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Legitimacy high now
Michael J. Nelson May 20, 2017 Assistant Professor Department of Political Science Pennsylvania State
University mjn15@psu.edu Patrick Tucker Ph.D. Candidate Department of Political Science Washington
University in St. Louis http://mjnelson.org/papers/NelsonTuckerPanel.pdf The Stability of the U.S.
Supreme Court’s Legitimacy
There is a bevy of evidence that the Court’s support is stable over time. Gibson, Caldeira and Spence
(2003b), relying upon repeated cross-sectional samples of the American people, found that support for
the Court was unaffected by its highly controversial ruling in Bush v. Gore, and the institution
maintained its high level of diffuse support even after the ruling. Likewise, in their year-long panel
survey surrounding the Alito confirmation, Gibson and Caldeira (2009) find “a) reasonably high levels of
support for the Court, and b) a great deal of stability in responses across the waves of the panel” (99).2
Thus, there is substantial reason to believe that the Court’s support is stable over time.
Should the Court lose its legitimacy and, consequently, its power, we in turn lose the benefits that only the Court
can provide. Vitally important constitutional rights and liberties, as well as minority groups, would be
unprotected and would likely suffer at the hands of an indifferent or hostile majority. An additional loss of
paramount importance is the ideal and the reality of the rule of law. All government action would be reduced
to arbitrary will and force, rather than being justified according to reason and, thus, rendered legitimate.
The consequences of the Court losing its legitimacy and the ability to play its specialized role, if we are to believe Philip Kurland, are horrible
indeed.
The Donald Trump presidency, coupled with the new Congress, is likely to produce major changes in federal law. But for
the Supreme Court, expect a surprising amount of continuity -- far more than conservatives hope and progressives fear.
If, as expected, Trump is able to replace Justice Antonin Scalia, the court will look a lot like it did until Scalia died in
February: four relative liberals (Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor); two moderate
conservatives (John Roberts and Anthony Kennedy); and three relative conservatives (Clarence Thomas, Samuel Alito, and the
new justice). That means it would reflect the same ideological makeup as the court that upheld Obamacare
and required states to recognize same-sex marriages. It would contain the same five justices -- a majority -- who recently
voted to uphold affirmative action programs and to invalidate restrictions on the abortion right. A court like that won't license a Republican-led
executive branch to do whatever it wants. It will assert the rule of law. It will rarely veer off in novel directions. To be sure,
things will be different if Trump is able to replace one of the liberal justices. Neither Ginsburg (who is 83) nor Breyer (78) is a spring chicken. But
they both appear to be in good health; don't be surprised if they continue to serve for the next four years. Suppose, though, that one of them
does resign. At that point, significant changes would be possible. But probably not many. One
reason involves the idea of respect
for precedent. The justices are usually reluctant to disturb the court's previous rulings, even if they
disagree strongly with them. In this light, would a new majority really want to announce in, say, 2018, that states can ban same-sex
marriage, after years of saying otherwise? That’s unlikely: Such an abrupt reversal of course, defeating widespread expectations, would make
the law seem both unstable and awkwardly political. Would a Trump court want to overrule Roe v. Wade, which has been the law since 1973,
and thus allow states to ban abortion? Considering the intensity of conservative opposition to abortion, that is somewhat more probable. But
judges are not politicians, and again to avoid the appearance of destabilizing constitutional law, any majority would hesitate before doing
something so dramatic. Would a court composed of Alito, Roberts, Kennedy, Thomas, and one or two Trump appointees be willing to grant
broad new powers to the president? No chance. The current conservatives have expressed a great deal of skepticism about executive authority.
They aren’t going to turn on a dime merely because the president is a Republican. There is a more general point. Many
judges (and
Roberts in particular) are drawn to “judicial minimalism”; they prefer to focus on the facts of particular cases.
Quite apart from respecting prior rulings, they like small steps and abhor bold movements or big theories. An
instructive example: In the 1970s, many progressives were terrified when President Richard Nixon found himself a position to transform a left-
of-center court, led by Earl Warren, and to appoint no fewer than four “strict constructionists.” And to be sure, the Nixon court, as it was
sometimes called, repeatedly disappointed the left. It halted the movement toward recognition of welfare rights, declined to expand the rights
of criminal defendants and refused to recognize a constitutional right to education. But the whole period is aptly described as “the counter-
revolution that wasn’t.” The Nixon court maintained a lot of continuity with its predecessor. Believing that the commitment to the rule of law
entails humility and respect for the past, it preserved most of its precedents, even as it refused to build on them. It’s true that with further
changes in the court’s membership, we should expect to see some incremental movements in the law, including expansions in gun rights,
increased protection of commercial advertising and new constraints on the power of regulatory agencies. But there’s
an excellent
chance that in four years, constitutional law will look pretty much the same as it does now.
Unq – AT: Gorsuch
Gorsuch won't change court tendencies—that still preserves legitimacy.
