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***Courts CP

1NC
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.

"The thing that is

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,

judges are poised to make major decisions on at

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.

Since then, the House has passed legislation that

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

federal judiciary has produced divided opinions that


are winding through appeals. The New York-based 2nd U.S. Circuit Court of Appeals recently heard arguments in an
appeal of a judge's opinion that had upheld the program's legality. The D.C. appeals court hears arguments next
week after a judge there found that the program is probably unconstitutional . Anna Smith, a nurse
in Idaho who contends the program is unconstitutional and that bulk record collection violates her privacy rights, will soon have her
appeal heard by the appeals court in the 9th Circuit. Separately, a Somali cab driver convicted in California of funneling money to a
terror group is now challenging a phone records program the government says was vital for his prosecution.

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

Justice Department for


the first time last year began notifying individual defendants that it had gathered evidence
against them through warrantless surveillance, setting the stage for legal challenges. A judge in
Oregon rejected an effort by Mohamed Mohamud, a Somali-American convicted of plotting to detonate a bomb at a Christmas treelighting ceremony, to suppress such evidence and sentenced him to 30 years in prison, though that issue will likely resurface on
appeal. A similar defense request is pending in the Colorado case of Jamshid Muhtorov, who is charged with trying to provide material

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

courts also have a natural role to play. "To

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

2NC Solvency- Policy


Judges formulate public policy
Geistfield 8 What is the role of the courts in making social policy? Mark Geistfeld is currently
the Sheila Lubetsky Birnbaum Professor of Civil Litigation at New York University School of
Law, Jul 10, 2008, http://newtalk.org/2008/07/what-is-the-role-of-the-courts.php
The premise of our discussionthat judges

exercise a lawmaking or policymaking roleis undeniable , but worth


could imagine a regime in which all matters of public policy were resolved
by the executive and legislative branches. Courts would resolve factual disputes and could
certify any ambiguities regarding law application back to the legislature. Such a regime, of course,
is not feasible for the simple reason that a centralized decisionmaker does not have the
capacity to resolve all of our varied legal problems. Decentralization is an inevitable
outcome of scarce governmental resources, as illustrated by the early English common law. Judges will have to
formulate public policy , so the real questions are ones of degree and so on. Without addressing those questions, one cannot
criticize a case by the simple assertion of judicial activism, as Alan points out.
considering more closely. One

Supreme Court can set policy that results in significant change


Erole 10 CORRELATIONS BETWEEN THE U.S. SUPREME COURT AND PUBLIC
OPINION ON THE ISSUES OF ABORTION AND THE DEATH PENALTY, A Thesis Presented
to the Faculty of California State University, Chico, Slande Erole, Fall 2010
The Supreme Court is foremost a legal institution, the highest court in the United States judicial system. Though the Court is often thought of as being a
nonpolitical office, its role as the third branch of government in the United States defines it as a political institution (Baum 2001). Lawrence Baum
notes that the Supreme

Court is able to set policy through its legal interpretations of the


Constitution. The mere existence of a Constitution makes it possible for the Supreme Court to
set policy because it offers a foundation for individuals to challenge the actions of the other
two branches of government (Baum 2001). Through its use of judicial review, which the Court claimed for itself
earlier on in its existence, the Supreme Court is able to engage in judicial activism, using its decisions
to set policy that result in significant changes in American life (Baum 2001). Like Congress and the Executive
Branch, the Supreme Court also has an agenda, which is represented by the number of cases it
chooses to hear in certain policy areas. But for the Court to have an impact or shape public policy in certain areas, it has to
address multiple cases in that area, something that can be difficult because the Court is able to hear only a limited number of cases each term (Baum
2001). The Court makes important decisions on major issues that affect the general public. These decisions are often also salient enough to make the
public want to influence the decisions of the Court (Baum 2001). As a result, appointments to the Supreme Court have been increasingly contentious
political battles between Congress and the Executive Branch (Baum 2001).

Court can set the agenda


Flemming et al., 97 (Roy B., John Bohte, UW-Milwaukee Political science, Professor, and B. Dan
Wood, Texas A&M Political science Professor, Oct 1997, One Voice Among Many: The Supreme Courts
Influence on Attentiveness to Issues in the United States 1947-92, American Journal of Political Science,
41: 4, 1224-1250, MS)

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

political institutions, Supreme Court decisions confer and remove benefits,


both material and symbolic, and can under some circumstances
rearrange the distribution of political influence. When decisions
rearrange political benefits and influence, the response is
predictably a continuation of conflict. Decisions that rearrange
political benefits or influence in the extreme, as for example in cases involving school
desegregation, flag-burning, or public school prayer, often expand the scope of
conflict by activating new groups and accentuating old rivalries. These
processes may, in turn, draw other political institutions into the fray, as
well as amplify both public and media attention. Thus, under certain
circumstances the Supreme Court may profoundly affect the agenda setting process in
the United States , and in doing so constitute an institutional source of
change in American public policy and politics.

Courts good- positive public opinion proves


Robert B. McKay,59, dean of NYU Law School, former president of the New
York City Bar Association, The Supreme Court and its Lawyer Critics.,
http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1647&context=flr, 1959, 07-01-2015,
GAO
In the midst of the controversy that centers upon the Supreme Court of the United States-now and
perennially-there would presumably be general agreement on one point, and perhaps only one.
The Supreme Court has consistently been more influential in shaping the course of
governmental action than would have seemed predictable from the slim power-potential
committed to the Court by the spare language of the Constitution. In a nation newly dedicated to
the experiment of representative democracy, an observer would scarcely have anticipated that
the branch of the tripartite government most completely insulated from the democratic
process should be given the most completely unchecked power. Yet the function of judicial
review by a Court of tenure-secured Justices, final save by the cumbersome technique of
constitutional amendment, is the central and inescapable fact about the Court as originally
conceived, and as practiced since at least 1803.' Neither friend nor foe of the Court seriously
suggests alteration of this scheme whereby presidential programs with strong popular support
have been rejected for lack of authority, and Congresses have been for a considerable time
frustrated in the achievement of the manifest popular will. A probable reason for the almost
surprising acquiescence in such judicial decisions is the fact that there has been, at least
until recently, an enormous reservoir of public respect for the Court as an institution. In
turn this "mystique" of the Court's rectitude, if not necessarily its infallibility, is supported by
what must be an intuitive understanding that the Court is not undemocratic after all, despite the
seemingly nonrepresentative character of the federal judiciary. Judge Wyzanski has expressed the
idea as follows: [B]y necessity the legislature represents rather than reflects the people. Once this
is recognized, it is not a far cry to say that the judiciary also represents the people. It is true
that the people do not elect and cannot retire a federal judge. But it may not be
presumptuous to suggest that the majority of the people are as satisfied with their judges as
with their congressmen

2NC Solvency- Follow-on


Follow-on true with surveillance policy
Alexander Abdo and Jameel Jaffer, 15, legal director of ACLU and staff
attorney at ACLU The courts stood up to NSA mass surveillance. Now congress must act.,
http://www.theguardian.com/commentisfree/2015/may/09/the-courts-stood-up-to-nsa-masssurveillance-now-congress-must-act, 05-9-2015, 7-1-2015, GAO
Thursdays decision rejects this argument categorically. The interpretation the
government asks us to adopt defies any limiting principle, the court writes. To adopt it,
the court observes, would permit the government to appropriate any private collection of
data into a government database for future review. This, the court writes: would be an
unprecedented contraction of the privacy expectations of all Americans. The decision focuses on
the NSAs call-records program, but its implications are broader. This is because the same defective legal theory that underlies the callrecords program is at work in some of the NSAs other mass-surveillance programs as well. The NSA once collected the internet
metadata of millions of Americans, arguing that all of the data was relevant because some of it might be. The CIA is reported to be
amassing records of international financial transactions on the same theory. And, until recently, the Drug Enforcement Administration
operated its own massive call-records database. Right

after the appeals courts decision, Senator Richard


Burr, the chair of the Senate Intelligence Committee, appeared to disclose that the NSA is
also collecting Americans IP addresses in bulk, presumably in an effort to assemble a
massive database documenting Americans activities online. As Marcy Wheeler, who first noticed the
disclosure, has since pointed out, the disclosure has mysteriously disappeared from the congressional record. Theres some murkiness
about precisely what Burr meant, but theres no question that Burrs IP-address dragnet would be an unremarkable extension of the
governments collect-it-all logic. Thursdays decision was about the call-records program, but the government will have to consider its
implications for other programs as well, including ones that have yet to be officially disclosed to the public. But perhaps the more
immediate effect of Thursdays decision will be on the debate now unfolding in Washington. The Patriot Act provision that underlies
the call-records program is scheduled to sunset on 1 June, and over the next three weeks Congress must decide whether to reauthorize
the provision, scale it back or allow it to expire. The

appeals courts decision should strengthen the hand of


advocates who believe the revisions currently being considered by Congress dont go far
enough, and it should strengthen the resolve of legislators who have been pushing for more
comprehensive reforms. If Congress cant coalesce around more comprehensive reform, the best course would be to let
Section 215 expire. The intelligence community hasnt even attempted to make a serious case that this authority is actually necessary.
And as the recent ruling reminds us, its an authority thats been grossly abused already and that could readily be abused again.

The

court has done its part. Now its Congresss turn.

Supreme court action creates congressional follow on


Erole 10 CORRELATIONS BETWEEN THE U.S. SUPREME COURT AND PUBLIC
OPINION ON THE ISSUES OF ABORTION AND THE DEATH PENALTY, A Thesis Presented
to the Faculty of California State University, Chico, Slande Erole, Fall 2010
Other scholars

disagree with Rosenbergs conclusion and argue that it is inaccurate of him to


conclude that because the Court did not bring about immediate significant effectual change ,
then it had absolutely no impact on social reform (Dahl 1957; Casper 1976; Baum 2001). By handing down the decisions that it
did, though it may have taken long for the changes to be implemented, the Court did set a precedent . The decision of the
Supreme Court in Brown v. Board of Education set in motion at least an awareness of the
problems facing African Americans and that there was a need for change . The Courts
decision sent a message that at least one part of the government was ready to act towards
social reform. And it enabled Congress to pass anti-discriminatory legislation, such as the Civil
Rights Act of 1964. Without the previous decisions of the Supreme Court towards ending

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).

2NC Solvency- Modeled Internationally


International courts look to the US for precedent
Kommers 9 Donald P. Kommers, professor of political science and law, Notre Dame, M.A. &
Ph.D. in political science, Wisconsin-Madison. Answers.com: "US Supreme Court: International
Impact of Court Decisions, written: 7/19/09 http://www.answers.com/topic/international-impactof-court-decisions
Marbury v. Madison (1803) held that the power of a court to say what the Constitution means was implicit in an independent judiciary. This power of

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

the world's most notable


constitutional tribunals, apart from the United States Supreme Court, are the constitutional courts of
Germany, Italy, Hungary, and South Africa, along with the highest appellate courts of
countries such as Canada, India, Australia, and Japan. In the beginning, as fledgling institutions, these
courts had few if any precedents to look to when interpreting their constitutions. It was only
natural, then, that many of them would turn to the American experience for guidance in
shaping their own law. As Aharon Barak, president of Israel's Supreme Court, said in 2003, We
foreign jurists all look to developments in the United States as a source of inspiration. The
constitutional case law of Canada, Australia, India, South Africa, and other national high
courts is studded with references to American judicial precedents , especially in the areas of speech, press,
association, and criminal procedure. New York Times Co. v. Sullivan (1964)a free speech decisionis just one example of an important case that has
received substantial attention in nearly all these courts. Even

when such decisions are not cited, foreign courts


often employ terminology clearly borrowed from American case law ; they have also borrowed heavily from
the rhetoric of liberty found in the judicial dissents of justices like Louis Brandeis, Oliver Wendell Holmes, Earl Warren, and William Brennan. The
fierce independence associated with the exercise of judicial review by these and other
justices has served as a model of constitutional justice around the world

Supreme Court is perceived internationally


Mishali 6 Jessica Mishali, J.D. candidate at the Touro Law Center, 2006, Touro Law Review,
21 Touro L. Rev. 1299
Even before Simmons, Justice O'Connor had made public statements affirming the importance of the United States creating a good impression around the
world. Her current position is clear; she believes that the Supreme Court should consider international opinion. At a recent award dinner, Justice
O'Connor put it in plain words: "I suspect that over time we will rely increasingly, or at least take notice increasingly, on international and foreign courts
in examining domestic issues." She added that part of the reason for this was that it "may not only enrich our own country's decisions, I think it may
create that all important good impression." Justice O'Connor feels that "the impressions we make in this world are important, and they can leave their
mark." These words imply that Supreme

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

Supreme Court does have a major policy setting function. It


interprets the Federal Constitution in making decisions, and those decisions are binding on the
entire country. Hence, the judiciary may be technically non-political, but inherent in the powers of the Court is the ability to have a serious
effect on policy. The Court's opinions are also studied by the rest of the world, and represent, to
the international community, American laws and views. The Supreme Court should not

ignore that reality and should recognize its part in creating the international opinion of the
United States.

2NC Solvency- Surveillance


Courts better than congress- congress cant curtail surveillance
Glenn Greenwald 14, constitutional lawyer, journalist, author Congress is
irrelevant on mass surveillance. Heres what matters instead.,
https://firstlook.org/theintercept/2014/11/19/irrelevance-u-s-congress-stopping-nsas-mass-surveillance/, 1119-2014, 7-5-2015, GAO

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

the premise of the question, which

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 .

on the NSAs powers of

Those limitations are going to come fromare now coming

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.

3) U.S. court proceedings.

U.S. federal judge already ruled that the NSAs

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,

there is some chance that one of these cases will result in a

favorable outcome that restores some 4th Amendment protections inside the U.S. The effect
is likely to be marginal, but not entirely insignificant.

ACLU vs. Clapper proves courts have a lot of influence in restricting


surveillance
Toomey, 5/7/15 (Patrick, Staff Attorney, Why Todays Landmark Court Victory Against Mass Surveillance
Matters, ACLU National Security Project, https://www.aclu.org/blog/speak-freely/why-todays-landmark-court-victoryagainst-mass-surveillance-matters. MS)

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 cannot curtail surveillance- too many obstacles


Glenn Greenwald, 14, constitutional lawyer, journalist, author

Congress is

irrelevant on mass surveillance. Heres what matters instead.,


https://firstlook.org/theintercept/2014/11/19/irrelevance-u-s-congress-stopping-nsas-mass-surveillance/ ,
11-19-2014, 7-01-2015,GAO
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.

