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Text: The United States Supreme Court should
Courts should be the first mover on surveillance policy- causes follow-on
Eric Tucker, 14, journalist,Focus on NSA surveillance limits turns to courts.,
http://www.seattletimes.com/nation-world/focus-on-nsa-surveillance-limits-turns-to-courts/, 1028-2014, 07-06-2015, GAO
While Congress mulls how to curtail the NSA's collection of Americans' telephone records,
impatient civil liberties groups are looking to legal challenges already underway in the
courts to limit government surveillance powers. Three appeals courts are hearing lawsuits against the bulk
phone records program, creating the potential for an eventual Supreme Court review. Judges in lower courts, meanwhile, are grappling
with the admissibility in terror prosecutions of evidence gained through the NSA's warrantless surveillance. Advocates say the flurry
of activity, which follows revelations last year by former NSA contractor Edward Snowden of once-secret intelligence collection
programs, show how a post-9/11 surveillance debate once primarily hashed out among lawmakers in secret is being increasingly aired
in open court not only in New York and Washington but in places like Idaho and Colorado.
different about the debate right now is that the courts are much more of a factor in it,"
said
Jameel Jaffer, deputy legal director at the American Civil Liberties Union. Before the Snowden disclosures, he said, courts were
generally relegated to the sidelines of the discussion. Now,
least some of the matters in coming months. Though it's unclear whether the Supreme Court will weigh in, the
cases are proceeding at a time when the justices appear increasingly comfortable taking up digital privacy matters including GPS
tracking of cars and police searches of cellphones. The cases "come at a critical turning point for the Supreme Court when it comes to
expectations of privacy and digital information," said American University law professor Stephen Vladeck. Revelations that the
government was collecting bulk phone records of millions of Americans who were not suspected of crimes forced a rethinking of the
practice, and President Barack Obama has called for it to end.
civil libertarians say did not go far enough. In the Senate, Vermont Democrat Patrick Leahy, the Judiciary
Committee chairman, is seeking a vote on a stricter measure to ban bulk collection, which has bipartisan backing and support from the
White House. As Congress considers the matter, the
Any court
opinion before Congress takes action could influence the lawmakers' debate. Congress
could also act first, but even if it clears up disputes about the government's statutory
authority to collect bulk records, courts might still be left confronting constitutional
questions. Besides those cases, multiple defendants notified in the past year that the Justice
Department had obtained NSA-derived evidence against them are now challenging the
government. At issue is a provision of the Foreign Intelligence Surveillance Act known as Section 702, which allows the
government to collect communications of non-Americans located outside the U.S. for counterterrorism purposes. The program also
sweeps up communications of U.S. citizens who have contact with overseas terror suspects. The
support to an Uzbek terror organization and wants information about the government's surveillance methods so he can challenge their
legality. In Chicago, a man charged with trying to ignite a bomb outside a bar is scheduled for trial next year after fighting
unsuccessfully to see secret intelligence-court records. Albanian citizen Agron Hasbajrami, who earlier admitted trying to go to
Pakistan to join a radical jihadist insurgent group, recently withdrew his guilty plea in New York following the government's
notification of how it obtained evidence in his case. Congressional supporters of limiting surveillance see an urgent need for action,
and say changes are better addressed through legislation than litigation. A critical deadline is June 1, 2015, when the section of law
authorizing the bulk records collection is set to expire. If no action is taken before then, that could lessen the chances of a Supreme
Court review. Congress may also wind up acting first, which could resolve some of the outstanding statutory issues. The ACLU's
Jaffer said he hopes that Congress will overhaul the program but that
the extent that Congress is authorizing mass surveillance of Americans' telephone calls, the
Constitution has something to say about that and only the courts are in a position to
enforce the Constitution,"
he said.
Solvency
In this study we focus on the United States Supreme Court as a bellwether of systemic attention
to policy issues. In Federalist 78, Hamilton offered his by now famous and often repeated
opinion that the Court would be "the least dangerous branch." Without the power of the sword or
purse at its disposal, the Court's authority in American politics would ultimately depend on its
ability to persuade. The Supreme Court, however, may be more effective in drawing
attention to issues and identifying problems than in changing preferences about them (cf.
Franklin and Kosaki 1989; Hoekstra 1995). The judicial venue may increase issue
visibility and legitimacy for issue advocates. As with other United States
The
discrimination, Congress may not have had a basis for passing the anti-discriminatory laws
that it did. If the Court had not decided against the separate but equal doctrine, would
Congress or the Executive Branch have acted at all? It is impossible for Rosenberg to prove
that there was not some type of correlation between the Supreme Courts decisions and
social reform. Ultimately, it can be said that in concert with the other branches of government, political support, economic incentives, mass
media, and public opinion, the Supreme Court is able to produce change . Though the changes may not be immediate or
dramatic, they do exist. It is very hard to determine 10 the direction that abortion rights, civil rights,
or criminal rights would have taken had the Supreme Court not taken action as a
policymaker . For example, Jonathan Casper argues that the Court has a particular importance in
placing issues on the agenda of the other branches of government and that the Court can
provide legitimacy to certain issues, as well as serve to mobilize individuals towards those
issues (Casper 1976).
judicial review was a unique feature of American constitutionalism well into the twentieth
century. The perceived success of this experiment prompted several nations emerging from
the ruins of World War II to include explicit provisions for courts of judicial review in their
new constitutions. By the end of the century, almost every constitutional democracy in the
world had adopted judicial review in one form or another. In explicit recognition of the American tradition of judicial review,
many nations conferred this power on special constitutional courts. But several common law countries, following the American model, empowered all
judges to decide constitutional issues subject to final review by their highest appellate courts. Among
Court decisions affect the way the world views the U nited
S tates. Now, more than ever, this country is in need of improving the world's impression of it. In the words of Justice Ginsburg, "even more today,
the United States is subject to the scrutiny of a candid world ... what the United States does, for good or for ill, continues to be watched by the
international community ..." The world is watching and judging, and if the Supreme Court were to give credence to foreign law, other countries may
perceive that as a sign of solidarity. It is, therefore, possible that Supreme Court recognition of international law and opinion would be a means of
improving the international community's perception of the United States. Arguably, it is not the judiciary's role to improve the world's view of the United
States. The Supreme Court is not intended to be a political entity; policy and politics are supposed to be left to the legislative and executive braches of the
federal government. But in reality, the
ignore that reality and should recognize its part in creating the international opinion of the
United States.
When pro-privacy members of Congress first unveiled the bill many months ago, it was
actually a good bill: real reform. But the White House worked very hard in partnership
with the House GOPto water that bill down so severely that what the House ended up
passing over the summer did more to strengthen the NSA than rein it in , which caused even the
ACLU and EFFto withdraw their support. The Senate bill rejected last night was basically a middle ground between that original,
good bill and the anti-reform bill passed by the House. * * * * * All of that illustrates what is, to me, the most important point from all
of this:
the last place one should look to impose limits on the powers of the U.S. government is
. . . the U.S. government. Governments dont walk around trying to figure out how to limit
their own power, and thats particularly true of empires. The entire system in D.C. is designed at its core
to prevent real reform. This Congress is not going to enact anything resembling
fundamental limits on the NSAs powers of mass surveillance . Even if it somehow did, this White House
would never sign it. Even if all that miraculously happened, the fact that the U.S. intelligence community and National Security State
operates with no limits and no oversight means theyd easily co-opt the entire reform process. Thats what happened after the
eavesdropping scandals of the mid-1970s led to the establishment of congressional intelligence committees and a special FISA
oversight courtthe committees were instantly captured by putting in charge supreme servants of the intelligence community like
Senators Dianne Feinstein and Chambliss, and Congressmen Mike Rogers and Dutch Ruppersberger, while the court quickly
became a rubber stamp with subservient judges who operate in total secrecy. Ever since the Snowden reporting began and public
opinion (in both the U.S. and globally) began radically changing, the White Houses strategy has been obvious. Its vintage Obama:
Enact something that is called reformso that he can give a pretty speech telling the world that he heard and responded to their
concernsbut that in actuality changes almost nothing, thus strengthening the very system he can pretend he changed. Thats the
same tactic as Silicon Valley, which also supported this bill: Be able to point to something called reform so they can trick hundreds
of millions of current and future users around the world into believing that their communications are now safe if they use Facebook,
Google, Skype and the rest. In pretty much every interview Ive done over the last year, Ive been asked why there havent been
significant changes from all the disclosures. I vehemently disagree with
equates U.S. legislative changes with meaningful changes. But it has been clear from
the start that U.S. legislation is not going to impose meaningful limitations
mass surveillance, at least not fundamentally .
from very different places: 1) Individuals refusing to use internet services that compromise their privacy. The FBI and
other U.S. government agencies, as well as the U.K.Government, are apoplectic over new products from Google and Apple that are
embedded with strong encryption, precisely because they know that such protections, while far from perfect, are serious impediments
to their power of mass surveillance. To make this observation does not mean, as some deeply confused people try to suggest, that one
believes that Silicon Valley companies care in the slightest about peoples privacy rights and civil liberties. As much of the Snowden
reporting has proven, these companies dont care about any of that. Just as the telecoms have been for years, U.S. tech companies
were more than happy to eagerly cooperate with the NSA in violating their users privacy en masse when they could do so in the dark.
But its precisely because they cant do it in the dark any more that things are changing, and significantly. Thats not because these
tech companies suddenly discovered their belief in the value of privacy. They havent, and it doesnt take any special insight or brave
radicalism to recognize that. Thats obvious. Instead, these changes are taking place because these companies arepetrified that the
perception of their collaboration with the NSA will harm their future profits, by making them vulnerable to appeals from competing
German, Korean, and Brazilian social media companies that people shouldnt use Facebook or Google because they will hand over
that data to the NSA. Thatfear of damage to future business prospectsis what is motivating these companies to at least try to
convince users of their commitment to privacy. And the more users refuse to use the services of Silicon Valley companies that
compromise their privacyand, conversely, resolve to use only truly pro-privacy companies insteadthe stronger that pressure will
become. Those who like to claim that nothing has changed from the NSA revelations simply ignore the key facts, including the serious
harm to the U.S. tech sector from these disclosures, driven by the newfound knowledge that U.S. companies are complicit in mass
surveillance. Obviously, tech companies dont care at all about privacy, but they care a lot about that. Just yesterday, the messaging
service WhatsApp announced that it will start bringing end-to-end encryption to its 600 million users, which would be the largest
implementation of end-to-end encryption ever. None of this is a silver bullet: the NSA will work hard to circumvent this technology
and tech companies are hardly trustworthy, being notoriously close to the U.S. government and often co-opted themselves. But as
more individuals demand more privacy protection, the incentives are strong. As The Verge notes about WhatsApps new encryption
scheme, end-to-end means that, unlike messages encrypted by Gmail or Facebook Chat, WhatsApp wont be able to decrypt the
messages itself, even if the company is compelled by law enforcement. 2) Other countries taking action against U.S. hegemony over
the internet. Most people who claim nothing has changed from the Snowden disclosures are viewing the world jingoistically, with the
U.S. the only venue that matters. But the real action has long been in other countries, acting individually and jointly to prevent U.S.
domination of the internet. Brazil is building a new undersea internet infrastructure specifically to avoid U.S. soil and thus NSA
access. That same country punished Boeing by denying the U.S. contractor a long-expected $4.5 billion contract for fighter jets in
protest over NSA spying. Another powerful country, Germany, hastaken the lead with Brazil in pushing for international institutions
and regulatory schemes to place real limits on NSA mass surveillance. U.S. diplomatic relations with numerous key countries have
been severely hampered by revelations of mass surveillance. In July, Pew reported that a newsurvey finds widespread global
opposition to U.S. eavesdropping and a decline in the view that the U.S. respects the personal freedoms of its people and that, while
the U.S. remains popular in many countries, particularly relative to others such as China, in nearly all countries polled, majorities
oppose monitoring by the U.S. government of emails and phone calls of foreign leaders or their citizens. After just one year of
Snowden reporting, there have been massive drops in the percentage of people who believe the U.S. government respects personal
freedom, with the biggest drops coming in key countries that saw the most NSA reporting: All of that has significantly increased the
costs for the U.S. to continue to subject the world, and the internet, to dragnets of mass surveillance. It has resulted in serious political,
diplomatic, and structural impediments to ongoing spying programs. And it has meaningfully altered world opinion on all of these
critical questions.
domestic bulk collection program likely violates the 4th Amendment, and in doing so,
obliterated many of the governments underlying justifications. Multiple cases are now on appeal,
almost certainly headed to the Supreme Court. None of this was possible in the absence of Snowden disclosures. For a variety of
reasons, when it comes to placing real limits on the NSA, I place almost as little faith in the judiciary as I do in the Congress and
executive branch. To begin with, the Supreme Court is dominated by five right-wing justices on whom the Obama Justice Department
has repeatedly relied to endorse their most extreme civil-liberties-destroying theories. For another, of all the U.S. institutions that have
completely abdicated their role in the post-9/11 era, the federal judiciary has probably been the worst, the most consistently
subservient to the National Security State. Still,
favorable outcome that restores some 4th Amendment protections inside the U.S. The effect
is likely to be marginal, but not entirely insignificant.
In a landmark victory for privacy, a federal appeals court ruled unanimously today that the
mass phone-records program exposed two years ago by NSA whistleblower Edward
Snowden is illegal because it goes far beyond what Congress ever intended to permit when it
passed Section 215 of the Patriot Act. The ruling in ACLU v. Clapper is enormously significant,
and not only because the program in question the first to be revealed by Edward Snowden
is at the heart of a legislative reform effort playing out right now, or because it sparked the
most significant debate about government surveillance in decades. The decision could also
affect many other laws the government has stretched to the breaking point in order to
justify dragnet collection of Americans sensitive information. Under the program, revealed
in the Guardian on June 5, 2013, telecommunications companies hand over to the NSA, on a
daily basis, records relating to the calls of all of their customers. Those records include
information about who called whom, when, and for how long. The ACLU sued the NSA over the
program just days after it was revealed, and we took the case to the Second Circuit Court of
Appeals after it was dismissed by a district court. A few points on what makes the decision so
important. 1. It recognizes that Section 215 of the Patriot Act does not authorize the government
to collect information on such a massive scale. Section 215 allows the government to demand
from third parties any tangible thing relevant to foreign intelligence or terrorism investigations.
Relevant is a pretty abstract term, but the government employed a pretty fantastical
interpretation to argue that every single call record in America is relevant because some of
those records might come in handy in a future investigation. The decision says: Excerpt from 2nd
Circuit ruling on NSA call records program.
2. The decisions significance extends far beyond the phone records program alone. It
implicates other mass spying programs that we have learned about in the past two years
and almost certainly others that the government continues to conceal from the public.
For example, we know that the Drug Enforcement Administration, for decades, employed a similar definition of relevance to amass logs of every call made from the United States to as many as 116 different
countries. The same theory was also used to justify the collection of email metadata. Both those programs have been discontinued, but the legal reasoning hasnt, and it could very well be the basis for programs the
government has never acknowledged to the public, including the CIAs bulk collection of Americans financial records.The judges wrote: Excerpt from 2nd Circuit decision on NSA call records program. 3. Metadata
is incredibly sensitive and revealing. The government has long argued that the phone records program doesnt reveal the contents of calls, and as such, it is not an invasion of privacy. But metadata, especially in
aggregate, can be just as revealing as content, painting a detailed picture of a persons life. The decision reads:Excerpt from 2nd Circuit Court decision in NSA call records program case. 4. The importance of
The court recognized that public, adversarial litigation concerning the lawfulness
of this spying program was vitally important to its decision and it drew a direct contrast
adversarial review.
to the secret, one-sided proceedings that occur in the Foreign Intelligence Surveillance
Court. The FISC operates in near-total secrecy, in which it almost always hears only from
the government. It oversees a wide variety of broad surveillance programs without any public participation or input, approving
a body of secret law that has no place in a democracy. This decision affirms the role that federal courts and the public have in
overseeing practices with such sweeping constitutional implications. 5. The congressional reforms under consideration just dont cut
Ahead of Section 215s sunset on June 1, Sen. Majority Leader Mitch McConnell (R-Ky.) is
trying to push through a straight reauthorization of the provision, extending its life by another
five years. After todays decision came down, he took to the floor to defend the program a position altogether at odds with the
it.
appeals court decision, with the conclusions of multiple executive-branch review groups who found the program hasnt been effective
in stopping terrorism, and with the clear consensus that supports far-reaching surveillance reform. Another bill in play (which the
ACLU neither supports nor opposes), the USA Freedom Act of 2015, doesnt go nearly far enough, most notably in ensuring that the
government cannot engage in broad collection of innocent Americans private information. CONGRESS: LET SECTION 215 DIE
FIGHT PATRIOT ACT We didnt do this alone. Members of Congress Rep. James Sensenbrenner (R-Wisc.) and Sen. Ron Wyden
(D-Ore.) among them have played an instrumental role in the fight for surveillance reform. Along with a number of organizations
and experts, including the NRA, they filed amicus briefs on the ACLUs behalf and championed the cause in Congress. We hope that
todays ruling prompts Congress to consider and enact legislation thats more robust than whats currently on the table. Short of that,
we continue to believe that Congress should seize the June 1 expiration date as an opportunity to let Section 215 die.