Pierce 17 Rich Pierce, Lyle T. Alverson Professor of Law at George Washington University. His work
been cited in hundreds of judicial opinions, including more than a dozen opinions of the U.S. Supreme
Court.3-19-2017, "What impact will Judge Gorsuch really have on the Supreme Court?," TheHill,
http://thehill.com/blogs/pundits-blog/the-judiciary/324686-if-judge-gorsuch-is-confirmed-his-impact-
wont-be-as-large-as
Judge Gorsuch’s general tendencies are not likely to have a major effect on the pattern of Supreme Court
decisions in the near future, however, for three reasons. First, it is impossible to use any judge’s general tendencies as the basis to predict
with confidence how the judge will vote in any specific case. Even the most conservative judges vote to uphold many agency decisions to
regulate, and even the most liberal judges vote to reject some agency decisions to regulate.
Legal historians suggest that justices in the 19th Century responded to the crisis of legitimacy by strengthening
the norm of stare decisis, a legal norm inherited from English common law that encourages judges to follow precedent by letting the
past decision stand (Friedman, 1985, pp. 127–133). In order to foster compliance and enhance the institutional reputation of the Court, stare
decisis was implemented to place decision-making in the domain of neutral legal principles and the
“accumulated experience of many judges responding to the arguments and evidence of many lawyers” (Landes and Posner,
1976, p. 250) rather than at the whim of the personal preferences of individuals. To this day, the justices of the
Supreme Court are aware of the inherent weakness of the federal judiciary and place high value on
maintaining their institutional and decisional legitimacy through the use of precedent (Ginsburg, 2004; Powell,
1990; Stevens, 1983). Recognizing that legitimacy is essential to achieve their policy objectives, the members
of the Court justify their substantive rulings through court opinions, which allow the justices to demonstrate
how their decisions are consistent with existing legal rules and principles established in prior cases (see Hansford and
Spriggs, 2006, pp. 24–30). Because it is the application of existing precedents that creates the perception of judicial decision-
making to be procedurally neutral and fair (Tyler and Mitchell, 1994), these opinions are often considered to be the source of
the Court’s power (Epstein and Knight, 1998; Segal and Spaeth, 2002).
Link – Political Decisions
Politicized Nature of the Decision Hurts Legitimacy
Michael J. Nelson and James L. Gibson, February 2016, Assistant Professor of Political Science at
Penn State and Professor of Government at Washington University in St. Louis, “U.S. Supreme Court
Legitimacy: Unanswered Questions and an Agenda for Future Research”
http://mjnelson.org/papers/RoutledgeChapter.pdf
Other research draws a distinction between political and politicized behavior. Gibson and Caldeira (2011) find that damage
to the
Court’s legitimacy comes not from sincere attitudinal decisionmaking but rather from strategic,
politicized decisionmaking. In other words, when the public believes that a decision is reached through a
principled decisionmaking process—be it legalistic or attitudinal—that decision does not harm the Court;
however, when the decision is a strategic one, then the public is likely to penalize the Court, most likely
because they view that behavior as politicized and akin to the behavior of ordinary politicians. This reasoning
fits well with other findings about public perceptions of politicized behavior and support for judicial institutions. Gibson (2012) presents a
multitude of evidence that the legitimacy of state judges is harmed when citizens equate them with “ordinary” politicians. In other words,
when judges are perceived as engaging in strategic behavior, then perhaps public support for the Court is harmed. In what may be the most
prominent recent example of high-profile strategic behavior at the Supreme Court, CBS News reported that Justice Roberts changed his vote in
the Court’s first ruling on the constitutionality of Obamacare, changing his position from one in which the law was unconstitutional to a position
that allowed him to uphold the law (Crawford 2012). Likewise, recent prominent commentary over the appropriateness of strategic retirement,
particularly as it relates to Justices Ginsburg and Breyer at the end of the Obama presidency, has provided high-profile public discussion about
the appropriateness of nonpolicy-related strategic behavior (Lithwick 2014; Kennedy 2011; Oliphant 2013). Indeed, research supports
the view that politicized behavior is harmful to the Court’s legitimacy. Christenson and Glick (2015), examining the
consequences of exposure to information about Roberts’s vote switch in the Obamacare case on changes in diffuse support for the Court, find
that survey respondents who read a news article alerting them to Robert’s strategic behavior decreased their support for the Court more after
the Obamacare decision than those who were not randomly assigned to learn about Roberts’s vote switch. Other evidence about the effect of
politicization on the Supreme Court comes from Gibson and Caldeira’s (2009) study of attitudes toward the Court during the Alito confirmation.
The politicization of the nomination campaigns—for and against Alito’s confirmation—affected the legitimacy of the Court itself. It seems that
the American people hold fairly realistic understandings of how their Supreme Court operates, but that
there is a line between ideology and politicization that, when crossed, threatens the basic legitimacy of
the institution. Thus, taken together, the literature suggests that the real danger to the Court’s legitimacy comes not
from political decisionmaking, but rather from politicized decisionmaking. Gibson and Nelson (2015b) tested this
proposition directly, attempting to untangle the effects of three components of specific support: subjective ideological disagreement, legal
realism, and perceptions of judicial politicization (see also Woodson 2015). They find support for this hypothesis, namely that the
effects
of perceived judicial politicization trump the magnitude of the effects of both subjective ideological
disagreement and legal realism. Moreover, Gibson and Nelson undercover an interactive effect among the three components of specific
support: ideological disagreement only has an effect on diffuse support for those individuals who are both legal realists and do not believe the
Court to be politicized. This finding fits well with the connection uncovered by Hibbing and Theiss-Morse (1995), who find that increased
perceptions of congressional politicization have translated into the low levels of public support currently enjoyed by Congress.