Judicial oversight of surveillance is essential


Amie Stepanovich Drew Mitnick May 2014Competent Judicial Authority & Due Process
Drew is a junior policy counsel working on cybersecurity, digital due process, and privacy. He has experience working on human
rights in Asia and the United States. Drew was previously a Senior Research Associate for the Public International Law and Policy

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]

As noted above, the Principles require that all decisions relating to


Communications Surveillance be made by a competent judicial
authority acting independently of the government and in accordance
with due process of law . This reflects the core requirement of international human rights law that the use of
lawful surveillance powers by public officials must not only be necessary and proportionate but also be attended by independently
monitored strict safeguards against abuse.87 As the European Court of Human Rights held in its 1979 decision in Klass v. Germany:88
Although the Court in Klass agreed that it is in principle desirable to entrust supervisory control to a judge, it did not go so far as to

prior judicial authorization was required in every case so long as


the relevant authorizing body was sufficiently independent of the
authorities carrying out the surveillance to give an objective ruling
and was also vested with sufficient powers and competence to exercise
an effective and continuous control."89 In subsequent cases, however, the Court has made clear the
desirability of judicial authorization for the use of lawful surveillance. In a
case in 1999, for instance, the Court stated that: The Principles,
however, reflect the view that prior judicial authorization of
surveillance powers is not merely desirable but essential. This is
because neither of the other two branches of government is capable of
providing the necessary degree of independence and objectivity to
prevent the abuse of surveillance powers . The Court's view in Klassthat oversight by a
parliamentary body might be sufficiently independentno longer seems tenable, particularly in the wake of
the 9/11 attacks in which legislators have shown themselves all too
willing to sacrifice individual rights in the name of promoting security.
In the case of the executive branch, the dangers are even more acute . In
hold that

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.

Judicial influence key to solving surveillance


Philip Bump. June 7, 2013. How the government can fix the spying problem it doesnt want to
fix Philip Bump is a policy analysis and writer at the Washington post.
http://www.thewire.com/politics/2013/06/nsa-privacy-government-fixes/66014/

Part of the reason for that

support, as various other senators made clear on Thursday, is a desire


to grant the government the benefit of the doubt in drawing the line between civil liberties
and the need to investigate and prevent terror attacks. Which is where the judiciary is
meant to come in, to help draw that line between what the government wants to do and
what the Constitution says it can do . For the FBI or NSA to instantiate the collection of
data, it needs sign off from the FISC, the Foreign Intelligence Surveillance Court. The FISC
rarely says no. But how it makes its decisions isn't clear. Last month, we detailed efforts by the Electronic Frontier
Foundation to get more information about an incident in which the NSA admitted that it had violated the
Fourth Amendment. In light of the new revelations, the organization suggested to The
Verge that it now sees a judicial response as critical . It filed a lawsuit in 2006 in an attempt
to discover how the government was working with AT&T to collect phone data. "Were waiting
for the judges decision," [Cindy] Cohn told The Verge, noting that EFF would bring the recent Verizon surveillance order to
the judges attention. "Hopefully

the court will issue an injunction to stop the program." Even if


that happens, surveillance wont stop right away, as the US government will have a chance
to appeal the ruling. "It may go all the way to the Supreme Court ," Cohen said. "The
American people deserve their day in court." This is possible. It is possible that the EFF's petition for more
data on the NSA's activity will be revealed; it is possible that a court fight over halting the government's
efforts could result in the program being stopped and the judiciary finalizing where the line
between security and privacy is drawn . It's possible. It's perhaps not likely.

Judicial branch key to curtailing any type of surveillance


Stan Ward. April 22, 2014 Judicial branch finally acting as a check against government overreach
Stan Ward has a PhD in Leadership Studies. https://www.bestvpn.com/blog/9525/judicial-branch-finally-acting-as-a-check-againstgovernment-overreach/

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

law enforcement practice of obtaining all electronic information on a person under


surveillance and then using names and key words to discern what may be useful to the
investigation. Both Facciolas and Waxses decisions seek to deny the government
unbridled access to information unless they meet certain additional criteria . They suggest
that ISPs and other web firms could perform searches based on guidelines from the Justice
Department. Then, release only apparent pertinent data. Alternatively, they suggest a

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

oversight at all for NSA surveillance justified under EO 12333.

Courts can curtail NSA surveillance powers


Hayes, fellow at the Transnational Institute, 14 (Ben, PhD at the University of Ulster, State of
surveillance: the NSA Files and the global fightback, Transnational Institute,
http://www.tni.org/files/download/state_of_surveillance_chapter.pdf, accessed 7/1/15,
EOT@GDI)
the USA, for all the opining on the terrible state of democracy in that country, it is already streets ahead of EU
member states in considering the domestic reforms that maybe necessary to safeguard its
citizens against intelligence overreach. A Federal judge has just produced a preliminary
ruling stating that the NSAs bulk phone record collection is likely to be in violation of the
As to

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.

Federal courts empirically Rule against meta-data


Hattem 05/07/15 (http://thehill.com/policy/technology/241305-top-court-rules-against-nsaprogram) Hattem, Julian CL
A federal court has decided that the National Security Agencys bulk, warrantless collection
of millions of Americans phone records is illegal. The sweeping decision from the Second
Circuit Court of Appeals on Thursday represents a major court victory for opponents of the NSA
and comes just as Congress begins a fight over whether to renew the underlying law used to
justify the program. That program exceeds the scope of what Congress has authorized,
Judge Gerard Lynch wrote on behalf of the three-judge panel. The law cannot be interpreted in a
way that defies any meaningful limit, he added. Additionally, the governments rationale behind
the program represents a monumental shift in our approach to combating terrorism, which was
not grounded in a clear explanation of the law. The Second Circuits decision provides the most
significant legal blow to the NSA operations to date and comes more than a year after a
lower court called the program almost-Orwellian and likely unconstitutional. The appeals
court did not examine the constitutionality of the surveillance program in its ruling on Thursday.
The Second Circuit is just one of the three appeals courts examining challenges to the NSAs
phone records program, which may ultimately land at the Supreme Court.

2NC Solvency- Executive Power


Courts can limit executive power
Ronald Brownstein, 14,The Court, Not the Congress, Is Obamas Biggest Obstacle.,
http://www.nationaljournal.com/political-connections/the-court-not-congress-is-obama-s-biggestobstacle-20140814, 08-14-2014, 07-06-2015, GAO
Continuing a pattern followed by George W. Bush,

Obama is increasingly implementing his priorities

through unilateral action , like executive orders and regulation, rather than legislation. That choice diminishes the ability
of congressional opponents to derail Obama's ideas.

But it increases his risk that the courtsin particular

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

inevitable that presidents will rely more


on executive actionas Bush did on national security, and Obama is now doing on domestic issues. That is
heightening the courts' role in deciding how far presidents can stretch their authority. "The
implication of more gridlock is more of a role for the Supreme Court in sorting out these big disputes," says Donald Kettl, a University
of Maryland professor of public policy. The roots of this trend run deep. The

first is that voters have granted one


party unified control of the White House, House, and Senate for only 12 of the past 46 years,
far less than in previous generations. Except for brief periods (like Obama's first two years),
that's meant presidents have been unable to advance their agenda legislatively without
winning some support from the other party. That frequently worked through the 1970s and 1980s. But after the
flurry of deals between Bill Clinton and congressional Republicans in the mid-1990s, such cooperation has virtually
vanished as legislators in each party, especially the GOP, have faced growing pressure from
their base not to compromise with a president on the other side. While that trend rippled through
Clinton's final years and most of Bush's presidency, it has roared to new heights under Obama. Among other things,
congressional Republicans have expanded use of the filibuster; shut down the government
and repeatedly threatened default; fought implementation of health reform with the most persistent legislative and
litigious rearguard campaign against a national initiative since Brown v. Board of Education; and, for the first time, sued a president
for allegedly abusing his executive authority. House

Republicans have repeatedly refused to vote on


Obama priorities that passed the Senate, like workplace rights for gays and immigration
reform. While Obama, like Bush, can be legitimately faulted for abandoning hope of reaching bipartisan accommodations (and
Senate Democrats have pursued their own provocations), it's disingenuous to ignore that backdrop for the president's turn toward
greater executive action. In both volume and scope, Kettl says, Obama is actually asserting less executive authority than Bush or
Richard Nixon. But there's

no question that Obama is acting alone on more consequential issues


than earlier, including climate change and health carewith the potential looming for a historic executive
order to provide legal status for millions of undocumented immigrants. The recent House lawsuit tacitly
acknowledges that opponents are less likely to block Obama's initiatives in Congress than
the courts . Legal scholar Jeffrey Rosen notes that courts have judged executive power
primarily through the standards set in the Supreme Court's 1952 Youngstown Sheet & Tube
Co. v. Sawyer decision that stopped President Truman from seizing steel mills to keep them operating during the Korean
War. While the courts have occasionally rebuked presidents for defying Congress, that
decision's famous frameworkwhich said the president operated in "a zone of twilight"
when he acts without explicit congressional approval or disapprovalhas generally led the judiciary to
avoid interfering "in explicit squabbles between the [other] two branches," notes Rosen, president of the nonpartisan National
Constitution Center. "The

question is will the courts hold to this historic pattern?" The

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.

Courts influence executive behvior on national security


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
Take, for example, U.S. detention policy in Afghanistan. After several
detainees held by the United States asked U.S courts to review their
detention, the Executive changed its policies to give detainees in
Afghanistan a greater ability to appeal their detentiona change
made in response to the pending litigation and in an effort to avoid an
adverse decision by the court. The Government went on to win the
litigation. A year later, the detainees re-filed their case, claiming that new
facts had come to light. Just before the governments brief was due in
court, the process repeated itself, with the Obama Administration
revealing another rule change that favored the petitioners.
Exchanges between detainees and their personal representatives would be
considered confidential, creating something akin to the attorney-client
privilege. Thus we see the Executive shifting its policies in a more
rights-protective direction without a court ordering it to do so.

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.

2NC Solvency- Drones


Courts empirically rule against surveillance airborne technology
Richard M. Thompson II March 30, 2015 Domestic Drones and Privacy: A Primer Richard Thompson
is a legislative attorney and works in congressional research services. http://fas.org/sgp/crs/misc/R43965.pdf
The Fourth Amendment provides in relevant part: The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated.84 This

Amendment, like most constitutional


protections, applies only to acts by public actors,85 and, as such, will provide the minimum
legal requirements for government use of drones.86 In order for the Fourth Amendment to
apply in a particular situation, a reviewing court must assess whether the government
conducted a search by asking whether it invaded an individuals reasonable expectation
of privacy.87 Although no court has had the opportunity to apply the Fourth Amendment to drone technology, similar
cases regarding traditional aircraft and location monitoring provide insight. In three cases
from the 1980s, the Supreme Court upheld the governments warrantless use of traditional
aircraft to surveil both private and commercial property .88 In Florida v. Riley, the case
most closely resembling potential UAS surveillance, the police flew a helicopter 400 feet
above a private residence to determine if marijuana was growing in a greenhouse in the
backyard.89 The Court held that this fly-over was not a Fourth Amendment search, as anyone
from the public could have seen the property from that vantage point since the aircraft was in federal airspace.90 Similarly, in the 1983
case United States v. Knotts, the Court held that it was not a Fourth Amendment search to track a persons public movements using an
electronic tracking device.91

There is a general consensus among commentators that a strict


application of these cases would accord limited privacy safeguards to individuals located on
both public and private property from UAS surveillance being conducted from lawful
federal airspace.

Courts could curtail drone use by applying the reasonable expectation of


privacy test
Molko, assistant professor of law at Western State College of Law, 12 (Robert, 8/24/12, The
Drones are Coming! Will the Fourth Amendment Stop Their Threat to Our Privacy?, Brooklyn
Law Review Vol. 78 No. 4,
http://practicum.brooklaw.edu/sites/default/files/print/pdfs/journals/brooklyn-law-review/volume78/issue-4/blr_v78iv_1.pdf, accessed 7/5/15, EOT@GDI)
Drone surveillance also presents the danger of the accumulation or mining of this
information by the government over the course of several years.349 Congress could provide
a reasonable solution to this concern by imposing a time limit on the storage of this data if
there is no reasonable suspicion that the images contain evidence of criminal activity or are relevant to an ongoing investigation or
pending criminal trial.350 Another

possible solution is to minimiz[e] the collection . . . of


information and data unrelated to the investigation of a crime.351 The Court could later
use that statutory limitation to help identify what society is prepared to recognize as
reasonable when applying Katzs second prong to drone surveillance. Until Congress acts, however,
the Court should be able to continue protecting individual privacy from warrantless
governmental drone surveillance by applying the reasonable expectation of privacy test,
which will set the outer boundaries of permissible conduct under the Fourth Amendment.
Under this analysis, the Court should prohibit surveillance of the interior of the home, limit
monitoring of the curtilage to short intervals, and allow longer surveillance operations of
perhaps one week of public places. Because drone surveillance would necessarily entail the

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

prosecutors in the executive branch of the


government, working with people in the national-security branch, now decide which
judicial system to use in terrorism cases the Pentagons system or the federal judicial
system.

Unitary executive is bad---fuels global war


Giraldi 12 Philip Giraldi, a former CIA officer, is executive director of the Council for the
National Interest. Defending the Indefensible Eric Posner gives intellectual cover to the unitary
executive, 9-13-12, http://www.theamericanconservative.com/articles/defending-theindefensible/, y2k
My college alumni magazine is featuring an article entitled Octopotus on the kind of reasoning in some jurisprudential circles that has supported the unitary executive. The article is about the University of
Chicago Law Schools Professor Eric Posner, whose most recent book is The Executive Unbound: After the Madisonian Republic, co-authored with Harvards Adrian Vermeule. Posner and Vermeule would appear to

Posner unambiguously sees


the non-constitutional accumulation of presidential power as a good thing, enabling rapid response to
agree that when George W. Bush declared the US Constitution to be just a piece of paper he was being candid and also acting in the best interests of the American people.

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.

It is difficult to imagine that there is a genuine popular consensus supporting illegal

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

The tragedy of 9/11


and developments in 1933 Germany exhibit certain similarities , at least in terms of strengthening
executive authority. After the shock of the Reichstag fire of February 1933 German Chancellor Adolph Hitler, who did not have a majority in
parliament, exploited the situation to obtain passage of the Enabling Act which gave him the authority to ignore parliament and pass laws by decree. The full name of the Enabling Act
was, in English, the Act for the Removal of Distress from People and Reich. Aided by leading jurists like Schmitt, who argued that a powerful
executive could ignore restraints imposed by bureaucrats and constitutions when required to cope with a crisis, and supported by conservatives and the army,
protections in criminal trials should be suspended; and that the ability to commit what are regarded as war crimes is desirable because it can serve as a deterrent.

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.

Germany became a dictatorship

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.

2NC Deference- Unq


Military operations prove executive deference now
Ramo, Professor of Law at Golden Gate University, 14 (Alan, U.S. Military Accountability
For Extraterritorial Environmental Impacts: An Examination Of Okinawa, Environmental Justice,
And Judicial Militarism, Tulane Environmental Law Journal vol. 28, Winter 2014,
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2479600, accessed 7/3/15, EOT@GDI)
For that reason, the

ability of U.S. courts to oversee U.S. military operations is a critical question


courts continue to inconsistently sort out the extraterritoriality of U.S.

for the Okinawans. Federal

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

modern United States Supreme Court


has reversed earlier decisions and given great deference to military operations, establishing
what this Article charges is a kind of 'judicial militarism." Thirty-two years ago, Justice Douglas could
write the words quoted at the beginning o f this Article calling the U.S. military just another administrative agency during the
unpopular Vietnam War. Today,

Chief Justice Roberts has no hesitation to hold that military


preparedness in the absence of a war is a sufficient basis to trump environmental laws even in U. S. coastal
waters.