Congress is
Group and served as the Managing Online Editor of the Human Rights Brief. He received his law degree from American University
Washington College of Law where he is currently a JD Distinguished Fellow. mie Stepanovich is U.S. Policy Manager at Access.
Amie is an expert in domestic surveillance, cybersecurity, and privacy law. At Access, Amie leads projects on digital due process and
responds to threats at the intersection of human rights and communications surveillance. Previously, Ms. Stepanovich was the Director
of the Domestic Surveillance Project at the Electronic Privacy Information Center, where she testified in hearings in both the Senate
and the House of Representatives, as well as in State legislatures. She was co-chair for the 2014 Computers, Freedom, and Privacy
Conference and is the Committee on Individual Rights and Responsibilities' Liason to the American Bar Association's Cybersecurity
Working Group.
[https://en.necessaryandproportionate.org/LegalAnalysis/principles-6-and-7-competent-judicial-authority-due-process]
the UK, for instance, the same government ministers who are responsible for the activities of the intelligence services are also
responsible for authorizing interception warrants, and do so on the advice of those agencieshardly a credible safeguard against
abuse.
Over the past year, the actions by two U.S. judges may at last signal a change of direction in
the battle to curtail government surveillance of electronic data . It has been all too common
for judges to rubber-stamp law enforcements requests for warrants from electronics firms
in order to gather information on its clients. The judges, both U.S. Magistrates have in
their rulings refrained from arbitrarily granting government requests for access to email
accounts and cell phone data. Their actions are framed against the landscape of the legal
and political global debate raging since Edward Snowden informed the world about the
NSAs snooping practices. For years, the governments modus operandi has been to obtain
all information and then cherry-pick what it wanted to keep to suit the particular
investigation.. The judges , John Facciola in Washington, D.C. and David Waxse in Kansas
City, Kan., have raised the bar with law enforcement requests from companies for data.
They have decided that the government must modify its requests if it is to be in compliance
with the Fourth Amendments protection against unreasonable searches. It is a blow to the
process in which a court appointed official does the initial search thus providing a buffer
between investigators and bulk data. The government, as expected, disagrees with these
suggestions. Unfortunately for privacy lovers, there are too many judges in the law
enforcement camp. And they are all too willing to grant the government broad latitude
when seeking warrants. Part of the problem is that many judges are technically illiteratethey lack the knowledge to challenge law enforcement officials to be more forthcoming.
But the actions by Facciola and Waxse give hope that the governments practice of throwing
broad warrant requests at judges and getting instant compliance may be ending. This will
only happen in great numbers if judges better understand recent technological advances
and how ISPs operate. And that will only happen if there is enough public outcry against
law enforcements encroachment. For if there is to be protection under the Fourth
Amendment there must be a restoration of the checks and balances the Founding Fathers
installed centuries ago. More judicial courage and more judges like John Facciola and
David Waxse are needed.
The Supreme Court can provide oversight for mass surveillance operations
Greene and Rodriguez, senior staff attorney and international rights director for the EFF,
14 (David and Katitza, NSA Mass Surveillance Programs Unnecessary and Disproportionate,
Electronic Frontier Foundation,
https://www.eff.org/files/2014/05/29/unnecessary_and_disproportionate.pdf, accessed 7/1/15,
EOT@GDI)
The Principles require that determinations related to communications surveillance must
be made by competent judicial authority that is impartial and independent. This judicial
authority must be: 1) separate from the authorities conducting communications
surveillance; 2) conversant in issues related to and competent to make judicial decisions
about the legality of communications surveillance, the technologies used and human rights;
and 3) have adequate resources in exercising the functions assigned to them. Significant
doubts exist as to whether the mass surveillance operations are reviewed by competent
judicial authority. With regard to surveillance under Patriot Act section 215 or FISA
Amendments Act section 702, there are serious questions about whether the FISC has a
sufficient understanding of the technologies used, or has sufficient resources to conduct the
oversight required of it. The Chief Judge of the FISC, Judge Walton, has recognized that the court is limited in its ability to
scrutinize the NSA's abuses: The FISC is forced to rely upon the accuracy of the information that is provided to the CourtThe
FISC does not have the capacity to investigate issues of noncompliance."32 And as discussed above, there
is no judicial
US constitution, also labelling the practice indiscriminate, arbitrary and almostOrwellian. This sentiment was then echoed by a Presidential Review Group on
Intelligence and Communications Technologies whose 46 recommendations if
implemented in full would at least lead to some significant curbs on the NSAs surveillance
powers. Time will tell if Obama is up for the fight; the historical precedents are not encouraging.
2nd Circuit Court ruling on Patriot Act proves courts can curb surveillance
programs
Hattem, staff writer, 15 (Julian, 5/7/15, Court ruling upends congressional surveillance fight,
The Hill, http://thehill.com/policy/technology/241328-court-ruling-upsets-congressionalsurveillance-fight, accessed 7/3/15, EOT@GDI)
A sweeping appeals court ruling against government surveillance powers on Thursday
could recast Congresss fight over expiring provisions of the Patriot Act. The federal court decision
could strengthen the hand of Capitol Hills civil libertarians who are facing an uphill battle to make significant reforms to the National
Security Agency (NSA) in the next two and a half weeks. The ruling should help propel Congress to end the program as it is
currently structured, and only allow the government to request data from the telephone companies after individualized court
approval, Rep. Adam Schiff (Calif.), the top Democrat on the House Intelligence Committee, said in a statement on Thursday
morning. It also shows that a straight reauthorization is not only politically untenable but on shaky legal ground as well.
Earlier on Thursday, the Second Circuit Court of Appeals ruled that the NSAs bulk
collection of Americans phone records exceeds the scope of what Congress has
authorized and, as such, is illegal. The decision was a major victory for critics of the NSA
and offered the firmest legal blow yet to the spy agency. The provision of the Patriot Act that
the government has used to justify that program, known as Section 215, is scheduled to expire at
the end of the month.
through unilateral action , like executive orders and regulation, rather than legislation. That choice diminishes the ability
of congressional opponents to derail Obama's ideas.
the five Republican-appointed Supreme Court justiceswill block him. In other words, as he
reduces his vulnerability to John Boehner, Obama is increasing his exposure to John Roberts. This dynamic didn't start with Obama
and won't likely end with him. As polarization stalemates Congress, it's
Roberts Court could intervene more than its predecessors to limit executive power.
It rebuffed
Bush's unilateral action on security issues like establishing military tribunals to try suspected terrorists.
And it recently
blocked Obama's reach for greater authority on recess appointments. But Obama nonetheless may be
better off taking his chances with the Court than the House. Boehner's greatest risk is that the GOP base won't consider him
confrontational enough. But,
after the backlash to the Justices' role in deciding the 2000 election,
many believe Roberts sees his greatest risk as the Court appearing too confrontational with
political leaders. "That colors how each man sees his role," notes one former high-ranking Democratic legal official. Still,
Roberts's sense of institutional self-preservation is a thin reed for presidents to lean on. With presidents from each party likely to assert
more executive power, the stakes will rise for both sides in controlling the courts that limit that power. That's why one of the most
relevant facts in the 2016 presidential election may be that three Supreme Court JusticesRepublican appointees Antonin Scalia and
Anthony Kennedy and Democratic-appointed Ruth Bader Ginsburgwill be at least 80 when Obama's successor is sworn in.
Judicial review creates incentives for the executive to change national security
policy
Ashley Deeks, 13, Courts Can Influence National Security Without Doing a Single Thing.,
http://www.newrepublic.com/article/115270/courts-influence-national-security-merely-watching ,
10-21-2013, 07-08-2015
Heres another example: in the face of some adverse lower court
decisions (which the Government ultimately won on appeal), the
Government curtailed its own use of the state secrets privilege.
Thats a privilege the government may invoke when a lawsuit raises legal
challenges that cannot be proven or defended without disclosing information
that would jeopardize U.S. national security. And the Government altered the
policies pursuant to which it uses secret evidence to deport aliens, due in
part to critical language in court decisions, even though the
Government likely would have won the cases on the merits. When should we
expect to see the observer effect? In general, we should look for three things.
First, there must be a triggering event. This ranges from the filing of a nonfrivolous case, to some indication from a court that it may reach the merits of
a case (i.e., ordering briefing on an issue, or rejecting the governments
motion for summary judgment), to the courts consideration of the issue on
the merits. The observer effect most clearly comes into play when a court
becomes seized with a national security case after an extended period of
judicial non-involvement in security issues, such as when federal courts
started to consider the type of person the Executive lawfully may detain on
the battlefield. The observer effect then kicks in to influence the Executives
approach to the policy being challenged in the triggering case, as well as to
future (or other pre-existing) Executive policies in the vicinity of that
triggering case. Second, future uncertainty plays a critical role in eliciting the
observer effect. In some cases, the question for the Executive will be whether
a court will conclude that it can or should exercise jurisdiction over a case. In
other cases, Executive uncertainty will exist when it is not obvious what law
will govern the dispute at issue, or where there is little precedent to guide the
courts in resolving the dispute. It is this uncertainty that leaves the
Executive with doubt about whether it will win the case, and that
creates incentives for the Executive to alter its policies in
anticipation of litigation or its outcome. After all, there are real
advantages to the Executive in retaining the power to shape these national
security policies, even under a potentially watchful eye of the courts. The
third factor that helps secure the observer effects operation is the likelihood
of future litigation on related issues. If a court declines to defer to the
Executive in a particular case, that decision is unlikely to create an
observer effect if the Executive has confidence that the factual and
legal questions at issue in that case will not arise again. In contrast,
when the Executive perceives that a set of policies is likely to come under
sustained litigation (and thus under the potential oversight of multiple judges
over time), it is more likely to concertedly reviewand alterthose policies.
use of photography and videotaping, the devices used should be limited to technology
generally available to the public. Drawing such bright-line rules will provide a workable
and predictable balance between the needs of law enforcement and the protection of
individuals civil liberties. And the reasonable-expectation-of-privacy test may indeed survive another round.
Deference NB
1NC
Judiciary defers to executive now- CP flips that
Hornberger, president of The Future of Freedom Foundation, 15 (Jacob, 6/11/15, FEDERAL
JUDICIAL DEFERENCE TO THE NATIONAL-SECURITY STATE, The Future of Freedom
Foundation, http://fff.org/2015/06/11/federal-judicial-deference-national-security-state/, accessed
7/2/15, EOT@GDI)
If youd like a good example of the power that the national-security branch of the federal government has acquired within our federal governmental
structure, all you have to do is consider
the judicial system that the Pentagon has established and runs at
Guantanamo Bay, Cuba, for terrorism prosecutions. It is a perfect example of how the
federal judiciary, out of deference to the national-security branch of the government, has
abrogated its responsibility of declaring its acts unconstitutional. The judicial system that the Pentagon runs at
Gitmo isnt about putting soldiers on trial for offenses committed inside the military bureaucracy. Thats what the Uniform Code of Military Justice is all
about. If a soldier, say, is caught violating drug laws on base, hes prosecuted within the military system, not the civilian judicial system.What we are
talking about instead is a judicial system that the Pentagon established in cases involving terrorism to compete against the federal judicial system that was
established under the Constitution. The way the system works is that federal
crises , and describes the Madisonian separation of powers in government as a historical relic. The article, written by one Jason Kelly of the magazine staff, is a strange amalgam of political correctness
combined with a puff piece on Posners Straussian views, which I suspect most U of C alumni would find repugnant if they bother to read the article. Kelly cites undocumented immigrants at one point and refers to
Posners support of executive power as a common view in legal circles. He accepts Posners lead in defining those who criticize the unitary executive as engaging in irrational fear that Posner labels
tyrannophobia, which colors the discussion that follows. Kelly might equally have referred to critics of Posner as constitutionalists, which would result in a different perception. Per Posner, legal restraints on the
executive branch have been replaced by political considerations, by which he means democratic public approval, to constrain executive action. He explains that presidents operate in a bubble defined by their own
popularity and what the public will accept to maintain the credibility to govern which he also refers to as political legitimacy. He expands on this by asserting that the public values stronger federal regulation of
national concerns because the nation has evolved politically, no longer restrained by rule of law, into an administrative state. It is a natural development, reflecting public opinion and the institutional
advantages of the presidency. Eric Posner further explains that Most people want government to foster security and prosperity and the administrative state best serves those ends because it became evident to
people that they benefit from having most policy being made at the federal level making them willing to give up that kind of fine-grain choice in return for the benefits that you get from having a very powerful
government and a very powerful president. Posner takes particular exception to the slippery slope argument that, for example, [a White House decision to undertake] targeted killing could be used against average
citizens, refuting the notion by asserting that there is nothing sinister in such a policy beyond possibly bad-decision making, saying Its just wild exaggeration to say that the president who does those things is a
Posner is comfortable with the only restraint on executive power being the somewhat
amorphous consent of those who are generally speaking disengaged and virtually powerless in our
political system. His view would astonish Americas Founders, who saw democracy as little more than mob rule and who, as a consequence, devised a republic resting on a system of
tyrant.
constitutional restraints to avoid giving that power to the demos. What the Founders feared even more than an unrestrained presidency was tyranny by the majority, a constraint on government that Posner, ironically,
sees as a protection against executive overreach. Be that as it may, real pushback against Washington is largely ineffective as todays Americans are poorly informed about issues and the media has largely abandoned
its role as the Fourth Estate. Meanwhile the government is able to cite secrecy to protect its illegal actions, giving the president the ability to create and manage a suitable narrative supporting his policies, no matter
how harmful they might be.
targeted killings , torture, warrantless surveillance, secret wars, or an immigration program that includes deliberate non-enforcement of laws, but they are all current government
policies. And, contrary to Posners assertion, there is indeed a slippery slope . Im not sure what Posner means by it being
unlikely that an average citizen might targeted for death by drone , but certainly three citizens that I know of have been
executed in that fashion and several more are believed to be on the death list. Increased use of state secrets privilege is a symptom of
executive privilege , violation of what was once regarded as privacy is now systemic, and the U nited S tates has been going to war more
frequently and without any regard for national interest ever since the constitutional norms to limit the authority to do so were abandoned in Korea. If the main purpose of
government as seen from the ground up is, per Posner, to foster security and prosperity then the unitary executive
detention,
has failed miserably , as the U nited S tates policy of executive-inspired global armed intervention has
made the entire world less safe while the standard of living for most Americans (possibly excluding University of Chicago law professors) has fallen sharply. Posner studied
philosophy as an undergraduate at Yale. He might have been better served if he had paid more attention to history. His views are not dissimilar to those of Carl Schmitt, the Nazi jurist, who argued in similar terms to
those promoted by Posner, that a powerful executive is imperative in time of crisis. Schmitt favored a military dictatorship to solve Weimar Germanys problems. Posner is, in fact, an admirer of Schmitt, having
written approvingly governance through ex post standards, rather than ex ante rules, is inevitable and even desirable where political, economic or military conditions change rapidly and cause exogenous shocks to
the constitutional order. Like Schmitt, Posner contends in his book Terror in the Balance (also co-authored with Vermeule) that There is a straightforward tradeoff between liberty and security where any increase
in security requires a decrease in liberty. The argument is itself fallacious because security and liberty are not causally connected, but it is rarely challenged by those in government or in academia. Expanding on his
thesis, Posner explained how Constitutional rights should be relaxed so that the executive can move forcefully against the threat. If dissent weakens resolve, then dissent should be curtailed. If domestic security is at
risk, then intrusive searches should be tolerated The reason for relaxing constitutional norms during emergencies is that the risks to civil liberties inherent in expansive executive powerthe misuse of the power for
political gainare justified by the national security benefits. Posner also wrote in Terror that torture, which he prefers to call coercive interrogation, and ethnic profiling are permissible in a crisis; that normal
Hitler quickly moved to consolidate power and the communist and socialist parties as well as any new parties were subsequently made illegal. In 1934, upon the death
of Hindenburg, Hitler assumed the powers of the presidency and the army began to swear allegiance to him rather than to the constitution.
and the rest is history . The March 1933 election was the last free election in Germany until the creation of the Federal Republic in 1949. I suppose Posner would respond with a version of it
cant happen here. But
the truth is that it can happen anywhere and does happen even if a genocidal
dictatorship is unlikely to spring up in the United States . Guantanamo happened and continues to happen and Jose Padilla is testimony to the
fact that government believes it can ignore the constitutional rights of any citizen. The list of states that have constitutions but that have nevertheless evolved into something like dictatorships is a long one.