Link – Judicial Restraint
Maintaining Judicial Restraint is essential to court legitimacy
Powell 90 – Lewis F. Powell, Jr. 3-1-1990, “Stare Decisis And Judicial Restraint”, Vol. 47-Issue. 2-Article.
2- pg. 288 KKC
Looking to the decades ahead, several conditions are important to the future long term health of stare decisis. Speaking broadly, these
conditions all involve judicial
restraint. This means recognition that the Court's function is to decide cases involving
specific issues and particular parties. The Court does not sit to make announcements of abstract principles or to give advisory
opinions. Unnecessary resolution of broad questions always raises the stakes. It creates incentives for
future attacks on the Court's opinions. In each case the Court should focus specifically on the particular facts of the case and the
questions properly presented. Too often, Justices write more broadly than necessary to decide the case before the Court. Law clerks do not
make the decisions, but they often add expansive footnotes that a Justice may accept uncritically. In a subsequent case, the footnote will be
cited as the law.
Internal Link - Snowballs
Decrease in court legitimacy snowballs
Grosskopf, 1998
https://business.highbeam.com/137812/article-1G1-21186966/do-attitudes-toward-specific-supreme-
court-decisions Anke Grosskopf, PhD in political science; specializing in international politics, Do
Attitudes toward Specific Supreme Court Decisions Matter? The Impact of Webster and Texas v. Johnson
on Public Confidence in the Supreme Court, 1998, Political Research Quarterly, Vol. 51, No. 3, p. 4
If reaction to Supreme Court decisions affects subsequent opinion about the Court, does this necessarily imply that esteem for the Court will tend to be lessened by
the Court's actions? The answer is no if we assume that the Supreme Court benefits from its popular rulings to an extent sufficient to offset antipathy toward its
unpopular rulings. This, however, is a rather bold assumption, and one that is supported by neither relevant theories of decision making nor past empirical research.
Social psychologists have shown a tendency of people to weigh negative information more heavily than
positive information in various cognitive tasks, a phenomenon commonly known as a "negativity bias" (e.g., Fiske 1980;
Pratto and John 1991; Skrowonski and Carlston 1987, 1989). We believe that such a bias may affect judgments about the Supreme Court.
The dominance of negative evaluations has been demonstrated in the world of politics by Lau (1982, 1985), who showed that the impact of negative
information on candidate approval was some three times stronger than that of positive information in congressional campaigns between
1968 and 1980. Lau (1985) argues that the existence of a negativity bias in the evaluation of political leaders is partly a perceptual phenomenon. Political leaders are
expected to behave in a positive manner, and thus people see nothing extraordinary nor even particularly commendable when politicians behave properly. Negative
information stands out, however, because it runs contrary to our expectations. In recent research consistent with this view, McGraw and Steenbergen (1995) find
that participants in a laboratory experiment remembered more negative than positive information about the study's hypothetical congressional candidates.
IMPACT
Turns the Case
Lack of legitimacy means Court can’t enforce its decisions
Kevin Burke, August 23, 2013 (“How Low Public Trust Threatens the Legitimacy of Court Decisions,”
http://proceduralfairnessblog.org/2013/08/23/how-low-public-trust-threatens-the-legitimacy-of-court-decisions/, Accessed 7/8/2015, rwg)
Trust is an essential component of procedural fairness, which, in turn, has been shown to be a key source of legitimacy for
decision-makers. All public institutions now face serious skepticism from the public about their trustworthiness. However, a trust
deficit – and the resulting lack of legitimacy – are of particular threat to the judiciary. Legitimacy is
essential if courts are to be respected and, indeed, if court orders are to be obeyed. Simply put, failure to
maintain and enhance the legitimacy of court decisions imperils the judiciary as an institution and the
vital role assigned to the judiciary in our Constitutional tradition.
Ext – Democracy I/L
Maintaining “Stare decisis” is key to preserve Court legitimacy—that’s key to
democracy
Gentithes 9 (Michael Gentithes Research Attorney, Illinois Appellate Court, First District; J.D. DePaul
University College of Law 2008; B.A. Colgate University 2005., 8-13-2009, “In Defense of Stare Decisis,”
Williamette Law Review, accessed 7-14-2017)
II. WHY THE STRENGTH OF A COUNTRY’S HIGHEST COURT IS VITAL TO PRESERVING A DEMOCRATIC SYSTEM
Below, I argue that stare decisis allows the Supreme Court to earn the respect of the people and the coordinate
branches of government. But a discussion of how the Court maintains popular respect is only relevant when framed by the significance of that
respect itself. The
judiciary’s strength, meaning its ability to render decisions that are respected throughout the country, is
absolutely paramount to successful democracy. This point can be illustrated by a comparison of recent political history in the
United States, Pakistan, and Kenya.