Courts defer to the executive- navy case proves


Hunton and Williams, 08,U.S Supreme Court Decision Balances National Security and
Environment., https://www.hunton.com/files/News/79a6f2a0-5c07-417c-af781943a8d68bd6/Presentation/NewsAttachment/261e1f88-9be8-4ad7-8e1533b791ac0e00/us_supreme_court_balances_national_security_and_environment.pdf, November
2008, 07-05-2015, GAO
On November 12, in Winter v. Natural Resources Defense Council, the U.S. Supreme Court
held in favor of the Navy in a closely watched dispute over the effects of active sonar on
marine mammals. In a case seen as balancing national security against environmental
protection, the Supreme Court rejected the Ninth Circuits possibility of harm standard
for preliminary injunctions in environmental litigation. The decision can be found at
http://www.supremecourtus. gov/opinions/08pdf/07-1239.pdf. The Navy uses active sonar, which transmits
sound waves and analyzes their echo off underwater objects, to detect and track enemy submarines. Plaintiffs sued the Navy over its
use of active sonar during training exercises in the Pacific, alleging that the sonar harms whales and other marine mammals and that
the Navy should have prepared an Environmental Impact Statement (EIS) rather than an Environmental Assessment (EA) to analyze
the effects of use of the sonar on marine mammals. The district court preliminarily enjoined the Navys use of active sonar unless the
Navy followed several conditions, including shutting down the sonar when a marine mammal is spotted within 2,200 yards and
powering the sonar down during certain water conditions. In holding that the plaintiffs had established a basis for a preliminary
injunction, the district court concluded that the plaintiffs had demonstrated a likelihood of success on their National Environmental
Policy Act (NEPA) claims, at least a possibility of irreparable harm, and that the balance of equities favored an injunction.

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

exercises had already been evaluated in a 293-page, detailed EA. The

Court further held that the public interest


in effective, realistic antisubmarine training by the Navy to protect national security
plainly out weighs possible harm to the ecological, scientific and recreational interests
asserted by the plaintiffs (including whale watching, scientific research and photography).
Finally, the Court held that the same factors considered for purposes of a preliminary
injunction would be pertinent to a permanent injunction if the lower courts conclude that
an EIS is required, and that a permanent injunction does not follow from success on the
merits as a matter of course. Chief Justice Roberts authored the majority opinion, in which Justices Scalia, Kennedy,
Thomas and Alito joined. Justice Breyer filed an opinion concurring in part and dissenting in part, in which Justice Stevens joined.
Justice Ginsberg filed a dissenting opinion in which Justice Souter joined.

2NC Deference- Rights Impact


Deference undercuts individual rights
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
One of the most persistent fights in the national security arena since the September 11 attacks has
been about the proper allocation of power between two branches of government: the Executive
and the courts.

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.

bemoans such judicial deference, even as this school


admits that it occurs. Members of this school fear that this
deference will undercut individual rights, leaving the Executive to
maximize security over liberty again and again. This school also worries
more broadly about creating an imbalance in the separation of powers: an
unchecked Executive can impose draconian security measures without a
reliable counter-weight. But both sides assume that the courts role in
influencing security policy is minimal. Both sides are wrong. While 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
The other school of thought

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 policiesan awareness that ebbs and flowsplays
a significant role as a forcing mechanism. It drives the Executive to
alter, disclose, and improve those policies before courts actually
review them

2NC Deference- A2: Courts Fail


Courts dont cause bad foreign policy
Glashausser 5 Alex Glashausser, Associate Professor of Law, Washburn University School of
Law. 2005 50 Vill. L. Rev. 25
Even when judicial interpretation does deviate from that of the executive branch, disdaining
deference would not cause the chaos that some fear . The Framers' main concern about courts
and treaties was the "hydra" problem n157 - that the voices of multiple courts would turn
foreign policy into a cacophony. But that problem will not rear its head because the
independent judiciary has one ultimate arbiter. And that unitary head, the Supreme Court,
unlike many countries' highest courts, considers itself bound by stare decisis. n158
Therefore, although the federal judiciary might speak with a voice different from that of the
executive, that voice is stable enough to help maintain positive foreign relations. n159 The inconstancy of
treaties need not spawn instability of interpretation within a single branch of government. With that in mind, courts should fulfill their
constitutional duty to interpret treaties without being cowed into silence. They need not be
indifferent to executive interpretations, but nor should they be deferent.

Courts are key to soft power


Knowles 9 American Hegemony and the Foreign Affairs Constitution, Robert Knowles, Acting
Assistant Professor, New York University School of Law, Spring, 2009, ARIZONA STATE LAW
JOURNAL, 41 Ariz. St. L.J. 87, LN
The enemy

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

a hegemonic system, where governance depends on voluntary


acquiescence, the courts have a greater role to play. Rather than hobbling the exercise of
foreign policy, the courts are a key form of "soft power." n442 As Justice Ken-nedy's majority
opinion observed in Boumediene, courts can bestow external legitimacy on the acts of the
political branches. n443 Acts having a basis in law are almost universally regarded as more
legitimate than merely political acts. Most foreign policy experts believe that the Bush
Administration's detention scheme "hurt America's image and stand-ing in the world ." n444
The restoration of habeas corpus in Boumediene may help begin to counteract this loss of
prestige .

Courts provide certainty to international actors


Knowles 9 American Hegemony and the Foreign Affairs Constitution, Robert Knowles, Acting
Assistant Professor, New York University School of Law, Spring, 2009, ARIZONA STATE LAW
JOURNAL, 41 Ariz. St. L.J. 87, LN
hegemonic model also reduces the need for executive branch flexibility , and the institutional
competence ter-rain shifts toward the courts . The stability of the current U.S.-led international
system depends on the ability of the U.S. to govern effectively . Effective governance depends
on, among other things, predictability . n422 G. John Ikenberry analo-gizes America's hegemonic position to
that of a "giant corporation" seeking foreign investors: "The rule of law and the institutions of policy
making in a democracy are the political equivalent of corporate transparency and [*155]
account-ability." n423 Stable interpretation of the law bolsters the stability of the system because
The

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

2NC Deference- A2: Flex Good


Perceived presidential resolve is irrelevant for global stability
Kitfield 11 James Kitfield is Senior Correspondent for The National Journal, three-time winner
of the Gerald R. Ford Award for Distinguished Reporting on National Defense, Power Down,
11-17-11, http://www.nationaljournal.com/magazine/an-indispensible-nation-no-more--20111117,
y2k
Republicans lay the blame for those international woes on President Obamas doorstep . They object to
his squishy multilateralism, his willingness to engage odious adversaries in diplomacy, and his apologies for past American
mistakes. They see insufficient fealty to Israel, indecision in Afghanistan, and a refusal to lead out front, the way theyre accustomed to
seeingon Libya.

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

Wait just a minute.


Obama and the Democrats blamed President Bush and his administration for failing to check China
and deter Iran. They objected to Bushs swashbuckling unilateralism, his decision to ignore
diplomacy with disagreeable countries, and his with-us-or-against-us triumphalism that alienated even close allies. They
strong economy, a strong defense, and the enduring strength of our values, he said. Unfortunately, under this president, all three of those elements have been weakened.
Only three years ago,

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.

Why did two presidents with such different foreign-policy

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.

Some countries have successfully


transitioned to stable and democratic forms of government that protect individual freedoms
and human rights by means of judicial review by a strong and independent judiciary. Others
have suffered the rise of tyrannical and oppressive rulers who consolidated their hold on power in part by diminishing or abolishing the role of the
judiciary. And still others

hang in the balance, struggling against the onslaught of tyrants to


establish stable, democratic governments. In their attempts to shed their tyrannical pasts
and to ensure the protection of individual rights, emerging democracies have consistently
looked to the United States and its Constitution in fashioning frameworks that safeguard the
independence of their judiciaries . See Ran Hirschl, The Political Origins of Judicial Empowerment through Constitutionalization:
Lessons from Four Constitutional Revolutions, 25 Law & Soc. Inquiry 91, 92 (2000) (stating that of the [m]any countries . . . [that] have engaged in
fundamental constitutional reform over the past three decades, nearly all adopted a bill of rights and establishe[d] some form of active judicial review).

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

is increasing acknowledgment that an independent judiciary is the key to


upholding the rule of law in a free society . . . . Most countries in transition from
dictatorships and/or statist economies recognize the need to create a more stable system of
governance, based on the rule of law."), available at http://www.icclr.law.ubc.ca/Publications/Reports/RuleofLaw. pdf (last
visited Jan. 8, 2004). Although the precise form of government differs among countries, they
ultimately constitute variations within, not from, the American model of constitutionalism . .
. [a] specific set of fundamental rights and liberties has the status of supreme law, is
entrenched against amendment or repeal . . . and is enforced by an independent court . . . .
Stephen Gardbaum, The New Commonwealth Model of Constitutionalism, 49 Am. J. Comp. L. 707, 718 (2001). This phenomenon
became most notable worldwide after World War II when certain countries, such as
Germany, Italy, and Japan, embraced independent judiciaries following their bitter
experiences under totalitarian regimes . See id. at 714- 15; see also United States v. Then, 56 F.3d 464, 469 (2d Cir. 1995)
(Calabresi, J., concurring) (Since World War II, many countries have adopted forms of judicial review, which though different from ours in many
particulars unmistakably draw their origin and inspiration from American constitutional theory and practice. See generally Mauro Cappelletti, The
Judicial Process in Comparative Perspective (Oxford: Clarendon Press, 1989).). It is a trend that continues to this day. It bears mention that the United
States has consistently affirmed and encouraged the establishment of independent judiciaries in emerging democracies. In September 2000, President
Clinton observed that "[w]ithout the rule of law, elections simply offer a choice of dictators. . . . America's

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

to the rule of law." The

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

This is key to solve extinction


Larry Diamond 95 is Hoover Institution Senior Fellow and Political Science and Sociology
Professor @ Stanford, and former Baghdad CPA senior adviser, "Promoting Democracy in the
1990s," http://wwics.si.edu/subsites/ccpdc/pubs/di/fr.htm
This hardly exhausts the lists of threats to our security and well-being in the coming years and decades. In the former Yugoslavia nationalist aggression
tears at the stability of Europe and could easily spread. The flow of illegal drugs intensifies through increasingly powerful international crime syndicates
that have made common cause with authoritarian regimes and have utterly corrupted the institutions of tenuous, democratic ones.

Nuclear ,

chemical , and biological weapons continue to proliferate. The very source of life on Earth , the
global ecosystem , appears increasingly endangered. Most of these new and unconventional threats to security

are associated with or aggravated by the weakness or absence of democracy, with its provisions for
legality, accountability, popular sovereignty, and openness. 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.

2NC JI- Tyranny Add-on


Independent judiciary is key to check tyranny
Cox 87 Archibald, Former Special Prosecutor During Watergate, The Court and the
Constitution, p. 373
Nor should our personal good fortune in experiencing unbroken liberty lead us to forget that the Dolly Mapps, Jehovahs Witnesses, and Ishmael Jaffrees
are fighting our battles, not because we expect our homes to be invaded or our children to refuse to salute the flag and join in prayer but because the
constitutional safeguards and judicial assistance that they invoke are our own bulwarks against the imposition of strict orthodoxy, conformity, and
suppression of political dissent. Both the English history known to the Framers and later experience in many other lands convincingly demonstrate that
when a popular leader seizes power and moves to suppress dissent, an

independent Judiciary affords the best, and perhaps the

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

to tyranny offers no true safeguard for human survival since rival


tyrannies with modern weapons can, and if left to their own dynamics would, destroy not lonely each other, but all of
humanity. The survival of freedom thus becomes not only a precious value in itself but a probable
precondition for the survival of mankind. It is this, alone, that justifies, even from a survivalist viewpoint, accepting the risks of nuclear war
through the maintenance of effective deterrents, in order to buy time, so that tyrannies may wane and the world may be made safe for disarmament in
the sense of the pooling of major armaments under the control of a supranational agency of limiting powers (but a monopoly of crucial force) directed by
nonpower-seeking persons with a supranational status and orientation.

2NC JI- Solves rights


Judicial independence is critical to rights
Rosenburg 1 Gerald N., Jack N. Pritzker Distinguished Visiting Professor of Law
Northwestern University Law School, The Road Taken: Robert A. Dahl's Decision-Making in a
Democracy: The Supreme Court as a National Policy-Maker, Emory Law Journal, Spring, 50
Emory L.J. 613, Lexis
If the Supreme Court is understood as a political institution, and as a national policymaker, the question naturally arises as to how it relates to other
political, policymaking institutions. The conventional and classic view is that the

Court is structurally independent from


the other branches of the federal government. Indeed, the independence of the judiciary from political control is a
hallmark of the American legal system. Institutionally separate and distinct from the other branches of the federal government,
43

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

courts to "stand as the ultimate guardians of our


fundamental rights." 45 An independent federal judiciary, Chief Justice Rehnquist said in 1996, is "one of
the crown jewels of our system of government today." 46

Judicial independence checks tyranny


Spriggs 6 James, Associate Professor of Political Science University of California, Davis, et
al., Courting the Public: Judicial Behavior and Public Views on Court Decisions
Because the Courts legitimacy is so closely tied to its role as a significant check on the potential tyranny
of majoritarian sentiment, Justices most obviously would want to appear to behave in a way that satisfies popular expectations of judicial impartiality.

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

Courts function as an independent arbiter of the law thus


places it in a peculiar position within the American governmental arrangement: it must remain
above popular passions while it simultaneously must court public opinion.

2NC JI- A2: Perm Solves


Perm crushes the judicial independence
Russon 3 Leonard, Former Justice Utah Supreme Court, The Constitutional Guarantee of an
Independent Judiciary, 16 Utah Bar J. 22, Lexis
An independent judiciary, free from control or pressure by the executive or legislature, is essential and
fundamental to our system of government inasmuch as the state, its agencies, and officers are frequently named parties in lawsuits in the
courts. The state, its agencies, or its officers named in their official capacities were parties to lawsuits in which the Utah Supreme Court
rendered opinions in fifteen cases in 2001 and fifteen cases in 2002. These cases involved the State Tax Commission, State Department of
Health, University of Utah Medical Center, Lieutenant Governor, Governor, Board of Oil and Gas, Department of Natural Resources, [*25]
Department of Environmental Quality, Department of Transportation, and Public Service Commission. These numbers do not include the
numerous criminal cases in which the state is generally a party. It is only through the courts that the people can seek redress for alleged
wrongs caused by their government. The people must be able to bring legal action against their government before a judge who is
independent of that government. The message is clear. Our State Constitution, which mandates that judges be selected solely upon the basis
of fitness for office without regard to any partisan political considerations, is consistent with the basic message of the founding fathers of this
country and the words of Alexander Hamilton that "there is no liberty if the power of judging be not separated from the legislative and

A judiciary free from control by the


Executive and Legislature is essential if there is a right to have claims decided by judges
who are free from potential domination by the other branches of government." If we are to
maintain the autonomous, independent, and impartial judicial branch that is so essential to
our system of government , we, as members of the bar and bench, must be ready to diligently and consistently invoke these
executive powers." To state again the words of the United States Supreme Court: "

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

it is easier for affilitated


judges, rather than affiliated presidents, to rein in outliers and conduct constitutional
maintenance. The latter are saddled with controlling opposition political figures, satisfying
short-term political demands, and navigating intraregime gridlock and political thickets .
Furthermore, because of their electoral accountability, politicians engage in position-taking, credit-claiming, and blameavoidance behavior. By contrast, their judicial counterparts are relatively sheltered from political pressures
and have more straightforward decisional processes. Activist Courts can take the blame for
advancing and legitimizing constitutional commitments that might have electoral costs. In
short, a division of labor exists between politicians and judges affiliated with the dominant regime.

