defective in achieving goals that are necessary and desirable for the future. Obviously, like the Framers, we would have to address
basic principles of social order and purpose-if we have not completely forgotten how to do so. (That we have forgotten is strongly
suggested by the nature of the proposals currently offered for constitutional "reform. 1136 ) Curing the defects of Hamilton's
Constitution may not be possible, for many reasons. It may be that patterns of material advantage, or the depth of the problems we
face, or the sheer size of the country, make it practically impossible. Or our situation may be even worse: perhaps generations of
structural deflection-of elites as well as of the general public---from considering the Constitution in a realistic manner has made it
impossible for us to do so now. Decades of cultural lowering of the criteria of democracy may have made it impossible for us to
recapture its fuller definition and potential. If there is a route out of our crisis, it lies in deliberately reversing Hamilton's strategy.
That is, we must seek to re-engage the people in their government, and particularly in ways that enable them to have direct impact
on the substance of important public policies.
Ddw 09
Kim and Holguin
Courts vs. Congress CP 31
CONGRESS BETTER - ENVIRONMENT
judicial supremacy is the deciding cause of environmental regulation rollback
Doug Kendal et. al., Founder and Executive Director @ Community Rights Counsel, ‘1 [NRDC paper, “Hostile Environment: How
Activist Judges Threaten Our Air, War, and Land,” http://www.nrdc.org/legislation/hostile/hostile.pdf]
These protections now face a grave challenge in an unlikely venue: our nation’s federal courts. A group of highly ideological and
activist sitting judges are already threatening the very core of environmental law. New appointees to the bench could transform this
threat into a death sentence for many environmental protections. In the last decade, judges have imposed a gauntlet of new hurdles in
the path of environmental regulators, slammed the courthouse doors in the face of citizens seeking to protect the environment, and
sketched the outline of a jurisprudence of “economic liberties” under the Takings and Commerce Clauses of the Constitution that
would frustrate or repeal most federal environmental statutes. These judges—most of them appointed to the bench by Presidents
Ronald Reagan and George H. W. Bush—are engaging in anti-environmental judicial activism. They read into the Constitution
powers of judicial oversight that courts have never previously exercised. They ignore statutory language and intent, substituting
instead their own policy preferences. Although their opinions sometimes pay lip service to the benefits of environmental protections,
their activist ideology leads them to invalidate these safeguards. They do this despite the widespread support our environmental
laws enjoy among our elected representatives and the American people.
Ddw 09
Kim and Holguin
Courts vs. Congress CP 32
CONGRESS BETTER - PUBLIC PERCEPTION
Court decisions are not well-known to most Americans
Gerald N. Rosenberg (University of Chicago political science and law professor, law degree from University of Michigan, PH. D.
from Yale), 2009. “Romancing the Court”.
http://www.bu.edu/law/central/jd/organizations/journals/bulr/volume89n2/documents/ROSENBERG.pdf
Part of the reason for this lack of efficacy is that most Americans are unaware the Court has acted, even on
important issues.25 I could devote a considerable number of pages to reviewing the literature that uniformly
finds most Americans do not have a clue as to what the Court is doing or has done.26 As an example, consider
the Court’s 1973 abortion decision, Roe v. Wade. Although Roe v. Wade is undoubtedly well-known among
readers of this Essay, that is not the case for ordinary Americans.27 In March of 1982, a CBS News/New
York Times poll asked respondents in a national survey: “Does the U.S. Supreme Court permit or does it
forbid a woman to have an abortion during the first three months of pregnancy, or haven’t you been
following this closely enough to say?”28 Although this question was asked nearly a decade after Roe v. Wade,
and two years into the Reagan Administration with its public and vociferous commitment to overturning Roe
v. Wade,29 nearly half of respondents (49%) had no idea.30 Others had it wrong, with 10% of respondents
saying that the Court had issued a decision forbidding abortion.31 In 1986, another national survey probed
knowledge of the case name, asking: “Roe vs. Wade was a landmark Supreme Court case which dealt with: .