Ext – Democracy Impact
Democracy solves war
Diamond 95 (Larry Diamond, Promoting Democracy in the 1990s: Actors and Instruments, Issues and
Imperatives, Carnegie Commission, December 1995,
http://carnegie.org/fileadmin/Media/Publications/PDF/Promoting%20Democracy%20in%20the%20199
0s%20Actors%20and%20Instruments,%20Issues%20and%20Imperatives.pdf)
Other Threats. This hardly exhausts the lists of threats to our security and well-being in the coming years and decades. In the former Yugoslavia
nationalist aggression tears at the stability of Europe and could easily spread. The flow of illegal drugs intensifies through increasingly powerful
international crime syndicates that have made common cause with authoritarian regimes and have utterly corrupted the institutions of
tenuous, democratic ones. Nuclear, chemical, and biological weapons continue to proliferate. The very source
of life on Earth, the global ecosystem, appears increasingly endangered. Most of these new and unconventional
threats to security are associated with or aggravated by the weakness or absence of democracy, with its
provisions for legality, accountability, popular sovereignty, and openness. LESSONS OF THE TWENTIETH CENTURY
The experience of this century offers important lessons. Countries that govern themselves in a truly democratic fashion
do not go to war with one another. They do not aggress against their neighbors to aggrandize themselves or
glorify their leaders. Democratic governments do not ethnically "cleanse" their own populations, and they are
much less likely to face ethnic insurgency. Democracies do not sponsor terrorism against one another. They do not build
weapons of mass destruction to use on or to threaten one another. Democratic countries form more reliable,
open, and enduring trading partnerships. In the long run they offer better and more stable climates for
investment. They are more environmentally responsible because they must answer to their own citizens, who organize to
protest the destruction of their environments. They are better bets to honor international treaties since they value legal obligations and
because their openness makes it much more difficult to breach agreements in secret. Precisely because, within their own borders, they respect
competition, civil liberties, property rights, and the rule of law,
democracies are the only reliable foundation on which a
new world order of international security and prosperity can be built.
Legitimacy Key to Hegemony
Legitimacy key to hegemony
Knowles 09, (Robert Knowles, professor at New York University Public Law, American Hegemony and
the Foreign Affairs Constitution, 41 Ariz. St. L.J. 87 2009)
This Article offers a new model for assessing appropriate judicial deference in foreign affairs that takes account of American-led order. By
maintaining consistent interpretation of U.S. and international law over time and providing virtual representation for other nations and non-
citizens, U.S.courts bestow legitimacy on the acts of the political branches, provide public goods for the world, and
increase America's soft power - all of which assist in maintaining the stability and legitimacy of the
American-led hegemonic order. This "hegemonic" model substantially eliminates the problematic deference gap between
foreign and domestic cases and enables courts to appropriately balance foreign affairs needs against other
separation-of-powers goals by "domesticating" foreign affairs deference. The hegemonic model also has explanatory and predictive
value. In four recent cases addressing habeas claims by alleged enemy combatants, the Supreme Court rejected special deference. 13 It refused
to defer to the executive branch [*92] interpretations of foreign affairs statutes and international law, and even asserted military exigencies.
The hegemonic model justifies this recent rejection of special deference and explains why it could augur increased judicial involvement in
foreign affairs. The interpretive scope here is limited. The hegemonic model is functional but concerns overall
governmental effectiveness in foreign affairs, not the appropriate allocation of power with respect to any particular policy. Nor do I
analyze the appropriate allocation of foreign affairs powers between the President and Congress, although the hegemonic model has many
implications for this relationship as well. Finally, I do not address formalist - e.g., originalist - arguments for or against special deference. The
hegemonic model provides insights that should be considered in conjunction with the teachings of text, structure, and history. 14
One aim of constitutional theory is to establish a principled connection between the practices, opinions, and judgments of the
Supreme Court, and the ideal of the rule of law. The extraordinary powers of the Court make this project both compelling and
difficult. When the Court strikes down acts of legislatures, the Court threatens to advance not the rule of
law, but rather that of the particular individuals on its bench. The Court's own shifts in opinion,
particularly shifts that accompany changes in its membership, similarly threaten the Court's connection
to the rule of law. For the Court to serve successfully [*2237] as the guardian of the rule of law, there must be a principled connection
between it and this ideal. The question of whether the ideal of the rule of law can provide a justification for the practice of dissent requires
examining the Court's connection to this ideal. For dissent is an element of the Supreme Court's institutional practice, and as such, it cannot be
justified independently from a conception of the Court's link to the rule of law. That is, any justification of dissent based on an appeal to the
ideal of the rule of law would have to be part of a conception of the Court's association with that ideal. In this part, I investigate two
approaches to establishing a connection between the Court and the ideal of the rule of law, and argue that the practice of dissent challenges
both of them. The first, which I call the
institutional approach, emphasizes the ways in which the institutional
voice of the Court discourages an appearance of conflict with the ideal of the rule of law. I take my depiction
of this approach from the recent work of Paul Kahn. n5 The second, which I call the interpretive approach, constructs a
conception of objectivity or determinacy in adjudication; the application of such a conception to the
Court recommends its consistency with the rule of law. n6 For this approach, I examine the theory of judicial
interpretation that Ronald Dworkin presents in Law's Empire. n7 These two approaches correspond to what I take to be two principal aspects of
the ideal of the rule of law. The
interpretive approach addresses the requirement of the rule of law that legal
decisions stand in a certain sort of justificatory relation to legal principles that themselves have an
established political pedigree. The institutional approach attends to the requirement that legal decisions
not appear to be relative to the particular individuals who make them. The institutional and interpretive approaches
thus emphasize different features of the Court's practice as well as these different aspects of the ideal of the rule of law.