2NC Ptx- No Link


Courts evade electoral consequences
Stoutenborough 6 et al., Political Science Dept @ Utah, [James, Political Science Dept @
Utah, Reassessing the Impact of Supreme Court Decisions on Public Opinion, Political Research
Quarterly, p. 419]
In many cases, courts have been empowered by and served the interests of other political actors.
While this undermines the countermajoritarian difficulty as an empirical hypothesis, it is not at all reassuring from a democratic perspective.

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

Politics is a net benefit


Intoccia 1, practicing attorney specializing in telecommunications, [Gregory Intoccia,
practicing attorney specializing in telecommunications, 2001, Reassessing Judicial Capacity to
Resolve Complex Questions of Social Policy, 11 USAFA J. Leg. Stud. 127, pg. np]
Elected politicians appear to "pass the buck" to the judiciary when an issue divides the electorate
in a manner that is not in keeping with conventional party divisions. As the judiciary is a
non-partisan institution that has traditionally resolved specific controversies, the courts offer
politicians the opportunity to deflect issues potentially disruptive to partisan debate. For
example, judicial policy on abortion suggests that this principle is valid. For at least a
decade prior to the Supreme Court's abortion decision in Roe v. Wade, many mainstream politicians generally
sought to avoid the abortion issue. In the mid-1960s, the two major parties remained divided over New Deal economic issues, but
voters were increasingly interested in other issues such as law and order, race, gender equity and social lifestyles. At that time, the majority
Democratic Party was divided between liberals who were attracted to new views of social
lifestyles and traditionalists who condemned them. The Republican Party was also divided
internally over these issues, but to a lesser degree. While the two parties primarily debated economic issues, many mainstream
politicians sought to avoid debate on a number of non-economic social issues. As the debate over such issues as abortion intensified,
elected officials increasingly deferred to the judiciary for resolution. In the months prior to
the Roe v. Wade decision, many politicians sought to remove themselves from the potential fallout of a legislative solution to the abortion question, preferring instead that the judiciary
decide whether to eliminate abortion restrictions.

The Court is not influenced by surrounding politics


Scheb and Lyons, 01 (John M., Professor of political Science at University of Tennessee,
William, Professor of Political Science at University of Akron, JUDICIALBEHAVIORAND
PUBLICOPINION:PopularExpectationsRegardingtheFactorsThatInfluenceSupremeCourtDecisions,
PoliticalBehavior,Vol.23,No.2,June2001,P.182.MS)

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.

Court action avoids political criticism


Shinar 14
(Adam Shinar, Assistant Professor, Radzyner School of Law, Interdisciplinary Center, Herzliya.
S.J.D. & LL.M. Harvard Law School, LL.B. Hebrew University ENABLING RESISTANCE:
HOW COURTS FACILITATE DEPARTURES FROM THE LAW, AND WHY THIS MAY NOT
BE A BAD THING, LEGISLATION AND PUBLIC POLICY [Vol. 17:98 2014]
http://www.nyujlpp.org/wp-content/uploads/2015/03/Shinar-Enabling-Resistance17nyujlpp990.pdf) BHS-CW
By contrast, when courts decide whether an issue is committed to other branches, or whether
they should, as a prudential matter, avoid deciding the issue, two additional observations
come into play. First, the court is able to portray itself as standing outside the vicissitudes
of politics . In this way, the unlawfulness is happening elsewhere, and the court will not be
perceived as complicit , despite its facilitation. For example, when the constitutionality of
keeping troops in Libya came before a district court, the court refused to intervene.123
Criticism of President Obamas move maintaining troops without congressional
authorization in violation of the War Powers Act stuck with him. No one thought that the
court was somehow at fault . Second, courts often choose to punt particular issues to the
political branches, not necessarily because they lack the judicial tools to resolve them, but
because there is a concern that if the court rules in favor of the plaintiffs, the decision will
not be obeyed and consequently the courts status will bejeopardized. Thus, the best way to
safeguard the courts legitimacy would be by picking its fights .124 In this way, the court
saves face and the alleged illegality can continue . Some commentators have questioned this
explanation. John Hart Ely, for example, acknowledged that in the past courts were reluctant to
address issues if they thought they would be disobeyed, but given the place the Court has in
todays society, overt defiance is unlikely.125 Alexander Bickel famously worried not so much
that judicial judgment will be ignored, as that perhaps it should be, but wont.126 However,
contrary to Bickel and Ely, there are clearly instancesperhaps in high salience caseswhere
courts are reluctant to use their authority if they suspect that authority will be resisted, disobeyed,
or incur severe criticism.127 This is surely what would have happened in the Vietnam cases had
the Court gone the other way. Would the Johnson and Nixon administrations have stopped the
war if a lower court (or even the Supreme Court) held it to be unconstitutional?128 Indeed, one of
the things that separates the Vietnam War cases from, for example, United States v. Nixon, where
the Court denied the Presidents claim of absolute executive privilege,129 is that the public and
Congress were completely behind the Courts ruling, whereas a substantive decision in the
Vietnam cases might have been perceived either as an illegitimate judicial intervention or as an

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.

2NC Ptx- A2: Harrison


The Harrison evidence is not qualified, not supported by evidence, and should
not be evaluated
Harrison 7 Lindsay Harrison, edebate, Please post this email to edebate on my behalf March
3, online
It has come to my attention that teams are reading "evidence" from a debate blog that I ran last year when the high school topic was a legal one. I started
the blog because, in judging debates on the topic, I was frustrated by what I saw as misunderstandings of the legal system by many in the debate
community. I also was frustrated by a lack of creativity in devising arguments as a result of a lack of broad legal knowledge. I intended the blog both to
educate and to generate new ideas for argumentation. I

did NOT intend the blog to be used as evidence, especially


college debates where I figured the community would recognize that none of my posts were peer-reviewed (or
reviewed by anyone at all), none of my posts were backed up by specific research, and none of my posts would ever
qualify as "legal scholarship." In fact, I am merely giving people ideas for arguments and I do not necessarily advocate any of the
not in

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

I do not want blog posts from my


debate education blog to be read as "evidence" in rounds. Please do not read evidence from my debate education
blog in rounds. I consider it to be taken out of context . I hope that if people do read this evidence in rounds that judges will
penalize those teams for reading evidence that the author considers out of context.

A2s:

2NC A2: Agent CP bad


Agent CP are good:
Neg flex- agent ground is vital on a large topic and to offset literature biased
impacts
Education- agent debates are paramount policy questions- especially on a
topic about surveillance and national security
Err Neg- Aff bias, first and last speech, unlimited prep check abuse.
Reject the argument not the team

2NC A2: Perm Do Both


Links to the net benefits- (Explain)
Perm forces the court to rule on a moot issue- this makes the decision
meaningless
King 2 JD Fordham University, 2002, Matthew, COMMENT: TOWARDS A PRACTICAL
CONVERGENCE: THE DYNAMIC USES OF JUDICIAL ADVICE IN UNITED STATES
FEDERAL COURTS AND THE COURT OF JUSTICE OF THE EUROPEAN
COMMUNITIES, Spring, 63 U. Pitt. L. Rev. 703, lexis
The Court conceded that it would hear cases "when actual litigation brings to the court the question of the constitutionality of such
legislation," but it will never simply test Congress's law-making savvy without an actual case or
controversy. n39 Harking back to Taney, the Court relied on the execution of a [*710] timely, meaningful judgment as a primary factor in
determining whether the case was legitimate. n40 Over time, the Court has molded the cases and controversies requirement of Article III into a doctrine
of justiciability. The

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

means the case and facts at hand


must be fully and actually developed. n41 If not, no real case or controversy exists and the
matter is to be dismissed . In his full summation of rules against advisory opinions, Justice Brandeis stated that the "Court will not
'anticipate a question of constitutional law in advance of the necessity of deciding it.'" n42 The next year, Anniston Manufacturing Co. called into
question the constitutionality of numerous vital provisions of the 1936 Revenue Act. n43 Only the cotton taxes and procedures for recovery of monies
under the Agricultural Adjustment Act pertained to Anniston, yet it challenged the Act generally. n44 In

dismissing the case the


Court specifically declined to rule on matters that had not yet created (and might never
create) an aggrieved party. n45 The Court bolstered Anniston with Electric Bond & Share Co. v. S.E.C. n46 There, the Court refused to
assess the validity of the entire Public Utility Holding Company Act when only three provisions applied to the companies bringing suit: n47 "defendants
seek a judgment that each and every provision of the Act is unconstitutional. It presents a variety of hypothetical controversies which may never become
[*711] real." n48 The Court would not decide the issues until they had ripened into a concrete set of facts and parties. n49 2. The Issue Must Not Be Moot

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

Court described what a moot case is,


and what it must do with one: Where by an act of the parties, or a subsequent law, the
existing controversy has come to an end, the case becomes moot and should be treated
accordingly. However convenient it might be to have decided the question of the power of the Commission to require the carries to comply with
an order prescribing bills of lading, this court "is not empowered to decide moot questions or abstract
propositions, or to declare, for the government of future cases, principles or rules of law
which cannot affect the result as to the thing in issue in the case before it. No stipulation of parties or
counsel, whether in the case before the court or in any other case, can enlarge the power, or affect the duty, of the court in this regard." n56

Violates separation of powers


Watson 91 Corey C. Watson, Professor at Northwestern, 1991 (86 Nw. U.L. Rev. 143, lexis
the
risk to separation of powers is greatest where the temptation exists to ignore the
requirements of justiciability and resolve a moot issue. n224 Perhaps the danger is difficult
to understand because such cases put the system at risk, rather than any particular person. n225 If the
personal stake and live issue requirements are not satisfied throughout a judicial
proceeding, then the claim is within the legislative province according to the argument set out in this Section.
The danger of permitting Smith to pursue his claim without requiring that he have a personal stake in the outcome may seem innocuous. Yet,

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.

Risks tyranny and should be rejected


Redish 91 Martin Redish, professor of law and public policy at Northwestern, 1991, Duke L.J.
449, lexis
In summary, no defender of separation of powers can prove with certitude that,

but for the existence of separation of


powers, tyranny would be the inevitable outcome. But the question is whether we wish to take
that risk, given the obvious severity of the harm that might result. Given both the relatively limited
cost imposed by use of separation of powers and the great severity of the harm sought to be
avoided, one should not demand a great showing of the likelihood that the feared harm would
result. For just as in the case of the threat of nuclear war, no one wants to be forced into the
position of saying, I told you so.

2NC A2: Perm Shields Ptx


No shieldingLegislative process makes controversial fights independent of the substance of
the policy
The courts have to act before congress to get shielding- but the perm is at the
same time
Simmons 95 Courtney, Law clerk to the Honorable J. Michael Luttig, Circuit Judge on the
United States Court of Appeals for the fourth Circuit, Emory Law Journal, Winter, 44 Emory L.J.
117
Sometimes a legislative compromise entails a decision not to make a decision. Congress

standing at a stalemate may


choose not to prescribe one side or the other, or an intermediate point. Rather, the legislature may
allow the courts to make the ultimate determination. Judge Posner, in The Federal Courts, described this
phenomenon: Often when there are political pressures to do something about a problem but the
legislature cannot agree exactly what to do about it, it will pass a statute the effect (as well as the undisclosed purpose) of
which is to dump the problem in the lap of the courts, taking advantage of the fact that
the courts are a kind of political lightning rod .

2NC A2: Perm Do CP


Severance is a reason vote neg- destroys neg ground, and makes the plan
conditional
Resolved means firm decision
AHD 6 American Heritage Dictionary, http://dictionary.reference.com/browse/resolved
Resolve TRANSITIVE VERB:1. To make
3. To decide or express by formal vote.

a firm decision about. 2. To cause (a person) to reach a decision. See

synonyms at decide.

Should means must


Words & Phrases 6 Permanent Edition 39, p. 369
C.D.Cal. 2005.

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.

when onset must be inferred, means

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.

2NC A2: Rollback- Congress


Shouldnt have to debate CP rollback:
Fiat solves- its durable
Reciprocal- plan can be overturned- our fiat is no different
Ground- it ensures the Aff doesnt lose on backlash and ensures neg DA ground

Court will have the last word


Lipak 12 Adam Litpak, Writer for the New York Times, August 20, 2012 In Congresss
Paralysis, a Mightier Supreme Court http://www.nytimes.com/2012/08/21/us/politics/supremecourt-gains-power-from-paralysis-of-congress.html
The Supreme Court does not always have the last word. Sure, its interpretation of the Constitution is the one that counts, and only a constitutional
amendment can change things after the justices have acted in a constitutional case. But much

of the courts work involves the


interpretation of laws enacted by Congress. In those cases, the court is, in theory at least, engaged in a
dialogue with lawmakers. Lately, though, that conversation has become pretty one-sided,
thanks to the legislative paralysis brought on by Congressional polarization. The upshot is that the Supreme
Court is becoming even more powerful . Here is the way things are supposed to work. In cases concerning the interpretation of
ambiguous federal statutes, the justices give their best sense of what the words of the law mean and how they apply in the case before them. If Congress
disagrees, all it needs to do is say so in a new law. The most prominent recent example of this dynamic was Ledbetter v. Goodyear Tire and Rubber
Company, the 2007 ruling that said Title VII of the Civil Rights Act of 1964 imposed strict time limits for bringing workplace discrimination suits. In her
dissent, Justice Ruth Bader Ginsburg reminded lawmakers that on earlier occasions they had overridden what she called a cramped interpretation of Title
VII. Once again, she wrote, the ball is in Congresss court. Congress responded with the Lilly Ledbetter Fair Pay Act of 2009, which overrode the
2007 decision. This

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

has been a big falloff in overrides, said William


gives the
Supreme Court significantly more power and Congress significantly less power. Richard H. Pildes,
a law professor at New York University, said the findings were further proof that the hyperpolarization of
Congress is the single most important fact about American governance today. It is, he said, a
phenomenon that has been building steadily over the last 30 years and is almost certainly likely to be enduring for the foreseeable future. The
assumption, he added, has long been that when the court interprets a federal statute, Congress
can always come back in and fix the statute if it disagrees with the court. Now, however, the
courts decisions are likely to be the last word, not the first word, on what a statute means.
N. Eskridge Jr., a law professor at Yale and the author of a seminal 1991 study on which Professor Hasen built his own. It

Congress will comply


Baum 3 Lawrence, Professor of Political Science Ohio State University, The Supreme Court
in American Politics, Annual Review of Political Science, 6(1), p. 173

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

Courts limited concrete powers would


seem to aggravate the difficulties faced by all organizational leaders, so why do judges and administrators
follow the Courts lead so frequently ? Within the judiciary, part of the answer undoubtedly lies in
selection and socialization processes that enhance agreement about legal policy and acceptance of hierarchical authority. Even the Courts
limited powers may be sufficient to rein in administrators, especially in the era of broad legal mobilization that Epp has described: Groups that undertake
litigation campaigns to achieve favorable precedents can also litigate against organizations that refuse to accept those precedents. Both judges and
administrators may reduce their decision costs by using the Courts legal rules as a guide. In any event, the relationship between the Court and policy
makers who implement its policies may be an especially good subject for studies to probe the forces that reduce centrifugal tendencies in hierarchies. It is
also worth asking why the Court fares so well in Congress. As noted above, few

of the Courts most controversial


interventions in the past half century have been directly reversed. Nor has Congress
enacted any of the numerous bills to remove the Courts jurisdiction over areas in which the Court has aroused
congressional anger. A large part of the explanation lies in the difficulty of enacting legislation in a process
with so many veto points . That difficulty is especially great in an era like the current one, which lacks a strong or stable law-making
majority. In such an era, interventions are likely to have significant support in government regardless
of their ideological direction, and even decisions that strike down federal laws may enjoy
majority support. The line of decisions since 1995 that has limited the regulatory power of the federal government (e.g., Alden v. Maine
1999, United States v. Morrison 2000) constitutes the most significant judicial attack on federal policy since the 1930s. But since 1995, Congress has had
Republican majorities except for the bare Democratic Senate majority in 20012002. In that situation, any

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.