. . ?”32 Only 30% of respondents knew that Roe v. Wade dealt with abortion.33 Sixteen percent thought that it
dealt with “the rights of a person accused of a crime” and 9% thought it dealt with “racial segregation in
schools.”34 While by 1998 there was some modest improvement in these responses,35 the reader may recall
that in the 2008 presidential campaign Sarah Palin, the governor of Alaska and Republican Party candidate
for Vice President of the United States, could not name even one Supreme Court case with which she
disagreed other than Roe v. Wade.36
Oral Dissents in Courts can motivate elites only when there is pre-existing support
Gerald N. Rosenberg (University of Chicago political science and law professor, law degree from University of Michigan, PH. D.
from Yale), 2009. “Romancing the Court”.
http://www.bu.edu/law/central/jd/organizations/journals/bulr/volume89n2/documents/ROSENBERG.pdf
Traveling around the country interviewing women involved in the pay equity struggle, McCann concludes
that judicial opinions can help mobilize and inspire what Guinier calls “democratic accountability” only
when “[1] [i]ncreasingly favorable political opportunities . . . converge with [2] preexisting organizational
resources to provide [3] potential activists a propitious context for effective collective action. Legal actions
then can spark actual insurgency . . . of [4] identified movement constituents.”81 In other words, for judicial
opinions to foster democratic accountability there must be public and elite support, pre-existing groups and
resources committed to the issue, a committed leadership, and a predisposed target audience. When all these
conditions are present, law can, but not necessarily will, make a difference. McCann puts it this way: “Even under
the most propitious circumstances . . . the contributions of legal maneuvers to catalyzing defiant collective action will be
partial, conditional, and volatile over time.” 82 McCann’s analysis suggests that demosprudential dissents are neither
necessary nor sufficient for mobilizing social movements. They are not necessary because if there is an
active social movement in place then no judicial help is needed. They are also not sufficient because without
a preexisting movement and the other factors McCann identifies, such dissents will accomplish nothing.
Ddw 09
Kim and Holguin
Courts vs. Congress CP 33
CONGRESS BETTER - PUBLIC PERCEPTION
Courts do not influence people
Gerald N. Rosenberg (University of Chicago political science and law professor, law degree from University of Michigan, PH. D.
from Yale), 2009. “Romancing the Court”. Boston University Law Review [Volume 89:563].
http://www.bu.edu/law/central/jd/organizations/journals/bulr/volume89n2/documents/ROSENBERG.pdf
Justice Kennedy says, “[j]udges are teachers. By our opinions, we teach.”17 The ability of oral dissents in
particular to teach is key for Guinier’s arguments.18 She expands on this claim, writing that “dissenting
Justices may educate, inspire, and mobilize citizens.”19 Indeed, she makes claims about teaching in nearly a
dozen places throughout the article.20 In two places she quotes Eugene Rostow’s famous 1952 statement
that the Justices are “teachers in a vital national seminar.”21 The problem with this claim is that if Justices
are teachers, then their classes are very poorly attended. And those who are there are not taking notes!
Decades of social science research show that the American public is not persuaded by Court opinions.22
Reviewing the data in a 2008 compilation of the influence of Supreme Court decisions on the views of
Americans in fourteen substantive areas including desegregation, rights of the accused, school prayer,
abortion, gay rights, and the war on terror and civil liberties, Professors Nathan Persily, Jack Citrin, and
Patrick Egan found few effects.23 Writing in the introduction, Persily summarizes the findings: “In the vast
majority of the cases reviewed here, Supreme Court decisions had no effect on the overall distribution of
public opinion.”24
Ddw 09
Kim and Holguin
Courts vs. Congress CP 34
COURTS FAIL - SOP
Judicial powers are inconsistent with the Separation of Powers
Christopher Wolfe, Prof. of Poli Sci @ Maraquette, ‘4 [That Eminent Tribunla: Judicial Supremacy and the Constitution,
p.1-2]
The scope and character of judicial power today is fundamentally inconsistent with the separation of powers
embodied by the American founders in our Constitution. Current excesses are not merely an aberration from
our ordinary political arrangements, but raise the specter of establishing a new form of government. Even
many of those who are opposed to judicial usurpation today are under the impression that it is merely a
particular group of unusually “extreme” judges that account for this phenomenon. They fail to understand
that extreme motions of judicial power have become entrenched in our legal and political system. And, as
Lincoln argues, in regard to the Dred Scott case- with all the respect properly owed to the judiciary as a
coordinate branch of government- to treat the Supreme Court as the final or ultimate authority on
constitutional issues is to resign our self-government into the hands of “that eminent tribunal”.
