Aff – Courts Best – AT Illegitimacy

SCFI 08-09

Courts Neg

Scholars

1

Congress CP + Courts Disads

Congress CP – Shell ..................................................................................................................................................................................................................2

CP Solvency .................................................................................................................................................................................................................................3

CP Solvency .................................................................................................................................................................................................................................4

CP Solvency .................................................................................................................................................................................................................................5

CP Solvency / Courts Bad .....................................................................................................................................................................................................6

CP Solvency / Courts Bad .....................................................................................................................................................................................................7

CP Solvency – Rollback ..........................................................................................................................................................................................................8

AT Permutation .........................................................................................................................................................................................................................9

AT Courts Reassert Power / Stripping Unconstitutional .................................................................................................................................... 10

AT Pres Powers DA to Congress ..................................................................................................................................................................................... 11

Aff – Perm ................................................................................................................................................................................................................................. 12

Aff – Courts Best – Rights/Democracy ......................................................................................................................................................................... 13

Aff – Courts Best..................................................................................................................................................................................................................... 14

Aff – Courts Best..................................................................................................................................................................................................................... 15

Aff – Courts Best..................................................................................................................................................................................................................... 16

Aff – Courts Best – AT Illegitimacy ................................................................................................................................................................................ 17

ConCon CP Vs. Dandridge .................................................................................................................................................................................................. 18

ConCon Solves Democracy ................................................................................................................................................................................................ 19

AT Perm ..................................................................................................................................................................................................................................... 20

Aff Ans. – No Solvo ................................................................................................................................................................................................................ 21

Aff Ans. – Perm ....................................................................................................................................................................................................................... 22

Hollow Hope 1NC .................................................................................................................................................................................................................. 23

Hollow Hope 1NC .................................................................................................................................................................................................................. 24

Hollow Hope – Turns Case ................................................................................................................................................................................................ 25

Hollow Hope – Uniqueness ............................................................................................................................................................................................... 26

Hollow Hope – Backsliding Impact ................................................................................................................................................................................ 27

Hollow Hope Impact – Backsliding ................................................................................................................................................................................ 28

Aff – Case Solves DA ............................................................................................................................................................................................................. 29

Aff Ans. – Rosenberg Is An Idiot...................................................................................................................................................................................... 30

Aff Ans. – No Impact / Aff Solves .................................................................................................................................................................................... 31

Aff Ans. – Courts Solve ........................................................................................................................................................................................................ 32

Aff Ans. – No Impact / Aff Solves .................................................................................................................................................................................... 33

AT Case Sets a Precedent ................................................................................................................................................................................................... 34

AT Case Sets a Precedent ................................................................................................................................................................................................... 35

AT Case Sets a Precedent / Solves ................................................................................................................................................................................. 36

Aff Ans. – No Link .................................................................................................................................................................................................................. 37

Stare Decisis 1NC ................................................................................................................................................................................................................... 38

Stare Decisis – UQ.................................................................................................................................................................................................................. 39

Stare Decisis – Links............................................................................................................................................................................................................. 40

Stare Decisis – Links............................................................................................................................................................................................................. 41

Stare Decisis – Turns Case ................................................................................................................................................................................................. 42

Stare Decisis – AT Impact N/U ........................................................................................................................................................................................ 43

Aff Ans. – N/U .......................................................................................................................................................................................................................... 44

Aff Ans. – N/U .......................................................................................................................................................................................................................... 45

Aff Ans. – No Link .................................................................................................................................................................................................................. 46

Aff Ans. – AT Legitimacy Turns Case ............................................................................................................................................................................ 47

Lawyer’s Creed: Innocent Until Proven Broke

SCFI 08-09

Courts Neg

Congress CP – Shell

Counterplan Text: The United States Congress should propose an amendment to the United States

Constitution _____________________________________________________________________ . The amendment should be ratified.

Scholars

2

Contention 1 is solvency

Judges are unpredictable in that they rely upon their life experiences

Henry Upson Sims May, 1916 “The problems of reforming judicial administration in America” Virginia Law

Review, Vol. 3, No. 8 (May, 1916), pp. 598-621 accessed online July 6, 2009 http://www.jstor.org/stable/1063459?seq=1&Search=yes&term=supreme&term=court&term=branches&term=dependant&term=upon&list=hide

&searchUri=%2Faction%2FdoBasicSearch%3FQuery%3Dsupreme%2Bcourt%2Bdependant%2Bupon%2Bother%2Bbranches%26gw%3Djtx

%26prq%3Dlegislature%2Bregulate%2Bpoverty%26Search%3DSearch%26hp%3D25%26wc%3Don&item=21&ttl=123&returnArticleService= showArticle&resultsServiceName=doBasicResultsFromArticle

But custom is only the adoption by human minds of a principle of action, however simple, and the recognition of some necessity for it. So if it is a mark of mankind in general to act in the same way under the same circumstances, and to recognize the duty and the right to do so, it becomes conducive to public order for judges not to recognize popular customs as the basis of their decisions, but also to establish customs in reaching the decisions themselves.

including

The judicial decisions of judges are but part of their mental experiences, and that all men,

judges, are directed by their experiences in a fundamental fact of biology.

A court is only powerful when it agrees with itself, contradicting past decisions would be better if left to the free roaming legislature

Richard A. Posner Judge, United States Seventh Circuit Court of Appeals “ The Supreme Court, 2004 Term”

Harvard Law Review, Vol. 119, No. 1 (Nov., 2005), pp. 28-102 accessed online July, 6 2009 http://www.jstor.org/stable/4093559?seq=13&Search=yes&term=supreme&term=activist&term=court&list=hi de&searchUri=%2Faction%2FdoBasicSearch%3FQuery%3Dsupreme%2Bcourt%2Btoo%2Bactivist%26wc%3Don

%26dc%3DLaw&item=3&ttl=2654&returnArticleService=showArticle&resultsServiceName=doBasicResultsFromA rticle

A constitutional court composed of unelectes, life-tenured judges, guided, in decideing issues at once emotional and politicized, only by a very old and in critical passages very vague constitution (yet one as difficult to amend as the U.S. Constitution is), is potentially an immensely powerful political organ – unles, despite the opportunities that are presented to the justices, they manage somehow to behave like other judges . A court is supposed to be tethered to authoritative texts, such as constitutional and statutory provisions, and to previous judicial decisions; a legislature is not – it can roam free. But the supreme court, when it is deciding constitutional cases, is political in the sense of hacving an exercising discretionary power as capacious as a legislature’s.

It cannot abdicate that power, for there is nothing on which to draw to decide constitutional cases of any novelty other that discretionary judgement. To such cases the constittuional text and history, and the pronouncements in past opinions, do not speak clearly. Such cases occupy a broad open area where the conventional legal materials of decision run out and the justices, deprived of those cructhes, havve to make a discretionary call.

Amendments can overturn Supreme Court decisions

Vile 93 (John, R., The Constitutional Amending Process in American Political Thought, Questia)

By this point in this book, it should be apparent that certain constitutional understandings can be formally changed by amendment or be changed less formally, albeit often no less effectively, by presidential and congressional practices and judicial interpretations. Given the

Court's special authority "to say what the law is," 1 its role has been a particularly important one. The more expansive role the courts take in interpreting and adapting the Constitution to new exigencies, the less need there is for constitutional amendment, except perhaps as a way of reversing overly broad Judicial opinions. Contrariwise, the less the courts adapt the Constitution to changing times, the greater may be the need for amendment. It is this recognition that is implicitly behind the modern debates over a jurisprudence of original intent, 2 and over the respective merits of judicial activism and judicial restraint . 3 However contemporary such debates may be, the issues about which they revolve are old ones.


SCFI 08-09

Courts Neg

Scholars

3

CP Solvency

Counterplan is comparatively best – re-orienting progressive constitutional issues to the Congress gives them better legal protection from future court challenges; ensures durability

Constitutionalism remains exclusive.

Robin

West

, Professor of Law, Georgetown University Law Center, 19

93

, Chicago-Kent College of Law http://books.google.com/books?id=JeWrOvRko4kC&pg=PA185&lpg=PA185&dq=Progressive+Constitutionalism&source=bl&ots=JGUGqezbXx&sig

=dEJPxNPu8m2a5JQsGPPkx-OEqGQ&hl=en&ei=3ctTSq_dNJK6swPBy4TyBw&sa=X&oi=book_result&ct=result&resnum=3 , Accessed 07/07/09

Third, if we

were to reorient progressive constitutionalism toward Congress, we would

, perhaps paradoxically, strengthen the legal position of progressive legislation when

it is invariably challenged in court

as violative of conservatively understood constitutional guarantees. Most of the significant items on any progressive political agenda are seriously threatened by the possibility of invalidation by the present conservative Supreme Court. A conservative Lochner-like125 understanding of the due process clause such as that embraced by the early New Deal Court, like a conservative understanding of the takings clause such as that propounded by Richard Epstein,126 obviously jeopardizes congressional action aimed at social hierarchies bolstered by gross maldistributions of wealth, including legislation ranging from the progressive tax system to comparable worth and childcare proposals presently under congressional consideration. Similarly, a conservative understanding of equal protection as protecting the individual's right to participate in a color-blind market threatens, if it has not already eviscerated, affirmative action plans, as evidenced by the Court's recent decision in Croson. And lastly, conservative understandings of the nature and limits of constitutional interpretation threaten the adjudicative gains made by progressives through imaginative use of a possibilistic and open-ended Constitution, as evidenced by the judicial retreat from active judicial protection of privacy in both Bowers and Webster. With conservative interpretation now dominating the Court, constitutional challenges to progressive legislation are virtually inevitable, and many will prove successful.

We

might be able to slow the tide of

those attacks, if we strengthen the rhetorical and political base of our progressive legislative proposals

, by grounding them not only in politics and policy but also in arguments drawn from constitutional mandate as well. The gains for progressive politics would be no less tangible.

A constitutionalized progressive agenda would centralize progressive concerns and lend them far greater legitimacy. Progressive politics

, as discussed above, are crippled

in this culture in part because of their lack of

constitutional legitimacy

: progressivism does not seem to be mandated by the Constitution and increasingly may come to seem precluded by it.

Constitutionalism

, in other words, if it remains the exclusive interpretive dominion of the Court, has the effect not just of marginalizing but even of delegitimating progressive gains

: everything on the modern progressive agenda—from mandatory childcare, to zoning, to comparable worth, to reproductive freedom, to affirmative action—is now, given the dominance of the conservative paradigm, an arguably unconstitutional taking, an infringement of a constitutionally protected interest in property or contractual freedom, a denial of equal protection, or a denial of a fundamental right to life. This is, of course, in part a function of the larger societal conservatism that is infecting constitutional language. All I want to suggest is that it is surely also, in part, a function of the truncation of progressive constitutional thought through the identification of the Constitution with adjudicative law.


SCFI 08-09

Courts Neg

Scholars

4

CP Solvency

The Supreme Court usually follows the legislature

Stefanie A. Lindquist and Rorie Spill Solberg 2007 “Judicial Review by the Burger and Rehnquist Courts:

Explaining Justices' Responses to Constitutional” Political Research Quarterly, Vol. 60, No. 1 (Mar., 2007), pp.

71-90 accessed online July 8,

2009http://www.jstor.org/stable/4623808?seq=2&Search=yes&term=supreme&term=court&term=good&list=hide&searchUri=%2Faction%2FdoBasicSearch%3FQuery

%3Dsupreme%2Bcourt%2Bgood%26gw%3Djtx%26prq%3Dsupreeme%2Bcourt%2Bgood%26Search%3DSearch%26hp%3D25%26wc%3Don&item=3&ttl=111309&retur nArticleService=showArticle&resultsServiceName=doBasicResultsFromArticle

Political scientists who have studied the supreme courts exercise of judicial review have typically focuses on the question whether the court does, indeed, act in a countermajoritarian fashion to protect the rights of minorities. In the seminal study in this tradition, Dahl (1957) concluded that the Supreme Court, as a member of the

“national ruling coalition,” generally exercises its power of judicial review in ways that conform to the dominant coalition’s power agenda. Thus, rather than protecting minority rights against infringement by the majority, Dahl argued that the court is typically supportive of the policies of other political institutions at the time the decision is rendered—largely because the court’s membership has been at least partially formed by the dominant coalition. As evidence for this thesis, Dahl presented finding that the bulk of cases in which federal legislation was declared unconstitutional occurred more than four years after the legislation was enacted and suggested that the court was reluctant to invalidate legislation enacted by the “live” or current national majority. Dahl also presented evidence that of those federal statues declared unconstitutional by the court within four years of passage, congress often responded by reversing the court’s decision through legislation or constitutional amendment. As a result, Dahl concluded that the court, through exercise of judicial review, does not play a particular countermajoritarian role.