Prefer our evidence- theirs uses selection bias


Baum 3 Lawrence, Professor of Political Science Ohio State, The Supreme Court in
American Politics, Annual Review of Political Science, 6(1), p. 172
Yet both this impression and what it suggests about the Court are misleading in two respects. First, the early

research overstated the


Courts implementation failures . For one thing, scholars emphasized failures more than successes. Was

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

were attracted to the


that had run into visible implementation problems. Later research that avoided this bias
indicates that, at least at the federal level, judges and administrators respond more favorably to
Supreme Court decisions in general than the early research suggested (Johnson 1987, Songer et al. 1994, Stidham & Carp 1982, Songer
1987, Songer & Sheehan 1990, Spriggs 1997; see Canon & Johnson 1999). Second, the early research typically treated
implementation of Supreme Court decisions as a unique phenomenon. Scholarship on imperfect hierarchy
study of decisions

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).

2NC A2: Rollback- Executive


President follows
Prakash & Ramsey 12 Saikrishna Prakash is law professor @ UVAANDMichael
Ramsey is law professor @ University of San Diego, The Goldilocks Executive
http://www.texaslrev.com/wp-content/uploads/Prakash-Ramsey-90-TLR-973.pdf, p.990-2, y2k
3.

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

Yet to focus on actual court cases and judgments


is to miss the broader influence of the courts. Judicial review of executive action matters because
disobedience of Chief Justice Taneys writ of habeas corpus is so familiar because it was so singular.

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

. The ever-present threat that someone will take a


case to court and defeat the Executive acts as a powerful check on executive decision
making. The Executive must take account of law, including law defined as what a court will likely order.
measures designed to stave off such suits and avoid actions that raise the risk of litigation

Political pressures ensure compliance


Stephen I. Vladeck 9, Professor of Law and Associate Dean for Scholarship at American
University Washington College of Law, senior editor of the peer-reviewed Journal of National
Security Law and Policy, Supreme Court Fellow at the Constitution Project, and fellow at the
Center on National Security at Fordham University School of Law, JD from Yale Law School, 31-2009, The Long War, the Federal Courts, and the Necessity / Legality Paradox,
http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?
article=1002&context=facsch_bkrev
Moreover, even if one believes that suspensions are unreviewable, there is a critical difference between the Suspension Clause and the issue here: at least with regard to the former,
there is a colorable claim that the Constitution itself ousts the courts from reviewing whether there is a Case[ ] of Rebellion or Invasion [where] the public Safety may require
suspensionand even then, only for the duration of the suspension.179 In contrast, Jacksons argument sounds purely in pragmatismcourts should not review whether military

the potential that the political branches


will simply ignore a judicial decision invalidating such a policy.180 Like Jackson before him, Wittes seems to believe
that the threat to liberty posed by judicial deference in that situation pales in comparison to the threat posed by judicial review. The problem is that such a belief is based
necessity exists because such review will lead either to the courts affirming an unlawful policy, or to

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

Threat of review solves circumvention


Ashley Deeks 13 is an associate professor of law after two years as an academic fellow at
Columbia Law School, Courts Can Influence National Security Without Doing a Single Thing,
10-21-13, http://www.newrepublic.com/article/115270/courts-influence-national-security-merelywatching, y2k
While

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.

2NC A2: Rollback- Lower Courts


The Lower Courts will follow Supreme Court
Kim 7 Professor of Law, Washington University School of Law, St. Louis. 2007, Pauline,
Pauline T. Kim, New York University Law Review LexisNexis, Lower Court Discretion,
If the fear of reversal is insufficient to explain judicial behavior, then the principal-agent model presents a puzzle. In the absence of any effective sanction,

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

Lower courts follow precedent


Riggs 6 political science professor at BYU, 2006, Robert, ARTICLE: The Supreme Court and
Same-Sex Marriage: A Prediction, 20 BYU J. Pub. L. 345, lexis
A second proposition, namely that precedent is not a very useful predictor when regarded as a restraint upon what the Court may do, requires further
elaboration. Lower

courts usually feel constrained to follow Supreme Court precedent because


contrary decisions may be overturned on appeal. However, there remains considerable wiggle room for lower
courts because not all decisions are appealed and, realistically, the Supreme Court is limited in the number of cases it can agree to hear. In addition,
Supreme Court decisions are often fuzzy enough to allow latitude in their interpretation. Nevertheless, precedent is usually
followed by lower courts.

2NC A2: No Test Case


Dont need to specify a test case:
Fiat solves- its should/would question
Reciprocal- they have to specify which bill the plan is passed on
Many surveillance test cases
Cyrus Farrivar, 15 If the Supreme Court tackles the NSA in 2015, itll be one of these five cases Cyrus [suhROOS] is the Senior Business Editor at Ars Technica, and is also an author and radio producer. His book, The Internet
of Elsewhere about the history and effects of the Internet on different countries around the world, including Senegal,
Iran, Estonia and South Korea was published by Rutgers University Press in April 2011. He previously was the SciTech Editor, and host of "Spectrum" at Deutsche Welle English, Germany's international broadcaster. He has also
reported for the Canadian Broadcasting Corporation, National Public Radio, Public Radio International, The
Economist, Wired, The New York Times and many others. January 1, 2015 http://arstechnica.com/techpolicy/2015/01/if-the-supreme-court-tackles-the-nsa-in-2015-itll-be-one-of-these-five-cases/

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.

In 2014, a handful of these advanced far enough through

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

only are there several other related


cases that will likely be influenced by these decisions, but those five cases represent the
strongest and most direct legal challenges to the current NSA surveillance state.

Dont need a test case


OBrien 5 David M., Professor of Judicial Politics and Public Law Woodrow Wilson
Department of Politics at the University of Virginia, Storm Center: The Supreme Court in
American Politics, p. 170-171
Although most cases now come as certiorari petitions, Congress provides that appellate courts may also
submit a writ of certification to the court, requesting the justice to clarify or make more certain a point of
federal law. The court receives only a handful of such cases each term. Congress also gave the court the power to
issue extraordinary writs, or order. In a few cases, the court may issue writes of mandamus and
prohibition ordering lower courts or public officials either to do something or refrain from
some action.

The court can pick and choose cases


OBrien 00 David OBrien, Professor of Government and Foreign Affairs at the University of
Virginia, Storm Center: The Supreme Court in American Politics, 2000, p. 227-228.
The current Courts power to pick the cases it wants from a very large docket enables it to
assume the role of a super legislature . The overwhelming number of cases on the docket involve indigents claims and
issues of criminal procedure. Yet, as is indicated below, few

are selected and decided on merits. Cases raising


other issues of constitutional law have a better chance of being selected; so do cases
involving statutory, administrative, and regulatory matters. These are all areas in which the
government has an interest in legitimating its policies. The Court thus functions like a
roving commission, selecting and deciding only issues of national importance for the
governmental process.

2NC A2: PQD/SS DA


Upsetting political question doctrine is empirically denied
Gwynne Skinner 14 is Professor of Law @ Willamette, Misunderstood, Misconstrued, and
Now Clearly Dead: The 'Political Question Doctrine' in Cases Arising in the Context of Foreign
Affairs, papers.ssrn.com/sol3/papers.cfm?abstract_id=2315237, y2k
Lower federal courts often erroneously cite the political question doctrine to dismiss as nonjusticiable individual rights claims arising in foreign or military affairs contexts, a trend that has increased since the 1962
case of Baker v. Carr. Similarly, lower courts have begun citing special factors counselling hesitation when dismissing constitutional claims (Bivens claims) in similar contexts, inappropriately treating special

in the context of foreign


or military affairs. Rather, lower federal courts should adjudicate these claims on their merits by deciding
whether the political branch at issue had the power under the Constitution to act as it did.
Doing so is consistent with the manner in which the Supreme Court has approached these
types of cases for over 200 years . The Court affirmed this approach in the 2012 case of
factors as a nonjusticiability doctrine. Lower federal courts should not cite either doctrine as a reason to avoid adjudicating individual rights claims arising

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

the post-9/11 Supreme Court cases of Hamdi v.


Rumsfeld, Rasul v. Bush, and Bush v. Boumediene, in which the Supreme Court consistently
found that the political branches overstepped their constitutional authority, clarified that
the doctrine should not be used to dismiss individual rights claims as nonjusticiable , even
those arising in a foreign or military affairs context. In case there remained any doubt, the
Supreme Court in Zivotofsky rejected the political question doctrine as a nonjusticiability doctrine, at least in the area
either the executive or Congress acted constitutionally within their power or discretion. Moreover,

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.

In the case, the Court showed its willingness

to limit the power of the President in the area of foreign affairs

rather than finding the claim nonjusticiable.

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.

Their DA already happened


Kaufman 8, Marc Kaufman is a staff writer at the Washington Post,
http://www.washingtonpost.com/wp-dyn/content/article/2008/01/03/AR2008010303887.html
A federal judge yesterday severely limited the Navy's ability to use mid-frequency sonar on a training range off the
Southern California coast, ruling that the loud sounds would harm whales and other marine mammals if not tightly controlled. The decision is a blow to the Navy ,
which has argued that it needs the flexibility to train its sonar operators without undue restrictions. In her decision, however, U.S. District Judge FlorenceMarie Cooper said the Navy could conduct productive training under the limitations, which she said were required under several environmental laws.

No internal link to a complete collapse of the State Secret Privilege


Glenn Greenwald 9, Salon,The 180-degree reversal of Obamas State Secrets position, 2-109, http://www.salon.com/2009/02/10/obama_88/, y2k
Nobody not the ACLU or anyone else argues that the State Secrets privilege is

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.

2NC A2: Legitimacy DA


Court decision-making maintains legitimacy
Sherry, 13 (Suzanne, Herman O. Loewenstein Professor of Law at Vanderbilt University Law
School in Nashville, Tennessee, Influence and Independence: Politics in Supreme Court
Decisions,
://iipdigital.usembassy.gov/st/english/publication/2013/02/20130206142159.html#ixzz3etDg9H
fT.MS)
Almost two centuries ago, the famous student of American life and customs Alexis de Tocqueville wrote, [T]here is hardly a political question in the United States which
does not sooner or later turn into a judicial one. That statement is still accurate today, and it poses a unique dilemma for American courts. How can judges resolve issues
that, by their nature, are political rather than legal? The answer lies in the structure of the judicial branch and the decision-making process in which judges engage. Unlike
judges in many other countries, American judges are drawn from the ranks of ordinary lawyers and installed on the bench without any specialized training. Not even
Supreme Court justices, although they often have prior experience on other courts, receive specialized training beyond the legal education of every lawyer in the United
States. And while individuals (including future Supreme Court justices) studying to become lawyers may choose to emphasize particular subject areas, such as
employment law or antitrust law, there are no courses that aim to prepare them for a judicial career. Supreme Court justices, then, begin their careers as lawyers. Their
backgrounds, their political preferences, and their intellectual inclinations are, in theory, as diverse as you might find in any group of lawyers. This diversity on the
Supreme Court especially political diversity is somewhat narrowed by the process through which justices are chosen: Each is nominated by the president and must be
confirmed by a majority vote in the Senate. Once appointed, justices serve until they die or choose to retire; there are no fixed terms and no mandatory retirement.
Vacancies on the Supreme Court are thus sporadic and unpredictable, and the political views of any particular justice will depend on the political landscape at the time of
his or her appointment. A popular president whose party is in the majority in the Senate will likely make very different choices than a weak president faced with a Senate in
which the opposing party has the majority. At any particular time, the Court will consist of justices appointed by different presidents and confirmed by different Senates.
As the Court began its term in October 2012, for example, the nine sitting justices were appointed by five different presidents three Republicans and two Democrats.

The diversity of political views on the Court and the periodic


appointment of new justices guarantee that no single political
faction will reliably prevail for long. Differences aside, all of the
justices share a commitment to uphold the Constitution. Their
fidelity to that goal makes the United States a country governed by
the rule of law, rather than by the rule of men. The justices, in
interpreting and applying the Constitution and laws, do not view
themselves as Platonic guardians seeking to govern an imperfect
society but, instead, as faithful agents of the law itself. The Supreme
Court can, and does, decide political questions, but does so using the
same legal tools that it uses for any legal question . If it were
otherwise, the Court might jeopardize its own legitimacy: The public might not regard
it as an institution particularly worthy of respect. Personal and Political Views Nevertheless, justices do have personal views. They are appointed through a political
process. Observers naturally must ask how great a role their political views actually play. Some scholars argue that the justices political preferences play a large role,
essentially dictating their decisions in many cases. They point to the fact that justices appointed by conservative presidents tend to vote in a conservative fashion and
those appointed by liberal presidents vote the opposite way. The confirmation battles over recently nominated justices certainly suggest that many people view the
justices personal politics as an important factor in judicial decision making. Dwight Eisenhower and William J. Brennan shaking hands (AP Images) Republican President
Dwight Eisenhower (left) selected William J. Brennan for the Supreme Court. Brennan became one of the most liberal justices of the 20th century. But we should not so
quickly conclude that Supreme Court justices, like politicians, merely try to institute their own policy preferences. A number of factors complicate the analysis. First, it is
difficult to disentangle a justices political preferences from his or her judicial philosophy. Some justices believe that the Constitution should be interpreted according to
what it meant when it was first adopted or that statutes should be interpreted by looking only to their texts. Others believe that the Constitutions meaning can change
over time or that documentary evidence surrounding a statutes enactment can be useful in its interpretation. Some justices are extremely reluctant to overturn laws
enacted by state or federal legislatures, and others view careful oversight of the legislatures as an essential part of their role as guardians of the Constitution. A justice
who believes that the Constitution ought to be interpreted according to its original meaning and who is reluctant to strike down laws will probably be quite unsympathetic

If that justice also happens to be politically


conservative, we might mistakenly attribute the lack of sympathy to politics
rather than judicial philosophy. A justices personal experiences and background also may influence how he or she approaches a case
to claims that various laws violate individuals constitutional rights.

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

difficult to support the conclusion that a justices politics are the


sole (or even the primary) influence on his or her decisions. There are
simply too many instances in which justices surprise their appointing
presidents, vote contrary to their own political views, or join with justices
appointed by a president of a different party. Two of the most famous liberal justices of the 20th century, Chief
Justice Earl Warren and Justice William Brennan, were nominated by Republican President Dwight Eisenhower and Warren was confirmed by a Republican-majority
Senate. Between a quarter and a third of the cases decided by the Supreme Court are decided unanimously; all the justices, regardless of their political views, agree on the
outcome. One study has concluded that in almost half of non-unanimous cases,

the justices votes do not accord

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.