Those seizing control consistently cite a need for security and efficiency as their principal
motives, not unlike the justifications offered by both Republicans and Democrats during
the post 9/11 years. The restraints imposed by the US Constitution offer a legal recourse against a President Barack Obama or a Mitt
Romney declaring a state of emergency and deciding that whole categories of citizens would benefit from being shipped off to reeducation camps. The White House would cry
terrorism !, the media and congress would fall in line , and the poorly informed public
would believe the fiction being dispensed. That is pretty much what Franklin D. Roosevelt did in 1942 with Japanese-Americans. There was no mob storming
Executive primacy is by
its very nature a dangerous zero sum game, with political power accruing to the president taken away
from the American people, the judiciary, from congress, and from the states . The Posner
the Bastille at that time to protest the threatened fellow citizens and there would be little outcry now if selected minority groups were to be on the receiving end.
formula enables bad decisions by the White House to become the unchallengeable norm while
Posner himself personally provides intellectual legitimacy to a set of bad ideas not to mention criminal behavior.
Consider the government fabrications that led to the rush to war with Iraq as an example of
how fraud by government can work. Posners granting of de facto carte blanche to someone who, quite possibly by a set of curious
chances, winds up in the Oval Office and is restrained only by the limits of his own popularity should be
seen as a threat to every American , not as a necessary or inevitable advance in governance.
laws, including environmental laws. Already, one federal court has applied the National Historical Preservation Act (NHPA) to this
controversy in Okinawa.' Strong arguments remain that the National Environmental Policy Act (NEPA) and the Endangered Species
Act (ESA) should also apply to the U.S. military's actions in Okinawa. The
The
U.S. Court of Appeals for the Ninth Circuit affirmed. The Supreme Court reversed,
limiting its decision to the proper standard for issuing preliminary (and permanent)
injunctions. The Supreme Court held that a showing of likely rather than possible
irreparable injury is required under long-established precedent in light of the extraordinary
nature of an injunction. The Court noted that the district court failed to consider whether
irreparable injury remained likely even though the Navy agreed to comply with several of
the injunction conditions (such as a 12-mile exclusion zone along the coastline), the training exercises had been taking
place for 40 years with no documented sonar-related injury to a marine mammal in the southern California region, and the training
Specifically, how much authority does and should the Executive Branch have to establish and
implement national security policies, and how much oversight can and should courts provide over these policies? People
tend to divide into one of two schools of thought when answering these questions. The first school favors extensive
deference to Executive branch national security decisions and celebrates what it sees as a limited role for courts. The
Executive, this school contends, is constitutionally charged with such decisions and structurally better suited than the
judiciary to make them. After all, Alexander Hamilton famously remarked that housing powers in a unitary executive
provides the advantages of [d]ecision, activity, secrecy, and dispatchqualities our federal courts simply dont have.
it behaves. Through psychology, we know that people act differently when they are aware that someone is watching them.
combatant litigation also underscores the extent to which the classic realist
assumptions about courts' legitimacy in foreign affairs have been turned on their head. In an
anarchic world, legitimacy derives largely from brute force. The courts have no armies at their disposal and look weak when they issue decisions that
cannot be enforced. n441 But in
other nations will know that they can rely on those interpretations and that there will be at
least some degree of enforcement by the United States. At the same time, the separation of powers
serves the global-governance function by reducing the ability of the executive branch to
make "abrupt or aggressive moves toward other states." n424
They doubt Obamas conviction that America is a shining city upon a hill and a beacon to all
free peoples. As president of the United States, I will devote myself to an American Century, and I will never, ever apologize for America, Republican presidential candidate Mitt Romney said during a recent
foreign-policy speech. In it, he advanced the notion of Americas singularity, its role as a bulwark against tyranny, and its leadership of the free (and, by extension, the entire) world. Americas strength rises from a
questioned his one-sided fealty to Israel and blamed him for a war in Iraq that was dragging toward what, exactly ? They charged that he tarnished the American beacon by endorsing torture and conflating the
spread of democracy with regime change at the point of a gun.
instincts run up against and , in many cases, get foiled bythe same international challenges ? In George
W. Bush, Barack Obama, and the Future of U.S. Global Leadership, a recent article in International Affairs, James Lindsay wrote that presidents today , no matter their
styles , must manage friends and foes who feel increasingly empowered to ignore or contest American
dominance. Americans have this ingrained notion that U.S. leadership and predominance is the natural state
of world affairs, with Democrats thus concluding that gentle engagement will automatically cause countries to rally to our banner, and Republicans
believing that firmness and consistency will have the same effect , Lindsay said in an interview. They are both fundamentally
misreading the geostrategic environment. The post-Cold War period was an era of victory that left the United States standing atop the global ordera
superpower with unmatched military, economic, social, and diplomatic might. No wonder expectations are so high. But things have changed . Brazil, India,
Indonesia, Turkey, and especially China are clawing their way to the top of the international system,
insisting on all the privileges that come with their newly elevated status, as Lindsay puts it. Revolution is sweeping the Middle East, the worlds energy basket.
Revisionist powers (Russia) and perennial outliers (Iran, North Korea) sense opportunity and new room to maneuver. If a unipolar
moment ever really existed, its not just passed, its gone permanently , says Richard Haass, the former senior official in the first Bush White House who now runs the Council
on Foreign Relations. Partly, that follows from two costly wars, a recession, and political dysfunction that blocks a long-term debt solution or a bipartisan foreign-policy consensus. More than that, though, it flows
from globalization.
Power is simply too diffuse now, and the challenges we confront are complex,
transnational, and they defy the efforts of any one nation , Haass says.
Judicial Independence NB
1NC
Judicial independence sends a global signal- key to democracy
Center for Justice and Accountability 4 Amici Curiae in support of petitioners in Al
Odah et al. v USA, "Brief of the Center for Justice and Accountability, the International League
for Human Rights, and Individual Advocates for the Independence of the Judiciary in Emerging
Democracies," 3-10,
http://www.jenner.com/files/tbl_s69NewsDocumentOrder/FileUpload500/82/AmiciCuriae_Cente
r_for_Justice_Int_League_Human_Rights_Adv_For_Indep_Judiciary2.PDF
Many of the newly independent governments that have proliferated over the past five
decades have adopted these ideals. They have emerged from a variety of less-than-free contexts, including the end of European
colonial rule in the 1950's and 1960's, the end of the Cold War and the breakup of the former Soviet Union in the late 1980's and 1990's, the disintegration
of Yugoslavia, and the continuing turmoil in parts of Africa, Latin America and southern Asia.
Establishing judicial review by a strong and independent judiciary is a critical step in stabilizing and
protecting these new democracies. See Christopher M. Larkins, Judicial Independence and Democratization: A Theoretical
and Conceptual Analysis, 44 Am. J. Comp. L. 605, 605-06 (1996) (describing the judicial branch as having "a
uniquely important role" in transitional countries, not only to "mediate conflicts between
political actors but also [to] prevent the arbitrary exercise of government power; see also Daniel C.
Prefontaine and Joanne Lee, The Rule of Law and the Independence of the Judiciary, International Centre for Criminal Law Reform and Criminal Justice
Policy (1998) ("There
experience should be
put to use to advance the rule of law, where democracy's roots are looking for room and
strength to grow." Remarks at Georgetown University Law School, 36 Weekly Comp. Pres. Doc. 2218 (September 26, 2000), available at
http://clinton6.nara.gov/2000/09/2000-09-26- remarks-by-president-at-georgetown-international-lawcenter. html. The United States acts on these
principles in part through the assistance it provides to developing nations. For example, the United States requires that any country seeking assistance
through the Millenium Challenge Account, a development assistance program instituted in 2002, must demonstrate, among other criteria, an "adherence
White House noted that the rule of law is one of the "essential conditions for
successful development" of these countries. See http://www.whitehouse.gov/infocus/developingnations (last visited Jan. 8,
2004).12
Nuclear ,
chemical , and biological weapons continue to proliferate. The very source of life on Earth , the
global ecosystem , appears increasingly endangered. Most of these new and unconventional threats to security
are associated with or aggravated by the weakness or absence of democracy, with its provisions for
legality, accountability, popular sovereignty, and openness. The experience of this century offers
important lessons. Countries that govern themselves in a truly democratic fashion do not go
to war with one another. They do not aggress against their neighbors to aggrandize themselves or
glorify their leaders. Democratic governments do not ethnically "cleanse" their own populations, and they
are much less likely to face ethnic insurgency. Democracies do not sponsor terrorism against one another. They
do not build weapons of mass destruction to use on or to threaten one another. Democratic countries form more reliable,
open, and enduring trading partnerships. In the long run they offer better and more stable climates for investment. They are more
environmentally responsible because they must answer to their own citizens, who organize
to protest the destruction of their environments. They are better bets to honor international
treaties since they value legal obligations and because their openness makes it much more
difficult to breach agreements in secret. Precisely because, within their own borders, they respect
competition, civil liberties, property rights, and the rule of law, democracies are the only
reliable foundation on which a new world order of international security and prosperity can be built.
only protection against such threats to truly fundamental liberties as arbitrary arrest and
detention without trial, the invasion of homes by security forces without judicial warrants,
and the suppression of political opposition, including all freedom of expression. In countries with
written constitutions and other democratic forms of government, the switch to a dictatorship or another form of authoritarian rule
has usually been accomplished by declaration of an emergency suspending the constitution and the customary
powers of independent courts.
Extinction
Benoit 80 Emile, Senior Research Associate and Professor Emeritus Columbia University,
Progress and Survival: An Essay on the Future of Mankind, p. 97-8
It must be clear, however, that nonresistance
the federal judiciary is electorally unaccountable. Federal judges and justices are insulated from the political process through constitutional guarantees of
life appointments and salaries that may not be diminished during their terms of office. 44 In theory, this independence, plus the power to hold
legislative and executive acts unconstitutional, allows
Although lifetime tenure renders the Court in part an undemocratic institution, it serves an
essential function in American liberal-democratic tradition by safeguarding the integrity of
fundamental rights against the effects of occasional ill humors in the society (Fed. 78). Indeed, Hamilton
notes that permanent tenure allows for that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty
(Fed. 78). This prescriptive understanding of the Courts role generally conforms to the actual subjective expectations of the American public (Hibbing
and Theiss-Morse 1995; Scheb and Lyons 2001). The
fundamental principles and defend our judicial institutions and prerogatives. It would be a sad day, indeed, if a Utah judge, when asked the
question "what happens when the state, its agencies, or officers appear as a party in your courtroom?" had to reply, "Well, it makes it pretty
tough."
Ptx NB
1NC
Court decisions avoid congressional political battles
Ward 9 Artemus, Professor of Poli Sci @ NIU Political Foundations of Judicial Supremacy:
The Presidency, the Supreme Court, Congress & the Presidency, Jan-Apr, (36)1; p. 119
After the old order has collapse the once- united, new-regime coalition begins to fracture as original commitments are extended to new issues. In chapter
3 Whittington combines Skowronek's articulation and disjunctive categories into the overarching "affiliated" presidencies as both seek to elaborate the
regime begun under reconstructive leaders. By this point in the ascendant regime, Bourts are staffed by justices from the dominant ruling coalition via the
appointment process - and Whittington spends time on appointment politics here and more fully in chapter 4. Perhaps counter-intuitively, affiliated
political actors - including presidents - encourage Courts to exercise vetoes and operate in issue
areas of relatively low political salience. Of course, this "activism" is never used against the affiliated president per se. Instead, affiliated Courts
correct for the overreaching of those who operate outside the preferred constitutional vision, which are often state and local governments who need to be
brought into line with nationally dominant constitutional commitments. Whittington explains why
Judicial review can provide an opportunity for elected political actors to evade
responsibilities or to pursue policies while evading electoral consequences. Such actions may
enhance or enable domination by letting those actors pursue policies that might lead to domination without suffering electoral consequences. The
judicial review can provide another outlet that permits legislators to "run from
daylight"85 and effect important policy changes with a minimum of public scrutiny is a serious
possibility that
concern, and may especially contribute to domination by powerful economic elites. An additional concern is that judicial review can have the
perverse effect of making legislators less attentive to their constitutional responsibilities, as they may vote for legislation they believe to be
unconstitutional under the assumption that the courts will correct their mistake.86
The myth of legality implies what political scientists have dubbed the legal modelof judicial
decision making (Segal and Spaeth, 1993, 1996a, 1996b). The legal model holds that court
decisions are based on rules that are derived and applied through a neutral legal reasoning
process. In terms of constitutional interpretation by the United States Supreme Court, the legal
model dictates that justices rely on the original intent and on precedent in assigning meaning to
constitutional text. Thus, according to the legal model, the ideologies, party affiliations,
personalities, and social backgrounds of justices are simply irrelevant to the process of
Supreme Court decision making. Similarly, the Court is uninterested in, and unaffected by,
public opinion, political parties, interest groups, and the positions of the other
governmental actors . Because the Court is a legal institution, not a political one, only legal
factors are permitted to influence its decisions.
attempt to stop what was, at least initially, a popular campaign. Ultimately, the political question
doctrine is about the latitude the Court gives the political branches, which in turn creates a
space that can be exploited. While it is true that referring the issue to the political branches
does not mean that they can exercise absolute discretion free of principled rules,130
removing the judicial check means taking out a meaningful constraint on official action. By
declining to rule on the issue, even in the face of seemingly straightforward provisions such
as the Declare War Clause, courts are in effect creating a space where constitutional
resistance will have an easier time flourishing.
ideas as my own - I consider evidence to be taken out of context if it says, "debaters should argue that bush would get credit" and folks read only the part
suggesting "bush would get credit," thereby attributing that idea to me. When I found out that people were reading "Harrison 06" evidence from the blog
as link cards on the court politics argument, I made an effort to end this. Whenever anyone read this evidence in front of me, I asked that they not do so in
the future. I also posted something on the blog that I intended as a disclaimer for people not to read "evidence" from the blog. I have been traveling
internationally for several months and, upon my return, I found out that people have continued to read this evidence in debate rounds. Accordingly, I am
now sending this to edebate in the hope that the community will recognize definitively that
A2s:
central guideline and goal of this doctrine is the ability of a court to provide a
meaningful decision . While courts reserve the right to declare cases non-justiciable for general reasons, time has honed this jurisprudence into
three specific arenas: ripeness, mootness, and standing. 1. The Issue Must Be Ripe Ripeness
Second is mootness, which requires that the case or facts have not yet run their course. n50
A moot case is essentially the opposite of an unripe case . n51 In United States v. Alaska Steamship Co., n52
steamship companies contested the Interstate Commerce Commission's authority to require two different forms for bills of lading for domestic and export
transportation. n53 After the suit was filed, Congress passed an act amending federal power to regulate commerce and requiring a change in format for
both types of bills. n54 Under the new circumstances, the issue became moot. n55 The
Therefore, a court that decides the issue and administers a "remedy" when neither an
actual harm nor a real plaintiff exists performs a legislative function. To inflate the judicial
power through prudential considerations (such as preserving judicial resources) tips the
balance of powers through these cases. n226 The constitutional constant becomes variable
when prudential factors become overreaching. This undermines our system of separated
powers.
synonyms at decide.
Should, as used in the Social Security Administrations ruling stating that an ALJ should call on the services of a medical advisor
must.Herrera v. Barnhart, 379 F.Supp.2d 1103.Social S 142.5.
Severs certainty- we'll win compliance but its not something we fiat
Pacelle 2 Associate Professor of Political Science at the University of Missouri-St. Louis, 2002
(Richard, The role of the Supreme Court in American politics: the least dangerous branch? pg
102
Judicial decisions are not self-fulfilling directives. Because of institutional limitations, courts
cannot implement their own decisions. Thus, the Court must rely on other individuals and
institutions to carry out its directives. Because of these potential problems, many argue that the
Court should not be active in policy-making. Ultimately, it is an empirical question, like broader
notions of capacity. If the justices make decisions that lower courts do not apply or implementers
ignore there is a loss of institutional legitimacy for the Court.