The judicial branch has no real power of its own

Stephen G. Breyer, Supreme Court justice, May 21, 2001 UNITED STATES, PETITIONER v. TERRY J. HATTER,

Jr., JUDGE, UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, et al. accessed online july 6, 2009 http://caselaw.lp.findlaw.com/cgibin/getcase.pl?court=US&navby=case&vol=000&invol=99-1978

The Court's opinion in Evans began by explaining why the Compensation Clause is constitutionally important, and we begin by reaffirming that explanation. As Evans points out, 253 U. S., at 251 -252, the Compensation Clause, along with the Clause securing federal judges appointments

"during good Behavior," U. S. Const., Art. III, §1--the practical equivalent of life tenure--helps to guarantee what Alexander Hamilton called the

"complete independence of the courts of justice." The Federalist No. 78, p. 466 (C. Rossiter ed. 1961). Hamilton thought these guarantees necessary because the Judiciary is "beyond comparison the weakest of the three" branches of government. Id., at 465-466.

It has "no influence over either the sword or the purse." Id., at 465.

It has "no direction either of the strength or of the wealth of the society." Ibid.

It has "neither FORCE nor WILL but merely judgment." Ibid.


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Courts Neg

Scholars

5

CP Solvency

Congressional action best fills democratic obligations.

Robin

West


06

, Chicago-Kent College of Law http://www.lexisnexis.com/us/lnacademic/results/docview/docview.do?docLinkInd=true&risb=21_T6909290009&format=GNBFI&sort=RELEVANCE&startDocNo=1&re sultsUrlKey=29_T6909290012&cisb=22_T6909290011&treeMax=true&treeWidth=0&csi=7421&docNo=1 , Accessed 07/06/09

Now, let me re-pose this as a solvable puzzle rather than a foregone conclusion. If legal question doctrine, the Court's equality jurisprudence , combined with the gives rise to this Thayerian-redux sort of problem , and if the Court's equality jurisprudence is what I suggest above - a jurisprudential commitment , relatively unshakeable, rather than reflective of nothing but institutional constraint or the winds of politics - then how can we avoid the seemingly unavoidable conclusion that state actors in fact have no moral or political obligations to legislate in such a way as to promote the well-being of the country's poor?

The possibility I want to suggest is that, rather than seek to avoid the conclusion by suggesting ever more baroque arguments to courts, based on ever more restrictive precedent, we might rather turn our attention to the legal question doctrine so as to try to sever the locked-in chain of inference identified above. So restated, three possibilities present themselves . We can try to break the definitional link , foundational to both liberal and conservative forms of contemporary Constitutionalism, between moral questions and

Constitutional questions . Second, we can try to break the definitional link, central to our twentieth-century understanding of Constitutional law and history, between Constitutional questions and legal questions . Third, we can try to break the definitional link, a mainstay of critical as well as liberal jurisprudence of the century just ended, between legal questions and judicial questions .

Congress freed of judicial constraints.

Robin

West


93

, Chicago-Kent College of Law http://books.google.com/books?id=JeWrOvRko4kC&pg=PA185&lpg=PA185&dq=Progressive+Constitutionalism&source=bl&ots=JGUGqezbXx&sig=dEJPxNPu8m2a5

JQsGPPkx-OEqGQ&hl=en&ei=3ctTSq_dNJK6swPBy4TyBw&sa=X&oi=book_result&ct=result&resnum=3 , Accessed 07/07/09

If the Court’s reading of equal protection as requiring formal rather than substantive equality stems in part from ethical constraints with their origins in jurisprudence, then it also seems reasonable to assume that other political or legal actors, not constrained in the same way might read the clause in a very different way. History to some extent bears this out: in its sole major interpretation of the Fourteenth

Amendment , the nineteenth-century Civil Rights Act, Congress interpreted its provisions substantively rather than formally , reading it to prohibit acts of private subordination by white of blacks and mandating that law be used in some fashion to end such subordination. This sharp difference between the congressional interpretation and the interpretation insisted upon by the Supreme Court at the time undoubtedly reflected the differing political commitments of the two bodies. But it may also have reflected , then and now, different institutional aspirations. Congress, as the originator of legal change, is not constrained by jurisprudential, compensatory, corrective, of formal norms of justice ; its role is not to apply laws equally to groups or individuals before it. It is logical to assume, then, that its interpretations of the constitutional provisions that control its deliberations will not reflect those constraints .

Congressional interpretation of the Constitutions is, though, constrained by distribute and substance norms of justice; the laws it enacts should distribute resources fairly among the citizenry. Its understanding of the “equality,” then, which the equal protection clause guarantees and which it is directed to ensure under section 5 of the Fourteenth Amendment, should be informed by a distributive and substantive ethical ideal, rather than a corrective and formal one. Were Congress to once again take up its section-5 responsibilities under the Fourteenth Amendment, and enact legislation for the purpose of ensuring that the states provide equal protection of the laws, it would have to first interpret the meaning of that phrase. The interpretive turn, if it has done nothing else, has reaffirmed the legal realists’ basic insight that the application or enforcement of a text necessarily first requires its interpretation. If the preceding analysis is correct, it would seems sensible to predict that congressional interpretation of the equal protection clause, grounded in congressional rather than judicial needs , interests, and institutional aspirations, would be quite different from that of the Supreme Court . It would minimally be freed of the constraint of jurisprudential ethics that at least in part dictates a formal rather than substantive reading of the equal protection clause. It would instead , presumably, operate under a constraint of distributive rather than compensatory justice . In t


SCFI 08-09

Courts Neg

Scholars

6

CP Solvency / Courts Bad

Courts are a Constitutional failure of Democracy – only the counterplan can solve

Robin

West


06


To state my premises upfront, I believe that the Constitution does so require. The presence of widespread, unaddressed, and ignored impoverishment in our cities and rural counties , I "can't help" but believe, constitutes a breach of our collective moral and Constitutional obligations. Because of that, I

"can't help" but also believe that the failure of local, state, and federal authorities to protect the poor in the City of New Orleans against the ravages of that poverty in the aftermath of Hurricane Katrina and the breach in the levees that came in its wake, constitutes the greatest Constitutional failure of our young democracy , at least since the advent of Jim Crow. I also "can't help" but know, however, that no Court will ever so hold, and for reasons that go far deeper than either political ideology or institutional constraint.

Courts forsake Rights of Welfare to Legislation.

Robin

West


06


In Part One below, I argue very briefly - because the territory is so familiar - that the question, "Does the Constitution contain welfare rights?" has one very clear and not very heartening answer, if we mean, by the Constitution we are expounding, the Constitution as read and interpreted by courts - what I will call the "adjudicated Constitution." I will also urge that [*1130] the meaning so ascribed - that the Constitution contains at most a right to formal equality, with no substantive content - will likely hold constant no matter what the political leanings of the

Court's personnel. The Court has never held that the Constitution contains any positive rights to welfare, and likely will never so hold, and for reasons that are not particularly ideological and that are by no means indefensible. This is not, however, the only answer to the question the Constitution contains; in fact, the text of the Constitution itself suggests something very much to the contrary. I will conclude from this disjunction between text and adjudicated meaning something similar to what a growing chorus of "popular

Constitutionalists" now maintain: our shared reliance on not only the Court's ultimate authority, but its exclusive authority, to interpret the Constitution has blinded us to Constitutional meanings and to Constitutional obligations we might otherwise see. This conclusion has particular significance , I will suggest, in the context of poverty: a strong case can be made that the Constitution does indeed speak to the problems of the poor, albeit not through the oracular voice of the

Supreme Court. Hence, the Constitutional duties of our elected officials , both state and federal, to legislate in such a way as to address severe economic inequalities might be not only unrecognized but obscured by our growing acquiescence in the Court's growing authority as the exclusive as well as ultimate interpreter of Constitutional meaning.


SCFI 08-09

Courts Neg

Scholars

7

CP Solvency / Courts Bad

Courts discriminates Toward Specific Groups.

Robin

West


06


Let me elaborate on the underpinnings of

What the "equal protection"

the Court's formal understanding of the Equal Protection Clause for just a moment. promised by the Fourteenth Amendment requires , according to the Court's interpretive gloss, is a limited right to be free from the legislator's casual or malign discriminatory instincts toward specified groups, as expressed in laws that unequally discriminate for irrational reasons against those groups' members. Thus, the evil against which the citizen needs Constitutional protection, according to the Court's understanding of the Clause, is the lawmaker and the law itself, and specifically the law that is "unequal" because irrationally discriminatory. The vague phrase "equal protection" is thereby given a specific , and narrow, content. The point of the Clause is not a broad guarantee of protection (equal or otherwise) against various unstated evils or harms - such as private violence, or natural catastrophe, or hurricanes, or war, or poverty, or economic subordination, or any other interference with welfare - but rather, a guarantee of protection against pernicious laws and lawmakers that irrationally discriminate against some group of citizens when , and if, such affirmative government services are offered. The modifier "equal," on this reading, is reduced to a limited guarantee of legislative rationality. The point of the Clause is not to render various groups equal, but to render them, if a host of conditions are met, equal beneficiaries of some governmental actions, and then only if the inequality is a function of irrational discriminatory animus. The interpretive reduction of the word "equal" to something meaning closer to "rational," and the consequent understanding of equal protection as protecting only a limited right against discrimination, rather than a robust right against subordination, and a correlative right to a more substantive equality, has of course been mightily criticized by the critical, feminist, and race-based critics of the Court's equality jurisprudence.


SCFI 08-09

Courts Neg

Scholars

8

CP Solvency – Rollback

The Supreme Court routinely overturns decisions favoring to poor and powerless

Greg Bristol, staff, July 6, 2009, “Is court majority out of touch?” Los Angeles times, accessed online July 7 2009 http://www.lexisnexis.com/us/lnacademic/results/docview/docview.do?docLinkInd=true&risb=21_T6918708291

&format=GNBFI&sort=RELEVANCE&startDocNo=26&resultsUrlKey=29_T6918708298&cisb=22_T6918708297&t reeMax=true&treeWidth=0&csi=306910&docNo=48

The reversal rate by the Supreme Court is not a reflection of how out of touch lower courts are. It is a reflection of how out of touch the majority of the Supreme Court is. The fact that the Supreme Court majority enjoys overturning decisions that favor the poor and powerless is extremely troubling.


SCFI 08-09

Courts Neg

Scholars

9

AT Permutation

1. Permutation includes court action – links to our net benefits - _____

2. Courts Impugn Constitution and Resist Legislation.

Robin

West


06


In this paper I will not develop the case for constitutionally protected welfare rights - I have tried to do that elsewhere. Instead, I want to explore the tension between what I will take to be at least a plausible account of the state's Constitutional obligations to the poor, and what seems to me as at least equally self-evident, to wit, that no American court will discover and then impose such Constitutional obligations upon recalcitrant state or federal legislators. My conclusion will be pragmatic. I want to urge those who feel likewise regarding the Constitutional obligations of state actors, to redirect their hermeneutic skills away from the forum in which such arguments will likely never prevail - the courts - and to those fora in which they may well make a difference: legislatures that may indeed have unrecognized moral and Constitutional duties to legislate on behalf of the well-being of all.


SCFI 08-09

Courts Neg

Scholars

10

AT Courts Reassert Power / Stripping Unconstitutional

The Courts Will Uphold The Strip.

Robin

West


93

, Chicago-Kent College of Law http://books.google.com/books?id=JeWrOvRko4kC&pg=PA185&lpg=PA185&dq=Progressive+Constitutionalism&source=bl&ots=JGUGqezbXx&sig=dEJPxNPu8m2a5

JQsGPPkx-OEqGQ&hl=en&ei=3ctTSq_dNJK6swPBy4TyBw&sa=X&oi=book_result&ct=result&resnum=3 , Accessed 07/07/09

Congress has the duty to curb the power of the judicial supremacists . We don't trust the federal courts or the Supreme Court to tamper with the definition of marriage by applying supremacist notions of "emerging awareness" or "evolving paradigm." We don't trust the courts to tamper with our right to acknowledge God, whether in the Pledge of Allegiance, the Ten Commandments, our national motto, or voluntary prayer. Therefore, Congress should remove power from all federal courts to impose the rule of judges over our rights of selfgovernment. Our great Constitution has within it the checks and balances we need to deal with the problem of judicial supremacy.