Overruling is extremely common- ten examples prove the disad is empirically


false
Calabresi 6 Steven G., Professor of Constitutional Law Northwestern U., Alabama LR, 57
Ala. L. Rev. 635, Spring
Many other examples exist of the Court implicitly or explicitly overruling itself on the most major
constitutional issues. These include the following: [*684] 1) the Legal Tender Cases where Hepburn v.
Griswold, banning the issuance of paper money, was explicitly overruled one year later by Knox v. Lee, upholding the
constitutionality of the issuance of paper money; 2) the proper rule of decision under the Free Exercise Clause , where
313

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

In Part III, I acknowledge that even if stare

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

if this is true, however, it does not necessarily


follow that non-precedential decisions threaten the courts' legitimacy . Stare decisis is not an
end in itself, but a means to promote certain values, such as certainty, equality, efficiency, and
judicial integrity. Although a complete abandonment of stare decisis might undermine these
values, the discrete practice of issuing nonprecedential opinions does not . Because a court must still follow past
decisions even when it issues a nonprecedential opinion, problems arise only when the nonprecedential opinion differs in a meaningful way from the
precedents upon which it is based (or when it is based on no precedents at all, as in cases of first impression).

Link inevitable- 3 overrules per term


Hansford and Spriggs 2 James F. and Thomas G., UC Davis, Explaining the Overruling of
U.S. Supreme Court Precedent, http://repositories.cdlib.org/cgi/viewcontent.cgi?
article=1030&context=csls
As Justice Kennedys opinion suggests, the doctrine of stare

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

1946 and 1992, however, the


Supreme Court overruled 154 of its prior decisions, for an average of about three overruled
decisions each term (Brenner and Spaeth 1995). In this paper, we ask a simple yet important question: What explains why and when the
Supreme Court chooses to overrule one of its precedents?

228 past overrules


Costello 5 George, Legislative Attorney America Law Division, CRS Report to Congress,
http://digital.library .unt.edu/govdocs/crs//data/2005/upl-meta-crs
8231/RL33172_2005Nov29.pdf?PHPSESSID=e4b2fcc19fb8f1222a 05b5ca4fe3f64b
The Supreme Court has overruled 228 of its own decisions over the years , and the most
controversial of these decisions involved constitutional interpretation .1 How the Supreme Court explains its
reversals of direction in constitutional interpretation is the subject of this report.2 As a general rule, the Supreme Court adheres to precedent, citing the
doctrine of stare decisis (to stand by a decision). This means that, when the Court has laid down a principle in deciding case, ordinarily it will apply

The general rule of stare decisis is not an absolute


rule, however; the Court recognizes the need on occasion to correct what are perceived as erroneous
decisions or to adapt to changed circumstances . In deciding whether to overrule precedent the Court takes a variety of
approaches and applies a number of different standards, many of them quite general and flexible in application. As a result, the law of
stare decisis in constitutional decision making has been called amorphous and manipulable, and has
that same principle in future cases with substantially similar facts.3

been criticized as incoherent.4

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

American politics is characterized by deep and


profound partisan and ideological divisions. Unanswered is the question of whether those divisions have spilled over into threats
to the legitimacy of the United States Supreme Court. Since the Court is often intimately involved in making policy in many policy areas that divide
Americans, including the contested 2000 presidential election, it is reasonable to hypothesize that loyalty toward the institution depends upon policy
and/or ideological agreement and partisanship. Using

data stretching from 19 87 through 20 05 , the analysis reveals that


Court support has not declined. Nor is it connected to partisan and ideological identifications.

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.

Controversial decisions build legitimacy


Law 9 David S., Professor of Law and Political Science Washington University, A Theory of
Judicial Power and Judicial Review, Georgetown Law Journal, March, 97 Geo. L.J. 723, Lexis
Part IV of this Article discusses a counterintuitive implication of a coordination-based account of judicial power. Conventional

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

2NC A2: Capital DA


Court decision-making is unpredictable- not based on ideology
Sherry, 13 (Suzanne, Herman O. Loewenstein Professor of Law at Vanderbilt University Law
School in Nashville, Tennessee, Influence and Independence: Politics in Supreme Court
Decisions,
://iipdigital.usembassy.gov/st/english/publication/2013/02/20130206142159.html#ixzz3etDg9H
fT.MS)
Almost two centuries ago, the famous student of American life and customs Alexis de Tocqueville wrote, [T]here is hardly a political question in the United States which
does not sooner or later turn into a judicial one. That statement is still accurate today, and it poses a unique dilemma for American courts. How can judges resolve issues
that, by their nature, are political rather than legal? The answer lies in the structure of the judicial branch and the decision-making process in which judges engage. Unlike
judges in many other countries, American judges are drawn from the ranks of ordinary lawyers and installed on the bench without any specialized training. Not even
Supreme Court justices, although they often have prior experience on other courts, receive specialized training beyond the legal education of every lawyer in the United
States. And while individuals (including future Supreme Court justices) studying to become lawyers may choose to emphasize particular subject areas, such as
employment law or antitrust law, there are no courses that aim to prepare them for a judicial career. Supreme Court justices, then, begin their careers as lawyers. Their
backgrounds, their political preferences, and their intellectual inclinations are, in theory, as diverse as you might find in any group of lawyers. This diversity on the
Supreme Court especially political diversity is somewhat narrowed by the process through which justices are chosen: Each is nominated by the president and must be
confirmed by a majority vote in the Senate. Once appointed, justices serve until they die or choose to retire; there are no fixed terms and no mandatory retirement.
Vacancies on the Supreme Court are thus sporadic and unpredictable, and the political views of any particular justice will depend on the political landscape at the time of
his or her appointment. A popular president whose party is in the majority in the Senate will likely make very different choices than a weak president faced with a Senate in
which the opposing party has the majority. At any particular time, the Court will consist of justices appointed by different presidents and confirmed by different Senates.
As the Court began its term in October 2012, for example, the nine sitting justices were appointed by five different presidents three Republicans and two Democrats.

The diversity of political views on the Court and the periodic


appointment of new justices guarantee that no single political
faction will reliably prevail for long. Differences aside, all of the
justices share a commitment to uphold the Constitution. Their
fidelity to that goal makes the United States a country governed by
the rule of law, rather than by the rule of men. The justices, in
interpreting and applying the Constitution and laws, do not view
themselves as Platonic guardians seeking to govern an imperfect
society but, instead, as faithful agents of the law itself. The Supreme
Court can, and does, decide political questions, but does so using the
same legal tools that it uses for any legal question . If it were
otherwise, the Court might jeopardize its own legitimacy: The public might not regard
it as an institution particularly worthy of respect. Personal and Political Views Nevertheless, justices do have personal views. They are appointed through a political
process. Observers naturally must ask how great a role their political views actually play. Some scholars argue that the justices political preferences play a large role,
essentially dictating their decisions in many cases. They point to the fact that justices appointed by conservative presidents tend to vote in a conservative fashion and
those appointed by liberal presidents vote the opposite way. The confirmation battles over recently nominated justices certainly suggest that many people view the
justices personal politics as an important factor in judicial decision making. Dwight Eisenhower and William J. Brennan shaking hands (AP Images) Republican President
Dwight Eisenhower (left) selected William J. Brennan for the Supreme Court. Brennan became one of the most liberal justices of the 20th century. But we should not so
quickly conclude that Supreme Court justices, like politicians, merely try to institute their own policy preferences. A number of factors complicate the analysis. First, it is
difficult to disentangle a justices political preferences from his or her judicial philosophy. Some justices believe that the Constitution should be interpreted according to
what it meant when it was first adopted or that statutes should be interpreted by looking only to their texts. Others believe that the Constitutions meaning can change
over time or that documentary evidence surrounding a statutes enactment can be useful in its interpretation. Some justices are extremely reluctant to overturn laws
enacted by state or federal legislatures, and others view careful oversight of the legislatures as an essential part of their role as guardians of the Constitution. A justice
who believes that the Constitution ought to be interpreted according to its original meaning and who is reluctant to strike down laws will probably be quite unsympathetic

If that justice also happens to be politically


conservative, we might mistakenly attribute the lack of sympathy to politics
rather than judicial philosophy. A justices personal experiences and background also may influence how he or she approaches a case
to claims that various laws violate individuals constitutional rights.

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

difficult to support the conclusion that a justices politics are the


sole (or even the primary) influence on his or her decisions. There are
simply too many instances in which justices surprise their appointing
presidents, vote contrary to their own political views, or join with justices
appointed by a president of a different party. Two of the most famous liberal justices of the 20th century, Chief
Justice Earl Warren and Justice William Brennan, were nominated by Republican President Dwight Eisenhower and Warren was confirmed by a Republican-majority
Senate. Between a quarter and a third of the cases decided by the Supreme Court are decided unanimously; all the justices, regardless of their political views, agree on the
outcome. One study has concluded that in almost half of non-unanimous cases,

the justices votes do not accord

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.

Empirics prove the Court doesnt consider capital


Frederick Schauer 4 is Professor of Law @ Harvard, Judicial Supremacy and the Modest
Constitution, California Law Review, July, 92 Cal. L. Rev. 1045
Examples of the effects of judicial supremacy hardly occupy the entirety of constitutional
law. As the proponents of popular constitutionalism properly claim, it is simply not plausible to argue that all of the Supreme Court's decisions are counter-majoritarian, nor that the Court is unaware of the
there is no indication that the Court
uses its vast repository of political capital only to accumulate more political capital , and in many areas judicial supremacy

potential repercussions if a high percentage of its decisions diverges too dramatically from the popular or legislative will. Nevertheless,

most obvious is school prayer . For over forty years the


Court has persisted in its view that organized prayer in public schools is impermissible
under the Establishment Clause 59 despite the fact that public opinion is little more
receptive to that view now than it was in 1962. 60 So too with flag burning, where the Court's
decisions from the late 1960s 61 to the present have remained dramatically divergent from
has made not just a short-term difference, but a long-term difference as well. Perhaps

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

Conventional 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. n25 Part IV argues that precisely the opposite is true : an
Part IV of this Article discusses a counterintuitive implication of a coordination-based account of judicial power.

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

Controversy doesnt risk capital---public is OVERWHELMINGLY in favor


of the court
David Fontana 8 is GW Associate Law Professor, The Supreme Court: Missing in Action
http://dissentmagazine.org/article/?article=1165, DOA: y2k
Second,

when the Supreme Court presents perspective people listen


Court enjoys "diffuse"
this

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.

rather than "specific"

Americans don't like a specific decision they still support the Court
,

support

. Thus,

even when

. By contrast, when the president or Congress does something Americans don't

The legitimating symbols


of the Court the robes, the appearance of detachment, the sophisticated legal opinions) help
to separate it from other political institutions
like, their support drops substantially. AMERICANS BECOME more aware of the Court the more it involves itself in controversies. This is because of what political scientists call "positivity bias."

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

Beyond providing a rhetorical sword and drawing attention to and legitimating


certain issues the Court can shatter a stable political equilibrium and force us to
defense of American lives.

often

reexamine settled political and policy agreements

. 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

Court decisions do not necessarily create


If the Court had decided cases in favor of rights before the tide had

branches of government do. Sometimes, the Court is just a megaphone, projecting certain critical considerations into the public sphere. Second,

the backlash

that many on the left fear.

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
.

with Supreme Court decisions,

an overwhelming majority of them are loyal to the Court and inclined to think that the less popular
branches of government should fall into line even when the Court issues controversial decisions

such as Bush v. Gore.

Individual decisions dont affect capital.


Gibson et al 3, PoliSci @ Wash U in St. Louis and Ohio State, James L. Gibson, PoliSci @
Wash U in St. Louis, Gregory A. Caldeira, PoliSci @ Ohio State, Lester Kenyatta Spence, Poli
Sci @ Wash U in St. Louis, Apr. 2003, Measuring Attitudes toward the United States Supreme
Court American Journal of Political Science, Vol. 47, No. 2 (Apr., 2003), pp. 354-367
Perhaps more important is the rather limited rela- tionship between performance
evaluations and loyalty to the Supreme Court . These two types of attitudes are of course not entirely unrelated, but
commitments to the Supreme Court are not largely a function of whether one is pleased with how it
is doing its job. Even less influential are perceptions of decisions in individual cases . When
people have developed a "running tally" about an institution -a sort of historical summary of the good and bad things an
institution has done-

it is difficult for any given decision to have much incremental influence on that

tally . Insti- tutional loyalty is valuable to the Court precisely because it is so weakly related to
actions the Court takes at the moment.

2NC A2: Activism DA


Empirically denied- Citizens united, Health Care, Roe v. Wade etc.
Judicial Activism is key to protect liberty and the rule of law
Bolick 7, CATO Institute Writer, 2007, Clint, A Cheer for Judicial Activism, CATO Institute,
http://www.cato.org/pub_display.php?pub_id=8168
Judicial activism has become a universal pejorative, a rare point of agreement between red
and blue America. Conservatives and liberals alike condemn courts for overturning policy
decisions they support. Both sides would reduce the judiciary's constitutional scrutiny of the actions of other branches of government -- a
role it exercises not too much but far too little. To be sure, courts deserve criticism when they exercise legislative or executive powers -- ordering taxes to
be raised, assuming control over school systems or prisons, or as the Supreme Court did yesterday, giving regulatory agencies broad lawmaking authority.
But better to call this behavior what it really is, which is not "activism" but lawlessness. By

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 ."

Rule of law solve nuclear conflict


Rhyne 58 Charles S, Video Prof Emeritus @ Reed College, Law Day Speech for Voice of
America http://www.abanet.org/publiced/lawday/rhyne58.html
Law and courts exist to protect every citizen of the United States in his person and property and in his individual rights and privileges
under the Constitution. The ultimate power to change or expand the law in our system remains with its source, the people. They can
elect as lawmakers those who will vote for wise laws and vote out of office those who do not. They can also amend the Constitution as
experience dictates the necessity of change. In these days of soul-searching and re-evaluation and inventorying of basic concepts and
principles brought on by the expansion of mans vision to the new frontiers and horizons of outer space, we

want the people


of the world to know that we in America have an unshakable belief in the most essential
ingredient of our way of lifethe rule of law. The law we honor is the basis and foundation
of our nations freedom and the freedom for the individual which exists here. And to Americans our
freedom is more important than our very lives. The rule of law has been the bulwark of our democracy . It
has afforded protection to the weak, the oppressed, the minorities, the unpopular; it has
made it possible to achieve responsiveness of the government to the will of people. It stands
as the very antithesis of Communism and dictatorship. When we talk about justice under our rule of law,
the absence of such justice behind the Iron Curtain is apparent to all. When we talk about freedom for the individual, Hungary is
recalled to the minds of all men. And when we talk about peace under lawpeace without the bloodbath of warwe are appealing to
the foremost desire of all peoples everywhere. The

tremendous yearning of all peoples for peace can only


be answered by the use of law to replace weapons in resolving international disputes . We in our
country sincerely believe that mankinds best hope for preventing the tragic consequences of nuclear satellite-missile warfare is to persuade the nations of the entire world to submit all disputes to tribunals
of justice for all adjudication under the rule of law . We lawyers of America would like to join lawyers from every nation in the
world in fashioning an international code of law so appealing that sentiment will compel its general acceptance. Mans relation to
man is the most neglected field of study, exploration and development in the world community. It is also the most critical. The most
important basic fact of our generation is that the rapid advance of knowledge in science and technology has forced increased
international relationships in a shrunken and indivisible world. Men must either live together in peace or in modern war we will surely
die together. History teaches that the

rule of law has enabled mankind to live together peacefully within

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.