Defending certainty and immediacy are good- key to stable DA links and
reflect a real world discussion of the literature since authors dont write about
things happening 6 months from now.
sort of back and forth works only if Congress is not paralyzed. An overlooked
consequence of the current polarization and gridlock in Congress, a new study found, has been a
huge transfer of power to the Supreme Court. It now almost always has the last word, even in
decisions that theoretically invite a Congressional response. Congress is overriding the
Supreme Court much less frequently in the last decade, Richard L. Hasen, the author of the study, said in an
interview. I didnt expect to see such a dramatic decline. The number of overrides has fallen to almost none. The few
recent overrides of major decisions, including the one responding to the Ledbetter case, were by partisan majorities. In the past, when Congress
overturned a Supreme Court decision, it was usually on a nonpartisan basis, said Professor Hasen, who teaches at the University of California, Irvine.
In each two-year Congressional term from 1975 to 1990, he found, Congress overrode an
average of 12 Supreme Court decisions. The corresponding number fell to 4.8 in the decade
ending in 2000 and to just 2.7 in the last dozen years. Congressional overruling of Supreme
Court cases, Professor Hasen wrote, slowed down dramatically since 1991 and essentially halted in January 2009.
Tracking legislative overrides is not an exact science, as some fixes may be technical and trivial. And there may be other reasons for the decline,
including drops in legislative activity generally and in the Supreme Courts docket. But scholars who follow the issue say that Professor Hasen has
discovered something important. Particularly since the 2000 elections, there
In recent years, some scholars with a strategic perspective have analyzed relationships between the Supreme Court and lower courts in formal terms,
terms that facilitate comparison between implementation processes in the judiciary and hierarchical relationships in other settings (Kornhauser 1995,
Hammond et al. 2001; see Brehm & Gates 1997, pp. 1320). Especially important is collaborative work by Segal, Songer, and Cameron (Songer et al.
1994, 1995; Cameron et al. 2000), who have employed principal-agent theory to guide empirical studies of the relationship between the Supreme Court
and federal courts of appeals. Even in this new wave of research, however, there has been little systematic comparison between courts and other policy
enactors. The natural comparison is between the Supreme Court and Congress, each of which acts to shape administrative policy. It is reasonable to posit
that Congress does better in getting what it wants from administrators, because its powers (especially fiscal) and its capacity to monitor the bureaucracy
are appreciably stronger. The sequences of events that overcame school segregation and racial barriers to voting in the Deep South support that
hypothesis. But it remains essentially untested, in part because good tests are difficult to design. Thus, we still know little about the relative success of
implementation for legislative and judicial policies. Once we know more about the implementation of the Courts decisions in absolute and relative terms,
the most important question might well be why implementation is as successful as it is. The
significant action to
counter the Courts policies has been exceedingly unlikely . Beyond the difficulty of enacting legislation, two other
factors may come into play. First, Congress often adopts measures that limit the impact of a Court policy or that attack the policy symbolically, actions
that suffice for members who want to vent their unhappiness with the Court or to claim credit with constituents who oppose the decision (see Keynes &
Miller 1989). In response to Roe v. Wade (1973), for instance, Congress (often with presidential encouragement) has mandated various limits on federal
funding of abortion. Two years after Miranda v. Arizona (1966), it enacted a statutory provision purportedly to supersede the Miranda rules in federal
cases, a provision that federal prosecutors ignored and that the Court ultimately struck down in Dickerson v. United States (2000). Second, the
Court may enjoy a degree of institutional deference in Congress, similar to that found in other relationships
among the three branches but buttressed by the symbolic status of the Constitution itself. This deference tinges certain courses of action, such as
restrictions on court jurisdiction, with illegitimacy. The failure of proposals to overturn the flag-burning decisions with a constitutional amendment,
despite broad and deep public opposition to those decisions, reflects the symbolic power of the First Amendment. Congressional
deference to the Court is not limitless, but in combination with other factors it may help to explain why the
Courts recent interventions and the Court itself have survived congressional scrutiny so well.
it more remarkable that so many schools maintained religious exercises prohibited by the Court or that so many others eliminated exercises that had
strong public support? The absence of desegregation in the Deep South in the decade after Brown was noteworthy, but so was the gradual elimination of
school segregation in the border states. Moreover, this research reflected a strong selection bias in that scholars
elsewhere in government (e.g., Kaufman 1960, Pressman & Wildavsky 1973) and in work organizations (e.g., Mechanic 1962, Crozier 1964) had little
impact on the judicial research. As a consequence, judicial scholars seldom considered whether noncompliance with Supreme Court decisions
resulted chiefly from universal imperfections in implementation rather than special weaknesses
of courts. The first possibility has become even more credible with the accumulation of
research on policy implementation (e.g., Lipsky 1980, Wilson 1989, Brehm & Gates 1997).
The Courts .The courts constrain the Executive, both because courts are necessary to the
Executive imposing punishments and because courts can enforce the Constitution and laws against the
Executive. It is true, as Posner and Vermeule say, that courts often operate ex post and that they may defer to executive determinations, especially in sensitive areas such as national security. But these
qualifications do not render the courts meaningless as a Madisonian constraint. First, to impose punishment, the Executive must bring a
criminal case before a court. If the court, either via jury or by judge , finds for the defendant, the
Executive does not suppose that it can nonetheless impose punishment (or even, except in the most extraordinary cases, continue
detention).
This is so even if the Executive is certain that the court is mistaken and that failure to punish will lead to bad
the Executives ability to impose its policies upon unwilling actors is sharply limited by the need
to secure the cooperation of a constitutionally independent branch , one that many suppose has a built-in dedication to the rule of law.84
And one can hardly say, in the ordinary course, that trials and convictions in court are a mere rubber stamp of Executive Branch conclusions. Second, courts issue injunctions
that bar executive action. Although it is not clear whether the President can be enjoined,85 the rest
of his branch surely can and thus can be forced to cease actions that judges conclude violate federal law or the
results. As a result,
Constitution.86 As a practical matter, while courts issue such injunctions infrequently, injunctions would be issued more often if an administration repeatedly ignored the law. Third,
courts
judgments sometimes force the Executive to take action , such as adhering to a courts reading of a
statute in areas related to benefits, administrative process, and even commission delivery. Though the claim in Marbury v. Madison87 that courts could issue writs of mandamus to executive officers was
dicta,88 it was subsequently confirmed in Kendall v. United States ex rel. Stokes,89 a case where a court ordered one executive officer to pay another.90 Finally,
there is the
extraordinary practice of the Executive enforcing essentially all judgments . The occasions in which the Executive has refused to
enforce judgments are so few and far between that they are the stuff of legend. To this day, we do not know whether Andrew Jackson said, John Marshall has made his decision, now let him enforce it.91 Lincolns
the knowledge of such review affects what the Executive will do . Executives typically do not wish to be sued, meaning that they often will take
on a series of assumptions that Wittes does not attempt to prove. First, he assumes that the
executive branch would ignore a judicial decision invalidating action that might be justified
by military necessity.181 While Jackson may arguably have had credible reason to fear such
conduct (given his experience with both the Gold Clause Cases182 and the switch in time),183 a lot has changed in the past six-anda-half decades , to the point where I, at least, cannot imagine a contemporary President
possessing the political capital to squarely refuse to comply with a Supreme Court decision. But perhaps I am nave.184
courts rarely intervene directly in national security disputes, they nevertheless play a significant role in shaping Executive branch
security policies . Lets call this the observer effect. Physics teaches us that observing a particle alters how it behaves. Through psychology, we know that people act
differently when they are aware that someone is watching them. In the national security context, the observer effect can be thought of as the impact on
Executive policy-setting of pending or probable court consideration of a specific national security
policy . The Executives awareness of likely judicial oversight over particular national security policies
an awareness that ebbs and flows plays a significant role as a forcing mechanism . It drives
the Executive to alter , disclose, and improve those policies before courts actually review them.
why would lower court judges - assumed to be motivated by their policy preferences - choose to follow legal
authority rather than pursuing their own \preferred outcomes? The simplest explanation
for lower court compliance is that judges have legal preferences independent of their
political preferences. More precisely, even if judges care about whether the outcome in a given
case advances their preferred policy, they likely care about whether it conforms to legal
norms as well. Judges may have a variety of legal preferences regarding matters such as the appropriate mode of interpreting statutes, or the
relevance of foreign legal materials, and these preferences may vary from judge to judge. But their decisions are also guided by a
set of widely shared norms - some of which are formulated as legal rules - regarding their
role in the judicial hierarchy. One fundamental and widely accepted norm requires that
lower federal court judges follow precedent established by a court directly in line above
them in the judicial hierarchy. Adherence to this norm offers a straightforward explanation
of why lower courts comply with superior court precedent, even that with which they
disagree. n8
Roughly a year and a half since the first Snowden disclosures, there's already been a
judicial order to shut down the National Security Agency's bulk metadata collection
program. The lawsuit filed by Larry Klayman, a veteran conservative activist, would
essentially put a stop to unchecked NSA surveillance. And at the start of 2015, he remains
the only plaintiff whose case has won when fighting for privacy against the newly
understood government monitoring. However, it's currently a victory in name onlythe judicial order in Klayman
was stayed pending the governments appeal. DC Circuit Court of Appeals may confirm ruling that ended practice, was stayed.
Klayman v. Obama is only one of a number of notable national security and surveillance-related civil and criminal cases stemming
fully or partially from the Snowden documents.
the legal system that 2015 is likely to be a big year for privacy policy . One or more could
even end up before the Supreme Court. "I think it's impossible to tell which case will be the
one that does it, but I believe that, ultimately, the Supreme Court will have to step in and decide
the constitutionality of some of the NSA's practices ," Mark Rumold, an attorney with the Electronic Frontier
Foundation, told Ars. Rumold is one of the attorneys in First Unitarian Church, a case that is challenging government surveillance
much like Klayman. Along with that pair, headline watchers should set alerts for cases such as American Civil Liberties Union
(ACLU) v. Clapper, United States v. Moalin, and United States v. Muhtorov. Not
Zivotofsky v. Clinton, a case in which the Court once and for all rung the death knell for the
application of the p olitical q uestion d octrine as a nonjusticiability doctrine in cases involving individual rights even those arising in a
foreign policy context. In fact, a historical review of Supreme Court cases demonstrates that the
Supreme Court has never applied the so-called p olitical q uestion d octrine as a true nonjusticiable doctrine to
dismiss individual rights claims (and arguably, not to any claims at all), even those arising in the context of foreign
or military affairs. This includes the seminal political question case of Marbury v. Madison. Rather, the Supreme Court has almost always
rejected the political question doctrine as a basis to preclude adjudication of individual
rights claims, even in the context of foreign or military affairs. Moreover, the Supreme Court has consistently admonished lower
courts regarding the importance of the judiciary branchs adjudication of individual rights claims, even in such contexts.13 That is not to say that from time to time the Court has not cited a political question
doctrine in certain of its cases. However, a close review of those cases demonstrates that rather than dismissing such claims in those cases as nonjusticiable, the Court in fact adjudicated the claims by finding that
individual rights, if not altogether. The Court found the case, involving whether the parents of a boy born in Jerusalem had the right to list Israel as his place of birth pursuant to a Congressional statute, was
justiciable.17 The Court addressed the real issue, which was whether Congress had the authority to trump the President over whether Israel could be listed as the country of birth on passports where a person was born
in Jerusalem, notwithstanding the Presidents sole authority to recognize other governments. 18 In ruling as it did, the Court stayed true to many of its earlier cases involving political questions by adjudicating the
claim through deciding whether one of the political branches took action that was within its constitutional authority.
No precedent spill-over
Roy Flemming 00 is Texas A&M University political science professor, "Majority Rule or
Minority Will: Adherence to Precedence on the U.S.Supreme Court," Canadian Journal of
Political Science, Vol 33, No. 2, jstor
In the United States, proponents of legal realism in its various forms have continuously challenged since the 1920s the belief that the law and legal reasoning determine the outcome of litigation in courts. For nearly
judges pick the legal principles they want to apply, that these
choices reflect extralegal considerations, like the judges' own values or ideology, and that judges ignore earlier cases and
refuse to be bound by precedent. Political scientists influenced by these views and by the behavioural revolution in public law in the late 1950s and early 1960s joined this
eight decades, successive generations of sceptical scholars have argued that
critical assault on legal formalism. Harold J. Spaeth was among the pioneering political scientists who promoted the construction of behavioural models of judicial politics. He has continued to research widely in this
area. In 1993, he and Jeffrey A. Segal presented a major restatement of these models in The Supreme Court and the Attitudinal Model (New York: Cambridge University Press). Since then
they have
collaborated to develop a systematic assessment of the influence of stare decisis . The book under review here was
preceded by Stare Indecisis in 1995, which Spaeth wrote with Saul Brenner (New York: Cambridge University Press) and looks at the Court's reversal of precedents since the Second World War. In 1996, Spaeth and
Segal's article on the justices' voting behaviour and whether they adhered to stare decisis was the subject of a symposium published by the American Journal of Political Science. Now, Spaeth and Segal, in Majority
American
justices do not heed precedent unless they agree with it. Justices dissenting from original opinions
do not reverse their votes in the succeeding "progeny" and fall into line with the precedents, which they
Rule and Minority Will, conclude their attack on one of the fundamental principles of common law jurisprudence and a linchpin of the legal model. The point of their book is simple:
would have if the justices adhered to stare decisis. Instead, they continue to vote their own
preferences. Skeptics may point out that precedents are rarely overruled, but that does not mean individual justices feel constrained by stare decisis. Moreover, when given the
chance, as when voting alignments on the Court shift in their favour after the appointment of a sympathetic new justice, American justices previously in the minority will vote
to overturn precedents that run counter to their preferences . In a word or two, American justices are rarely
influenced by stare decisis. Majority Rule and Minority Will analyzes 2,425 votes and opinions cast by 77 justices in 1,206 progeny of 341 cases. Spaeth and Segal cannot be faulted
presumably
for selecting a particular era that might favour their legal realist hypothesis; the study extends from 1793 through 1990, almost the entire history of the U.S. Supreme Court. Nearly 200 years of Supreme Court
decisions means of course literally thousands of opinions and cases. While their hypothesis required that they look only at precedents with dissenting votes and opinions, sampling nevertheless was an imperative.
Equally as important as the sampling procedure was the identification of the progeny of precedentsetting cases.
inherently invalid . Nobody contests that there is such a thing as a legitimate state secret.
Nobody believes that Obama should declassify every last secret and never classify anything
else ever again. Nor does anyone even assert that this particular lawsuit clearly involves no
specific documents or portions of documents that might be legitimately subject to the
privilege. Those are all transparent , moronic strawmen advanced by people who have no
idea what theyre talking about.
although not always in predictable ways. A judge who grew up poor may feel empathy for the poor or may, instead, believe that his or her own ability to overcome the
hardships of poverty shows that the poor should bear responsibility for their own situation. A justice with firsthand experience with corporations or the military or
government bodies (to choose just a few examples) may have a deeper understanding of both their strengths and their weaknesses. In the end,
it seems
with what one would predict based on their personal political views .
Moreover, some deeply important legal questions are not predictably political: We cannot always identify the conservative or liberal position on cases involving, for
example, conflicting constitutional rights or complex regulatory statutes. Other Factors in Decision Making The structure and functioning of the judiciary also temper any
individual justices tendency toward imposing personal political preferences. The most important factor is that the Court must publicly explain and justify its decisions:
Every case is accompanied by one or more written opinions that provide the reasoning behind the Courts decision, and these opinions are available to anyone who wants
to read them. They are widely discussed in the press (and on the Internet) and are often subject to careful critique by lawyers, judges, and scholars. This transparency
ensures that justices cannot bend the law indiscriminately; their discretion is cabined by the pressures of public exposure. And any justice who does not want to be thought
a fool or a knave will take care to craft persuasive opinions that show the reasonableness of his or her conclusions. Deliberation also plays a role in moderating the
influence of politics on justices decision-making. Before reaching a decision, each justice reads the parties briefs, listens to (and often asks questions of) the parties
lawyers at oral argument, and converses with other justices. The justices may also discuss cases with their law clerks, recent law school graduates who may bring a
somewhat different perspective. After an initial vote on the case, the justices exchange drafts of opinions. During this long deliberation process, the justices remain open to
persuasion, and it is not unusual for a justice to change his or her mind about a case. Because the justices, the lawyers, the parties, and the clerks represent a diverse
range of political views, this process helps to focus the justices on legal, rather than political, factors. Finally, the concept of stare decisis, or adherence to the decisions
made in prior cases, limits the range of the Courts discretion. Absent extraordinary circumstances, the Supreme Court will follow precedent the cases it has previously
decided. Even justices who might disagree with a precedent (including those who dissented when the case was originally decided) will almost always feel bound to apply it
to later cases. As decisions on a particular issue accumulate, the Court might clarify or modify its doctrines, but the earlier precedents will mark the starting point. History
is full of examples of newly elected presidents vowing to change particular precedents of the Supreme Court, but failing despite the appointment of new justices. Stare
decisis ensures that doctrinal changes are likely to be gradual rather than abrupt and that well-entrenched decisions are unlikely to be overturned. This gradual evolution
of doctrine, in turn, fosters stability and predictability, both of which are necessary in a nation committed to the rule of law. No system is perfect, of course. In a small
number of cases, one likely explanation for particular justices votes seems to be their own political preferences. These cases are often the most controversial and usually
involve political disputes that have divided the country along political lines. It is no surprise that they similarly divide the justices. The existence of such cases, however,
should not lead us to conclude that politics is a dominant factor in most of the
Courts cases. Many factors, therefore, influence the Supreme Courts
decisions. The justices political views play only a small role. Were it
otherwise, the Court would be less able to serve as an independent check on
the political branches, less able to protect the rights of individuals, and less
secure in its legitimacy. The public would not have as much confidence in a
Court seen as just another political body, rather than as an independent legal
decision maker. The justices (and other judges) know this, and they safeguard
the Courts reputation by minimizing the role of politics in their own
decisions.