This includes the ability of Congress to limit the jurisdiction (judicial power) of all federal courts. Article I, Section 8 of the

Constitution states: "The Congress shall have power . . . to constitute tribunals inferior to the Supreme Court." Article III, Section states: "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." These two sections mean that all federal courts except the Supreme Court were created by Congress, which defined their powers and prescribed-what kind of cases they can hear. Whatever Congress created, it can uncreate, abolish, limit or regulate.

Article III, Section 2 states: "The Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. This section means that Congress can make "exceptions" to the types of cases that the Supreme Court can decide. This is the most important way that Congress can and should bring an end to the reign of judicial supremacy . There is nothing new or wrong about Congress telling the federal courts what cases they can and cannot hear. Limiting court jurisdiction is a tool the liberals have used many times. In 2002, Congress passed a law (at Senator Tom Daschle's urging) to prohibit all federal courts from hearing cases about brush clearing in South N Dakota. Surely other issues are as important as brush fires in South Dakota.

The Record of Congressional Action. A long historical record conclusively proves that Congress has the power to regulate and limit court jurisdiction , that Congress has used this power repeatedly, and that the courts have accepted it . In Turner v. Bank of North

America (1799), Justice Chase commented: "The notion has frequently been entertained, that the federal courts derive their judicial power immediately from the Constitution; but the political truth is, that the disposal of the judicial power (except in a few specified instances) belongs to Congress

. If Congress has given the power to this Court, we possess it, not otherwise: and if Congress has not given the power to us, or to any other Court, it still remains at the legislative disposal." Even Chief Justice John Marshall, the judicial supremacists' hero, made similar assertions. For example, in Ex parte Bollman (1807),

Marshall said that "courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction." The early decisions of the Supreme

Court were sprinkled with the assumption that the power of Congress to create inferior federal courts necessarily implied, as stated in U.S. v. Hudson & Goodwin (1812), "the power to limit jurisdiction of those Courts to particular objects." The Court stated, "All other Courts [except the Supreme Court] created by the general Government possess no jurisdiction but what is given them by the power that creates them." The Supreme Court held unanimously in Sheldon v. Sill (1850) that because the Constitution did not create inferior federal courts but rather authorized Congress to create them, Congress was also empowered to define their jurisdiction and to withhold jurisdiction of any of the enumerated cases and controversies. This case has been cited and reaffirmed numerous times. It was applied in the Voting Rights Act of 1965, in which Congress required covered states that wished to be relieved of coverage to bring their actions in the District Court of the District of Columbia . The Supreme Court broadly upheld

Congress's constitutional power to define the limitations of the Supreme Court "with such Exceptions , and under such Regulations as the Congress shall make" in Ex parte McCardle (1869). Congress had enacted a provision repealing the act that authorized the appeal McCardle had taken. Although the Court had already heard argument on the merits, it dismissed the case for want of jurisdiction. "We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words." McCardle grew out of the stresses of Reconstruction, but the principle there applied has been affirmed and applied in later cases. For example, in 1948 Justice Frankfurter in National Mutual Insurance Co. v. Tidewater Transfer

Co. (dissenting) commented: "Congress need not give this Court any appellate power; it may withdraw appellate jurisdiction once conferred and it may do so even while a case is sub judice [already before the court]." In The Francis Wright

(1882), the Court said: While the appellate power of this court under the Constitution extends to all cases within the judicial power of the United States, actual jurisdiction under the power is confined within such limits as Congress sees fit to prescribe. . . . What those powers shall be, and to what extent they shall be exercised, are, and always have been, proper subjects of legislative control. . . . Not only may whole classes of cases be kept out of the jurisdiction altogether, but particular classes of questions may be subjected to re-examination and review , while others are not. Numerous restrictions on the exercise of appellate jurisdiction have been upheld. For example, Congress for a hundred years did not allow a right of appeal to the Supreme Court in criminal cases except upon a certification of divided circuit courts. In the 1930s, liberals in Congress thought the federal courts were too pro-business to fairly handle cases involving labor strikes. In 1932 Congress passed the Norris-LaGuardia Act removing jurisdiction in this field from the federal courts, and the Supreme Court had no difficulty in upholding it in Lauf v. E. G. Shinner & Co. (1938). The Supreme Court declared, "There can be no question of the power of Congress thus to define and limit the jurisdiction of the inferior courts of the United States." Liberals followed the same procedure when they passed the Hiram Johnson Acts in order to remove jurisdiction from the federal courts over public utility rates and state tax rates.

These laws worked well and no one has suggested they be repealed. Another celebrated example was the Emergency Price Control Act of 1942, in which Congress removed from federal courts the jurisdiction to consider the validity of any price-control regulation.

In the test case upholding this law, Lockerty v. Phillips (1943), the Supreme Court held that Congress has the power of "withholding jurisdiction from them [the federal courts] in the exact degrees and character which to Congress may seem proper for the public good."


SCFI 08-09

Courts Neg

Scholars

11

AT Pres Powers DA to Congress

Congressional action confines presidential powers

Boston Globe, 2006 – Charlie Savage is a Boston Globe Staff writer: [July 24, 2006, “Panel Chides Bush on bypassing laws ABA group cites limits to power,” Boston Globe http://www.boston.com/news/nation/washington/articles/2006/07/24/panel_chides_bush_on_bypassing_laws/?

page=1

WASHINGTON -- President Bush should stop issuing statements claiming the power to bypass parts of laws he has signed, an American Bar

Association task force has unanimously concluded in a strongly worded 32-page report that is scheduled to be released today. The bipartisan panel of legal specialists includes a former FBI director, a former federal appeals court chief judge, former Republican officials, and leading scholars. The panel said presidents do not have the authority to declare that sections of the bills they sign are unconstitutional, and that they thus need not be enforced as Congress wrote them. Bush has used these so-called signing statements to challenge more than 750 laws that have been enacted since he took office, more than all previous presidents combined.`` The president's constitutional duty is to enforce laws he has signed into being, unless and until they are held unconstitutional by the Supreme Court," the report said. `` The Constitution is not what the president says it is.

" The task force will present its findings next month in Hawaii at a meeting of the bar group's 550-member

House of Delegates. The delegates will vote on whether to adopt the recommendations. The task force chairman and a former federal prosecutor, Neal Sonnett , said he hoped the House of Delegates would back the panel's call to roll back the use of presidential signing statements.`` The recommendations that we make are an effort to correct practices that , if they continue, 12

," Sonnett said. `` Most of the members of the House of Delegates are very concerned about upholding the rule of law . That is, after all, the mission of the ABA. So I'm hopeful that we will get a resounding show of support." The ABA's board of governors created the task force in June, at the request of the bar group's president, Michael Greco, a Boston lawyer. The move followed the publication of a series of articles in The Boston Globe about Bush's expanded use of signing statements. Citing an expansive theory of executive power that is not supported by most legal scholars, the administration has declared that the Constitution puts Bush beyond the reach of Congress in military matters and executive branch operations. The laws Bush has challenged include a ban on torturing detainees, oversight provisions in the USA

Patriot Act, restrictions against using US troops in combat against rebels in Colombia, and numerous requirements to provide information to

Congress, among many others. At the same time, Bush has vetoed just one bill since he took office. In its report, the task force acknowledged that its work had been prompted by ``the number and nature of the current president's signing statements," but it emphasized that its criticism was ``not intended to be, and should not be viewed as, an attack on President George W. Bush." The panel noted that especially since the

1980s, previous presidents of both parties had also used signing statements to challenge laws, albeit less frequently. President Clinton, for example, used signing statements to challenge 140 laws over his eight years in office. The task force characterized all such statements as inappropriate .`` Our recommendations . . . are directed not just at the sitting president, but at all chief executives who will follow him, and they are intended to underscore the importance of the doctrine of separation of powers ," the panel wrote. Last month at a Senate Judiciary Committee hearing, an administration lawyer, Michelle Boardman, defended the use of presidential signing statements. Boardman argued that the president was showing respect to Congress by using signing statements, because a veto would take out the entire bill. But the task force said a president does not have that option. The Constitution requires the president either to veto a bill in its entirety -- giving Congress a chance to override his decision -- or to sign the bill and enforce all its components as Congress wrote them, they said.`` A line-item veto is not a constitutionally permissible alternative, even when the president believes that some provisions of a bill are unconstitutional. . . . A president could easily contrive a constitutional excuse to decline enforcement of any law he deplored, and transform his qualified veto into a monarchlike absolute veto ," the panel wrote. At the hearing last month, Boardman also argued that presidents must use signing statements, because it is often impractical to veto an entire bill over small constitutional problems if the bill contains other measures that the executive branch deems are urgently needed. The ABA task force, however, said that the Constitution's limits on presidential power trump such pragmatic considerations.`` The Founding Fathers contemplated bills with both attractive and unattractive features packaged in one bill with heterogeneous provisions," the panel wrote. ``The president nonetheless was expected to veto `urgent' bills that he believed were unconstitutional in part.`` If the urgency were genuine, Congress could either delete the offending provisions or override the president," the panel wrote in its report. If Congress and the White House cannot reach an agreement on the signing statements, the task force added, both sides should take steps to put the issue before a court for review. The report urged Congress to pass legislation giving it standing to sue a president over such signing statements. The idea of legislation allowing Congress to sue the White House over signing statements has also been floated by the Senate Judiciary Committee chairman, Arlen Specter, Republican of

Pennsylvania, who has accused Bush of ``a very blatant encroachment" on the constitutional prerogative of Congress to write laws.


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Aff – Perm

Perm, do the plan and all non-competitive parts of the counterplan: the court regularly is influence by other branches and public opinion

Stefanie A. Lindquist and Rorie Spill Solberg 2007 [staff] “Judicial Review by the Burger and Rehnquist

Courts: Explaining Justices' Responses to Constitutional” Political Research Quarterly, Vol. 60, No. 1 (Mar.,

2007), pp. 71-90 accessed online July 8,

2009http://www.jstor.org/stable/4623808?seq=2&Search=yes&term=supreme&term=court&term=good&list=hide&searchUri=%2Faction%2FdoBasicSearch%3FQuery

%3Dsupreme%2Bcourt%2Bgood%26gw%3Djtx%26prq%3Dsupreeme%2Bcourt%2Bgood%26Search%3DSearch%26hp%3D25%26wc%3Don&item=3&ttl=111309&retur nArticleService=showArticle&resultsServiceName=doBasicResultsFromArticle

In addition to attitudinal factor, recent research has focused scholar’s attention on the extent to which the justices act strategically in response to their institutional environment and to the anticipated actions of the other political actors. As Epstein and Knight (1997, 4) observed, the justices “realize that their ability to achieve their goals depend on a consideration of the preferences of others, of the choices they expect others to make, and of the institutional context in which they act.” In the context of judicial review, the justices may be particularly sensitive to the preferences of those actors in the coordinate branches in congress and the executive branch, as well as to public opinion. While one might assume that the court would be most likely to engage in strategic interactions with the coordinate branches (especially congress) in statutory cases—where the legislature can most easily alter the courts outcome—the court is not unconstrained in constitutional cases. As Friedman and Harvey (2003, 127) suggested, “the sharp distinction between constitutional and statutory case is flawed as there are numerous weapons a sitting congress can apply against a supreme court deemed to be recalcitrant, including jurisdiction stripping, budget cutting, court packing, and even the impeachment of supreme court justices.” Although these threats are not often realistic, in combination with action by other political actors, they may shape court behavior at some level. For example, the executive branch may also participate or initiate such retaliatory action should the president find the court’s actions unacceptable.

Moreover, public opinion and interest group pressure may similarly provide important constraints on the court’s choices to invalidate legislation to the extent such public sentiment may circumscribe or undermine implementation of the courts decisions, as well as provide the impetus for a political response by congress and the president. Thus our model of the justices’ votes in judicial review cases should account for the influence of these institutional or external constraints on the court’s decision making,


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Aff – Courts Best – Rights/Democracy

Courts are distinguished by their appropriateness to protect rights in the face of collective justifications

Folse and Youngblood, ’81 (Parker and Craig, J.D. University of Texas Law School, Governing through courts).

The importance of principle in the work of courts is intimately related to the functions they traditionally have performed – the articulation and protection of individual claims against the collective. This connection is hardly a recent discovery. The most prominent recent expositor of the role of principle in the work of courts has been Ronald Dworkin (1978). In his work, principle is distinguished from policy (1978: 90):

“Arguments of principle are arguments intended to establish an individual right; arguments of policy are arguments intended to establish a collective goal.” Individual rights, in turn, are “political trumps” capable of rendering collective goals insufficient justification to impose injury or to refrain from conferring a benefit (1978: xi, 90-100). These distinctions are not precise, as the continuing dialogue between Dworkin and his critics demonstrates (1978: 291-368). But they are satisfactory for present purposes, which, so far, have been mainly descriptive.

