1nc – waru finals – v.

bvn fv
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Death penalty abolition intensifies the state’s ability to kill and punish by other
means, which outweighs and turns the case – vote negative to endorse an ongoing
praxis of problematization
Dilts 15 (Andrew, Associate Professor Of Political Theory | Loyola Marymount University, “Death and
Other Penalties Philosophy in a Time of Mass Incarceration,” 2015, Death Penalty “Abolition” in
Neoliberal Times: The SAFE California Act and the Nexus of Savings and Security, https://dilts.org/wp-
content/uploads/Dilts-2015-Death-Penalty-Abolition-Death-and-Other-Penalties-2015.pdf, DOA: 6-20-
20) //Snowball

The contemporary practice of execution and its abolition identify a location at which multiple modalities
of power intersect and interact. In this way, both the failure of Prop. 34 and the success of Maryland’s repeal
reflect the persistence of juridical power: a state that kills in a multitude of ways, each exposing the
racial psychodramas of the “American” experience and its penal history . Additionally, the persistence of the death
penalty in law (if not in practice, as actual executions continue to be under a de facto moratorium in California) might be read as a kind of
popular resistance itself. The
difficulty of neoliberalism is that the identifiable spaces of “resistance” appear
smaller and more impossible to carve out. Insofar as the contemporary “abolitionists” have taken on a
distinctively neoliberal and actuarial form, they also remain powerfully attached to disciplinary techniques and
a retrenchment of confinement, forced labor, and death , even if it is now under the “sign of risk” and appears as a
resistance to the state’s power to kill. Perhaps neoliberalism’s distinctive feature is its ability not simply
to displace other strategies but to intensify them and to harmonize even contradictory and heterogeneous strategies. Even
more than its reliance on an economistic language that depoliticizes contemporary death penalty
“abolition” campaigns, we should be concerned by the ease with which that language includes rather
than sets aside demands for permanent exclusion, forced labor, more police, more punishment, and
more prisons. Neoliberalism, in this sense, is “neo” primarily in its reach: everything—all discourses, all practices, all persons
—are professed to be subject to market rationalities . And as such, abolition itself, as a practice of resistance,
can become “completely correlated to the systems of power that were designed to stifle it.”85

Shortly before France ended capital punishment in 1981, Foucault noted “the
way in which the death penalty is done away
with is at least as important as the doing-away. The roots are deep . And many things will depend on how they are
cleared out.”86 What France was in danger of doing in 1981, Foucault insisted, is precisely what neoliberal abolitionist
strategies are in danger of doing today: failing to question the relation of the death penalty to broader
systems of incarceration and the logics that support it. Once the death penalty is gone, Foucault asked:

Will there be a radical departure from a penal practice that asserts that it is for the purpose of correction but
maintains that certain individuals cannot be corrected , ever, because of their nature, their character, or a bio-
psychological defect, or because they are, in sum, intrinsically dangerous? . . . [T]here is a danger that will perhaps not be evoked—
that of a society that will not be constantly concerned about its code and its laws, its penal institutions and its punitive practices. By
maintaining, in one form or another, the category of individuals to be definitively eliminated
(through death or imprisonment), one easily gives oneself the illusion of solving the most
difficult problems: correct if one can; if not, no need to worry, no need to ask oneself whether it might be
necessary to reconsider all the ways of punishing: the trap door through which the ‘incorrigible’
will disappear is ready.87
In the case of California, this danger was expressly written into Prop. 34 in multiple ways. And as death penalty abolition appears
to be solidly on the track of reconfiguring and intensifying the carceral system but without questioning
penal policy more generally, the danger continues to loom in future cases . If we are to go further, pushing against
simplistic distinctions between life and death and the reigning “death is different” jurisprudence, it becomes clear that abolishing the
death penalty requires that we question not only LWOP sentences but the prison itself, the entire carceral
network, and also the basic grounds and practices of punishment. It may already be much too late,
considering that the fastest growing populations of incarcerated persons in the U nited States have not even
been convicted of crimes but are persons languishing in immigration detention centers. When pressed to identify what a
“model” prison would look like, Foucault noted that such a thing did not exist. The question of the prison would have to give way to the
question of marginalization in all its forms: “The
problem is not a model prison or the abolition of prisons. Currently,
in our system, marginalization is effected by prisons. This marginalization will not automatically
disappear by abolishing the prison. Society would quite simply institute another means. The problem is
the following: to offer a critique of the system that explains the process by which contemporary society pushes a
portion of the population to the margins. Voilà.” 88