314
Employment Division, Department of Human Resources of Oregon v. Smith 315 in effect overruled a thirty-year-old line of Warren Court precedents first
announced in Sherbert v. Verner; 316 3) the
Taney Court's departure from the broad Marshall Court reading of the
commerce power in Gibbons v. Ogden in Mayor of the City of New York v. Miln; 4) the Taney Court's departure from the broad Marshall
Court reading of the Contracts Clause in Charles River Bridge v. Warren Bridge; 5) the Fuller Court's departure in Lochner v.
New York from the narrow reading of Section 1 of the Fourteenth Amendment adopted in the Slaughterhouse Cases; and 6) the Rehnquist
317
318
319
320
321
Court's rejection of twenty years of practice allowing upward departures by judges without aid of a jury in the Apprendi 322 line of cases, culminating with
U nited S tates v. Booker. To these six additional instances of overruling, either explicit or implicit, might be
added the four Supreme Court decisions in which "We the people" have overruled directly by constitutional amendment:
Chisholm v. Georgia, Dred Scott v. Sandford, Pollock v. Farmers' Loan & Trust Co., and Oregon v. Mitchell. In
323
324
325
326
327
328
all four cases, substantial numbers of those advocating the constitutional amendments thought that the decisions being overturned were not merely bad as
a matter of policy but were also wrong as a matter of constitutional interpretation. The rejection of these four precedents involved to some degree an
overrulings, and
suggest that it is common practice in the United States to appeal to
the text of the Constitution or the principles that animate it to trump even long-established lines of
precedent around which substantial reliance interests have formed. Contrary to the writings of Professors Strauss and Merrill, our actual practice is
effort to restore fundamental constitutional principles in the face of contrary Supreme Court precedent. I submit that the cases,
departures from practice discussed above
for the Supreme Court not to give important [*685] constitutional precedents all that much weight. 329 It might thus be said of the Burkean writings of
Professors Strauss and Merrill that "a theory that leaves such a huge unexplained gulf with practice is suspect." 330
No spillover
Healy 1 Thomas, Associate Sidley Austin Brown & Wood, Washington D.C.; J.D. Columbia
University Law School, West Virginia Law Review, Fall, Lexis
decisis is not dictated by the founding generation's assumptions or by the system of checks and
balances, it might nonetheless be essential to the legitimacy of the courts . By following the doctrine consistently for the better
part of two centuries, the courts may have created an expectation that they will continue to do so. And to the extent that their legitimacy now rides on this
expectation, they may no longer be free to abandon the doctrine. Even
decisis, by which courts follow the legal precedents articulated in previously decided
cases, does not preclude the Supreme Court from overruling a prior case. Yet, as Justice Kennedy also states in his
opinion, stare decisis is of fundamental importance to the rule of law (491 U.S. 164, at 172). Adherence to precedent reportedly serves such goals as
clarity, stability, and predictability in the law (Douglas [1949] 1979; Powell 1990; Rasmusen 1994; Stevens 1983), efficiency (Landes and Posner 1976;
Stevens 1983), legitimacy (Knight and Epstein 1996; Powell 1990, 286-87; Stevens 1983, 2), and fairness and impartiality (Freed 1996; Padden 1994).
Justices and scholars alike argue that for these reasons the Court is loathe to overrule past cases. Between
Legitimacy is resilient
Gibson 7 James, Professor of Political Science Washington University, The Legitimacy of
the United States Supreme Court in a Polarized Polity, Journal of Empirical Legal Studies, 4(3),
http://polisci.wustl.edu/media/download.php?page=faculty&paper=120
Conventional political science wisdom holds that contemporary
Instead, support is embedded within a larger set of relatively stable democratic values .
Institutional legitimacy may not be obdurate, but it does not seem to be caught up in the divisiveness that
characterizes so much of American politics - at least not at present.
wisdom
suggests that courts secure compliance with their decisions by drawing upon their store of
legitimacy, which is undermined by decisions that are unpopular, controversial, or lack intellectual integrity.
Part IV argues that precisely the opposite is true: an unpopular or unpersuasive decision can, in
fact, enhance a court's power in future cases, as long as it is obeyed. Widespread compliance with a
decision that is controversial, unpopular, or unpersuasive serves only to strengthen the widely held
expectation that others comply with judicial decisions. This expectation , in turn, is self-fulfilling:
those who expect others to comply with a court's decisions will find it strategically prudent to comply themselves, and the aggregate result
will, in fact, be widespread compliance. Part IV illustrates these strategic insights--and the Supreme Court's apparent grasp of
25
them--by contrasting [*734] Bush v. Gore 26 with Brown v. Board of Education 27 and Cooper v. Aaron. 28
although not always in predictable ways. A judge who grew up poor may feel empathy for the poor or may, instead, believe that his or her own ability to overcome the
hardships of poverty shows that the poor should bear responsibility for their own situation. A justice with firsthand experience with corporations or the military or
government bodies (to choose just a few examples) may have a deeper understanding of both their strengths and their weaknesses. In the end,
it seems
with what one would predict based on their personal political views .
Moreover, some deeply important legal questions are not predictably political: We cannot always identify the conservative or liberal position on cases involving, for
example, conflicting constitutional rights or complex regulatory statutes. Other Factors in Decision Making The structure and functioning of the judiciary also temper any
individual justices tendency toward imposing personal political preferences. The most important factor is that the Court must publicly explain and justify its decisions:
Every case is accompanied by one or more written opinions that provide the reasoning behind the Courts decision, and these opinions are available to anyone who wants
to read them. They are widely discussed in the press (and on the Internet) and are often subject to careful critique by lawyers, judges, and scholars. This transparency
ensures that justices cannot bend the law indiscriminately; their discretion is cabined by the pressures of public exposure. And any justice who does not want to be thought
a fool or a knave will take care to craft persuasive opinions that show the reasonableness of his or her conclusions. Deliberation also plays a role in moderating the
influence of politics on justices decision-making. Before reaching a decision, each justice reads the parties briefs, listens to (and often asks questions of) the parties
lawyers at oral argument, and converses with other justices. The justices may also discuss cases with their law clerks, recent law school graduates who may bring a
somewhat different perspective. After an initial vote on the case, the justices exchange drafts of opinions. During this long deliberation process, the justices remain open to
persuasion, and it is not unusual for a justice to change his or her mind about a case. Because the justices, the lawyers, the parties, and the clerks represent a diverse
range of political views, this process helps to focus the justices on legal, rather than political, factors. Finally, the concept of stare decisis, or adherence to the decisions
made in prior cases, limits the range of the Courts discretion. Absent extraordinary circumstances, the Supreme Court will follow precedent the cases it has previously
decided. Even justices who might disagree with a precedent (including those who dissented when the case was originally decided) will almost always feel bound to apply it
to later cases. As decisions on a particular issue accumulate, the Court might clarify or modify its doctrines, but the earlier precedents will mark the starting point. History
is full of examples of newly elected presidents vowing to change particular precedents of the Supreme Court, but failing despite the appointment of new justices. Stare
decisis ensures that doctrinal changes are likely to be gradual rather than abrupt and that well-entrenched decisions are unlikely to be overturned. This gradual evolution
of doctrine, in turn, fosters stability and predictability, both of which are necessary in a nation committed to the rule of law. No system is perfect, of course. In a small
number of cases, one likely explanation for particular justices votes seems to be their own political preferences. These cases are often the most controversial and usually
involve political disputes that have divided the country along political lines. It is no surprise that they similarly divide the justices. The existence of such cases, however,
should not lead us to conclude that politics is a dominant factor in most of the
Courts cases. Many factors, therefore, influence the Supreme Courts
decisions. The justices political views play only a small role. Were it
otherwise, the Court would be less able to serve as an independent check on
the political branches, less able to protect the rights of individuals, and less
secure in its legitimacy. The public would not have as much confidence in a
Court seen as just another political body, rather than as an independent legal
decision maker. The justices (and other judges) know this, and they safeguard
the Courts reputation by minimizing the role of politics in their own
decisions.
potential repercussions if a high percentage of its decisions diverges too dramatically from the popular or legislative will. Nevertheless,
public and legislative opinion . 62 Or consider child pornography, where the Court's decision in Ashcroft v. Free Speech Coalition
63 flew in the face of an overwhelming congressional majority approving the extension of existing child pornography laws to virtual child pornography. Similarly, in the regulation
of "indecency," the Court has spent well over a decade repeatedly striking down acts of
Congress that enjoyed overwhelming public and [*1059] congressional support . 64 Most dramatic
of all, however,
is criminal procedure , where the Supreme Court's decision in Dickerson v. United States, 65 invalidating a
congressional attempt to overrule Miranda v. Arizona, 66 underscores the persistent gap in concern for
defendants' rights between Congress and the public, on the one hand, and the Supreme
Court, on the other.
Winners Win
David Law 9 is Professor of Law & Pol. Sci, @ Washington University in St. Louis, GTown
Law Journal, March 2009, 97 Geo. L.J. 723; A Theory of Judicial Power and Judicial Review,
Lexis, DOA: y2k
unpopular or unpersuasive decision can , in fact, enhance a court's power in future cases, as long as it is obeyed. Widespread
compliance with a decision that is controversial , unpopular, or unpersuasive serves only to strengthen the widely
held expectation that others comply with judicial decisions. This expectation , in turn, is selffulfilling : those who expect others to comply with a court's decisions will find it strategically prudent to comply
themselves, and the aggregate result will, in fact, be widespread compliance . Part IV illustrates these strategic insights--and the Supreme Court's
apparent grasp of them--by contrasting [*734] Bush v. Gore n26 with Brown v. Board of Education n27 and Cooper v. Aaron. n28
Although there is some debate about terminology and measurement, most scholars agree that the
. It is and has been for some time the most popular branch of American government.
Americans don't like a specific decision they still support the Court
,
support
. Thus,
even when
and in a good way for the Court. If the Justices had drawn attention to violations of individual rights, most of America would have listened
and possibly agreed. As it is, our politics has been devoid of a voiceand an authoritative voiceon individual rights. For most of the time since September 11, few major political figures have been willing to stand up and speak in support of these rights. Recall that the
Patriot Act was passed in 2001 by a vote of ninety-eight to one in the Senate, with very little debate. Congress overwhelmingly passed the Detainee Treatment Act (DTA) of 2005, which barred many of those complaining of torture from access to 70 n DISSENT / Spring
2008 a U.S. court. Congress also overwhelmingly passed the Military Commissions Act (MCA) of 2006, which prevented aliens detained by the government from challenging their detention and barred them from looking to the Geneva Conventions as a source of a
legal claim. On all of these occasions, in part because there were no Supreme Court decisions addressing the critical issues, there was very little discussion of rights. And, when members of Congress did try to address the rights consequences of the DTA and MCA, they
did so without the political cover of the Court. If members of Congress had been able to go to the floor to denounce these statutes and to quote recent Court decisions about what was at stake, they might have escaped being branded as "soft" on security, wimpish in their
often
. Consider the example of the United Kingdom. Many members of former prime minister Tony Blair's Labour Party were
unwilling to criticize his harsh anti-terrorism policies for several years after September 11. Then, in December of 2004, Britain's highest court (the House of Lords) found that some of his policies violated human rights norms. This decision had a political ripple effect.
Suddenly, civil libertarian dissenters within the Labour Party had new political power and political cover, and there was a renewed debate within the party and the country about civil libertieswhich ultimately resulted in the decision by members of Blair's Labour Party
to block his 2005 proposal to hold detainees for up to ninety days without charge. This was Blair's first major defeat in the House of Commons during his time as prime minister. While the silence of the Court on individual rights has been unhelpful, its decision to focus
on structure without a background discussion of rights has actually been harmful. By telling Congress that it could or should act, the Court energized certain political actorsbut without providing decisions (or dissents) about the rights at stake that might have
influenced or constrained their activity. Take, for instance, the situation after the Supreme Court decided Hamdan in 2006. The Court pointed its collective finger at Congress and said that it could act to create military commissions. In so doing, the Court changed the
political dynamics of the country, in effect focusing the public eye on Congress to see if it was going to ratify the commissions as the justices seemed to say it could do. Rarely has Congress reacted so quickly to a Supreme Court decision as it did after Hamdan. The case
was decided on June 29, 2006. With members of Congress standing up on the floors of the House and Senate, insisting that the Court had called and commanded them to act, Republicans and Democrats joined together to pass the MCA less than four months later, on
October 17, 2006. Hamdan catalyzed American politics, serving as a sort of lightning bolt to generate political activity. But this political activity occurred without the rhetorical and political effects that rights-based decisions would have had. Members of Congress did
not rise in the House and Senate, in the debate about the MCA, and quote what the Supreme Court had said about how a military commission would have to be fair and justbecause the Supreme Court had very little to say about this. High Court in a Healthy
Democracy There are other, larger reasons to be concerned about the Supreme Court shirking its responsibilities in the war on terror, extending beyond the Court's minimal role in this public debate. Simply put, when the Supreme Court decides not to act, it poses
problems for our democratic systemfor it is held accountable only for what it does. A decision to do nothing is a decision that remains largely free from sanction and accountability. It is hard to imagine a governmental system in which every branch of government
weighs in on every major issue of the day. But it is also undesirable to live in a system in which one branch of government almost never weighs in on the major issues of the day and that is what we have had in the recent past. During the last few Supreme Court terms,
the justices have decided about seventy cases per year. As recently as twenty years ago, they were deciding more than double that number. Even beyond the War on Terror, the important issues that the Court has not addressed are legion: the aftermath of Hurricane
Katrina, tax cuts, health care, education policy, and so on. Our Constitution allows the three branches of government to set their own agenda in many ways. The president has to advise Congress on some matters, which has led to the annual State of the Union speech.