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 analogizes 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]
accountability." n423 Stable interpretation of the law bolsters the stability of the system because 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
“Corporations stand to lose large amounts if judicial independence wavers,” O’Connor said. “And there’s not total
satisfaction with alternative dispute resolution either.” She noted that businesses view the current court situation as a
failure in some respects. Runaway juries, unpredictable outcomes, litigation delay, expense and possible inexpertise have caused
corporations to look outside the court system to settle their disputes, she said. Keynote speaker Greenspan credited the
Constitution with providing the type of long-term economic prosperity that has given Americans the
highest standard of living in the world over the last century. The rule of law – particularly, laws relating to private
ownership – reputation and trust in the word of others are critical to economic growth, he said. “Trust will eventually re-
emerge as investors dip hesitantly back into the marketplace (and) from that point, history tells us, financial and
economic revival sets in,” he said. “It always has, in this society governed by that remarkable document we call the Constitution of the
United States.”
Rule of Law Impacts – Human Rights
this requires the Supreme Court to think in terms not only of principle but also of policy: to weigh
to look right now? Answering
national and international interests; and to exercise fine judgment about how our Constitution functions and is
perceived at home and abroad. The conservative and liberal approaches to legitimacy and the rule of law need to be supplemented with a healthy dose of real-world
pragmatism. In effect, the fact that the Constitution affects our relations with the world requires the justices to have a foreign policy of their own. On the surface, it seems as if such inevitably
political judgments are not the proper province of the court. If assessments of the state of the world are called for, shouldn’t the court defer to the decisions of the elected president and
Congress? Aren’t judgments about the direction of our country the exclusive preserve of the political branches? Indeed, the Supreme Court does need to be limited to its proper role. But when
it comes to our engagement with the world, that role involves taking a stand, not stepping aside. The reason for this is straightforward: the court is in charge of interpreting the Constitution,
and the Constitution plays a major role in shaping our engagement with the rest of the world. The court therefore has no choice about whether to involve itself in the question of which
direction the Constitution will face; it is now unavoidably involved. Even choosing to defer to the other branches of government amounts to a substantive stand on the question. That said,
when the court exercises its own independent political judgment, it still does so in a distinctively legal
way. For one thing, the court can act only through deciding the cases that happen to come before it, and the court is
limited to using the facts and circumstances of those cases to shape a broader constitutional vision. The court also speaks in the idiom of law — which is to say, of regular rules that apply to
everyone across the board. It cannot declare, for instance, that only this or that detainee has rights. It must hold that the same rights extend to every detainee who is similarly situated. This,
too, is an effective constraint on the way the court exercises its policy judgment. Indeed, it is this very regularity that gives its decisions
legitimacy as the product of judicial logic and reasoning. Why We Need More Law, More Than Ever So what do we need the Constitution to do for us now? The answer, I think, is that
the Constitution must be read to help us remember that while the war on terror continues, we are also still in the midst of a period of rapid globalization. An enduring lesson of the Bush years
In our
is the extreme difficulty and cost of doing things by ourselves. We need to build and rebuild alliances — and law has historically been one of our best tools for doing so.
present precarious situation, it would be a terrible mistake to abandon our historic position of
leadership in the global spread of the rule of law. Our leadership matters for reasons both universal and national. Seen from the perspective of the
world, the fragmentation of power after the cold war creates new dangers of disorder that need to be mitigated by
the sense of regularity and predictability that only the rule of law can provide. Terrorists need to be deterred. Failed
states need to be brought under the umbrella of international organizations so they can govern themselves. And economic
interdependence demands coordination, so that the collapse of one does not become the collapse of all.
From a national perspective, our interest is less in the inherent value of advancing individual rights than in claiming that our allies are obligated to help us by virtue of legal commitments they
have made. The Bush administration’s lawyers often insisted that law was a tool of the weak, and that therefore as a strong nation we had no need to engage it. But this notion of “lawfare” as
a threat to the United States is based on a misunderstanding of the very essence of how law operates. Law comes into being and is sustained not because the weak demand it but because it is
a tool of the powerful — as it has been for the United States since World War II at least. The reason those with power prefer law to brute force is that it regularizes and legitimates the exercise
of authority. It is easier and cheaper to get the compliance of weaker people or states by promising them rules and a fair hearing than by threatening them constantly with force. After all, if
those wielding power really objected to the rule of law, they could abolish it, the way dictators and juntas have often done the world over.
Rule of Law Impact - Extinction
Rule of law checks extinction
Charles S. Rhyne 5/1/1958 Law Day Speech for Voice of America delivered on the first Law Day
http://www.abanet.org/publiced/lawday/rhyne58.html
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 mankind’s 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. Man’s 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. The lawyer is the
technician in man’s relationship to man. There exists a worldwide challenge to our profession to develop law to replace weapons before
the dreadful holocaust of nuclear war overtake our people. It is said that an idea can be more powerful than an atom
because strength today resides in man’s mind—not his muscle. We lawyers of the world must take the idea of peace under the rule of law
and make it a force superior to weapons and thus outlaw wars of weapons. Law offers the best hope for order in a disordered world. The law
of force or the force of law will rule the world. In the field of human conduct the law has never confessed failure. The struggle for a world
ruled by law must go on with increased intensity. We must prove that the genius of man in the field of science and technology has not so far
outstripped his inventiveness in the sphere of human relations as to make catastrophe inevitable. If man can conquer space he can also solve
the need for legal machinery to insure universal and lasting peace. In our country ignorance of the
value of law in international
relations and what it could do for the people of the world is appalling. A major purpose of “Law Day-U.S.A.” is therefore to demonstrate to
our people that the need for law in the world community is the greatest gap in the growing structure of civilization. And we
lawyers of America are anxious to work with lawyers and men of good of all nations in filling this gap in that structure. We believe that no
greater challenge exists for any profession and that no greater service to mankind can be performed.