Activism is key to enforcing limits on other branches


Neily 11 Clark, WSJ correspondent and leading attorney, The Myth of Judicial Activism, Wall
Street Journal, http://search.proquest.com/docview/894290504
The explosive

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 .

2NC A2: Stripping DA


Decisions over Gitmo prove no stripping
Katz 9 [Martin J. Interim Dean and Associate Professor of Law, University of Denver College
of Law; Yale Law School, J.D. 1991; Harvard College, A.B. 1987. GUANTANAMO,
BOUMEDIENE, AND JURISDICTION-STRIPPING: THE IMPERIAL PRESIDENT MEETS
THE IMPERIAL COURT CONSTITUTIONAL COMMENTARY [Vol. 25:377 2009] Pg.395-96
DMW]
As discussed above, Boumediene was a habeas case. Though habeas-stripping may conceptually be understood as a subset of jurisdiction-stripping, the
Court did not characterize the case as a jurisdiction-stripping case. Rather, the Court addressed the case as a habeas case. However, as this Section will
demonstrate, the

principles the Court used to decide Boumediene effectively provide answers to


the jurisdiction-stripping debate. This Section will show how Boumediene suggests a critical limit on
Congress's power to curtail federal court jurisdiction: Congress cannot strip all jurisdiction
over constitutional ques- tions. The Section will then look at the two sub-powers that ar- guably give Congress the power to restrict
federal court jurisdic- tion, the "ordain and establish" power to limit lower court jurisdiction and the "exceptions and regulations" power to limit
Supreme Court appellate jurisdiction. The Section will show how Boumediene

may limit those two sub-powers, in


addition to li- miting Congress's ability to exercise those powers simultaneous- ly. Then, in the
following Section, I will demonstrate that these limits are not limited to habeas cases; that they apply to all juris- diction-stripping cases. 1. Preventing
Stripping of All Federal Jurisdiction. Perhaps the

most significant development in Boumediene is that it


effectively answers the question of whether Congress can strip jurisdiction from all federal
courts. Boumediene effectively says that Congress cannot do so, at least in cases involving con- stitutional
questions.**^ I am not claiming that the Boumediene majority necessarily saw itself as deciding this
jurisdiction-stripping question. Rather, my point is that the Boumediene Court employed three
powerful principles to decide whether the Suspension Clause extended to Guantanamo, and
that those principles can be applied toand largely resolve the question of whether Congress
can preclude all federal court jurisdiction.

The case prevents any jurisdiction stripping


Katz 9 [Martin J. Interim Dean and Associate Professor of Law, University of Denver College of
Law; Yale Law School, J.D. 1991; Harvard College, A.B. 1987. GUANTANAMO,
BOUMEDIENE, AND JURISDICTION-STRIPPING: THE IMPERIAL PRESIDENT MEETS
THE IMPERIAL COURT CONSTITUTIONAL COMMENTARY [Vol. 25:377 2009] Pg.399400 DMW]
Prior to Boumediene, these principles had been applied to establish the power of judicial review. But they had never been deployed by the Court to
address the power of Congress to cur- tail judicial review." Although Boumediene was not on its face a jurisdiction-stripping case, the Court
applied these principles in a way that had the effect of requiring

jurisdiction in a case in which Congress had tried


to restrict it. Congress had said that only the D.C. Circuit could hear the case and simultaneously li- mited the ability of that court to do so. Based
on the two Mar- bury principles, the Bournediene Court held that Congress could not impose such a limit .
Boumediene's use of these two prin- ciples to ensure jurisdiction strengthens the argument
that these principles preclude complete jurisdiction-stripping in constitu- tional cases. But an
additional argument against jurisdiction-stripping flows from Boumediene's antimanipulation principle (that the political branches may not manipulate the scope of the
Constitu- tion's limits on their own power). This principle, which the Court had not clearly articulated before,"" suggests
that Congress can- not strip jurisdiction where doing so serves to shield Congress or the
President from judicial review in constitutional cases, giving the political branches the last word on the constitutionality of their own
actions.""

Threats of jurisdiction stripping are hollow


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
Indeed, even

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,

judges do not have the expertise, the time,

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

Court possesses neither the purse nor the sword, n117 it


relies upon its [*1745] legitimacy in the eyes of the American people in order to pressure the legislative
and executive branches to enforce its decrees : The Supreme Court ... possesses some bases of power of its own,
the most important of which is the unique legitimacy attributed to its interpretations of the Constitution. This legitimacy
the Court jeopardizes if it flagrantly opposes the major policies of the dominant alliance; such a course
of action, as we have seen, is one in which the Court will not normally be tempted to engage. n118 Without legitimacy in
the eyes of the public, both Congress and the President might feel justified in resisting the ruling of
the Court either through jurisdiction-stripping n119 or by simply refusing to enforce its decrees.
n120 There is precedent for both in American history . n121 The Court risks becoming substantially
weakened, or even irrelevant, when the political branches ignore judicial decrees and where it nonetheless doggedly pursues the
counter-majoritarian course. n122

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

in the Constitution -- is a largely unexercised power...When it has been sought to be


exercised in the past, it has typically been quite controversial." The ACLU, in a letter opposing the
Pledge Protection Act, warned

that this measure, "threatens the separation of powers established

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.

elected officials must consider their constituents interests and


generally respond to public opinion. Consequently, the implementation of Court rulings in lateral cases depends on
the popularity of those rulings, whereas the implementation of rulings in vertical cases does not. This differential power dynamic creates an avenue for evaluating
whether the fear of nonimplementation drives judicial constraint. If the Court is at least partly constrained by a fear of nonimplementation, then the degree to which it is
constrained should depend on its implementation power. Therefore, external constraint should be most prominent in important lateral cases because those are the cases in
which implementation depends on public support. U.S. Supreme Court Credit : OZinOH (Creative Commons BY NC) I test my theory of a semiconstrained Court in two
separate analyses. First, I evaluate the influence of public opinion and elite preferences on the ideological outcome of Supreme Court decisions. Second, I evaluate the
influence of these external forces on the Courts decision to invalidate federal statutes. I employ logistic regression models to evaluate the influence of public mood and

Each of these analyses confirms


that external pressures exert stronger influence when
congressional ideology on the justices final votes on the merits in vertical versus lateral cases.

nonimplementation is a concern . I find that the fear of


nonimplementation is a critical factor motivating the Supreme
Courts response to external pressure. Consequently, these external
forces exert differential effects in different issue contexts. When deciding
important lateral cases, the Court is highly constrained by external forces
because it lacks the necessary implementation powers to give efficacy to its
rulings in the absence of popular and/or elite support; however, when deciding vertical cases, the justices
are relatively less constrained because their decisions tend to be implemented by lower-court judges regardless of external pressure. When the Court considers
unimportant cases, the chance of strong public opposition is low; therefore, nonimplementation is unlikely and the justices can disregard external pressure. Although
numerous scholars have found that the Supreme Court is constrained, I find that constraint is a significant factor in only a small subset of its docket. My findings suggest
that the U.S. Supreme Court is relatively independent when deciding cases related to criminal prosecution, civil liability, or judicial administration; however, the Court is
more constrained when trying to alter policy beyond the control of lower courts, at least when those cases may potentially attract public interest. As a result, studies of
judicial independence should be conscious of the varying institutional contexts surrounding cases in different issue areas. Rather than search for universal tendencies of
Supreme Court behavior, judicial scholars should be attentive to differences in judicial power and independence across different contexts.

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

The court's power to enforce its decisions is, of course,


limited. Their practical efficacy may depend on how willing the other branches of the
federal government are to support the court. In 1832, the Supreme Court decided
Worcester v. Georgia, which recognized the rights of Native American
tribes. President Andrew Jackson was supposed to have said "John Marshall
the meaning of the Constitution.

has made his decision; now let him enforce it!" Jackson was not willing

to enforce the decision, and it ended up being of little practical


effect . By contrast, in 1957, President Eisenhower sent the 101st Airborne
to Little Rock, Arkansas, to ensure that African-American children could
attend the schools to which the Constitution and Brown v. Board of Education
entitled them. Will Obergefell meet explicit defiance? Justice Scalia's dissent
gestured in this direction, warning that the court had moved "one step closer to being
reminded of our impotence." But it seems unlikely. The court's desegregation
decisions met massive resistance because they directly affected the objecting whites.
Its interracial marriage decision, Loving v. Virginia, did not -- presumably in part
because there was there was no similar tangible consequence for its opponents.
Obergefell is of course more like Loving than Brown. It is hard to imagine state
governors directing county clerks to withhold same-sex marriage licenses, or calling
out the National Guard to protect them from the contempt citations that would follow.
(And if it came to that, I expect the Obama administration would back the
Court.) So outright defiance is neither legally justifiable nor plausible in practice.
But there is a real question about what latitude states have to accept the Supreme
Court's ruling while accommodating the sincere religious beliefs of their employees.
Yesterday, Texas Attorney General Ken Paxton issued an opinion on this subject, concluding that some degree of accommodation was permissible. This is likely true, though
not for quite the reasons Paxton offered. Paxton invoked three sources of protection for government employees' religious liberty: the First Amendment to the Constitution,
and state and federal Religious Freedom Restoration Acts (RFRAs). The Obergefell decision, he claimed, "stops at the door of the First Amendment and our laws protecting
religious liberty." If the claim is that those sources of law can limit the force of the decision, this is not true. If there were a conflict between Obergefell and the First
Amendment, Obergefell would prevail. It interprets a constitutional amendment (the Fourteenth) which was enacted after the First and which could have repealed it, just as
the Eighteenth Amendment enacted Prohibition and the Twenty-First repealed it. But there is no conflict: According to the Supreme Court, the First Amendment offers no
protection against generally applicable laws that regulate conduct rather than belief. The requirement to allow same-sex couples to marry is general and pertains to
conduct; it cannot be resisted on First Amendment grounds. The Federal Religious Freedom Restoration Act has no application at all; as construed by the Supreme Court,
it is essentially a guide to interpreting federal statutes. Certainly it cannot limit the force of a Supreme Court constitutional decision. That leaves Texas state law. State
law cannot excuse a state from complying with a Supreme Court decision either, but it can affect the way in which a state complies. Texas has an obligation to allow samesex couples to marry. It may be able to meet that obligation in a way that accommodates the religious beliefs of state employees. If, for instance, there are two clerks in
an office, only one of whom objects to same-sex marriage, it would be consistent with Obergefell to allow the non-objector to issue same-sex licenses -- as long as this
practice neither stigmatized same-sex couples nor imposed significant burdens on them. And in this sense, Paxton is right. The state of Texas must issue same-sex
marriage licenses, but in appropriate circumstances, individual clerks may be excused.

2AC National Security


Courts shouldnt intervene in national security matters
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
One of the most persistent fights in the national security arena since the September 11 attacks has
been about the proper allocation of power between two branches of government: the Executive
and the courts.

Specifically, how much authority does and should the Executive Branch have to establish

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
and implement national security policies,

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

a drone court that


would review the White Houses targeted killings of American citizens
linked to al Qaida. The administration has signaled its openness to the
idea of a congressionally created drone court, which would be modeled on the secret Foreign
Democratic lawmakers in the wake of John O. Brennan's confirmation hearings to be CIA Director:

Intelligence Surveillance Court that reviews requests for warrants authorizing the surveillance of suspected spies or terrorists. But

senators at the Brennan hearings were rightly concerned about


targeted killings operating without any judicial or congressional
oversight , the proposed drone court would raise as many constitutional and legal questions as it resolved. And it would give a

although

congressional and judicial stamp of approval to a program whose effectiveness, morality, and constitutionality are open to serious

Rather than rushing to create a drone court , Congress would do


better to hold hearings about whether targeted drone killings are, in
fact, morally, constitutionally, and pragmatically defensible in the first
place. From the administrations perspective, the appeal of a drone court is obvious: Despite the suggestion in the recently
questions.

released Department of Justice White Paper white paper that the presidents unilateral decisions about targeted killings cant be

Supreme Court cases that suggest the opposite:


namely, that the presidents decision to designate Americans as enemy
combatants can only be justified when authorized by Congress, with the
possibility of independent judicial review. Although the Supreme Court has been most sympathetic
to bold claims about executive power when theyre supported by Congress and reviewed by independent judges, a
congressionally created drone court would be open to a series of
practical and constitutional objections. On the practical side, theres the
question of what, precisely, the court would be reviewing. The administration claims
the power to order targeted assassinations when three conditions are met: 1) a high level U.S. officials
decides the target is a senior operational leader of Al-Qaida who
poses an imminent threat of violent attack against the United States;
2) capture is infeasible; and 3 ) the operation would be conducted
reviewed by judges, the administration cites

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

legislation should include: Use Limitations


Prohibitions on general surveillance that limit drone surveillance to specific, enumerated
circumstances, such as in the case of criminal surveillance subject to a warrant, a geographically-confined emergency, or for
reasonable non- law enforcement use where privacy will not be substantially affected; Data Retention Limitations
Prohibitions on retaining or sharing surveillance data collected by drones, with emphasis on
identifiable images of individuals; Transparency Requiring notice of drone surveillance
operations to the extent possible while allowing law enforcement to conduct effective
investigations. In addition, requiring notice of all drone surveillance policies through the
Administrative Procedure Act. These three principles would help protect the privacy
interests of individuals. In addition, the law should provide for accountability, including third party
audits and oversight for federally operated drones and a private right of action against private entities that violate statutory privacy
rights. Second,

Congress should act to expressly require federal agencies that choose to


operate drones, such as DHS and its components, to implement regulations, subject to public notice
and comment, that address the privacy implications of drone use. Recently, in EPIC v. DHS, the D.C.
Circuit Court of Appeals ruled that the Department of Homeland Security violated the Administrative Procedure Act when it chose to
deploy body scanners as the primary screening technique in U.S. airports without the opportunity for public comment.43 The Court
observed that there was no justification for having failed to conduct a notice-and-comment rulemaking.44 We believe that the public
has a similar right to comment on new surveillance techniques, such as unmanned aerial vehicles, undertaken by federal agencies
within the United States. Finally,

Congress must clarify the circumstances under which the drones


purchased by the CBP in pursuit of its mission may be deployed by other agencies for other
purposes. The failure to make clear the circumstances when federal and state agencies may
deploy drones for aerial surveillance has already raised significant concerns about the
agencys program.45

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

District Judge Jeffrey White on


Tuesday denied a partial summary judgment motion to the EFF and granted a cross-motion
to the government, dismissing the case without a trial. In his order, White said the plaintiff,
Carolyn Jewel, an AT&T customer, was unable to prove she was being targeted for
surveillanceand that if she could, "any possible defenses would require impermissible
disclosure of state secret information." Offering his interpretation of the decision, EFF senior staff attorney David Greene
explained in a blog post: Agreeing with the government, the court found that the plaintiffs lacked standing to
challenge the constitutionality of the program because they could not prove that the
surveillance occurred as plaintiffs alleged. Despite the judges finding that he could not adjudicate the standing issue without
risking exceptionally grave damage to national security, he expressed frustration that he could not fully explain his analysis and reasoning because of
the state secrets issue. The EFF later Tweeted: Calling the ruling "frustrating," Greene said the EFF "disagree[s] with the courts decision and it will not
be the last word on the constitutionality of the governments mass surveillance of the communications of ordinary Americans."Jewel v. NSA is the EFF's
longest-running case. Despite the decision, the EFF said it would not back down from its pursuit of justice and was careful to note that the ruling did not
mean that the NSA's operations were legal. "Judge Whites ruling does not end our case. The judge's ruling only concerned Upstream Internet
surveillance, not the telephone records collection nor other mass surveillance processes that are also at issue in Jewel," said Kurt Opsahl, deputy legal
council at EFF. "We will continue to fight to end NSA mass surveillance." The

issue is similar to the 2013 Supreme Court


decision in Clapper v. Amnesty International, which found that plaintiffs who had reason to
believe they were being spied on could not provide substantial proof of surveillance, and
thus could not bring their case. Jewel v. NSA stems from the EFF's 2006 case, Hepting v. AT&T, which was dismissed in 2009 after
Congress, including then-Senator Barack Obama, voted to give telecommunications companies immunity from such lawsuits. "It would be a travesty of
justice if our clients are denied their day in court over the 'secrecy' of a program that has been front-page news for nearly a decade," Opsahl added.