Congress must meet with only a minimal degree of frequency. But when either the president or Congress does nothing, people still hold them accountable. Harry Truman won a presidential election in 1948 by running against a "do-nothing Congress." Many Americans
hold the president and Congress accountable for not fixing our health care system or our educational system. Congress and the president are held accountable when they act and also when they do not. For most of its history, the Supreme Court did not have the same
freedom to decide what to do. Its docket of cases was mainly prescribed by federal law. This changed in 1925, when Chief Justice William Howard Taft, Jr., convinced Congress to pass a law making most of the Supreme Court's docket discretionary. In 1988, Congress
passed another law giving the Court even more control over what cases it wanted to hear. The Court, then, is accountable for what it does. When it makes a decision that people do not like, there is usually a response. Congress has considered thousands of bills over the
years related to cases in which, so some members of Congress thought, the justices were going to make a bad decision or had made a bad decision. When the Court decided to reference foreign law in Lawrence v. Texas in 2003, Congress debated whether it could do this
and held hearings on the question; some members talked of impeachment. Within its community of peers, the Court also faces sanction for its decisions. The New York Times might publish a story skeptical of a particular decision. Law professors and other judges and
lawyers might 72 n DISSENT / Spring 2008 write articles in the legal journals about what a poor decision the Court has made. In the narrow, elite world within which the justices operate, these can be effective means of critique and constraint. But these systems of
accountability do not work as well when, as has been the case since September 11, the Court decides not to hear cases. Members of Congress do not criticize the Court for declining jurisdiction. Only very rarelyand almost never in a full storywill newspapers cover
a decision by the Court not to hear a case. And law professors cannot make their careers by writing about what the Court has not done. The Court has shirked its responsibility to be engaged in and accountable for the legal issues raised by the war. A Different Scenario
The Supreme Court could have been involved in the main debates of the day without preventing us from effectively combating domestic and foreign enemies and without unduly interfering with decisions of the political branches about how to deal with terrorism. For
proof of this, we need only look at the experiences of Canada and the United Kingdom. Both countries have political and legal traditions similar to the United States, and the Supreme Court in Canada and the House of Lords in the United Kingdom, like our Court, have
effective control over the cases that they hear and decide. Although courts in both countries have been deferential to the authorities, they have still been engaged in discussions about rights issues in a way our own Court has not been. In Canada, the Supreme Court has
addressed rights issues since the days shortly after September 11. It has been more of a major player in the Canadian debate, and Canada has been the better for it. In 2002, the Canadian Court heard its first post-9/11 case, Suresh v. Canada, deciding that, except in
"extraordinary circumstances," the Canadian government could not deport nonresidents to countries where they might face torture (although it also decided that it would largely defer to the government about whether the minister of immigration was right in estimating
the likelihood of torture after deportation). In 2004, the Court decided that certain investigative hearings were procedurally defective: the justices held that the hearings were not as open to the public and as fair as constitutional norms required though they also said
that the hearings could go forward in a modified form. In both cases, the justices discussed rights issues at length and so injected these issues into the public debate. But in both cases, the Canadian Parliament was still given room to decide what individuals could be
deported and how investigative hearings could be held. Finally, in a landmark decision issued in February 2007, the Canadian Court decided in Charkaoui v. Canada a number of issues related to the constitutionality of the detention of a Moroccan-born permanent
resident of Canada. The justices said that secret evidence could not be used against Charkaoui, that he could not be detained indefinitely, and that he needed to be given a chance to argue against his detention. A month after deciding this case, the Court agreed to hear a
second case brought by Charkaoui (by contrast, our Supreme Court has declined to hear any further challenges by Hamdan) related to the destruction of evidence. So far, when the same issues have arisen in American courts, the courts have decided not to address them.
The cumulative effect of these decisions has changed Canadian politics. Although many of the Canadian decisions were not as protective of rights as one might wish, and there are still civil liberties violations by Canadian authorities, the Canadian Parliament has
discussed rights issues in the light of the Court decisions. In 2006, even before Charkaoui, the national Canadian election featured questions about the earlier decisions. Emboldened by Court decisions on these issues, a vocal Canadian political movement on the left has
risen to challenge rights-restrictive policies of the government. By contrast, the 2004 elections in the United States featured no discussions of U.S. Supreme Court decisions about rights. A similar story can be told about the United Kingdom. After the highest British
court intervened in December 2004 to criticize the way certain noncitizens were being detained, the British political situation changed immediately. As in Canada, the British Court proclaimed the importance of rights, but permitted Parliament to respond. The Law Lords
decided that individuals could be detained at length, as Parliament desired, but that detainees needed to be afforded additional protectionsand these lengthy detentions had to apply to citizens and noncitizens alike. The effects of this decision were instant. The
legislation the Law Lords found to be problematic in December 2004 quickly became the subject of major political discussions. On February 22, 2005, the Blair Government introduced legislation to modify the old bill, but the new legislation was still found to be
problematic. The Liberal Democrats, Britain's third major political party, have made a habit of quoting language from Lords' decisions to attack Blair (and now his successor, Gordon Brown) for what former Liberal Democrat leader Menzies Campbell has called
Labour's "trampling on human rights." This past October, the House of Lords again intervened into these debates, noting the problems with substantial parts of the law passed as a result of its earlier decision. Again, its arguments addressed many of the catastrophic
consequences for individual rights of current British modes of detention, and generated a political discussion about these matters. Britain has had a much more open and longer lasting debate about torture, in large part because of a decision issued by the House of Lords
in December 2005 that evidence induced by torture was inadmissible in British courts. A glance at Canada and the United Kingdom, then, reveals a stark contrast. Their courts have addressed more cases that deal with the rights issues at the heart of the war on terror.
And, in important ways, their politics have been different as a result. What Role for the Court ? Some leftists have questioned the desirability of looking to the Supreme Court as a guardian of individual liberties, but I believe these questions to be misguidedfor reasons
indicated by the Canadian and British experience. Many on the left, including Mark Tushnet and Jeremy Waldron in the pages of Dissent (Spring and Summer 2005), worry about the Court's intervening to decide these controversial issues. The left should support
democracy, they argue, and judicial review is undemocratic. But that is not true of judicial review in the way I have described it, where the Court plays a greater role in shaping and influencing debate than in dictating outcomes. 0 THERS ON THE left worry that
Supreme Court decisions can be ineffective or even counterproductive, and that the American Court has played it right by waiting until there is so much public outcry against what the Bush administration is doing that the American people will see Court action as
desirable. The role for the Court, then, is to confirm a public consensus, not to jump in front of it. There are several problems with this overly passive view of the Supreme Court, particularly during the war on terror. First, the Court's decisions could be relevant even if
they did not reverse Bush administration policies. As I argued earlier, they could change the way we talk about issues and empower different political coalitions. The Supreme Court is not always antidemocratic, because its role is not limited to overturning what other
branches of government do. Sometimes, the Court is just a megaphone, projecting certain critical considerations into the public sphere. Second,
the backlash
turned against the Bush administration its decisions might have elicited formulaic and nearobligatory compliance. There is considerable evidence suggesting a strong presumption in
,
American public opinion that the Court's decisions should be widely accepted and then
complied with by the other branches of government Even when citizens disagree
.
an overwhelming majority of them are loyal to the Court and inclined to think that the less popular
branches of government should fall into line even when the Court issues controversial decisions
it is difficult for any given decision to have much incremental influence on that
tally . Insti- tutional loyalty is valuable to the Court precisely because it is so weakly related to
actions the Court takes at the moment.
contrast, judicial activism -defined as courts holding the president, Congress, and state and local governments to their
constitutional boundaries -- is essential to protecting individual liberty and the rule of law.
Judicial review, the power to invalidate unconstitutional laws, was essential to the scheme of
republican government established by our Constitution. The courts, declared James Madison, would
provide "an impenetrable bulwark against every assumption of power in the executive and
legislative" branches, and "will naturally be led to resist every encroachment of rights
expressly stipulated for in the constitution by the declaration of rights ."
nations and it is clear that this same rule of law offers our best hope as a mechanism to
achieve and maintain peace between nations.
growth in the size and scope of government has been abetted by an ethic of
judicial restraint that seems more concerned with rationalizing laws than judging their
constitutionality. The Supreme Court's new term starts Monday and will include a number of high-profile cases, including whether police may
install tracking devices on people's cars without a warrant and a property-rights case involving draconian efforts by the Environmental Protection Agency
to enforce the Clean Water Act against homeowners in Idaho. The court may even take up the challenges to the Patient Protection and Affordable Care
Act, also known as ObamaCare. No
matter where you come down on the political spectrum, the stakes
are high, as always. Our Constitution imposes significant limits on government power -- limits
that are not being properly enforced because too many judges have adopted an ethic of
reflexive deference toward the other branches of government. What America needs instead is a
properly engaged judiciary that understands the importance of constitutionally limited
government and refuses to be cowed by empirically baseless accusations of judicial activism .
if the social conservative agenda becomes the dominant agenda in Congress and the White
House, there is good reason to think that elected officials would steer away from jurisdictionstripping measures. First, median voters have historically backed judicial independence. For
example, although most Americans are disappointed with individual Supreme Court decisions, there is a "reservoir of support"
for the power of the Court to independently interpret the Constitution . Consequently, even though
some Supreme Court decisions trigger a backlash by those who disagree with the Court's rulings, the American
people nonetheless support judicial review and an independent judiciary. Indeed, even President George W.
Bush and Senate majority leader Bill Frist backed "judicial independence" after the federal courts refused to challenge state court factfinding in the Terri
Schiavo case.
No court stripping
Devins 6 Neal Devins, Goodrich Professor of Law and Professor of Government, College of
William and Mary, May 2006, Minnesota Law Review, 90 Minn. L. Rev. 1337
is an additional cost to lawmakers who want to countermand the courts
through coercive court-curbing measures. Specifically, powerful interest groups sometimes see
an independent judiciary as a way to protect the legislative deals they make . In particular,
interest groups who invest in the legislative process by securing legislation that favors their preferences may
be at odds with the current legislature or executive (who may prefer judicial interpretations that undermine the
original intent of the law). Court-curbing measures "that impair the functioning of the judiciary"
are therefore disfavored because they "impose costs on all who use the courts, including
various politically effective groups and indeed the beneficiaries of whatever legislation the
current legislature has enacted."
Second, there
***Aff
Solvency
2AC Delay
Courts wont enforcecauses massive delay
Powers and Rothman 2Stephen Powers is Research Associate for the Center for Social
and Political Change at Smith College and Stanley Rothman is Professor of Government and
Director of the Center for Social and Political Change at Smith College, Least Dangerous?
Consequences of Judicial Activism, p179
A recurrent problem with the judiciarys extension of fundamental rights to the institutions we have studied is that when
courts intervene , they do not merely point out a constitutional or statutory violation that must be corrected. They
typically dictate a detailed set of remedies to address the issue. This type of intervention has
generated a notoriously rigid approach to institutional reform . The judiciary was not
designed to legislate or to execute the laws, only to interpret their meaning. It lacks the accountability required of a
policy-making body. Judges are only accountable to the public under the most rare and extreme circumstances. Yet in the wake of
elaborate court orders, prisons, mental hospitals, schools, police departments, and corporations must all continue to balance
individual rights against group or societal interests. Unfortunately,
or the inclination to make the kind of long-term incremental adjustments that may be critical
to institutional stability and progress . That is why court-ordered remedies rarely work as
planned and have so many unanticipated consequences. Moreover, as we have seen , modification or reversal of court
rulings adversely impacting social and political institutions generally takes years.
2AC Stripping
Enforcement kills courts legitimacy---triggers court stripping and turns
enforcement.
Bentley 7 (Curt, Constrained by the liberal tradition, Brigham Young University Law Review,
p. lexis)
This institutional limitation theory focuses primarily on the constraints imposed on the Court because of its relationship with the
other branches of government. The Supreme Court is not wholly dependent upon other branches of government; the unique
legitimacy given its interpretations of the Constitution by the American people provides it with real influence of its own. n116
However, the institutional limitation theory posits that since the
1AR Stripping
Courts bad- Congress can strip judicial power
Jeffrey Jamison, 04, American Constitution Society columnist, Congress
Attempts to Strip Federal Courts of Power, http://www.acslaw.org/acsblog/congress-attempts-tostrip-federal-courts-of-power, 09-23-2004, 07-06-2015, GAO
Today, the House of Representatives voted 247-173 to approve the Pledge Protection Act (H.R.
2028). The bill "denies jurisdiction to any court (including the Supreme Court) established by
Act of Congress to hear or determine any claim that the recitation of the Pledge of
Allegiance violates the first amendment of the Constitution." Rev. Barry Lynn of Americans United for
Separation of Church and State said of today's vote, "[t]he supporters of this bill have shown callous disregard for long-standing
constitutional principles. The federal courts should be open to all Americans seeking protection of their constitutional rights." Rep.
Todd Akin (R-Mo.), who introduced the Pledge Protection Act, argues, "[w]e tried to look for something we could do legislatively to
restrict or in some way protect the Pledge of Allegiance but also restrict some of this activist mentality of...[some] judges." This is the
second court-stripping bill passed by House of Representatives this session . On July 22, 2004, the
House of Representatives passed the Marriage Protection Act of 2004. This act, which has not
been considered by the Senate yet, would "deny Federal courts (including the Supreme Court)
jurisdiction to hear or decide any question pertaining to the interpretation of: (1) the
provision of the Defense of Marriage Act (DOMA) that provides that no State shall be
required to give effect to any marriage between persons of the same sex under the laws of
any other State; or (2) this Act." One might wonder exactly how much power does
Congress have the power to block judicial consideration of the constitutionality of a law?
The Washington Post explains it is, "somewhat surprisingly, an open question -- because Congress wisely has chosen not to test the
question. It has, rather, accepted judicial review -- the idea that the courts can strike down legislative enactments that offend the
Constitution -- as integral to the system of checks and balances." Additionally, the Supreme Court has never explicitly ruled on the
constitutionality of court-stripping legislation. In Calcano-Martinez et al v. INS, the Supreme Court, in striking down the Illegal
Immigration Reform and Immigrant Responsibility Act, side stepped the questions relating to the court-stripping provisions of the act.
The court, however, did write, "We agree with petitioners that leaving aliens without a forum for adjudicating claims such as those
raised in this case would raise serious constitutional questions." Joanna Grossman, of Findlaw, explains, "It
is well-settled
that under the Constitution, Congress can control lower federal court jurisdiction. And the
Constitution says that Congress can make "exceptions" to even the Supreme Court's
appellate jurisdiction." Professor Doug Kmiec, of Pepperdine University, adds "[i]t is clearly a constitutional exercise for
Congress to assert its authority over the jurisdiction of both the lower federal courts [and the Supreme Court]." Kmiec indicates that
the
"[t]he idea of removing federal court jurisdiction -- even though it is textually provided
by the Constitution, and undermines the unique function of the federal courts to interpret
constitutional law. ..[and] would undermine the longstanding constitutional rights of
religious minorities to seek redress in the federal courts in cases involving mandatory
recitation of the Pledge. As a result, this legislation will seriously harm religious minorities
and the constitutional free speech rights of countless individuals. " Wade Henderson, the executive
director of the Leadership Conference on Civil Rights (LCCR) argued, "[f]or over 50 years, the federal courts
have played an indispensable role in the interpretation and enforcement of civil rights laws.
When Congress has sought to prevent the courts from exercising this role, such efforts
ultimately tend to do little more than enshrine discrimination in the law."
2AC Non-Implementation
Courts fear non-implementation- means judicial review is weak
Sayre, 2/23/15 (Mike, The Supreme Court is Constrained By Public Opinion In Cases Where The
Justices Fear Nonimplementation of Their Decisions. http://ajps.org/2015/02/23/the-supreme-court-isconstrained-by-public-opinion-in-cases-where-the-justices-fear-nonimplementation-of-their-decisions/.MS)
With each controversial case they hear, questions arise about the influence of
public opinion on the Supreme Court. Matthew Hall examines the types of
cases where the Supreme Court appears constrained , and finds when
a ruling must be implemented by government actors outside the
judicial hierarchy, external pressures exert a stronger influence on
the Court. He argues that nonimplementation fears are only relevant to a small subset of cases in the Supreme Court docket, indicating that judicial scholars
should be attentive to different contexts rather than searching for universal tendencies of the Courts behavior . In June 2012, the U.S.
Supreme Court issued its landmark decision in the Patient Protection and
Affordable Care Act cases. In the months leading up to the ruling, President
Obama and congressional Democrats waged a not-so-subtle pressure
campaign on the Supreme Court, urging the justices to uphold the Act, yet
despite these efforts, the justices insisted they were impervious to external
pressure. When asked about the health care case, Justice Thomas dismissed
the possibility of outside influence: You stay focused on what youre
supposed to do. All that other stuff is just noise. Three months later, Chief
Justice Roberts unexpectedly joined the liberal wing of the Court and voted to
uphold the health care law. Notwithstanding assurances from Justice Thomas,
Court observers have long noted its tendency to, in the words of the famous
Mr. Dooley, follow th illiction returns (follow the election returns). Scholars
have amassed considerable evidence that public opinion constrains
the justices decision making, and elite preferences constrain their
exercise of judicial review. Yet, others raise doubts about the extent and
nature of external influence, and scholars continue to debate the causal
mechanism behind this phenomenon. Credit: Will O'Neill (Creative Commons:
BY 2.0) In this article, I evaluate an often mentioned, yet untested theory of
Supreme Court constraint: I argue the Court is constrained, at least in
part, because the justices fear nonimplementation of their decisions.