Ddw 09
Kim and Holguin
Courts vs. Congress CP 35
AT: COURTS BEST - NONBIASED
Judicial Independence bad- they’re under political influence
Richard Delgado, Prof. of Law @ Univ. of Colorado, ’99 [72 S. Cal. L. Rev. 425, “Rodrigo’s Committee Assignment: A
Skeptical Look at Judicial Independence,” ln]
“I do,” I replied. “I hope it’s more impressive than your last one.” Rodrigo winced, then said, “I’ll let you
decide. Do you recall the cls position on indeterminacy?” “Of course,” I replied. “It holds that legal
reasoning, especially of the case-law variety, never, or almost never, dictates a single conclusion. By picking
one argument or line of authority, the lawgiver can make one outcome appear inevitable and just. By picking
another, he or she can rationalize the opposite result. This open-textured quality, first pointed out by the legal
realists in the early part of the century, allows a wide scope for politics and disguised personal predilection
on the part of the decisionmaker. Cls refined this critique and applied it to a host of areas, including torts,42
contracts,43 constitutional,44 and labor law.”45 “And have you considered how the same thing may apply to
policy arguments?” Rodrigo asked. “I suppose it could,” I said. “There’s the old joke about how you can
almost always find an opposite proverb for any situation. Look before you leap. He who hesitates is lost.
Birds of a feather flock together. Opposites attract. And so on.”
Judicial Independence Bad- inaccurate representation
Richard Delgado, Prof. of Law @ Univ. of Colorado, ’99 [72 S. Cal. L. Rev. 425, “Rodrigo’s Committee Assignment: A
Skeptical Look at Judicial Independence,” ln]
“Notice how judges can’t actually be independent. If they are, they’ll get reversed.67 Even before
that, if too independent, they won’t get confirmed.68 In this age, that doesn’t take much independence at all.”
67 “I can certainly think of examples,” I said. “One Supreme Court nominee got thrown out because he
smoked marijuana decades earlier.69 And you know what happened to Lani Guiner70 and Bill Lann Lee.71 Too
leftist for the Republicans in Congress, they saw Clinton abandon them or, in Lee’s case, beat a strategic
retreat and name him only to an interim position.” “Real renegades don’t even make it that far,” Rodrigo
went on. “It turns out that the independence we tout means only a narrow thing: in no particular person’s
thrall, while leading an average life and doing ordinary, bureaucratic ‘normal science.’ ”72 “The demography
of the federal bench, at least, bears you out,” I conceded.73 “I certainly wish they were more diverse. I
wouldn’t mind having a minority judge this afternoon,” I added wistfully. “As we mentioned, the bench
contains very few disabled people, Marxists, labor organizers, minorities, or gay and lesbian people. Real
independence would mean judges with a wide range of life experience. It would mean upholding draft
resisters, at least on occasion, affording a sympathetic hearing to against-the-grain groups; giving careful
consideration to Ruth Colker’s antisubordination interpretation of Equal Protection jurisprudence.”74
“Is this your other kind of structural independence?” I asked. “It shades into it,” Rodrigo answered.
Ddw 09
Kim and Holguin
Courts vs. Congress CP 36
AT: COURTS BEST - NONBIASED
There is judge bias
Christopher Wolfe, Prof. of Poli Sci @ Maraquette, ‘4 [That Eminent Tribunla: Judicial Supremacy and the Constitution,
p.1-2]
Jack Wade Nowlin rejects an argument, put forward by advocates of a “moral” reading of the
Constitution, that judges have special powers of moral insight, concluding that it had insuperable
theoretical and practical difficulties. The obvious and familiar arguments in favor of a specialized judicial
power of moral insight in fact paint a skewed and idealized portrait of judges and courts. On the one hand,
the inference of moral “expertise” from a tendency to read the “right” answers as defined from a
particular “thick” or substantive moral standpoint- liberal judges are moral “experts” from a liberal
standpoint- is indistinguishable from special pleading and therefore cannot serve as a general argument
fro expansive judicial power. But, on the other hand, one cannot draw a clear economic connection
between the ability to engage in “thin” sophisticated moral reasoning and the discovery of right answers
to difficult moral questions. Moreover, other aspects of the judicial process- such as primacy of legal
interpretation and the practical political constraints on judicial power- suggests that judges typically do
not, and indeed cannot, openly engage in sophisticated moral reasoning or develop sophisticated, critical,
reflective, reasoned, and coherent moral theories. Judicial moral analysis is inexorably understated,
incompletely theorized, and distorted by legal materials (Roe and Casey providing notable examples) .