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

State Repeal Act, which would


overhaul American spying powers unlike any other effort to reform the National Security
Agency. This isnt just tinkering around the edges, Pocan said during a Capitol Hill briefing on the legislation. This is a meaningful
overhaul of the system, getting rid of essentially all parameters of the Patriot Act. The bill
would completely repeal the Patriot Act, the sweeping national security law passed in the days after Sept. 11, 2001, as well as
the 2008 FISA Amendments Act, another spying law that the NSA has used to justify collecting vast swaths of people's communications through the
Internet. It

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

be forced to decide if the NSAs most

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.

Congress can and should end warrantless data collection


Nichols, 2013(http://grayson.house.gov/index.php/newsroom/in-the-news/227-judge-rulesagainst-nsa-spying-congress-should-do-the-same) Nichols john, December 16, 2013 CL
that
Congress can and should act to defend privacy rights. The ruling underscores what I have argued for years: The
bulk collection of Americans phone records conflicts with Americans privacy rights under
the U.S. Constitution and has failed to make us safer, says Senator Mark Udall, D-Colorado, a supporter of
legislation to end the bulk collection program. We can protect our national security without trampling our
constitutional liberties. Senator Ron Wyden, D-Oregon, said: Judge Leons ruling hits the nail on the head. It makes clear that bulk
Judge Leons decision, which will surely be appealed, focuses attention on legal challenges to the spying program. But it also serves as a reminder

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,

Congress needs to step up to what Congressman Alan


Grayson, D-Florida, refers to as the spying-industrial complex. A number of members are
ready. Vermont Senator Bernie Sanders responded to Judge Leon's ruling by saying: In
my view, the NSA is out of control and operating in an unconstitutional manner . Todays ruling is an
important first step toward reining in this agency but we must go further. I will be working as hard as I can to pass the
strongest legislation possible to end the abuses by the NSA and other intelligence agencies .
The outlines for legislative action have already been presented by the American Civil Liberties Union and other groups that work on privacy issues.

Congress should not be indifferent to the governments accumulation of vast quantities of


sensitive information about Americans lives, Jameel Jaffer, the ACLUs deputy legal counsel told the House Judiciary
Committee in July. This Committee in particular has a crucial role to play in ensuring that the governments efforts to protect the country do not
compromise the freedoms that make the country worth protecting. Jaffer told the committee, Because the

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.

Congress should end NSA phone dragnet program.


Gross, 15 (http://www.pcworld.com/article/2917992/aclu-nsa-phone-dragnet-should-be-killednot-amended.html) Gross, Grant. May, 1 2015 CL
The U.S. Congress should kill the section of the Patriot Act that has allowed the National Security
Agency to collect millions of phone records from the nations residents , instead of trying to amend it, a civil
liberties advocate said Friday. Section 215 of the Patriot Act, which allows the NSA to collect phone
records, business records and any other tangible things related to an anti-terrorism investigation, expires in June, and
lawmakers should let it die, said Neema Singh Guliani, legislative counsel for the American Civil Liberties Union. The House of Representatives
Judiciary Committee on Thursday voted to approve a bill to amend that section of the anti-terrorism law. The USA Freedom Act would end the NSAs
bulk collection of U.S. phone records by narrowing the scope of the agencys searches, backers of the bill said .

The USA Freedom Act


does not go far enough to protect U.S. residents from surveillance , Guliani said during a debate about section
215 hosted by the Congressional Internet Caucus. While the bill doesnt allow NSA searches by state or even zip codes, it would still allow
the search of the records of several hundred people who might share an IP address over a
wireless network, or records on an entire company, she said.

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

A federal appeals court ruled Thursday that the National Security


Agencys collection of millions of Americans phone records violates the
USA Patriot Act, marking the first time an appellate panel has weighed
in on a controversial surveillance program that has divided Congress
and ignited a national debate over the proper scope of the governments
spy powers. In a blistering 97-page opinion, a unanimous three-judge panel of the U.S. Court of Appeals for the 2nd
Circuit overturned a lower court and determined that the government had stretched the meaning of the statute to enable sweeping

The ruling comes as Congress begins a


contentious debate over whether to reauthorize the statute that
underpins the NSA program or let it lapse . The court did not issue an
injunction ordering the program to stop. With the statute scheduled to
expire June 1, a bipartisan coalition of lawmakers in the House and
Senate is seeking to renew it with modifications that sponsors say will
enable the NSA to get access to the records it needs while protecting
Americans privacy. The bill, the USA Freedom Act, is poised to pass
the House next week.
surveillance of Americans data in staggering volumes.

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.

elected officials must consider their constituents interests and


generally respond to public opinion. Consequently, the implementation of Court rulings in lateral cases depends on
the popularity of those rulings, whereas the implementation of rulings in vertical cases does not. This differential power dynamic creates an avenue for evaluating
whether the fear of nonimplementation drives judicial constraint. If the Court is at least partly constrained by a fear of nonimplementation, then the degree to which it is
constrained should depend on its implementation power. Therefore, external constraint should be most prominent in important lateral cases because those are the cases in
which implementation depends on public support. U.S. Supreme Court Credit : OZinOH (Creative Commons BY NC) I test my theory of a semiconstrained Court in two
separate analyses. First, I evaluate the influence of public opinion and elite preferences on the ideological outcome of Supreme Court decisions. Second, I evaluate the
influence of these external forces on the Courts decision to invalidate federal statutes. I employ logistic regression models to evaluate the influence of public mood and

Each of these analyses confirms


that external pressures exert stronger influence when
congressional ideology on the justices final votes on the merits in vertical versus lateral cases.

nonimplementation is a concern . I find that the fear of


nonimplementation is a critical factor motivating the Supreme
Courts response to external pressure. Consequently, these external
forces exert differential effects in different issue contexts. When deciding
important lateral cases, the Court is highly constrained by external forces
because it lacks the necessary implementation powers to give efficacy to its
rulings in the absence of popular and/or elite support; however, when deciding vertical cases, the justices
are relatively less constrained because their decisions tend to be implemented by lower-court judges regardless of external pressure. When the Court considers
unimportant cases, the chance of strong public opposition is low; therefore, nonimplementation is unlikely and the justices can disregard external pressure. Although
numerous scholars have found that the Supreme Court is constrained, I find that constraint is a significant factor in only a small subset of its docket. My findings suggest
that the U.S. Supreme Court is relatively independent when deciding cases related to criminal prosecution, civil liability, or judicial administration; however, the Court is
more constrained when trying to alter policy beyond the control of lower courts, at least when those cases may potentially attract public interest. As a result, studies of
judicial independence should be conscious of the varying institutional contexts surrounding cases in different issue areas. Rather than search for universal tendencies of
Supreme Court behavior, judicial scholars should be attentive to differences in judicial power and independence across different contexts.

Media spin ensures that courts are politicized


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

.[6] Instead, the Framers created a

Supreme Court that was independent from the political branches


and insulated from public opinion . The Supreme Court would be the intermediary between the people and the
legislature to ensure that Congress obeyed the Constitution. Congress could not be trusted to police itself for compliance with the Constitution's limited legislative powers.
Courts would be the bulwarks of a limited Constitution against legislative encroachments. [7] Still, the Framers believed Congress would overshadow the Supreme Court.
The Framers were so concerned about helping the Court repel attacks by the legislature that they considered boosting its power and inserting it into political issues. James
Madisons draft of the Constitution included an additional check against congressional power, the Council of Revision. [8] Instead of the presidential veto, the Council would
have placed several Supreme Court Justices on a council with the President or asked the President and the Supreme Court to separately approve legislation before it
became law.[9] Justices would have the power to oppose legislation on nonlegal policy grounds. The Council is nowhere to be found in the Conventions final product, but
delegates arguments from the Council debates reveal a suspicion of Congress, fear for the Courts ability to defend itself, and concern for the Courts public reputation.
Madison believed that even with the Council, Congress would be an overmatch for the Supreme Court and President and cited the experience of spurned state supreme
courts. Experience in all the States had evinced a powerful tendency in the Legislature to absorb all power into its vortex. This was the real source of danger to the
American Constitutions; & suggested the necessity of giving every defensive authority to the other departments that was consistent with republican principles. [10]

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.

President, said Romney.[14] Congress and the President have belittled

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

to score political points, they jeopardize the Framers carefully constructed


balance of power. Instead, honest public discourse on the Constitution and the
Court is the surest security for our government.
patriotism

Same-sex marriage proves


VICE NEWS, 7/29/15 (Tess Owen, freelance writer and reporter, Conservative
Backlash Follows US Supreme Court's Same-Sex Marriage Decision,
https://news.vice.com/article/conservative-backlash-follows-us-supremecourts-same-sex-marriage-decision. MS)
the historic
Supreme Court ruling last Friday that made same-sex marriage legal
in all 50 states, some conservatives began plotting their backlash .
The 5-4 ruling in favor for same-sex marriage sparked an outcry from some members
of the GOP and conservative leaders who claim that religious beliefs
are under attack. Republican presidential contender Sen. Ted Cruz of Texas described the stretch from
As landmarks and businesses across the country were emblazoned in rainbows celebrating

Thursday to Friday, which included a Supreme Court ruling favorable to President Obama's Affordable Care Act, as "some

Cruz said that the rulings on Obamacare , as the


and against state bans on same-sex marriage
constituted "naked and shameless judicial activism" that has "undermined the
of the darkest 24 hours in our nation's history."
ACA is popularly known,

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

Wisconsin Gov. Scott Walker, who is expected to soon declare


his candidacy for the Republican presidential nomination, also slammed the
ruling and called for the passage of a constitutional amendment that would allow states to define marriage.
Walker urged Obama and political leaders across the country "to join me in in
reassuring millions of Americans that the government will not force them to
participate in activities that violate their deeply held religious beliefs. " Following
Friday's decision, former Arkansas governor and Republican presidential candidate
Mike Huckabee's campaign posted a video of his infant grandson that compares his soiled diapers
to the recent rulings. Huckabee released a statement calling the SCOTUS ruling on gay marriage "judicial
service on the Court."

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

losing," he added, "because we're not

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."

"I believe the Supreme Court should have


allowed the states to make this decision," Bush said. "In a country as diverse as ours, good
people who have opposing views should be able to live side by side. It is now crucial that as a country we protect religious

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

Texas Attorney General Ken Paxton announced on Sunday


that county clerks could deny same-sex couples marriage licenses.
They will probably be sued for doing so, he said, but noted that "numerous lawyers stand ready to
assist clerks defending their religious beliefs ." \." Mississippi talk radio host
Bryan Fischer posted an opinion piece on the American Family Association website
with theheadline: "Rainbow Jihadists of SCOTUS Blow Up Twin Towers of Truth and Righteousness." "From a
moral standpoint, 6/26 has become our 9/11," he wrote.
liberty of Texans.

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

.[6] Instead, the Framers created a

Supreme Court that was independent from the political branches


and insulated from public opinion . The Supreme Court would be the intermediary between the people and the
legislature to ensure that Congress obeyed the Constitution. Congress could not be trusted to police itself for compliance with the Constitution's limited legislative powers.
Courts would be the bulwarks of a limited Constitution against legislative encroachments. [7] Still, the Framers believed Congress would overshadow the Supreme Court.
The Framers were so concerned about helping the Court repel attacks by the legislature that they considered boosting its power and inserting it into political issues. James
Madisons draft of the Constitution included an additional check against congressional power, the Council of Revision. [8] Instead of the presidential veto, the Council would
have placed several Supreme Court Justices on a council with the President or asked the President and the Supreme Court to separately approve legislation before it
became law.[9] Justices would have the power to oppose legislation on nonlegal policy grounds. The Council is nowhere to be found in the Conventions final product, but
delegates arguments from the Council debates reveal a suspicion of Congress, fear for the Courts ability to defend itself, and concern for the Courts public reputation.
Madison believed that even with the Council, Congress would be an overmatch for the Supreme Court and President and cited the experience of spurned state supreme
courts. Experience in all the States had evinced a powerful tendency in the Legislature to absorb all power into its vortex. This was the real source of danger to the
American Constitutions; & suggested the necessity of giving every defensive authority to the other departments that was consistent with republican principles. [10]

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.

President, said Romney.[14] Congress and the President have belittled

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

to score political points, they jeopardize the Framers carefully constructed


balance of power. Instead, honest public discourse on the Constitution and the
Court is the surest security for our government.
patriotism

Deference NB

2AC Congress Solves


Congress curtails survaillence- checks power executive
Eli Lake, 15, Bloomberg columnist on foreign affairs and politics, Congress
Falls Out of Love With the Surveillance State., http://www.bloombergview.com/articles/201505-20/congress-falls-out-of-love-with-the-surveillance-state, 05-20-2015, 7-1-2015, GAO
Congress is poised for the first time since 9/11 to take back some of the extraordinary
powers it granted to the executive branch. The courts have scrapped military tribunals for detainees and President
Obama has ended water boarding. But Congress has pretty much been a rubber stamp during the war
on terror. Not anymore. After resisting efforts from some in his own party and the House of
Representatives to revoke the NSA's authority to collect telephone records in bulk, Senate
Majority Leader Mitch McConnell said Tuesday he will allow a vote this week on the USA
Freedom Act. That bill would end the NSA's bulk collection of telephone metadata, but allow the NSA and FBI to query this
data stored by the phone companies. The closest Congress has come to doing anything like this was in
2008 and 2012 with the passage and reauthorization of amendments to the Foreign
Intelligence Surveillance Act. But in those cases, Congress codified government programs to monitor Internet
communications and required more oversight of them. This time around -- if the Senate passes the USA Freedom
Act -- Congress will be ending a government program altogether. "This is not just instituting layers of
oversight on a collection program," Mieke Eoyang, the director of the national security program at Third Way, told me. "This is taking
away from the NSA's custody a bunch of data that they gathered on every American and had unfettered access to."