Accordingly, the effect of external pressure is strongest when the
threat of nonimplementation is most severe. When the justices can
confidently assume implementation of their decisions, they are less
constrained by external forces. The Court has traditionally been
viewed as holding no influence over either the purse or the
sword. In fact, many argue that the Court is severely limited in its
ability to induce social or political change, and [i]mplementation of the
Courts policies is far from perfect. However, other studies suggest the Court may possess significant power to affect social
change, at least in certain contexts. The Court is especially successful at altering behavior when it issues rulings related to criminal law, civil liability, or judicial
administration, regardless of public opinion. The Court tends to alter behavior in these vertical cases because implementation is controlled by lower courts in the judicial
hierarchy, and these courtsoverwhelmingly adhere to Supreme Court precedent. Of course, lower-court compliance is not perfect; judges sometimes exercise considerable
discretion when making decisions. Nonetheless, lower-court defiance is rare, and the Courts hierarchical control appears strong and effective. The Court does not enjoy
Rulings in these
lateral cases must be implemented by government actors outside
the judicial hierarchy, usually elected officials or their agents. These
the same degree of policy control in cases unrelated to criminal law, civil liability, or judicial administration.
1AR Non-Implementation
Courts ability to enforce decisions is limited
CNN, 6/1/15 (Kermit Roosevelt, Can Texas defy Supreme Court's same-sex marriage ruling?
http://www.cnn.com/2015/07/01/opinions/roosevelt-same-sex-marriage-enforcement/MS)
Most people guessed how the Supreme Court was going to rule in Obergefell v.
Hodges. And last Friday, the court made things official: It announced a nationwide
right to same-sex marriage. What suspense remains centers on the reaction of samesex marriage opponents. How much room do they have to resist the Supreme Court's
decision? The first point to make here, and the most important one, is that no one has the authority to reject or defy a constitutional decision from the
Supreme Court. That is how our system of government works and has worked for the whole of our history. For better or for worse, the Supreme Court has the last word on
has made his decision; now let him enforce it!" Jackson was not willing
Specifically, how much authority does and should the Executive Branch have to establish
remarked that housing powers in a unitary executive provides the advantages of [d]ecision, activity,
secrecy, and dispatchqualities our federal courts simply dont have.
2AC Drones
Congressionally operated courts solve more efficiently than the judicial
branch and check power on the executive branch
Jeffrey Rosen, February 11, 2013 Courting Disaster: A new idea to limit drone strikes could actually legitimize
them Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center, the first and only
nonprofit, nonpartisan institution devoted to the most powerful vision of freedom ever expressed: the U.S. Constitution.
He is a professor at The George Washington University Law School, where he has taught since 1997. He is a
nonresident senior fellow at the Brookings Institution, where he explores issues involving the future of technology and
the Constitution. He has recorded a lecture series for the Teaching Companys Great Courses on Privacy, Property, and
Free Speech: Law and the Constitution in the 21st Century. http://www.newrepublic.com/article/112392/drone-courtscongress-should-exercise-oversight-instead
On Sunday, Robert Gates, the former Pentagon chief for Presidents Obama and Bush, endorsed an idea that has been floated by
Intelligence Surveillance Court that reviews requests for warrants authorizing the surveillance of suspected spies or terrorists. But
although
congressional and judicial stamp of approval to a program whose effectiveness, morality, and constitutionality are open to serious
released Department of Justice White Paper white paper that the presidents unilateral decisions about targeted killings cant be
according to the laws of war. But its infeasible for judges to make split
second decisions about whether or not an attack is, in fact, imminent or
capture is feasible. For that reason, the most likely focus of a drone court would be the administrations decision to put
a suspect on the targeted killing list in the first place. But, as Steve Vladek of American University has argued, its not
clear that judges have the constitutional power to issue warrants that
cant be challenged by the targets in a future judicial proceeding . And there
are also serious questions about whether or not Congress has the constitutional power to forbid the president from exercising his war
powers without getting judicial approval in advance.
1AR Drones
Congress has the ability to curtail drone use
Stepanovich, Senior Policy Counsel at Access, 12 (Amie, 7/19/12, Hearing on Using
Unmanned Aerial Systems Within the Homeland: Security Game Changer?, Electronic Privacy
Information Center, https://epic.org/privacy/testimony/EPIC-Drone-Testimony-7-12.pdf, accessed
7/1/15, EOT@GDI)
There are several strategies to provide meaningful privacy protections that address the increased use of drones in our domestic skies.
First, Congress should pass targeted legislation, based on principles of transparency and
accountability. A first step would be the consideration and passage of Congressman Scotts
bill to limit the use of drone surveillance in criminal investigations without a warrant. State
and local governments have also considered laws and regulations to further prevent abuses of drone technology.42 These proposals
would serve as a good basis for federal legislation. Drone
2AC Standing
Courts cant curtail mass surveillance- standing precedent
Prupis, staff writer, 15 (Nadia, 2/11/15, NSA Spy Program So Secret Judge Can't Explain
Why It Can't Be Challenged, Common Dreams,
http://www.commondreams.org/news/2015/02/11/nsa-spy-program-so-secret-judge-cant-explainwhy-it-cant-be-challenged, accessed 7/2/15, EOT@GDI)
A federal judge ruled in favor of the National Security Agency in a key surveillance case on
Tuesday, dismissing a challenge which claimed the government's spying operations were
groundless and unconstitutional. Filed in 2008 by the Electronic Frontier Foundation, the
lawsuit, Jewel v. NSA, aimed to end the agency's unwarranted surveillance of U.S. citizens,
which the consumer advocacy group said violated the 4th Amendment. The lawsuit also implicated AT&T
in the operations, alleging that the phone company "routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA." That
charge was based off of a 2006 document leak by former AT&T technician and whistleblower Mark Klein, who disclosed a collection program between
the company and the NSA that sent AT&T user metadata to the intelligence agency. US
2AC Surveillance
Congress solves mass surveillance
Hattem, staff writer, 15 (Julian, 3/24/15, House effort would completely dismantle Patriot
Act, The Hill, http://thehill.com/policy/technology/236769-house-effort-would-completelydismantle-patriot-act, accessed 7/2/15, EOT@GDI)
A pair of House lawmakers wants to completely repeal the Patriot Act and other legal provisions to dramatically rein in American spying. Reps. Mark
Pocan (D-Wis.) and Thomas Massie (R-Ky.) on Tuesday unveiled their Surveillance
would also reform the secretive court that oversees the nations spying powers,
prevent the government from forcing tech companies to create backdoors into their
devices and create additional protections for whistleblowers. Really, what we need are new whistleblower
protections so that the next Edward Snowden doesnt have to go to Russia or Hong Kong or whatever the case may be just for disclosing this, Massie
said. The bill is likely to be a nonstarter for leaders in Congress, who have been worried that even much milder reforms to the nations spying laws would
tragically handicap the nations ability to fight terrorists. A similar bill was introduced in 2013 but failed to gain any movement in the House. Yet
advocates might be hoping that their firm opposition to government spying will seem more attractive in coming weeks, as lawmakers race to beat a June 1
deadline for reauthorizing portions of the Patriot Act. Reformers have eyed that deadline as their last best chance for reforming some controversial NSA
programs, after an effort failed in the Senate last year
1AR Surveillance
The future of the NSA is in the hands of congress.
Timm, 2015 (http://www.theguardian.com/commentisfree/2015/apr/08/congress-must-endmass-nsa-surveillance-with-next-patriot-act-vote) Timm, Trevor April/8/2015
In less than 60 days, Congress - whether they like it or not - will
notorious mass surveillance program lives or dies. And today, over 30 civil liberties organizations launched a
nationwide call-in campaign urging them to kill it. Despite doing almost everything in their power to avoid
voting for substantive NSA reform, Congress now has no choice: On 1 June, one of the most controversial
parts of the Patriot Act - known as Section 215 - will expire unless both houses of Congress affirmatively
vote for it to be reauthorized. Section 215 of the Patriot Act was the subject of the very first Snowden story, when the
Guardian reported that the US government had reinterpreted the law in complete secrecy, allowing the NSA to vacuum up every single
Americans telephone records - who they called, who called them, when, and for how long - regardless of whether they had been
accused of a crime or not. (The NSAs warped interpretation of Section 215 was also the subject of John Olivers entire show on
Sunday night. It is a must-watch.) The massive phone dragnet is not the only thing Section 215 is used for though. As independent
journalist Marcy Wheeler has meticulously documented, Section 215 is likely being used for all sorts of surveillance that the public
has no idea about. There are an estimated 180 orders from the secret Fisa court that involve Section 215, but we know only five of
them are directed at telecom companies for the NSA phone program. To give you a sense of the scale: the one Fisa order published by
the Guardian from the Snowden trove compelled Verizon to hand over every phone record that it had on all its millions of customers.
Every single one. While the government claims that its other uses of Section 215 are critical to national security, its extremely hard
to take their word for it. After all, the government lied about collecting information on millions of Americans under Section 215 to
begin with. Then they claimed the phone surveillance program was critical to national security after it was exposed. That wasnt true
either: they
later had to admit it has never stopped a single terrorist attack. Advertisement We also just
NSA knew the program was largely pointless before the Snowden leaks and
debated shutting it down altogether. Suddenly, after the Snowden documents became public, NSA officials defended it as
learned two weeks ago that the
critical again when they had to go before an increasingly skeptical Congress. Is Section 215 being used to collect massive amounts
of other data on Americans? Well, the New York Timesreported last year that there are multiple different bulk collection programs
under different authorities that are still secret. And Ron Wyden, while not specifying which law was being used, indicated in an
interview last month that there were several spying programs directly affecting Americans that were still secret. And theres evidence
to suggest theyre doing so for supposed cyber crime investigations. Whatever else theyre doing with Section 215 behind closed
doors, the
phone surveillance program is illegal. As the author of the Patriot Act, Republican Congressman Jim
Congress never did intend to allow bulk
collection when it passed Section 215, and no fair reading of the text would allow for this [mass phone surveillance]
program. Its also likely unconstitutional, as the first federal judge to look at the program ruled almost a year ago. Judge
Sensenbrenner has said: I can say that without qualification that
Richard Leon wrote at the time in his landmark opinion: I cannot imagine a more indiscriminate and arbitrary invasion than this
systematic and high-tech collection and retention of personal data on virtually every citizen for purposes of querying and analyzing it
without prior judicial approval. These days, Congress can barely get post office names passed, let alone comprehensive reform on
any subject affecting the American people. So the fact that they havent passed NSA reform yet says more about their near-total
dysfunction than the American publics views about privacy. But now they have no choice. A year and a half ago, the House came
within a few votes of cutting off funding for Section 215 in an unorthodox appropriations vote and, since then, opposition to the NSAs
massive spying operation on Americans has remained strong. Only time will tell if Congress will actually receive this message. But if
citizenscall their representatives, they might just get it. Then, come June, the NSA will have a lot less of our private data at their
fingertips.
phone records collection is intrusive digital surveillance and not simply inoffensive data
collection as some have said. The court noted that this metadata can be used for repetitive, surreptitious surveillance of a citizens
private goings on, that creates a mosaic of personal information and is likely unconstitutional. This ruling dismisses the use of an outdated Supreme
Court decision affecting rotary phones as a defense for the technologically advanced collection of millions of Americans records. It clearly underscores
the need to adopt meaningful surveillance reforms that prohibit the bulk collection of Americans records. The senators had reason to be enthusiastic
about Judge Leon determination that legal challenges to the massive surveillance program are valid. So valid, in fact, that he issued a preliminary
injunction against the program. The judge suspended the order, however, in order to allow a Justice Department appeal. But Judge Leon was blunt
regarding the strength of the challenge that was brought after Snowden revealed details of the agencys spying in The Guardian. "I have little doubt that
the author of our Constitution, James Madison... would be aghast," the judge wrote with regard to the NSA program for surveillance of cell phone
records, The court concludes that plaintiffs have standing to challenge the constitutionality of the governments bulk collection and querying of phone
record metadata, that they have demonstrated a substantial likelihood of success on the merits of their Fourth Amendment claim and that they will suffer
irreparable harm absentrelief, Judge Leon wrote in response to a lawsuit brought by Larry Klayman, a former Reagan administration lawyer who now
leads the conservative Freedom Watch group. The case is one of several that have been working their way through the federal courts since Snowden
disclosed details of the NSA program. Legal challenges to NSA spying are not new, and they have failed in the past. Challenging the FISA Amendments
Act (FAA)the law that permits the government to wiretap US citizens communicating with people overseasAmnesty International and other human
rights advocates, lawyers and journalists fought a case all the way to the US Supreme Court in 2012. In February 2013, however, the Justices ruled 5-4
that the challengers lacked standing because they could not prove they had been the victims of wiretapping and other privacy violations. The Justice
Department has continued to argue that plaintiffs in lawsuits against the spying program lack standing because they cannot prove their records were
examined. But Judge Leon suggested that the old calculus that afforded police agencies great leeway when it came to monitoring communications has
clearly changed. Suggesting that the NSA has relied on almost-Orwellian technology, wrote Judge Leon, who was appointed by former President
George W. Bush to the United States District Court for the District of Columbia bench. The relationship between the police and the phone company (as
imagined by the courts decades ago)is nothing compared to the relationship that has apparently evolved over the last seven years between the
government and telecom companies. The judge concluded, Its one thing to say that people expect phone companies to occasionally provide
information to law enforcement; it is quite another to suggest that our citizens expect all phone companies to operate what is effectively a joint
intelligence-gathering operation with the government. This case will continue in the courts, as will others. But it is also in Congress. A left-right coalition
that extends from Congressmen Justin Amash, a libertarian-leaning Republican, to Congressman John Conyers, a progressive Democrat, has raised
repeated challenges to the NSA spying regimen. Now,
problem Congress
confronts today has many roots, there is no single solution to it. But there are a number of
things that Congress should do right away: It should amend Sections 215 and 702 to
expressly prohibit suspicionless or dragnet monitoring or tracking of Americans
communications.
Ptx NB
2AC Links
Surveillance rulings link
Ellen Nakashima, May 7, 2015. NSA program on phone records is illegal, court rules Ellen Nakashima is a
national security reporter for The Washington Post. She focuses on issues relating to intelligence, technology and civil liberties.
https://www.washingtonpost.com/world/national-security/appeals-court-rules-nsa-record-collection-violates-patriotact/2015/05/07/c4fabfb8-f4bf-11e4-bcc4-e8141e5eb0c9_story.html
1AR Links
Courts are subject to external political pressure- studies prove
Sayre, 2/23/15 (Mike, The Supreme Court is Constrained By Public Opinion In Cases Where The
Justices Fear Nonimplementation of Their Decisions. http://ajps.org/2015/02/23/the-supreme-court-isconstrained-by-public-opinion-in-cases-where-the-justices-fear-nonimplementation-of-their-decisions/.MS)
With each controversial case they hear, questions arise about the influence of
public opinion on the Supreme Court. Matthew Hall examines the types of
cases where the Supreme Court appears constrained , and finds when
a ruling must be implemented by government actors outside the
judicial hierarchy, external pressures exert a stronger influence on
the Court. He argues that nonimplementation fears are only relevant to a small subset of cases in the Supreme Court docket, indicating that judicial scholars
should be attentive to different contexts rather than searching for universal tendencies of the Courts behavior . In June 2012, the U.S.
Supreme Court issued its landmark decision in the Patient Protection and
Affordable Care Act cases. In the months leading up to the ruling, President
Obama and congressional Democrats waged a not-so-subtle pressure
campaign on the Supreme Court, urging the justices to uphold the Act, yet
despite these efforts, the justices insisted they were impervious to external
pressure. When asked about the health care case, Justice Thomas dismissed
the possibility of outside influence: You stay focused on what youre
supposed to do. All that other stuff is just noise. Three months later, Chief
Justice Roberts unexpectedly joined the liberal wing of the Court and voted to
uphold the health care law. Notwithstanding assurances from Justice Thomas,
Court observers have long noted its tendency to, in the words of the famous
Mr. Dooley, follow th illiction returns (follow the election returns). Scholars
have amassed considerable evidence that public opinion constrains
the justices decision making, and elite preferences constrain their
exercise of judicial review. Yet, others raise doubts about the extent and
nature of external influence, and scholars continue to debate the causal
mechanism behind this phenomenon. Credit: Will O'Neill (Creative Commons:
BY 2.0) In this article, I evaluate an often mentioned, yet untested theory of
Supreme Court constraint: I argue the Court is constrained, at least in
part, because the justices fear nonimplementation of their decisions.