Courts, therefore, are distinguishable from other governing entities in the primacy they accord to the role of reason and the constraint of principle. These features, moreover, specifically qualify them in articulating and protecting individual rights, a task traditionally associated with courts in the public consciousness. As statements descriptive of public understanding and expectation, these propositions are not terribly controversial. Of greater moment is the contention that the legitimacy of courts depends on the preservation of these characteristic features.


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Aff – Courts Best

Gerald N. Rosenberg, Associate Professor in Political Science @ U of Chicago, 1991 ("The Hollow Hope: Can

Courts

Bring About Social Change?", p. 22)

Proponents of the Dynamic Court view argue that the Constrained Court view entirely misses key advantages of courts . At the most fundamental level, key to the Dynamic Court view is the belief that courts are free from electoral constraints and institutional arrangements that stymie change . Uniquely situated, courts have the capacity to act where other institutions are politically unwilling or structurally unable to proceed . For example, one of the great strengths of courts is the ability to act in the face of public opposition. Elected and appointed officials, fearful of political repercussions, are seldom willing to fight for unpopular causes and protect the rights of disliked minorities. Courts, free of such electoral accountability, are not so constrained. From civil rights to women"s rights, from protecting the rights of the physically and mentally challenged to ensuring that criminal defendants a retreated constitutionally, the courts have acted where other institutions have refused. Justice Brennan, concurring in a 1981 prison reform case, summarized this view: "Insulated as they are from political pressures, and charged with the duty of enforcing the Constitution, courts are in the strongest position to insist that unconstitutional conditions be remedied, even at significant financial cost" (Rhodes v. Chapman 1981, 359). The ability of courts to act is particularly clear with issues of significant social reform . With such issues, entrenched interests often have the institutional base to prevent change in other political bodies. In civil rights in the 1950s, for example, as the colloquy between Justice Jackson and Assistant

Attorney General Rankin reflects, the key position of Southern Democrats in Congress virtually insured that no civil rights legislation would be forthcoming. If change was to come, proponents of the Dynamic Court view argue, it could come only from the courts. Similarly, examining school desegregation in the years 1968-72, Hochschild argues that "were it not for the courts, there would be little reduction in racial isolation

|in the public schools]" (Hochschiid 1984. 134). And with re-apportionment. legislators from mal-apponioned districtshad no incentive to reform the electoral system and vote themselves out of office, until the courts acted. In other words, theDynamic Court view proposes that courts are free from the obstacles that lead to "a partial failure of executive or legislative government institutions to do their jobs in a satisfactory and legal way" (CPIL 1976, 208).

*the book is “The Framers and Fundamental Rights”


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Scholars

15


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Courts Neg


Courts are the best actor for long-term rights protection and social change

Scholars

16


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Courts Neg

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Aff – Courts Best – AT Illegitimacy

Legitimacy problems are comparatively worse for Congress – special interest presence

Bone, Robert. Prof. Law @ Boston University, April 1999, Georgetown Law Journal b. Constructing Default Rules. Thus, a default approach seems optimal. The next question is who should design the default rules – the legislature or the courts. Since default rules are not tightly fitted to substance, the coordination benefits of assigning the task to Congress are limited. Moreover, congressional rulemaking is likely to generate serious public choice inefficiencies, which could be reduced significantly by using a court-based committee-centered process.

The public choice problems with legislation are familiar. In public choice theory, legislators further their own self-interest and respond to interest groups insofar as those groups make credible promises or threats to reward or punish, such as promising campaign support or threatening to support opponents. Interest groups have conflicting interests, however, and one common way legislators manage the conflict is through logrolling. The typical logrolling scenario involves a deal between two legislators, each eager for the other to support a project that benefits politically powerful constituents.

Logrolling is not necessarily inefficient, but it becomes so when collective action problems prevent some interested groups from organizing and thus participating in the legislative bargain. Under those circumstances, externalities often plague policy decisions, because organized groups with political power have incentives to secure legislation that benefits themselves at the expense of unorganized and less powerful groups.


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18

ConCon CP Vs. Dandridge

The fifty states should propose and ratify an amendment to the United States constitution stating that persons in poverty in the United States are a suspect classification entitled to strict scrutiny

Contention I is competition – avoids all court process disads

Contention II is solvency –

Solves the case best –

States increase public participation in the amendment process, increasing democracy

Janice C. May,

Associate Professor of Government, University of Texas at Austin,

Winter, 1987

Publius, Vol. 17, No. 1, New Developments in State Constitutional Law pp. 153-179 accessed July 9, 2009 http://www.jstor.org/stable/3330031?seq=2&Search=yes&term=amendment&term=state&term=constitutional&list=hide&searchUri=%2Faction%2FdoBasicS earch%3FQuery%3Dstate%2Bconstitutional%2Bamendment%26wc%3Don%26x%3D12%26y%3D18&item=2&ttl=57779&returnArticleService=showArticle&res ultsServiceName=doBasicResultsFromArticle

From the perspective of traditional democratic theory and practice, the most significant difference between state constitutional amendment and revision procedures and those used to amend the U.S. constitution is the role of citizen participation. The states have institutionalized popular participation and have experimented with a wide variety of rules and mechanisms to structure such participation.

While it is true that states have relied heavily upon the legislature for constitutional change, legislative actions are rarely consummated without electoral approval.

Citizen participation is almost entirely absent from the formal procedure for amending and revising the

U.S. constitution. Moreover, popular participation in changing the U.S. constitution takes place within a federal framework that diffuses popular influence and dilutes voter equality.

The principle or ratification of amendments to the U.S. constitution is one state, one vote, regardless of population and size. Similarly, each state counts as one in determining whether the congress must call a constitutional convention


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ConCon Solves Democracy

States conventions are the only way for citizens to participate, therefore the only way with fully democratic means

Janice C. May,


Winter, 1987

Publius, Vol. 17, No. 1, New Developments in State Constitutional Law pp. 153-179 accessed July 9, 2009 http://www.jstor.org/stable/3330031?seq=2&Search=yes&term=amendment&term=state&term=constitutional&list=hide&searchUri=%2Faction%2FdoBasicS earch%3FQuery%3Dstate%2Bconstitutional%2Bamendment%26wc%3Don%26x%3D12%26y%3D18&item=2&ttl=57779&returnArticleService=showArticle&res ultsServiceName=doBasicResultsFromArticle

The only role for citizen participation is through the procedure that permits voters to elect convention delegates. Ratification of amendments by state conventions is not unlike a national referendum

. Ratification of the twenty first amendment, which repealed the prohibition amendment, has been described as “for all practical purposes, a dispositive referendum” Also, the ratification of the 1787 constitution by state conventions rather than by state legislatures (under article VII) has been called a “popular referendum.”

Article

V’s national convention is a potential popular mechanism.

Although the 1787 convention records reveal nothing specifically about who or what would select the delegates,

modern proposals to implements the provision require popular election.


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AT Perm

Any deviation from standard procedure is unconstitutional

Janice C. May,


Winter, 1987

Publius, Vol. 17, No. 1, New Developments in State Constitutional Law pp. 153-179 accessed July 9, 2009 http://www.jstor.org/stable/3330031?seq=2&Search=yes&term=amendment&term=state&term=constitutional&list=hide&searchUri=%2Faction%2FdoBasicSearch%3F

Query%3Dstate%2Bconstitutional%2Bamendment%26wc%3Don%26x%3D12%26y%3D18&item=2&ttl=57779&returnArticleService=showArticle&resultsServiceName= doBasicResultsFromArticle

In recent years, convention and efforts to bypass them have raised a number of legal issues relating to popular participation. The resolution of these issues has generally promoted some version of direct democracy. In two instances, efforts to bypass the traditional convention method failed in the courts. In

1975, the supreme court of Arkansas held that a state constitutional convention composed entirely of appointed members, limited in the subjects it would consider, and convening without popular approval, deprived the people of Arkansas of their inherent political power. In 1983, the Alabama Supreme Court ruled that the legislature lacked the authority to submit to the voter a new constitution because the Alabama charter expressly provides for a convention.

There is contrary authority, however. In a third case, the lack of popular call for a convention and the mixture of elected and appointed delegates to the Louisiana constitutional convention of 1973-1974 passed muster with Louisiana’s court of last resort.

The court ruled that “one person, one vote” principle did not apply to the election of convention delegates because the convention, whose proposals became law only upon adoption by the people, lacked governing authority. In other cases, nonpartisan election of delegate, the most common selection method for modern conventions, as well as the exclusion public officials as delegates, have been upheld by state courts


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21

Aff Ans. – No Solvo

Amendment process is anti-democratic – doesn’t solve any of our exclusion claims

Janice C. May,


Winter, 1987

Publius, Vol. 17, No. 1, New Developments in State Constitutional Law pp. 153-179 accessed July 9, 2009 http://www.jstor.org/stable/3330031?seq=2&Search=yes&term=amendment&term=state&term=constitutional&list=hide&searchUri=%2Faction%2FdoBasicSearch%3F

Query%3Dstate%2Bconstitutional%2Bamendment%26wc%3Don%26x%3D12%26y%3D18&item=2&ttl=57779&returnArticleService=showArticle&resultsServiceName= doBasicResultsFromArticle

All efforts to “democratize” the article V procedure have failed. These have included legislation to require the popular election of delegates to national convention, state requirements that referendum procedures be used to ratify amendments, and resort to the state initiative process to force the state legislature to petition the congress to call a national convention. Equally unsuccessful has been litigation to invalidate an amendment because state legislatures were selected instead of state conventions as the ratifying institution.

Moreover, proposals to amend article V by adding a national referendum procedure or a national initiative procedure, or both, have not received congressional approval


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Aff Ans. – Perm

Perm: any amendment without the supervision of the court violates Section V

Walter Dellinger, professor of law at Duke University and a partner in the law firm of O'Melveny & Myers. (Dec.,

1983), Harvard Law Review, Vol. 97, No. 2 pp. 386-432

Under the most widely held view of article V, these and similar questions about the rule governing the amendment process are to be answered by congress rather than the courts. Congress, in the exercise of its power to promulgate an amendment, must determine whether to accept any disputed state ratifications.

This conception of the amendment process is, in my view,

a disastrous rendering of article V. it is an approach centered upon the idea of continuing congressional control of the ratification process – control that culminates in a largely discretionary and ad hoc determination by the congress that happens to be sitting thrity eight purported ratifications have been received. This approach is without basis in the text o or the history of article V and without precedent in the earlier judicial interpretations of that provision, and it undercuts one of the fundamental goals of an amendment process: certainty in the rules for changing the constitution.

Although coleman v. miller, the decision that established the principle of congressional promulgation, is a venerable case, and one that was recently cited approvingly by four justices of the supreme court, it is nonetheless profoundly wrong, and it should no longer be followed


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23

Hollow Hope 1NC

Civil rights activists are appealing to congress and are considering going to the court

Glen, July 8, 2009

, usa players accessed online July 9, 2009 http://www.usaplayers.com/news/2009/gambling/july/opposition-first-from-capitol-hill-nowfrom-private-sector-10351.html

Ever since its inception

, civil rights activists have been struggling to overturn the UIGEA.

Having been sneaked in on the Safe Port Act of 2006, the Unlawful Internet Gambling Enforcement Act has impeded online gambling and is only getting harder. As of

December of 2009, banks will be incapable of completing financial transactions linked to online gambling.

The Interactive

Media Entertainment & Gaming Association has brought the matter to civil court

. The Defendant? The Department of Justice.

According to their website, iMEGA's goal is to "Foster cooperation between the online industry and the government at all levels... and to promote freedom on the Internet."

To further this agenda, they have decided to challenge the UIGEA's constitutionality in the courts. With increasing support in Congress to oust the UIGEA, this court date may have some serious potential to conquer the former regime's decision to limit our personal freedoms with underhanded tactics.

Three judges will preside over the hearing, and oral arguments began July 7th at 10:00 am. This could be the first step toward the actual removal of the UIGEA, assuming the judges are on board

.