The authors of the US constitution feared tyranny of the majority. They aimed to create a stable
government, but one that did not move quickly to either enact or to change policy, so as to protect
minority rights. They concluded that the best way to do so was to set “ambition against ambition” within a
system of majority rule, by separating executive and legislative origin and survival. This basic constitutional
structure has been the model for all subsequent presidential systems. The Madisonian conception of the separation of powers holds
that tyranny is relatively less likely given the separation of survival because it places the executive and
legislative branches in formally different institutional environments. This generates different behavioral incentives,
making majority steamrolls at a minimum more difficult to coordinate. Even when there is substantial preference overlap between branches,
separation of survival thus provides a safeguard against tyranny. In modern political science parlance, the structure of
presidentialism is designed to be less decisive and more resolute (Cox and McCubbins 2001). That is, we expect policy change to be slower and
less dramatic under presidentialism.
Terrorism Impact
Supreme Court legitimacy on law is key to global leadership and solving terrorism
Daniel J. Frank* BIO: *J.D. Candidate, The University of Iowa Iowa Law Review March, 2007 92 Iowa L.
Rev. 1037
C. Potential Dangers of an Insular Posture Conservative politicians echo the sentiments of originalist Court members, weary of the Court's "dangerous" trend of
citing foreign law in domestic constitutional matters 238 reintroduced in Lawrence and Roper. For years, the Court largely decided not to participate in an ongoing
judicial dialogue in which foreign law was seriously considered, even if the law was not binding. 239 Perhaps
the real danger, though, stems
from this insular posture and nonparticipation, which tend to perpetuate an unfavorable view of the United States
(particularly of the U.S. judiciary) by the outside world. 240 The originalists' refusal to look outward when dealing with basic civil liberties,
"labeling them as idiosyncratic American values," effectively "declares the world irrelevant to our Constitution." 241 This traditional unwillingness to engage in
transnational judicial dialogue on a meaningful level has already had an impact: "the U.S. Supreme Court is no longer viewed worldwide as a beacon or trailblazer on
civil and individual rights." 242 In the wake of September 11th, as President George W. Bush attempts to lead a worldwide coalition against
terror, American judicial passivity feeds the outward perception that the United States "pays only lip service to the
opinions of mankind." 243 Originalist opposition to considering foreign law when interpreting the Constitution may, in turn, invite undue friction
and ultimately strain U.S. foreign relations at a time when America seeks the [*1069] military, political, and
economic cooperation of other countries. 244 Although the U.S. Supreme Court is empowered to settle cases and controversies 245 and not
to mollify cross-border tensions, the scope of today's problems oftentimes demands that Justices understand and acknowledge foreign law. 246 According to Justice
Ginsburg, "We are the losers if we neglect what others can tell us about endeavors to eradicate bias against women, minorities, and other disadvantaged groups."
247 Lawrence and Roper signaled to the world once again that the
American judiciary values opinions of other nations and
considers foreign law in constitutional matters, thereby acknowledging the world community without compromising domestic legal
norms. 248 If such a course continues, a ripple effect may then ensue: as America's image abroad improves, the spirit of
cooperation between countries increases, and the United States can serve as a more effective global leader. Admitting that
certain outmoded practices - state interference with private sexual conduct and the juvenile death penalty, for example - are similarly condemned abroad has
helped steer the Court on the path to reclaiming its image abroad while maintaining the primacy of American domestic law.
Terrorists do not need a nuclear missile to pose an existential threat to the United States, however. Technology has so
evolved since World War II and the Cold War that the U.S. and the West have become an electronic civilization. Our prosperity and very lives
depend upon a complex web of high-tech information, communications, financial, transportation, and
industrial critical infrastructures, all supported by the keystone critical infrastructure–the electric power grid. Admiral Michael Rogers,
Director of the National Security Agency and U.S. CYBERCOMMAND, in November 2014, warned that China and other actors could make a cyber attack that
would blackout the U.S. national electric grid for 18 months, with catastrophic consequences for society. The Congressional EMP Commission
warned that a nationwide blackout outage lasting one year could kill up to 9 of 10 Americans from starvation and societal collapse. Terrorists and hostile nations are
probing U.S. cyber defenses every day and are working hard to develop the cyber equivalent of a nuclear warhead. Terrorists can also pose an existential threat to
the United States by attacking its technological Achilles’ Heel the old fashioned way, using bullets and bombs. A study by the U.S. Federal Energy Regulatory
Commission, the government agency responsible for grid security, warns that a terror attack that destroys just nine (9) key transformer substations, out of 2,000,
could blackout unpower the entire nation for over a year. Terrorists have learned that the electric grid is a major societal vulnerability. Terrorist attacks have already
caused large-scale blackouts outage of 420,000 people in Mexico (October 2013), the entire nation of Yemen (by Al Qaeda in the Arabian Peninsula in June 2014),
and 80 percent of the grid in Pakistan (January 2015)–this last a nuclear weapons state. And if
terrorists steal a nuclear weapon from Pakistan,
buy one from North Korea, or are given one by Iran, they could loft the warhead by balloon or missile to high-altitude over the U.S. to make the
ultimate cyber attack–a nuclear electromagnetic pulse (EMP). EMP could blackout the national electric grid and other life sustaining
critical infrastructures, perhaps permanently
***AFF***
AT: UNQ
Gorsuch Crushes Legitimacy
Never before has Senate leadership so openly and intentionally played political games with our highest
court. Already, the legitimacy of the supreme court has taken a severe blow because of it. But, if Gorsuch is
confirmed, it would lock in a dangerous precedent from which the legitimacy of our highest court might
never recover.