Accordingly, the effect of external pressure is strongest when the
threat of nonimplementation is most severe. When the justices can
confidently assume implementation of their decisions, they are less
constrained by external forces. The Court has traditionally been
viewed as holding no influence over either the purse or the
sword. In fact, many argue that the Court is severely limited in its
ability to induce social or political change, and [i]mplementation of the
Courts policies is far from perfect. However, other studies suggest the Court may possess significant power to affect social
change, at least in certain contexts. The Court is especially successful at altering behavior when it issues rulings related to criminal law, civil liability, or judicial
administration, regardless of public opinion. The Court tends to alter behavior in these vertical cases because implementation is controlled by lower courts in the judicial
hierarchy, and these courtsoverwhelmingly adhere to Supreme Court precedent. Of course, lower-court compliance is not perfect; judges sometimes exercise considerable
discretion when making decisions. Nonetheless, lower-court defiance is rare, and the Courts hierarchical control appears strong and effective. The Court does not enjoy
Rulings in these
lateral cases must be implemented by government actors outside
the judicial hierarchy, usually elected officials or their agents. These
the same degree of policy control in cases unrelated to criminal law, civil liability, or judicial administration.
know that almost half of the cases this Term were decided
unanimously, and the Justices voting pattern split by the political
party of the president to whom they owe their appointment in fewer
than seven percent of cases.[3] Why the mistrust? When the Court is front-page,
above-the-fold news after the rare landmark decision or during infrequent U.S.
Senate confirmation proceedings, political rhetoric from the President and Congress
drowns out the Court. Public perceptions of the Court are shaped by politicians
arguments for or against the ruling or the nominee, which usually fall along
partisan lines and sometimes are based on misleading premises that ignore the
Courts special, nonpolitical responsibilities. The Framers of the Constitution designed a uniquely independent Supreme
Court that would safeguard the Constitution. They feared that the political branches might be able to overwhelm the Court by turning the public against the Court and that
the Constitutions strict boundaries on congressional power would give way. As evidenced in the health care cases, politicians across the ideological spectrum have played
into some of the Framers fears for the Constitution by politicizing the decision and erasing the distinction between the Courts holding and the policy merits of the heath
care law. Paradoxically, many of the elected officials who proudly campaign under the battle cry of saving our Constitution endanger the Court and the Constitution with
their bombast. Politicization of the Supreme Court causes the American public to lose faith in the Court, and when public confidence in the Court is low, the political
branches are well positioned to disrupt the constitutional balance of power between the judiciary and the political branches. THE FRAMERS SUPREME COURT It would have
been unsurprising had the Constitutional Convention granted Congress the power to take a vote to change Supreme Court decisions. In fact, the antifederalists chief
argument against the judiciary was that it was too powerful without a congressional revisionary power on Court opinions. [4] Many of the early state constitutions that were
enacted between the Revolution and the ratification of the U.S. Constitution permitted the state executive and legislature to remove, override, or influence judges. Rhode
Island judges were called before the legislature to testify when they inv alidated legislative acts. [5] The New Hampshire legislature vacated judicial proceedings, modified
judgments, authorized appeals, and decided the merits of some disputes
Delegates ultimately decided that politicizing the Court would undercut its legitimacy.
Luther Martin, a delegate who later became Marylands longest-serving attorney
general, offered the most prescient comment on the subject: It is necessary that the
Supreme Judiciary should have the confidence of the people. This will soon be lost, if
they are employed in the task of remonstrating [against] popular measures of the
Legislature.[11] It was making the Expositors of the Laws, the Legislators which
ought never to be done, added Elbridge Gerry, a Massachusetts delegate. [12]
SAVING THE CONSTITUTION FROM THE COURT The Framers correctly connected loss of
public confidence in the Court with judicial policymaking. Of course, the Constitution
does not force judges to remonstrate against legislation, but experience proves
Martin to be correct. Too often that becomes the public perception when
Congress and the President politicize the Supreme Court . Chief Justice Roberts
started and ended his health care opinion with the basicsthe important distinction between whether the Affordable Care Act is good policy from whether it is a
constitutional law. Within two hours, President Obama and Mitt Romney, both Harvard Law School graduates, looked into television cameras and told Americans the
Today, the Supreme Court also upheld the principle that people who can afford
health insurance should take the responsibility to buy health insurance, said Obama.
[13]
Romney criticized the majority for deciding not to repeal Obamacare. What the
Court did not do on its last day in session, I will do on my first day if elected
opposite.
the Court. President Obama told the public at the 2010 State of the Union address
that the Supreme Court reversed a century of law with its Citizens United decision
and suggested that the Court opposed honest elections. The ensuing image was even
more damaging. With 48 million Americans watching, the camera panned to a cadre
of expressionless Supreme Court Justices sitting in the front row while lawmakers
sitting next to them rose to their feet and applauded.[15] Presidents Obama and Bush
and members of Congress have derided the Court for its unelected nature, with
President Obama publicly wondering before the health care decision whether an
unelected group of people would somehow overturn a duly constituted and passed
law.[16] Judges lack clear defenses. Judges would risk their credibility if they
shouted back at the President, appeared on the Sunday morning talk shows, or
held a press conference after a decision. Unlike speeches from members of Congress
and the President, Supreme Court proceedings are difficult to follow without legal
training. The media coverage of the Supreme Court can be incomplete
or inaccurate . FOX News and CNN famously misunderstood Chief Justice Roberts
oral opinion and misreported that the individual mandate had been invalidated. The
publicly available audio recordings of oral arguments contribute little to
public understanding of the Court. Even before the decision, the Republican Party doctored audio clips of Solicitor General Don
Verrilli coughing and pausing during oral argument to suggest in an ad suggesting that the health care law was indefensible. [17] Politicization of the Court is dangerous
because it primes the public for a power grab by the political branches. If the Court loses authority to check political power and make unpopular decisions, it cannot
enforce the Constitution with the same effectiveness. Without enforcement of the Constitution, Congress is free to invade constitutional rights and exceed its lawful
powers. The Supreme Court came frighteningly close to losing some of its independence when the Court made politically significant decisions striking down parts of the
New Deal, and President Franklin D. Roosevelt responded with the Court-packing plan. His arguments alleged misconduct by the Court. The Courts, however, have cast
doubts on the ability of the elected Congress to protect us against catastrophe by meeting squarely our modern social and economic conditions. . . . The Court has been
acting not as a judicial body, but as a policy-making body. . . . We have, therefore, reached the point as a nation where we must take action to save the Constitution from
the Court and the Court from itself. We must find a way to take an appeal from the Supreme Court to the Constitution itself. [18] Roosevelts words from seventy-five years
ago could be repeated today by Court opponents. In his recent presidential primary campaign, Newt Gingrich promised to employ the tactics of early state constitutions by
ignoring disagreeable Court decisions and ordering Justices to testify to congressional committees. [18] Proposals to invade the Courts independence ignore the Framers
fears for enforcement of the Constitution without the Supreme Court. Madison believed if the legislature and executive united behind a law and convinced the public that it
was in their interest, the people could not properly judge its constitutionality, even if it was patently unconstitutional. The passions of the people on the particular issues
would prevail over well-reasoned constitutional judgment. [20] *** The health care laws closely watched journey through the three branches of government concluded in
the Supreme Court, a rare opportunity in the sun for the Court. What would have been a shining moment for the Constitution in a vacuum was instead validation of the
Framers apprehensions. Our Constitution is the longest-lasting in the world because of Americans enduring reverence for it. But when elected officials exploit Americans
Thursday to Friday, which included a Supreme Court ruling favorable to President Obama's Affordable Care Act, as "some
fundamental legitimacy of the United States Supreme Court." He also announced a plan to introduce a constitutional
amendment that would subject "lawless" Supreme Court justices to intermittent re-election. In order to provide the
people themselves with a constitutional remedy to the problem of judicial activism and the means for throwing off judicial
tyrants, I am proposing an amendment to the United States Constitution that would subject the justices of the Supreme
Court to periodic judicial-retention elections," Cruz wrote in the National Review. "Every justice, beginning with the second
national election after his or her appointment, will answer to the American people and the states in a retention election
every eight years. Those justices deemed unfit for retention by both a majority of the American people as a whole and by
majorities of the electorates in at least half of the 50 states will be removed from office and disqualified from future
tyranny." "I will not acquiesce to an imperial court any more than our Founders acquiesced to an imperial British
monarch," he said. "The Supreme Court can no more repeal the laws of nature and nature's God on marriage than it can
the law of gravity." Huckabee also suggested that Christians will resist the court's decision with widespread civil
disobedience, comparing the effort to Dr. Martin Luther King's fight against racial discrimination. "They will go the path of
Dr. Martin Luther King, who in his brilliant essay the letters from a Birmingham jail reminded us, based on what St.
Augustine said, that an unjust law is no law at all," he said. "And I do think that we're going to see a lot of pastors who will
have to make this tough decision." Rick Santorum, a former Republican senator of Pennsylvania who is running for
the presidency, also struggled to come to terms with the ruling. "What this court said is that anybody who does not toe
the line is going to be viewed the same way as someone who doesn't support other civil rights, which is you will be a
bigot," he told the Washington Examiner. "Every institution that stands by any type of biblical world view
is going to have to deal with the reality that the government is going to tell you that you can no longer believe this and
get any accommodation from the government." "We're
trying to win."
Jeb Bush, former Republican governor of Florida, and the Sunshine State's junior Republican Sen.
Marco Rubio both took more measured approaches, coming short of calling for constitutional amendments, but they
upheld the value of "traditional marriage."
freedom and the right of conscience and also not discriminate." Rubio echoed this relatively moderate spirit. "While I
disagree with this decision, we live in a republic and must abide by the law," Rubio declared. "A large number of
Americans will continue to believe in traditional marriage, and a large number of Americans will be pleased with the
Court's decision today. In the years ahead, it is my hope that each side will respect the dignity of the other." Campaign
watchdogs had earlier speculated that Bush might possibly emerge as the first serious pro-gay Republican candidate after
he appointed a number of Republican advocates for gay rights to his inner advisory circle. In some states, political
leaders have suggested that Friday's historic ruling could be circumvented or obstructed, at least for a time. Texas Gov.
Greg Abbott released a statement on Friday underscoring the government's "constitutional duty" to protect the religious
2AC Elections
Courts link to elections- public doesnt trust them
Hamilton, 12
(Eric, J.D. Candidate from Stanford, Politicizing the Supreme Court, 65
Stanford Law Review 35,
http://www.stanfordlawreview.org/online/politicizing-supreme-court.
MS)
To state the obvious, Americans do not trust the federal government, and that
includes the Supreme Court. Americans believe politics played too great a
role in the recent health care cases by a greater than two-to-one margin. [1]
Only thirty-seven percent of Americans express more than some confidence in the
Supreme Court.[2] Academics continue to debate how much politics actually
influences the Court, but Americans are excessively skeptical. They do not
know that almost half of the cases this Term were decided
unanimously, and the Justices voting pattern split by the political
party of the president to whom they owe their appointment in fewer
than seven percent of cases.[3] Why the mistrust? When the Court is front-page,
above-the-fold news after the rare landmark decision or during infrequent U.S.
Senate confirmation proceedings, political rhetoric from the President and Congress
drowns out the Court. Public perceptions of the Court are shaped by politicians
arguments for or against the ruling or the nominee, which usually fall along
partisan lines and sometimes are based on misleading premises that ignore the
Courts special, nonpolitical responsibilities. The Framers of the Constitution designed a uniquely independent Supreme
Court that would safeguard the Constitution. They feared that the political branches might be able to overwhelm the Court by turning the public against the Court and that
the Constitutions strict boundaries on congressional power would give way. As evidenced in the health care cases, politicians across the ideological spectrum have played
into some of the Framers fears for the Constitution by politicizing the decision and erasing the distinction between the Courts holding and the policy merits of the heath
care law. Paradoxically, many of the elected officials who proudly campaign under the battle cry of saving our Constitution endanger the Court and the Constitution with
their bombast. Politicization of the Supreme Court causes the American public to lose faith in the Court, and when public confidence in the Court is low, the political
branches are well positioned to disrupt the constitutional balance of power between the judiciary and the political branches. THE FRAMERS SUPREME COURT It would have
been unsurprising had the Constitutional Convention granted Congress the power to take a vote to change Supreme Court decisions. In fact, the antifederalists chief
argument against the judiciary was that it was too powerful without a congressional revisionary power on Court opinions. [4] Many of the early state constitutions that were
enacted between the Revolution and the ratification of the U.S. Constitution permitted the state executive and legislature to remove, override, or influence judges. Rhode
Island judges were called before the legislature to testify when they inv alidated legislative acts. [5] The New Hampshire legislature vacated judicial proceedings, modified
judgments, authorized appeals, and decided the merits of some disputes
Delegates ultimately decided that politicizing the Court would undercut its legitimacy.
Luther Martin, a delegate who later became Marylands longest-serving attorney
general, offered the most prescient comment on the subject: It is necessary that the
Supreme Judiciary should have the confidence of the people. This will soon be lost, if
they are employed in the task of remonstrating [against] popular measures of the
Legislature.[11] It was making the Expositors of the Laws, the Legislators which
ought never to be done, added Elbridge Gerry, a Massachusetts delegate. [12]
SAVING THE CONSTITUTION FROM THE COURT The Framers correctly connected loss of
public confidence in the Court with judicial policymaking. Of course, the Constitution
does not force judges to remonstrate against legislation, but experience proves
Martin to be correct. Too often that becomes the public perception when
Congress and the President politicize the Supreme Court . Chief Justice Roberts
started and ended his health care opinion with the basicsthe important distinction between whether the Affordable Care Act is good policy from whether it is a
constitutional law. Within two hours, President Obama and Mitt Romney, both Harvard Law School graduates, looked into television cameras and told Americans the
Today, the Supreme Court also upheld the principle that people who can afford
health insurance should take the responsibility to buy health insurance, said Obama.
[13]
Romney criticized the majority for deciding not to repeal Obamacare. What the
Court did not do on its last day in session, I will do on my first day if elected
opposite.
the Court. President Obama told the public at the 2010 State of the Union address
that the Supreme Court reversed a century of law with its Citizens United decision
and suggested that the Court opposed honest elections. The ensuing image was even
more damaging. With 48 million Americans watching, the camera panned to a cadre
of expressionless Supreme Court Justices sitting in the front row while lawmakers
sitting next to them rose to their feet and applauded.[15] Presidents Obama and Bush
and members of Congress have derided the Court for its unelected nature, with
President Obama publicly wondering before the health care decision whether an
unelected group of people would somehow overturn a duly constituted and passed
law.[16] Judges lack clear defenses. Judges would risk their credibility if they
shouted back at the President, appeared on the Sunday morning talk shows, or
held a press conference after a decision. Unlike speeches from members of Congress
and the President, Supreme Court proceedings are difficult to follow without legal
training. The media coverage of the Supreme Court can be incomplete
or inaccurate . FOX News and CNN famously misunderstood Chief Justice Roberts
oral opinion and misreported that the individual mandate had been invalidated. The
publicly available audio recordings of oral arguments contribute little to
public understanding of the Court. Even before the decision, the Republican Party doctored audio clips of Solicitor General Don
Verrilli coughing and pausing during oral argument to suggest in an ad suggesting that the health care law was indefensible. [17] Politicization of the Court is dangerous
because it primes the public for a power grab by the political branches. If the Court loses authority to check political power and make unpopular decisions, it cannot
enforce the Constitution with the same effectiveness. Without enforcement of the Constitution, Congress is free to invade constitutional rights and exceed its lawful
powers. The Supreme Court came frighteningly close to losing some of its independence when the Court made politically significant decisions striking down parts of the
New Deal, and President Franklin D. Roosevelt responded with the Court-packing plan. His arguments alleged misconduct by the Court. The Courts, however, have cast
doubts on the ability of the elected Congress to protect us against catastrophe by meeting squarely our modern social and economic conditions. . . . The Court has been
acting not as a judicial body, but as a policy-making body. . . . We have, therefore, reached the point as a nation where we must take action to save the Constitution from
the Court and the Court from itself. We must find a way to take an appeal from the Supreme Court to the Constitution itself. [18] Roosevelts words from seventy-five years
ago could be repeated today by Court opponents. In his recent presidential primary campaign, Newt Gingrich promised to employ the tactics of early state constitutions by
ignoring disagreeable Court decisions and ordering Justices to testify to congressional committees. [18] Proposals to invade the Courts independence ignore the Framers
fears for enforcement of the Constitution without the Supreme Court. Madison believed if the legislature and executive united behind a law and convinced the public that it
was in their interest, the people could not properly judge its constitutionality, even if it was patently unconstitutional. The passions of the people on the particular issues
would prevail over well-reasoned constitutional judgment. [20] *** The health care laws closely watched journey through the three branches of government concluded in
the Supreme Court, a rare opportunity in the sun for the Court. What would have been a shining moment for the Constitution in a vacuum was instead validation of the
Framers apprehensions. Our Constitution is the longest-lasting in the world because of Americans enduring reverence for it. But when elected officials exploit Americans
Deference NB