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24

Hollow Hope 1NC

Progressive court decisions create an expectation of future fulfillment – this hollow hope will fall flat

Gerald N. Rosenberg, PhD. From Yale in law, Summer 2006, (Constitutional Law Symposium: The Role Of

Courts In Social Change: Article: Courting Disaster: Looking For Change In All The Wrong Places, Drake

University Law Review, Volume 54, Page795)

As powerful as the belief in the Progressive potential of courts to help the relatively disadvantaged may be, it is a historically odd idea.

Traditionally, courts in the U.S. have protected privilege. Throughout U.S. history and until the second half of the twentieth century, Progressives, for the most part, understood this and avoided litigation when possible. They understood that judges, and the courts in which they served, were dedicated to preserving the status quo and unequal distributions of power, wealth, and privilege. They understood that Progressive social change could only come from legislation and social movements. However, since roughly the mid-twentieth century, particularly during the Warren and Burger Courts, this was forgotten.

Progressives increasingly turned to litigation and pointed to great victories in cases such as Brown as proof that the role of the courts in the

U.S. political system had changed. They were wrong.

This brief Article expands on these two main points. First, it reviews the Court's historical record as a defender of privilege in the areas of civil rights, civil liberties and dissident speech, and economic rights. Second, it argues that the great legal victories to which Progressives point as proof of the efficacy of litigation did not, for the most part, produce the change they [*797] wanted.

Further, such litigation mobilized opponents, creating additional obstacles for change. Forgetting the lessons of history, the Progressive agenda was hijacked by a group of elite, well-educated, and comparatively wealthy lawyers who uncritically believed that rights trump politics and that successfully arguing before judges is equivalent to building and sustaining political movements.

This Article concludes that Progressives have failed to understand the limits of litigation when they have won and have forgotten the historic role of the judiciary as a defender of status quo and unequal distributions of power, wealth, and privilege. The political left's flirtation with litigation is fundamentally flawed.

The impact is a case turn – court rulings in progressive cases are counter-productive and make the issue worse.




Brown v. Board of Education may be the most well-known and widely celebrated case in Supreme Court history. n88 In declaring that racial segregation of public schools was unconstitutional, the Court repudiated its prior, pro-segregation approach to the

Constitution.

This was clearly for the good but the question for Progressives is whether Brown made a difference in ending race-based segregation in public schools in particular, and racial discrimination more broadly. The answer is no. On the most straight-forward level, public schools remained segregated after Brown. A decade after Brown virtually nothing had changed for African-American students living in the eleven states of the former Confederacy that required race-based school segregation by law. For example, in the 1963-1964 school year, barely one in one hundred (1.2%) of these African-American children was educated in a non-segregated school. n89 That means that for nearly ninety-nine of every one hundred

African-American children in the South a decade after Brown, the finding of a constitutional right changed nothing. n90

Change did come to the South, but that occurred only after the Congress acted - providing monetary incentives for desegregation and threatening to cut off federal funds if segregation was maintained. n91 More subtly, there is little or no evidence that supports the claims that Brown gave civil rights salience, pressed political elites to act, pricked the consciences of whites, legitimated the grievances of blacks, or inspired the activists of the civil rights movement. What Brown did do was energize civil rights opponents and channel resources away from building the civil rights movement. n92 In the wake of Brown, resistance to ending segregation increased in all areas, not merely in education but also in voting, transportation, and the use of public places.

Brown "unleashed a wave of [*810] racism that reached hysterical proportions." n93 By stiffening resistance to civil rights and raising fears before the activist phase of the civil rights movement was in place, Brown may actually have delayed the achievement of civil rights.


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Hollow Hope – Turns Case

Courts lack authority to change social doctrine – their remedies will make things worse

Gerald N. Rosenberg, Ph. D from Yale in law, 1991, (The Hollow Hope: Can Courts Bring About Social

Change?, pg. 12)

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 arc designed, in part, to make it difficult for courts to hear certain kinds of cases. As the Council for Public Interest Law (CPU-) 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 1976, 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 significant social reform by making appropriate remedies unlikely. This can occur.

McCann (1986, 200) points out, because policy-based litigation aimed at significant social reform is usually

"disaggregated . . . 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 Spillcr 1976. 26).


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26

Hollow Hope – Uniqueness

Gay rights groups are currently appealing to congress

Bennett Roth, CQ Staff July 8, 2009. Gay Rights Groups Ask Congress to Step Up CQ TODAY ONLINE NEWS accessed online July 9, 2009 http://www.cqpolitics.com/wmspage.cfm?docID=news-000003159762

Gay leaders and activists are following up their White House lobbying with a push toward congressional Democrats, urging them to move on legislation that is important to an increasingly restive constituency. Gay rights activists believe that at least in the House — which passed a bill

(HR 1913) April 29 that would extend hate crime laws to cover gender, sexual orientation and disability — they may be seeing progress. A House

Oversight and Government Reform subcommittee will hold a hearing Wednesday on a measure (HR 2517) that would allow same-sex partners of federal employees to receive the same benefits as married spouses. Rep. Barney Frank , D-Mass., has introduced an employment non-discrimination bill that includes protections for gays and transgender people (HR 3017 leading the effort.

). There will also be a push to repeal the military’s “don’t ask, don’t tell” policy, with an Iraq War veteran, Rep. Patrick J. Murphy , D-Pa.,

Activists on health care reform have hope now

ABBY GOODNOUGH staff July 5

, 2009 “In Maine, Two Sides on Health Care Step Up Competition for Senators’ Votes” New York

Times accessed online July 9, 2009

PRESQUE ISLE, Me. — The rally outside Senator Olympia J. Snowe ’s district office here last week was small but heartfelt:

a handful of locals describing health insurance nightmares and calling for full-blown change, fast. “ Health care reform cannot wait another day,” said the

Rev. Dorothy Matson, who leads two Methodist congregations and said the uninsured and underinsured in this remote northern corner of Maine were increasingly turning to churches for help. “People are desperate now.” Across the country, activist groups on each side of the health care debate stepped up their campaigning last week while members of Congress were home for the Fourth of July recess.

Here in Maine, home to Ms. Snowe and Senator Susan Collins , moderate Republicans who could provide crucial support for the Democratic health care plan expected to emerge in the coming weeks, efforts to sway their votes — and to sweep average citizens into the debate

— were intense.


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27

Hollow Hope – Backsliding Impact

The court will avoid future progressive decisions – strategy will be wasted




The Dred Scott decision was overturned by the adoption of the Fourteenth Amendment. n20 The three post-Civil War

Amendments made slavery unconstitutional, n21 prohibited the states from denying people "the equal protection of the laws[,]" n22 and guaranteed the right of citizens to [*799] vote regardless "of race, color, or previous condition of servitude." n23 As the Court noted in the Slaughter-House Cases, n24 decided in 1872, only a few years after the adoption of the three Civil War

Amendments, they had "a unity of purpose" - the protection of the newly freed slaves. n25 "The one pervading purpose found in them all," the Court wrote, is "the freedom of the slave race." n26

They were dedicated to "the protection of life, liberty, and property, without which freedom to the slave was no boon." Although this language suggested that the dark days of constitutionallysanctioned racism were at an end, any such thoughts were quickly put to rest in the Civil Rights Cases of 1883. At issue was a challenge to the Civil Rights Act of 1875 which, in Section 1, prohibited race-based discrimination in public places such as hotels, restaurants, and theaters. n28 Despite the passage of the Civil War Amendments, and despite the fact that seven of the Justices had been appointed by Presidents Lincoln and Grant and only two members of the Court were Southerners, the Court struck down the Act by a vote of 8-1. n29 The Court held that the Fourteenth Amendment only applied to action by the

State, not to the private action of individual business owners. n30 Because almost all businesses in the U.S. were privately owned, the decision meant that the federal government lacked the power to prohibit racial discrimination in most aspects of people's lives. Only Justice Harlan dissented, writing that the Court's opinion was based on "grounds entirely too narrow and artificial" that sacrificed "the substance and spirit" of the Civil War Amendments. n31 Justice Harlan argued in essence that when businesses serve the public they are amenable to public regulation .

In gutting the Civil War Amendments, the Court's majority opinion went out of its way to express annoyance with African-Americans for seeking guarantees of nondiscrimination.

Although courts may seem equip to deal with social issues they are unsuitable to create social change.


Change?, pg. 2-3)

As attractive as the Dynamic Court view may be. one must guard against uncritical acceptance.

Indeed, in a political system that gives sovereignty to the popular will and makes economic decisions through the market, it is not obvious why courts should have the effects it asseris. Maybe its attractiveness is based on something more than effects? Could it be that the self-understand¬ing of the judiciary and legal profession leads to an overstatement of the role of the courts, a "mystification" of the judiciary?

If judges see themselves as powerful; if (he Bar views itself as influential, and insulated; if professional training in law schools inculcates students with such beliefs, might these fac-tors inflate the self-importance of the judiciary? The Dynamic Court view may be supported, then, because it offers psychological payoffs to key actors by confirming self-images, not because it is correct." And when this "mystifica¬tion" is added to a normative belief in the courts as the guardian of funda¬mental rights and liberties--what Scheingold (1974) calls the "myth of rights"—the allure of the Dynamic

Court view may grow.

Further, for all its "obviousness," the Dynamic Court view has a well-established functional and historical competitor. In fact, there is a long tra-dition of legal scholarship that views the federal judiciary, in Alexander Hamilton's famous language, as the

"least dangerous" branch of government. Here, too, there is something of a truism about this claim. Courts, we know, lack both budgetary and physical powers. Because, in Hamilton's words, they lack power over cither the "sword or the purse," their ability to produce political and social change is limited. In contrast to the first view, the "least dangerous" branch can do little more than point out how actions have fallen short of constitutional or legislative requirements and hope that appropriate action is taken. The strength of this view, of course, is that it leaves Ameri-cans free to govern themselves without interference from non-elected offi-cials. I refer to this view of the courts as weak, ineffective, and powerless as the "Constrained Court" view.


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Hollow Hope Impact – Backsliding

Even if the court deals with one welfare issue it is ill-equipped to handle welfare reform.



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 are no constitutional rights to decent housing, adequate levels of welfare, or clean air. while there arc 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 Ihc purview of the court" (Note 1977. 436). Further, as Gordon (1984, III) 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 from producing significant social reform by preventing them from hearing many claims.


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Aff – Case Solves DA

Turn: court action creates opportunities for disenfranchised groups

David Schultz, Law Professor, 1998 (LEVERAGING THE LAW: USING THE COURTS TO BRING ABOUT SOCIAL

CHANGE, p. 181)

What is critical about Brown, Roe, Baker and other similar decisions is how they reshaped choices, expectations, intuitions, and structures. In this respect, American politics was significantly different the day after these decisions because the Court granted legitimacy to certain claims, attached legal support or approbation to certain actions, or defined new roles for itself of for other intuitions to follow. In short, it created alternative political options: groups (e.g. blacks), as well as previously unrecognized expectations that were henceforth part of the status quo.

As Ronald Coase has noted, the law does impose social costs and it does have an impact upon the market. Milton Friedman as argued: These then are the basic roles of government in a free society: to provide a means whereby we can mend the rules, to mediate differences among us on the meaning or rules, and to enforce compliance with the rules.

You don’t control uniqueness – activist movements will be ineffective in the public sphere

Mark Graber, Professor of Government and Politics, University of Maryland, 2000 (UNIVERSITY OF RICHMOND

LAW REVIEW, May, p. 398)

Taking The Constitution Away from the Courts is remarkably blind to disturbing political conditions that Professor Tushnet eloquently describes elsewhere. Professor Tushnet is aware that contemporary electoral and legislative process have numerous democratic flaws, most notably the influence of money in political campaigns. His claim that judicial review is as likely to exacerbate as mitigate those flaws is reasonable.

Nevertheless, until those flaws are corrected, taking the Constitution away from the courts will not result in a populist constitutional decision making process. At most, abandoning judicial review will result in a more populist constitutional decision-making process. If, however, we actual democratic flaws in present legislative and electoral processes are as bad or worse than the actual democratic flaws in the contemporary system for making constitutional decisions, then taking the Constitution away from the will result in a less-populist constitutional decision-making process. The only way to determine the populist/democratic consequences of abandoning judicial review is to examine, more carefully than Professor Tushnet does, the populist vices and virtues of the different processes by which constitutional decisions might be made.