Ddw 09
Kim and Holguin
Courts vs. Congress CP 37
AT: PERM - JUDICIAL OVERHANG
The Perm codifies judicial supremacy – limiting future nonjudicial interpretation**
Bruce Peabody, Prof. of Poli Sci @ Farleigh Dickinson, 2k [Recovering The Political Constitution: Nonjudicial Interpretation,
Judicial Supremacy, and The Seperation of Powers, p. 57-60]
In some cases, of course, the judiciary will claim to recognize the. authority of elected officials' understandings of constitutional
questions. The courts have therefore sometimes tried to accommodate or incorporate these views on how constitutional powers and
processes should function. But even here judicial supremacy may come with unacceptable costs. To begin with, the federal judiciary
is surely an imperfect expositor of the constitutional views of others; the courts have misconstrued elected officials' understandings of
how particular constitutional powers and processes are supposed to operate.24 The judiciary's relative insulation from popular
concerns and their distance from everyday political concerns makes it difficult for judges to address accurately national
understandings of the constitutional order.25 Moreover, when judges "codify" elected officials' understanding of constitutional
provisions (instead of allowing them to articulate their own views), the courts limit the future flexibility and imagination of
nonjudicial interpretation. Also, when the courts interpret constitutional provisions in a manner 'sympathetic' to the views and wishes
of elected officials, judges keep judicial supremacy itself in the political foreground-implicitly signaling that the ultimate meaning of
these provisions is still subject to judicial determination. 26
Even when judges give the widest leeway to elected officials--seemingly allowing them to construct their own views of constitutional
powers and processes--judicial supremacy may still leave political actors unwilling to engage in constitutional interpretation, at least
in a way much different from the courts Mark Tushnet has identified this as the problem of the 'judicial overhang.' 27
Moreover, the judiciary's identification of certain constitutional areas as being beyond its ken, still sets itself up as the arbiter of
whether subsequent cases fall within or outside that category. Thus, the courts continue to patrol the outer boundaries of the area that
it has identified as being outside its expertise, and the threat of renewed judicial intervention may limit nonjudicial constitutional
interpretation.28 The most familiar example of this phenomenon is the "political questions" doctrine, through which the courts identify
issues requiring political judgment that they do not possess. As Louis Henkin has noted, in determining whether a case poses a
'political" question the Court does not refuse judicial review; it exercises it. It is not dismissing the case or the issue as nonjusticiable;
it adjudicates it. It is not refusing to pass on the power of the political branches; it passes upon it, only to affirm that they had the
power which had been challenged and that nothing in the Constitution prohibited the particular exercise of it.
Understood in this way, the political questions doctrine, and similar instances of judicial 'nonintervention,' enable the Court (and the
courts) to retain control over constitutional issues As a result, elected officials may feel the effects of "judicial supremacy" even
where it is not exercised directly.
Ddw 09
Kim and Holguin
Courts vs. Congress CP 38
AT: PERM - JUDICIAL OVERHANG
the courts crate a moral hazard for legislatures – promoting rights violations
Jeremy Waldron, Prof of Law @ Columbia, ‘6 (April, 115 Yale L.J. 1346, ln)
Suppose we are dealing with a case that is non-core by virtue of the failure of my first assumption: In this case, legislatures are
inadequately representative or deliberative, the system of elections is compromised, and the procedures [*1403] used in the
legislature no longer bear any credible relation to political legitimacy. Two questions then arise: (1) Is it possible to improve the
situation, so far as the legislature is concerned? (2) Should a final power of decision for important issues of rights be vested in the
courts, assuming that the courts would handle those issues better? The questions are independent, for we may reasonably think that
some issues of rights are too urgent to await the emergence of a more responsible and representative legislature. But they are not
utterly independent. Vesting the final power of decision in courts may well make it more difficult to reform the legislature or more
difficult to develop the legislative ethos that the first assumption, and perhaps also the third assumption, presuppose. I have heard
speculation to this effect about the United States: The idea is that U.S. legislatures, particularly state legislatures, operate
irresponsibly and in a way that fails to take rights seriously because the knowledge that the courts are there as backup makes it
harder to develop a responsible culture among legislators. How far this is true, I don't know. It is certainly worth considering.