Legitimacy is low
Legit low now
Michael J. Nelson [Penn State U] Alicia Uribe-McGuire [U Illinois] May-24-2017 Political Research
Quarterly 10.1177/1065912917709353 Opportunity and Overrides: The Effect of Institutional Public
Support on Congressional Overrides of Supreme Court Decisions
http://journals.sagepub.com/doi/full/10.1177/1065912917709353#articleCitationDownloadContainer
Public and scholarly interest in the public’s support for the US Supreme Court has blossomed in recent years. Journalistic
accounts of
the court’s support have suggested that the court’s support at the beginning of this decade reached perilously
low levels (e.g., Pew Research Center 2013). Gallup reported in 2014 that only 30 percent of Americans had a “great deal”
or “quite a lot” of confidence in the institution (Riffkin 2014). This low level of public confidence marked a historic
low for the judiciary (McCarthy 2014).
AT: LINK
Link Turn
Link turn—moral decisions increase court legitimacy
Bonneau et. al., Associate Professor of Political Science at the University of Pittsburgh, 2017
(Chris W., Jarod T. Kelly, Department of Political Science at University of Pittsburgh, Kira Pronin, Student
of Political Science at the University of Pittsburgh, Shane M. Redman, Department of Political Science at
University of Pittsburgh, Matthew Jarit, Department of Political Science at University of Pittsburgh,
“Evaluating the Effects of Multiple Opinion Rationales on Supreme Court Legitimacy,” American Politics
Research, Volume 45, Issue 3, 2017, ebscohost, ATH)
In this article, we
examined whether a key component of judicial opinions (the sources used by the justices) could
have an adverse effect on perceptions of the Supreme Court’s legitimacy. Our results from two experiments in
which we manipulate the sources used by the Court in an opinion indicate that attitudes toward the Court are stable. This further confirms the
findings that legitimacy
is very difficult to undermine (e.g., Caldeira & Gibson, 1992). From a normative perspective, this is
good news for those concerned that the Court might be doing itself harm by relying on public opinion or
moral justifications for its legal decisions. Our results indicate that using these sources is harmless from a legitimacy perspective.
That said, it is important to note that our study is unable to observe longitudinal effects. It is possible that continued reliance on extralegal
sources could diminish institutional legitimacy over the long run. However, we think this is unlikely; reliance on extralegal factors is not a new
phenomenon. Moreover, as both our results and the results from Gibson’s (2012) survey of Kentuckians indicate, a nontrivial number of people
expect (and are fully comfortable with) courts not to rely solely on legal factors in decision making. Just as importantly, we find that individuals
are more likely to view the Court as legitimate if the Court makes decisions individuals agree with (consistent with Bartels & Johnston, 2013),
and this does not vary with the reasons provided in the opinion. Thus, mentioning moral reasons or public opinion does not reduce legitimacy
in the eyes of people who disagree with the Court’s decision. Interestingly, relying on precedent does reduce legitimacy, suggesting that
individuals who disagree with the Court think it should correct past erroneous decisions. There may indeed be factors that will cause individuals
to question or rethink their perceptions of the legitimacy of the Supreme Court, but the reasoning offered by the Court in their judicial opinions
is not generally one of them.
Legitimacy is durable
Michael J. Nelson May 20, 2017 Assistant Professor Department of Political Science Pennsylvania State
University mjn15@psu.edu Patrick Tucker Ph.D. Candidate Department of Political Science Washington
University in St. Louis http://mjnelson.org/papers/NelsonTuckerPanel.pdf The Stability of the U.S.
Supreme Court’s Legitimacy
Our analysis reveals a remarkable stability in public support for the Court. Through a period in time in which the
Court issued high profile and highly salient rulings on issues as diverse as the constitutionality of the Affordable Care Act, to the
federal constitution’s guarantee of marriage to same-sex couples, to the ability of colleges to use race as a criteria in admissions, to the
constitutionality of President Obama’s immigration plan, support
for the Court was unwavering. Moreover, those changes that
did occur were minor and predicted by a single factor: a respondent’s ideology. The
results should allay fears that a decline in
support has weakened the efficacy of the judiciary and instead suggests that the Court’s support may be
even more robust than even the most optimistic previous accounts had suggested.
Legitimacy (diffuse support) differs from a second type of institutional support: specific support.