Public movements won’t protect the values they identify

Mark Graber, Professor of Government and Politics, University of Maryland, 2000 (UNIVERSITY OF RICHMOND

LAW REVIEW, May, p.391)

Populists have historically not understood political participation as a vehicle for improving human capacity or enabling governing officials to make more informed decisions. The leaders of working-class movements generally regard fences as prepolitical. Ordinary Americans learn their sound political values when working to produce material wealth and when attending church. They do not discover their true interests when listening to elites, although elites may articulate those interests more persuasively. Populism also has no historical sensitivity to the freespeech rights of se who would challenge the basic values of ordinary Americans. Political participation, in a producerist world-vis more a means for protecting working-class interests developed in nonpolitical settings than a means for developing better, more fully human, interests.


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Aff Ans. – Rosenberg Is An Idiot

Rosenberg is an idiot – the courts work great

Scholars

30


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Aff Ans. – No Impact / Aff Solves

Litigation ensures political success regardless of the judicial outcome – hollow hope is irrelevant

Scholars

31


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Aff Ans. – Courts Solve

Courts are the best strategy for long term social change

Scholars

32


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Aff Ans. – No Impact / Aff Solves

Symbolic acts create the long term foundation necessary for legal change

Scholars

33


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34

AT Case Sets a Precedent

The court won’t care – they’ll find a loophole and roll it back




In gutting the Civil War Amendments, the Court's majority opinion went out of its way to express annoyance with

African-Americans for seeking guarantees of nondiscrimination

When a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws ... .

Although the case was decided less than two decades after the abolition of slavery, and a mere fifteen years after the adoption of the Fourteenth Amendment, the Court made it clear that the Constitution preserved white privilege and condemned African-Americans to second-class status. The constitutional support for racial discrimination was further strengthened in Plessy v. Ferguson, n34 decided in 1896 . At issue in Plessy was the constitutionality of a Louisiana law requiring railroads to segregate passengers by race. n35 Given the holding of the Civil Rights Cases that the Fourteenth

Amendment was concerned with state action, and the open and ongoing creation of an apartheid system in Louisiana and other Southern states, it should have been easy for the Court to hold the law unconstitutional.

The Court did find the case easy; it upheld the constitutionality of the law by a vote of 7-1. n36 The Court reasoned that even though the case involved state action, there was an important distinction between political and social equality. n37 The Fourteenth Amendment, the Court held, was aimed at political equality, not social equality, arguing that "it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality." n38 Then, in disingenuous language, the Court claimed that laws requiring racial segregation "do not necessarily imply the inferiority of either race to the other." n39 In what can only be seen as a deeply dishonest denial of reality, the Court wrote:

We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. n40


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AT Case Sets a Precedent

Even if the court can produce social change the legislature can easily overturn it.



In at least two important ways, the statutory area.

Constrained Court view suggests. Congress may constrain court actions. First, in the

Congress can override decisions, telling the courts they misinterpreted the intent of the law. That is.

Congress may rewrite a provision to meet 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 demo¬cratic process, it may he able to constrain them by threatening certain changes in the legal structure. A large part of the reason, of course, is the appointment process.

But even without the power of appointment, the Court may be sus¬ceptible 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

1965; Rosenberg 1985; cf. Lasser 1988).

American courts, proponents of the Constrained Court view claim , are particularly deferential to the positions of the federal government. On the Supreme Court level, the solicitor general is accorded a special role. The office has unusual access to the Court and is often asked by the Court to intervene in cases and present the government's position. When the solicitor general petitions the Court to enter a case, the Court almost invariably grants the request. regardless of the position of the parties.10 The government is also unusually successful in convincing the Court to hear eases it appeals and to not hear those it opposes." The solicitor general's access to the Court carries over to the winning of cases.

Historically, the solicitor general (or the side the government is supporting when it enters a case as amicus) wins about 70 percent of the time (Scigliano 1971; Ulmer and Willison 1985). It appears that the federal government has both extraordinary access to and persuasive abilities with the Court ( Ducat and Dudley 1985; Dudley and Ducat 1986).


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AT Case Sets a Precedent / Solves

Courts are unable to properly deal with social reform because they are disconnected with the people.


Change?, pg. 86-87)

Proponents of the Constrained Court view suggest that specialization, expertise, and political connections are lacking in courts and arc crucial for successful implementation of significant social reform. Given the political and social opposition to civil rights, and the complexity of the issue, the need for such knowledge and skills was high . It appears, however, that courts are not equipped to deal with the complex issues involved in areas such as civil rights. On the one hand, many issues involve a sophisticated understanding of a whole range of social processes. In education these might include the learning process itself, the role of families, and the community view of the schools. As one commentator supportive of civil rights has noted, the courts have "lacked an awareness of the complex, rnultifacelcd processes of educa-tion" and have "disregarded the development of children and the perspectives of families and communities'" ( Lightfoot 1980. 4).

Court decisions, then, may not have been implemented or. if implemented, may not have worked, because they were not appropriate to the problem.

Similarly, judges may not be aware of. or be able to deal with, the politi-cal trade-offs necessary to implement any public policy. Judges are not sup-posed to telephone politicians, school administrators, local businessmen, or others, and cut a deal.

Their decisions, therefore, arc likely to overlook po-litical realities that arc crucial for implementation.

In this regard, the U.S. Commission on Civil Rights found that community preparation and partici-pation in planning, key elements to successful school desegregation, were utterly lacking in court-ordered desegregation plans (USCCR 1959. 309-10). Judge Brown, wriling on the record after the issuance of the first HEW guide-lines implementing Title VI, summed up these problems:

These executive standards, perhaps long overdue, arc welcome . . . [without them| the Federal judge [was put] in the middle of school administrative prob¬lems for which lie was not equipped. ... By the 1964 Act and the aciion of HEW, administration is largely where it oughl to be— in the hands of the Ex¬ecutive and iis agencies with the function of the Judiciary confined to those rare cases presenting justiciable, not operational, questions. {Price v. Dennisun In¬dependent School District 1965. I0I3-I4)*

20. Judge Wisdom, writing in 1966. concurred, noting (hat "most judges do not have sufficient competence—they arc not educators or school administrators - to know ihe right ques¬tions, much less the right answers" [U.S. v. Jefferson County Board of

Education 1966. 855).

The record of court attempts at school desegregation before 1964 demon-strates that effective implementation of civil rights decisions requires infor-mation and knowledge that judges don't have and political compromises that they ought not to nuke.

Iritis, courts were simply not equipped to achieve direct results in civil rights.


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Aff Ans. – No Link

Your author concedes Americans have no idea what the court is up to – decision wont’ be percieved

Gerald N. Rosenberg , PhD. From Yale in law, April 2009 , (“Symposium The Most Disparaged Branch: The Role Of Congress

In The Twenty-First Century: Panel Iv: Beyond Legislatures: Social Movements, Social Change, And The Possibilities Of

Demosprudence: Romancing The Court”, Boston University Law Review, Volume 89, Page 563)

[*566] Part of the reason for this lack of efficacy is that most Americans are unaware the Court has acted, even on important issues. n25 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. n26 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. n27 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?" n28 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, n29

nearly half of respondents (49%) had no idea. n30 Others had it wrong, with 10% of respondents saying that the

Court had issued a decision forbidding abortion. n31 In 1986, another national survey probed knowledge of the case name, asking:

"Roe vs. Wade was a landmark Supreme Court case which dealt with: ... ?" n32

Only 30% of respondents knew that Roe v. Wade dealt with abortion. n33 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." n34 While by 1998 there was some modest improvement in these responses, n35 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 [*567] than Roe v. Wade. n36 This is striking given that Guinier discusses several of Justice Scalia's oral dissents that might have appealed to Governor Palin. n37 Toward the beginning of her article, Guinier writes: "The question is whether dissenting Justices can engage that [broader] public in a kind of deliberation that is rooted in the deeply democratic practices of constitutional governmental institutions." n38 We know the answer to that question and the answer is no.


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Stare Decisis 1NC

Overruling precedent kills court legitimacy.

Schauer ’87 (Frederick , Professor of Law, University of Michigan, Stanford Law Review, February, 39 Stan. L.

Rev. 571)

But now let us abandon the assumption of similarity among decisionmakers. If we retain the assumption of assimilability of events, more than mere decisional efficiency must be at work. The system of precedent must operate to dampen the variability that would otherwise result from dissimilar decisionmakers. Why should we encourage this process? One possibility is that it might be thought important to create the aura of similarity among decisionmakers even where none may exist. Using a system of precedent to standardize decisions subordinates dissimilarity among decisionmakers, both in appearance and in practice.

Even more substantially, this subordination of decisional and decisionmaker variance is likely in practice to increase the power of the decisionmaking institution. If internal consistency strengthens external credibility, then minimizing internal inconsistency by standardizing decisions within a decisionmaking environment may generally strengthen that decisionmaking environment as an institution. n59 n59 See Shapiro, Toward a Theory of Stare Decisis, 1 J. LEGAL STUD. 125 (1972). It is worth-while to note that this perspective could explain why the Supreme Court should be constrained by precedent, and, more cynically, why the Court purports to be constrained by precedent even when it is not.

Court legitimacy key to separation of powers

Christopher E. Smith, Assistant Professor of Political Science, University of Akron, Kentucky Law Journal, 79

Ky. L.J. 317, 1991 n24 The Supreme Court depends on other political actors to accept and enforce its decisions. See C. JOHNSON & B. CANON, JUDICIAL

POLICIES: IMPLEMENTATION AND IMPACT 77-103 (1984). In the 1950's, for example, many Southern school districts actively resisted the

Court's desegregation order in <=25> Brown v. Board of Education, 347 U.S. 483 (1954). The Court had to rely upon lower federal courts to apply its decision in individual cities and upon Executive Branch officials to enforce the judicial decisions, as when President Eisenhower used military troops to implement desegregation at Little Rock Central High School. See R. KLUGER, SIMPLE JUSTICE: THE HISTORY OF

BROWN V. BOARD OF EDUCATION AND BLACK AMERICA'S STRUGGLE FOR EQUALITY 752-754 (1975). Resistance by the public and other political actors, including the Executive Branch, may increase if the Supreme Court's stature as a legitimate judicial institution is tarnished. In the 1830s, the State of Georgia ignored a Supreme Court order to protect land belonging to the Cherokee people. President

Andrew Jackson declined to enforce the decision. The consequences of this episode, as described by one historian, illustrate the tragic results when the Supreme Court's relative weakness is revealed: "All the states supported Georgia's flouting of the Supreme Court, as well as

Jackson's policy, to force the tribes, against their will, to give up fertile lands that they had inhabited for centuries to move to the barren reaches of the Great Plains." M. UROFSKY, A MARCH OF LIBERTY: A CONSTITUTIONAL HISTORY OF THE UNITED STATES 271-73

(1988).

Weakening separation of judicial powers causes tyranny

Nickels, Illinois Supreme Court, ’98 (The Need for an Independent Judiciary, DCBA Brief, 12-11)

A fundamental part of this system, one that foreign leaders recognize as a master stroke of government design, is the existence of an independent Judiciary - judges who are able to act without concern for the day-to-day whims of politics to protect every citizen’s individual liberties and to prevent a tyranny of the majority.

For more than two centuries this separation of powers has worked to protect our freedom. Indeed, our progress as a society often has been forged by a Judiciary free from partisan politics; a Judiciary acting on the basis of what is right and just, not just what is popular; a Judiciary able to protect ordinary citizens from political groups, big government, and, sometimes, even each other.


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Stare Decisis – UQ

Supreme Court respects the rules of stare decisis in the squo.

Robert Barnes; Washington Post Staff Writer February 24, 2008 Sunday Justices Further Resist Finding Right to Sue A-SECTION; Pg. A09

Chief Justice John G. Roberts Jr. wondered whether the court's respect for stare decisis should extend to cases it believes were wrongly decided, and Justice Anthony M. Kennedy said he could not find a way to read the law that gave plaintiffs the right they wanted. But other justices said such comments could not be reconciled with the Supreme Court's history, both distant and more recent.

SCOTUS majority will abide by stare decisis – opposition is irrelevant now

Robert Barnes; Washington Post Staff Writer May 29, 2008 Thursday Justices Show Ability To Move to the

Center A-SECTION; Pg. A02

But what was surprising was that the court had appeared likely to do just the opposite. The only reason for the court to take up the case of an

African American man who had won the right to sue his former employer for retaliation, legal experts said, was to reverse. Instead, six other justices joined Stephen G. Breyer's opinion that stare decisis, the court's doctrine of abiding by its precedents, must be respected. Among the court's majority was the newest justice, Samuel A. Alito Jr., and Chief Justice John G. Roberts Jr., who had openly questioned during oral arguments the wisdom of abiding by a 1969 decision that he said he felt certain the current court would decide differently. The only justices dissenting from the opinion were Clarence Thomas and Antonin Scalia, who have made clear that they see no reason to respect decisions they believe were wrongly decided in the first place.