Ddw 09
Kim and Holguin
Courts vs. Congress CP 39
AT: PERM - JUDICIAL OVERHANG
The perm increases judicial supremacy – the court will spin perm as self-restrain – allowing for future
judicial tyrany
John Agresto, PhD in Government from Cornell, ’84 [The Supreme Court and Constitutional Democracy, p. 115-6]
We can begin, however, by putting aside all the arguments regarding the desirability or liability of judicial restraint. The most striking
thing about such self-restraint is its almost inevitable futility. One need not have a Hobbesian view of man as constantly searching for greater
power to see that in human affairs-especially at the highest level of political life, where not merely interests but vital principles of right and
justice are at stake-the call for self-restraint is always destined to be a vain request. The vigorous demand for self-restraint in scholarly
literature, in judicial opinions, and in careful judicial selectiona line from James Thayer through justices Felix Frankfurter and John
Marshall Harlan to Alexander Bickel to Presidents Richard Nixon and Gerald Fordseems to have had minimal
effect. The Burger Court, even more than the Warren Court, is the surest proof of this opinion.''
The Founders did not establish the various departments of power with the expectation that political officials would-or should-restrain themselves.
Consider the section of justice Stone's observation that I quoted before: "the only check upon our own exercise of power is our own sense of selfrestraint." Such a notion would strike the Founders as compelling evidence that a radical disjunction had taken place in the institutional devel opment
of the polity they created. As we have already seen , not self-restraint, not personal or institutional modesty, but interdepartmental checks
lay at the core of the Founders' understanding. "The dignity and stability of government in all its branches," Jefferson declared in 1776, "depend
so much upon an upright and skillful administration of justice, that the judicial power ought to be distinct from both the legislative and executive, and
independent upon both so that it may be a check upon both, as both should be checks upon that."" To the Founders, the security of both liberty
and democracy rested first on the separation and independence of each branch, and then on that mutual activity of watching and
checking.
*The fact that the Court had restrained itself with regard to national legislation for fifty years before handing down its decision in Dred
Scott may well have helped to promote the acceptance of judicial power in some quarters. Seen from this perspective, the principle
of restraint can often work as an ally of the cause of judicial supremacy, for it makes judicial revisions, when they occur, even more
impressive. See Robert K. Faulkner, "Bickel's Constitution; The Problem of Moderate Liberalism," American Political Science Review 72
(September 1978): 925-40-
Congressional response, not judicial invervetnion, is necessary to revitalize deliberation and check
supremacy
Larry D. Kramer, Prof. of Law @ NYU, ‘1 [115 Harv. L. Rev. 4, “Supreme Court 2000 Term; Foreword: We The Court,” ln]
Yet if this is not the baseline, what is? The Justices' own opinions that Congress is doing too much? Their feelings that some dumb or
unnecessary laws have been passed? Opponents of federal regulation have always felt that way, whether they were opposing
Hamiltonian finance or Henry Clay's American System or FDR's New Deal. I imagine, too, that each time they dismissed references to
earlier periods in the belief that only now had things "really" gotten out of hand. But even were this finally true, a judicial solution
would still be inappropriate. The Court deals with problems by formulating tests of a kind that judges can administer, which in this
context means taking a hatchet to a problem that needs a scalpel. At best, clumsy rules like "commercial versus noncommercial" or
"substantial effect" leave Congress uncertain and invite a mess in the lower courts. If the problem really is Congress's failure to take
the Constitution seriously enough, the solution is to put our energies into rejuvenating and improving the legislature's capacity in
this regard, not to hand the matter over to a bunch of judges.
Ultimately, concern about congressional excess may help to explain the uneasiness that provoked the Justices to act, but it does not
explain their actions. The members of the conservative majority on the Rehnquist Court are constitutional fundamentalists, acting to
restore the Constitution to what they believe is its true form. Like most forms of fundamentalism, their belief rests on an imagined past
that never existed. How long must we let them continue fantasizing at our expense?
History may not tell us what to do. But it can tell us who we were and in this way help us understand who we have become. Legend
has it that, as he left the Constitutional Convention, Benjamin Franklin was approached by a woman who asked him, "What have you
given us, Dr. Franklin?" "A republic," he replied, "if you can keep it." 689 Have we? For all the disagreement about what we mean by
"republic," no one has ever doubted that self-government is its essence and a constitution the purest distillate. What kind of republic
removes its constitution from the process of self-governing? Certainly not the one our Founders gave us. Is it one we prefer? The
choice, after all, is ours. The Supreme Court has made its grab for power. The question is: will we let them get away with it?