Whereas diffuse support might be conceptualized as a “reservoir of goodwill” that institutions can draw
upon to achieve implementation of disagreeable decisions (Caldeira and Gibson 1992, 658), specific
support is “satisfaction with the performance of a political institution” (Gibson and Caldeira 1992, 1126).
In other words, institutional legitimacy represents longer-term, global judgments about an institution’s
authority whereas specific support represents shorter-term and more fleeting opinions about particular
actions made by an institution. While diffuse support might be thought of as a form of institutional
loyalty, specific support reflects approval or disapproval of recent institutional actions. Thus, a crucial
attribute of courts is the degree to which they enjoy the loyalty, not just approval, of their
constituents.3
However, as Christenson and Glick (2015) demonstrate, support for the Court moves in both directions—positive and
negative—after the public learns about important judicial decisions. This can lead to aggregate stability,
particularly when the American people are divided over what a “good” outcome in a particular case is.
Indeed, Gibson and Nelson (2015) have suggested that, because the American people are divided fairly equally on many
issues, even a strong relationship between performance satisfaction and diffuse support is not a grave
threat to the Court’s legitimacy because the number of individuals who are pleased with the decision and the
number of individuals who are disappointed in the decision are approximately equal in number, thereby canceling each other out
in the aggregate.
No internal link - dissipation
Michael J. Nelson May 20, 2017 Assistant Professor Department of Political Science Pennsylvania State
University mjn15@psu.edu Patrick Tucker Ph.D. Candidate Department of Political Science Washington
University in St. Louis http://mjnelson.org/papers/NelsonTuckerPanel.pdf The Stability of the U.S.
Supreme Court’s Legitimacy
That we find remarkable stability in the Court’s legitimacy is particularly surprising given that our waves dramatically
oversample the month of July meaning that respondents were completing the survey just weeks (or, in some cases, even just days) after the
Court had decided some of the most high profile issues in American life. Yet, despite this design, there is no evidence of volatility in the Court’s
support. Indeed, these results provide some context for findings like those reported by Christenson and Glick (2015): support may
appear to shift in the immediate aftermath of a decision or in a fictionalized survey experiment. However, these
changes are not persistent, and support returns to its equilibrium level in short order. As a result, these results
underscore the vital role that panel data must play as scholars seek to understand the dynamics of institutional support. Legitimacy is an
important concept precisely because if its durability; an overemphasis on short-term dynamics of support over the
persistence of these effects renders scholars unable to determine whether what appear to be changes in the Court’s support have meaningful
consequences. If the effects of a decision or a lab experiment quickly dissipate–as these findings suggest–then the substantive
importance of these findings is called into question.
The public’s short attention span provides another, more psychological, reason for temporal stability. Mondak and Smithey
(1997) write that “The window of opportunity for a decision to affect institutional support stays open only so
long as the ruling remains salient in other words, not long at all for most cases.” (1122). After a controversial case is decided,
media coverage and public awareness of a decision decline quickly (Franklin and Kosaki 1995). As a result few cases
have the staying power to affect support for the Court because the public forgets about them, thus denying the
displeasing decision the ability to affect one’s support for the Court.3
Impact D
The Court can protect rights even if it loses legitimacy
Michael J. Nelson May 20, 2017 Assistant Professor Department of Political Science Pennsylvania State
University mjn15@psu.edu Patrick Tucker Ph.D. Candidate Department of Political Science Washington
University in St. Louis http://mjnelson.org/papers/NelsonTuckerPanel.pdf The Stability of the U.S.
Supreme Court’s Legitimacy
And indeed, there is some evidence of a subjective ideological disagreement effect, albeit a relatively minor one, in terms of the drift in
the Court’s support. To
the extent that there is any volatility in the Court’s support, it is predicted only by a
respondent’s ideology. While it might initially seem surprising that conservatives were punishing the Roberts Court—one oft cited
for its conservatism–a brief glance at Table 1 provides an explanation (and, by extension, support for the theory espoused by Bartels and
Johnston (2013)): while the Court’s decisions might overall be slightly conservative over this time period, many of the salient decisions
known to respondents (e.g. same-sex marriage, the Affordable Care Act, and affirmative action) were all decided in ways favored by
liberals. Indeed, Pew reported in 2015 that 68% of conservative Republicans viewed the Roberts Court as liberal (Pew Research Center
2015). These findings thus underscore the importance of studying subjective rather than objective perceptions of policymaking. The
normative implication of these results is both clear and comforting. Because
the Court’s support is so stable, it should be
able to fulfill its constitutional role as the protector of individual rights and liberties and as a check on
the institutional powers of Congress and the executive even when those decisions are unpopular. In a
day and age where many fear the breakdown of institutional norms and powers, our results suggest that
the American constitutional scheme may be more robust than many currently fear.
1AR
Non UQ, Legitimacy is low now that’s Feingold ’17 because of Gorsuh’s controversial ruling, also
L/T Moral decisions ruled by the supreme court boosts the legitimacy of the courts, specifically the fact
that we are shielding asylees from domestic and gang violence is viewed as ethically good. Example:
When the Supreme Court ruled in favor of gay marriage the Court’s legitimacy surged.
On their Fowler and Jeon 8, Sessions overruled a precedent in 2014, which either means their Impacts
are Non UQ or L/T We are reversing Session’s overruling and so returning it to the regular precedent,
which means we increase court legitimacy.