"The court today retreats behind the figleaf of ersatz stare decisis," Thomas wrote.

Tuesday's 7 to 2 decision in CROCS West v. Humphries, the case involving the African American worker, and 6 to 3 ruling in Gomez-Perez v.

Potter, which involved a postal worker who claimed retaliation because of her age-discrimination complaint, are the latest pieces of the puzzle for those trying to assemble a picture of the Roberts court. The current term has been largely free of the fractious, ideology-driven 5 to 4 decisions that marked last term. Breyer ended the term accusing his colleagues of ignoring precedent or rushing to overturn it, resulting in changes to the court's jurisprudence on abortion restrictions and school desegregation strategies, among other issues. His parting shot served as the liberal lament about the new court: "It's not often in law that so few have changed so much so quickly."But this year, Breyer and Justice

John Paul Stevens have moved toward the center at times to form majorities of six justices or more. Roberts and Alito have done the same, and yesterday's endorsement of stare decisis -- Alito wrote one of the opinions -- seemed notable.

No matter how controversial the issue, the supreme court abides by the rule of stare decisis

By LINDA GREENHOUSE NY Times staff writer May 28, 2008 Wednesday Justices Say Law Bars Retaliation

Over Bias Claims Section A; Column 0; National Desk; Pg. 1

It was especially significant, therefore, that both he and Justice Alito signed on to Justice Breyer's discussion of the importance of '' stare decisis, '' the court's doctrine of adherence to precedent. Even if the court's approach to statutory interpretation was changing, Justice Breyer wrote, ''we could not agree that the existence of such a change would justify re-examination of well-established prior law.'' He added:

''Principles of stare decisis, after all, demand respect for precedent whether judicial methods of interpretation change or stay the same. Were that not so, those principles would fail to achieve the legal stability that they seek and upon which the rule of law depends.'' In a dissenting opinion, Justice Thomas, joined by Justice Scalia, accused the majority of hiding behind ''the fig leaf of ersatz stare decisis, '' relying on precedents that had been incorrectly decided in the first place.


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Stare Decisis – Links

The constitution is a constant and never changing; however, when we over turn rulings it can lead to misinterpretation of the constitution and bad legislation.

Lino A.

Graglia Dalton Cross Professor in Law, University of Texas School of Law, Austin, Texas July, 1998 CONSTITUTIONAL LAW: A

RUSE FOR GOVERNMENT BY AN INTELLECTUAL ELITE Georgia State University Law Review 14 Ga. St. U.L. Rev. 767 By far, the most important thing to understand about constitutional law is that it has almost nothing to do with the Constitution. The conventional justification for judicial invalidation of a policy choice--that the Court is merely enforcing a constitutional prohibition--is purely fictional in almost every case.

This may seem shocking or at least exaggerated, but it is literally true, as can easily be shown. It should be clear enough, indeed, simply from the past that so little of the Constitution is even purportedly involved in the making of constitutional law. The vast bulk of rulings of unconstitutionality involve federal, not state, law, and nearly all of these rulings purport to be based on a single constitutional provision: one sentence of the Fourteenth Amendment and, indeed, on one or both of two pair of words--"due process" and "equal protection." It does not require a high degree of jurisprudential sophistication to understand that the Justices of the Supreme Court do not determine national policy on a vast range of difficult issues by studying those four words. The irrelevance of the Constitution to constitutional law can also be clearly seen in, for example, the fact that there was a time when the Constitution permitted the assignment of students to schools on the basis of race, as the Court told us in Plessy v. Ferguson n31 in 1898 and later cases. n32 There then came a time, however, when the Constitution prohibited the assignment of students on the basis of race, as the Court told us in Brown v. Board of Education n33 in 1954. Finally, there came a time, the present, when the Constitution often requires the assignment of students to school on the basis of race, as the Court told us in Swann v.

Charlotte-Mecklenberg Board of Education n34 in 1971. That covers the possibilities--permitted, prohibited, required-but in all that time the

Constitution was not changed in any [*774] relevant respect. A scientific observer would have little trouble concluding that the Constitution was not the operative variable.

Sending plan through the Supreme Court propagates them to a level of too much power. Only by rejecting the

Supreme Court in this instance can we originate to the proper functions of the court and prove their legitimacy.

Lino A.

Graglia Dalton Cross Professor in Law, University of Texas School of Law, Austin, Texas July, 1998

CONSTITUTIONAL LAW: A RUSE FOR GOVERNMENT BY AN INTELLECTUAL ELITE Georgia State University

Law Review 14 Ga. St. U.L. Rev. 767

Astounding as it may seem in a supposedly democratic nation, for the past four decades virtually every change in basic social policy, the policies that determine the nature of a society and the quality of a civilization, has come not from elected legislators, state or federal, but from

Supreme Court justices. It is possible as a matter of political theory to favor a system of government by a central committee of wise men not elected by or electorally accountable to the people. Plato, after all, favored government by philosopher kings, persons supposedly particularly well trained and suited for the art of government. How is it possible, however, to favor a system of government by lawyer kings, persons trained in little other than the manipulation of words and hardly noted as moral paragons? We purport to continue to be committed to the basic principles of the Constitution-representative self-government, federalism, and separation of powers--that have served to create a nation of unprecedented freedom and prosperity. In reality, however, we have allowed the system of government created by the Constitution to evolve into its antithesis: a system of government by majority vote of a committee of nine lawyers, unelected and holding office for life, issuing decrees for the nation as a whole from Washington, D.C. Having repudiated the principles that have been the foundation of our national success, we are in serious and rapid decline. It is not clear whether that decline can be arrested.

Overturning prior decisions destroys the legitimacy of the court

Richard A. Posner Judge, United States Seventh Circuit Court of Appeals “ The Supreme Court, 2004 Term”

Harvard Law Review, Vol. 119, No. 1 (Nov., 2005), pp. 28-102 accessed online July, 6 2009

There is a limit to the amount of error that can be plausibly be imputed to prior courts. If that limit should be exceede, disturbance of prior rulings would be taken as evidence that justifiable reexamination of principle had given way to drives for particular results in the shor term. The legitimacy of the court would fade with the frequency of its vacillation.


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Stare Decisis – Links

The action the aff takes is of activist framework which inevitably leads to the destruction of legislation.

Donald H. Zeigler Professor of Law, New York Law School. A.B., 1966, Amherst College; J.D. 1969, Columbia

University. The author gratefully acknowledges the research assistance of Brian Fortune. June, 1996.

ARTICLE: THE NEW ACTIVIST COURT The American University Law Review 45 Am. U.L. Rev. 1367

Critics charge that activist judges violate separation of powers principles by assuming legislative or executive functions. n5

President Reagan, who nominated Justices O'Connor, Kennedy, and Scalia, said he wanted to appoint justices "who understand the danger of short-circuiting the electoral process and disenfranchising the people through judicial activism." n6

He went on to state that our Founding

Fathers "never intended ... that the courts preempt legislative prerogatives." n7

President Bush, who nominated Justices Souter and Thomas, echoed this theme: "Judge Souter is committed to interpreting, not making the law... I have selected a person who will ... not legislate from the Federal bench." n8

[*1369] Although the judiciary has primary responsibility for saying what the Constitution means, judges are considered activist when they articulate new constitutional rights not explicitly mentioned in the Constitution, n9

or when they overturn statutes based on their own readings of constitutional values. n10

Judges are likewise considered activist when they stretch or loosen doctrines designed to ensure that cases are properly before them for review, such as the doctrines of standing, mootness, and ripeness, or the final judgment rule. n11

Finally, judges are considered activist when they ignore, distort, or overrule prior precedent.


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Stare Decisis – Turns Case

The court loses its legitimacy in the eyes of the people when it makes activist changes and interpretations.

By David Lewis Schaefer. Staff writer for the The Boston Globe. October 8, 2008 Putting some honesty in Roe v. Wade debate. The Boston Globe.

Far from generating any sort of popular consensus, Roe v. Wade continues to divide the nation as few court decisions have ever done. The reason is that purported resolutions of controverted political issues have far less legitimacy in the eyes of the public when they are perceived to be the consequence of arbitrary power grabs by unelected judges, rather than the outcome of the established political process. That's why the liberalization or abolition of abortion restrictions by numerous state legislatures during the years leading up to 1973 generated far less bitterness among abortion opponents than Roe v. Wade has done. If the court overturned Roe v. Wade, it would not be improperly violating the principle of stare decisis, according to which long-established legal precedents should normally be followed so as not to generate instability in the law. As legal scholar Edward Levi observed in his classic "An Introduction to Legal Reasoning," stare decisis has less weight in

Constitutional interpretation than in ordinary legal interpretation, since it is always possible to recur to the original text of the Constitution and say that it has been misinterpreted. (Had the court been reluctant to overturn such precedents, it would never have reversed its 1896 decision accepting the constitutionality of racial segregation in public facilities in the path-breaking 1954 case Brown v. Board of Education.)

Court legitimacy is vital to authority and the public’s willingness to defer to court decrees.

Tom R. Tyler and Gregory Mitchell, Professor of Psychology, University of California at Berkeley, and Clerk to

Judge Thomas A. Wiseman, Jr., 43 Duke L.J. 703, *716, Duke Law Journal, February, 1994

Second, we present original data investigating the link between perceptions of legitimacy, Court decisions, and public acceptance of those decisions. This data was garnered through survey interviews of an ethnically and socioeconomically diverse sample of the public conducted just prior to the Casey decision. This empirical analysis bolsters the conclusion of our literature review: legitimacy can be an effective tool of authorities and is largely premised, in the case of the Supreme Court, on perceptions of neutrality in decisionmaking.

We conclude by arguing that there is considerable support for the legitimacy model articulated in the Casey decision, yet we note that areas in need of further study do exist. We then place our findings in the context of jurisprudential writings (i.e., we contrast our empirical results with the theories of various legal scholars) and discuss the implications of legitimation for maintenance of the rule of law and the status quo.

In our examination of legitimacy theory, we will address three key questions. The first is whether the general legitimacy of the Supreme Court

(i.e., the Court's institutional legitimacy) as an appropriate interpreter of the Constitution enhances the authoritativeness of the Supreme Court when it makes controversial decisions. In particular, are people more willing to empower the Court to make public policy in a controversial arena (here, abortion) if they regard the Court as a legitimate judicial institution? As noted above, we conclude that legitimacy is associated with empowerment, strongly supporting a basic premise of the joint opinion in Casey. The Court wisely attends to its legitimacy in the eyes of the public because the general institutional legitimacy of the Court is related to the public's willingness to defer to the claim in Roe that abortion is an issue of "legal rights" properly falling within the Supreme Court's jurisdiction.


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Scholars

43

Stare Decisis – AT Impact N/U

They ask why we haven’t seen the impacts of the disad yet; however, we are experiencing them right now and the conditions will get progressively worse. Through the decades we have experimented with jurisprudence and now have a terrible judicial system. Rejection of the aff solves the sqo and further destruction of law.

Lino A.

Graglia Dalton Cross Professor in Law, University of Texas School of Law, Austin, Texas July, 1998

CONSTITUTIONAL LAW: A RUSE FOR GOVERNMENT BY AN INTELLECTUAL ELITE Georgia State University

Law Review 14 Ga. St. U.L. Rev. 767

The task of justifying the Supreme Court's controversial rulings of unconstitutionality to a nation still purportedly committed to representative self-government in a federalist system is not merely difficult, however, but impossible. It is to be hoped that the increasingly apparent deleterious effects of the Court's remaking of our society will ultimately convince the American people that government by judges is not an improvement on the constitutional scheme--that our four-decade experiment in policymaking by the Supreme Court has been a failure. Nothing is more important to our political health and our continued freedom and prosperity than that the American people reassert their most precious and fundamental right--the right of self-government--and find a means to make the reassertion effective.


SCFI 08-09

Courts Neg

Scholars

44

Aff Ans. – N/U

The current court puts their own personal views before the good of the constitution and American people

Wendy E. Long, [staff] October 10, 2008 Friday ” President's choice; An activist Supreme Court ” THE

WASHINGTON TIMES accessed July 6, 2009 http://www.lexisnexis.com/us/lnacademic/results/docview/docview.do?docLinkInd=true&risb=21_T6909607625&format=GNBFI&sort=RELEVANCE&startDocNo=1&re sultsUrlKey=29_T6909607634&cisb=22_T6909607633&treeMax=true&treeWidth=0&csi=8176&docNo=7

Far from being in what Hillary Clinton calls a "right-wing headlock," the current Supreme Court - despite very modest moves in the direction of judicial restraint - is significantly to the left of the American public and persistently fails to uphold the Constitution in two ways. First, it renders decisions based on the personal views of usually-the-same-five justices as to social, military, or other government policies, in disregard of the

Constitution and laws enacted by the American people. This is called "judicial activism." Roe v. Wade is a classic example of this lawlessness: the Court snatched from "We the People" the ability to govern ourselves by deciding abortion policy - a subject the Constitution doesn't address. Second, the Court fails to apply the clear commands of the Constitution, for example, to protect private property from being taken by the government unless it is for a public purpose. Kelo v. New London, in which the Court permitted a Connecticut city to condemn private homes to make way for a corporate office complex, is an example of this error.

SOP and stare decisis are shot now

Ed Feulner, staff, 2009 “Constitutional confusion” THE WASHINGTON TIMES, accessed online http://www.lexisnexis.com/us/lnacademic/returnTo.do?returnToKey=20_T6909701963

Every president, every senator, every member of Congress and every Supreme Court justice takes an oath to uphold the Constitution of the United States. The way some of them behave, though, you have to wonder if they've ever read it.

The Constitution is clear and understandable. It gives Congress, the legislative branch, the responsibility of passing our laws. It gives the president, head of the executive branch, the responsibility of enforcing those laws. And it gives the courts, headed by the Supreme Court, the responsibility of interpreting them. Yet in recent years, leaders of all three branches have expressed confusing - and incorrect - ideas about the Constitution. Take the members of Congress who filed a brief with the Supreme Court urging it to strike down Washington, D.C.'s gun ban. Fortunately, the Court agreed. But Congress had the power to defend D.C. residents' gun rights all along. Congress could have passed a law at any time removing the unconstitutional restrictions on gun ownership in the District. But it didn't. Now, as the D.C.

Council considers new legislation to restrict gun rights, Congress continues to be silent, again leaving the question to the courts - when members have a duty to protect the

Constitution, and the rights of D.C. residents as well. Of course, the judicial branch is hardly blameless. Courts frequently overstep their bounds, creating law rather than merely interpreting it. There are many examples, but one case proves the point. During its 2004 term, the Supreme Court ruled that detainees at

Guantanamo Bay - enemy combatants captured on foreign battlefields - had the statutory right to file habeas corpus petitions in U.S. federal courts. It was a new right for enemy combatants.

Civil rights cases specifically subject to overturn

Christopher E. Smith, Assistant Professor of Political Science, University of Akron, Kentucky Law Journal, 79

Ky. L.J. 317, 1991

In 62 Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S. Ct. 2115 (1989), a five-member majority, including Rehnquist and Kennedy, increased the plaintiff's burden of proof in certain employment discrimination cases and thereby altered a well-established precedent in existence the previous eighteen years. See 63 Griggs v. Duke Power Co., 401 U.S. 424 (1971) (holding that barriers to employment resulting in racial discrimination are prohibited notwithstanding the employer's lack of discriminatory intent, unless shown to be related to job performance). Although downplaying the significance of the deviation from precedent, Justice White admitted in the majority opinion that "[w]e acknowledge that some of our earlier decisions can be read as suggesting [principles different than those we put forth today]." 64 Wards

Cove Packing Co., 109 S. Ct. at 2126. In Patterson, a five-member majority limited the scope of a thirteen-year old civil rights precedent in order to preclude suits seeking damages for racial harassment. The new majority altered the precedent after taking the extraordinary step of asking, sua sponte, for reargument to consider reversing the precedent, Taylor, supra note 3, at 1, and after ignoring the request by fortyseven state attorneys general, including both Republicans and Democrats, to leave the precedent alone. Greenhouse, Court Upholds Use of

Rights Law But Limits How It Can Be Applied, N.Y. Times, June 16, 1989, A1, A12, col. 1. According to one observer, these actions illustrate the emerging majority's aggressiveness in attacking civil rights precedents with which they disagree: "Conservative insistence on judicial diffidence when it comes to expanding constitutional rights is notorious and persistent. . . . [The conservative justices'] attitude shifts dramatically, however, when it comes to liberal legislation. There one finds an almost arrogant aggressiveness in narrowly reading laws for minorities, women, the handicapped, and the elderly." Schwartz, Is the Rehnquist Court Activist? Yes: A Definite Agenda, 76 A.B.A. J., Aug.

1, 1990, at 32.


SCFI 08-09

Courts Neg

Scholars

45

Aff Ans. – N/U

Mauro ‘5 (Tony, A Revolution on Hold; As Supreme Court Embraced Moderation, Conservative Agenda

Stalled”, The Legal Times p.lexis)

Even before Rehnquist made any announcement about his future, some were saying that the court's Kelo and Raich rulings -- along with a batch of decisions overturning prisoners' death sentences, expanding civil rights remedies and striking down a Ten Commandments display -- had served as something of an ending point to the Rehnquist court.

"We have closure," says Thomas Goldstein of Goldstein & Howe in D.C., a close student of court trends. "This term was the closing of a chapter, if not the closing of a book." Some are not so quick to pronounce the end of the Rehnquist court and its legal legacy. But the fact that

Stevens consistently dominated the court this term was enough to give conservatives serious heartburn -- and to step up the pressure on

President George W. Bush to appoint a stout-hearted conservative who won't let Rehnquist's legacy fade further if the chief justice steps down.

"I didn't see any bright spots here. One of the worst terms ever for originalists," says Mark Levin, author of the best-selling "Men in Black," a conservative attack on judicial activism and the Supreme Court. "That's why the next appointment is so crucial. If President Bush appoints someone who does not believe in these principles, he is not going to get the support he might expect."


SCFI 08-09

Courts Neg

Scholars

46

Aff Ans. – No Link

Overruling doesn’t violate stare decisis by John

Bouvier

American jurist and legal lexicographer , Revised Sixth Edition,

1856.

ADAPTED TO THE CONSTITUTION AND LAWS OF THE

UNITED STATES OF AMERICA AND OF THE SEVERAL STATES OF THE AMERICAN UNION. A Law Dictionary.

STARE DECISIS. To abide or adhere to decided cases.

2. It is a general maxim that when a point has been settled by decision, it forms a precedent which is not afterwards to be departed from.

The doctrine of stare decisis is not always to be relied upon, for the courts find it necessary to overrule cases which have been hastily decided, or contrary to principle. Many hundreds of such overruled cases may be found in the American and English books of reports. Mr. Greenleaf has made a collection of such cases, to which the reader is referred. Vide 1 Kent, Com.

477; Livingst. Syst. of Pen. Law, 104, 5.

Courts are not completely bound by precedent; rather, they make decisions for a better future

Mark J. Richards and Herbert M. Kritzer “ Jurisprudential Regimes in Supreme Court Decision Making” The

American Political Science Review , Vol. 96, No. 2 (Jun., 2002), pp. 305-320 http://www.jstor.org/stable/3118027?seq=2&Search=yes&term=supreme&term=court&term=good&list=hide&searchUri=%2Faction%2FdoBasicSearch%3FQuery%3Ds upreme%2Bcourt%2Bgood%26gw%3Djtx%26prq%3Dsupreme%2Bcour%2Bgood%26hp%3D25%26wc%3Don&item=15&ttl=111309&returnArticleService=showArticle

&resultsServiceName=doBasicResultsFromArticle

Thus, the central role of law in the Supreme Court decision making is not to be found in precedents that predict how justices will vote in future cases. Rather law at the supreme court level is to be found in the structures the justices create to guide future decision making: their own, that of lower court, and that of non-judicial political actors. Shapiro (1968, 39) stated this succinctly: “the opinions themselves, not who won or lost, are the crucial form of political form of political behavior by the appellate courts, since it is the opinions which provide the constraining directions to the public and private decision makers who determine the 99 percent of conduct that never reaches the courts.” As they write the opinions that justify their decisions, judges and justices do not mechanistically follow rules. Rather, they engage in case analysis—the process of analogical reasoning that involves parsing the issues in a case and referring to prior cases for guidance on acceptable alternatives. Sunstein

(1999, 43) argues that case analysis allow judges flexibility but does not lead to unconstrained decision making. Precedents remove “certain arguments from the judicial repertoire which simplifies analysis. Most important of the constraints on judicial discretion [in interpreting the constitution] come not from constitutional text or history, but from the process of grappling with previous decisions.


SCFI 08-09

Courts Neg

Scholars

47

Aff Ans. – AT Legitimacy Turns Case

ACTIVISM KEY TO LEGITIMACY

HAMMOND

, KRISOFOR. JD CANDIDATE AT INDIANA UNIVERSITY SCHOOL OF LAW -BLOOMINGTON, SPRING 19

99

- INDIANA

LAW JOURNAL, http://www.lexisnexis.com/us/lnacademic/results/docview/docview.do?docLinkInd=true&risb=21_T6935614032&format=GNBFI&sort=BOOLEAN&st artDocNo=1&resultsUrlKey=29_T6935614035&cisb=22_T6935614034&treeMax=true&treeWidth=0&csi=7410&docNo=2 Accessed 07/09/09

Blessed with a historically unprecedented level of communication technology available even to those with modest financial resources, Americans are woefully unaware of the part played by the judicial branch in drawing the boundaries of the public policy arena.

In order to maintain

its

[the judicial branch’s] legitimacy

, the judiciary

[it] must communicate a coherent vision of its constitutional role to a public increasingly empowered by the "electronic revolution."

In light of the recent efforts by activist groups and some members of

Congress to turn public opinion against federal judges who, it is contended, have exceeded their constitutional authority, it is imperative that legal minds articulate the roots of the judiciary's authority to intervene in the democratic realm in a manner which is both persuasive and comprehensible to a reasonably intelligent voter.

ACTIVISM KEY TO COURT EFFECTIVENESS

KROTOZYNSKI

, RONALD. ASST. PROF OF LAW @ INDIANA UNIVERSITY, NOVEMBER19

98

. MINNESOTA LAW REVIEW, http://www.lexisnexis.com/us/lnacademic/results/docview/docview.do?docLinkInd=true&risb=21_T6935624346&format=GNBFI&sort=BOOLEAN&st artDocNo=1&resultsUrlKey=29_T6935624349&cisb=22_T6935624348&treeMax=true&treeWidth=0&csi=7347&docNo=6 Accessed 07/09/09

One could also question the first premise of the "passive virtues" in terms of the Supreme Court's institutional responsibilities: does clever decision avoidance adequately discharge the federal courts' institutional obligations? If one takes the Court's lawmaking function seriously, this question must be answered negatively. As Professor Schauer notes, "when the Court fails to decide an issue at all, it may, in many cases, be failing to perform adequately or may simply be abdicating its guidance function." n205 Thus, the "passive virtues," to the extent that they require the federal courts to shirk their lawmaking (or, more perhaps more accurately, their interpretative) responsibilities, require an institutional breach of duty.


Aff – Courts Best – AT Illegitimacy

Congress CP + Courts Disads

Congress CP – Shell

CP Solvency

CP Solvency

CP Solvency

CP Solvency / Courts Bad

CP Solvency / Courts Bad

CP Solvency – Rollback

AT Permutation

AT Courts Reassert Power / Stripping Unconstitutional

AT Pres Powers DA to Congress

Aff – Perm

Aff – Courts Best – Rights/Democracy

Aff – Courts Best

Aff – Courts Best

Aff – Courts Best

Aff – Courts Best – AT Illegitimacy

ConCon CP Vs. Dandridge

ConCon Solves Democracy

AT Perm

Aff Ans. – No Solvo

Aff Ans. – Perm

Hollow Hope 1NC

Hollow Hope 1NC

Hollow Hope – Turns Case

Hollow Hope – Uniqueness

Hollow Hope – Backsliding Impact

Hollow Hope Impact – Backsliding

Aff – Case Solves DA

Aff Ans. – Rosenberg Is An Idiot

Aff Ans. – No Impact / Aff Solves

Aff Ans. – Courts Solve

Aff Ans. – No Impact / Aff Solves

AT Case Sets a Precedent

AT Case Sets a Precedent

AT Case Sets a Precedent / Solves

Aff Ans. – No Link

Stare Decisis 1NC

Stare Decisis – UQ

Stare Decisis – Links

Stare Decisis – Links

Stare Decisis – Turns Case

Stare Decisis – AT Impact N/U

Aff Ans. – N/U

Aff Ans. – N/U

Aff Ans. – No Link

Aff Ans. – AT Legitimacy Turns Case

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