This challenge of continued analysis must be applied to the idea of abolition itself. In the “American”
tradition, the practice of “abolition” must never be separated from its historical roots in the abolition of
chattel slavery, lynching, and legal segregation . As Angela Davis notes, the idea of prison abolition necessarily takes these
projects as models, recalling that each of these institutions were, within recent history, understood to be defendable if not permanent features
of American society.89 The work of groups like Critical Resistance, the Sylvia Rivera Law Project, and Against Equality draws on the increasingly
large body of abolitionist theory and practice in fields such as critical race theory and queer theory and points to possibilities for such
permanent self-reflection.90 Yet the costs are visible as well. It
is well worth remembering that the abolition of slavery in
the Thirteenth Amendment contains a provision allowing for its continuance as “punishment for a
crime,” allowing for the widespread growth of the convict-lease system following the Civil War; that the
extension of voting rights in the Fourteenth Amendment likewise contained provisions allowing states to
bar convicted criminals from the ballot box; that the death penalty in practice is so racially skewed as to
resemble a legal version of lynching; and that schools are statistically more racially segregated today
than at the time of Brown v. Board of Education. There can, on such an account, be no “end” to the
analysis of penal practice, but rather it would become what Foucault called “a locus of constant
reflection, research, and experience, of transformation.”91
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Enact excludes courts and agencies
Paul McMurdie 20 – Presiding Judge of the Arizona Appeals Court (The Neth. v. MD Helicopters Inc.,
2020 Ariz. App. LEXIS 284, 3/19, Nexis Uni //DH
P19 MD Helicopters' argument regarding the meaning of the terms "enact" and "adopt" is similarly unpersuasive on the question of whether
A.R.S. § 12-3252(B)(2) refers only to acts of a foreign country's legislative body, and not of its courts as well. The common usage of the
term "enact" does not generally include the actions of a court. See, e.g., 2015 Ariz. Sess. Laws, ch. 170, § 1 (1st Reg. Sess.)
("Be it enacted by the Legislature of the State of Arizona . . . ." (emphasis added)); Cronin v. Sheldon, 195 Ariz. 531, 537, 991 P.2d 231 (1999)
("[T]he legislature has the authority to enact laws."). But the
term "adopt" is not nearly so limited. Courts make law
through the adoption of rules or common-law principles. See, e.g., Carrow Co. v. Lusby, 167 Ariz. 18, 24, 804 P.2d 747
(1990) ("We adopt the modern common law view that an owner of livestock owes a duty of ordinary care to motorists traveling on a public
highway in open range." (emphasis added)); Judson C. Ball Revocable Tr. v. Phoenix Orchard Grp. I, L.P., 245 Ariz. 519, 523-24, ¶¶ 11, 16, 431
P.3d 589 (App. 2018) (Finding Delaware courts' decision to "adopt" rule of standing for shareholder suits "as a matter of common law"
persuasive and deciding to "adopt" that rule as well). Executive agencies are also frequently empowered by the
legislature to "adopt" rules and [*16] regulations. See, e.g., A.R.S. § 23-361 (Industrial Commission "may adopt such rules and
regulations as necessary" to administer and enforce statutes governing the payment of wages (emphasis added)). And the use of both the
terms "enact" and "adopt" must be read to contemplate different things , or one term will be rendered superfluous. See
Cont'l Bank, 131 Ariz. at 8.

Vote neg for limits and ground – they explode the topic by allowing every federal
actor and spike links to core generics like process counterplans and politics – decks
fairness and education.
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Text: the United States should, through a constitutional amendment, prohibit the
imposition of the death penalty by the United States, or by any State, Territory, or
other jurisdiction within the United States.

That solves without forcing the court to rule

Knake 18 --- Professor of Law at University of Houston (Spring 2018, Renee, ARTICLE: ABOLISHING
DEATH,” 13 Duke J. Const. Law & Pub. Pol'y 1, Nexis Uni via Umich Libraries, JMP)

[*1] INTRODUCTION

Much of the democratic world long ago abolished the death penalty as a matter of fundamental human
rights, including Canada, Mexico, South Africa, and all of Europe (except Belarus). 2 A majority of the countries around the
globe have done so. 3 One nation is noticeably absent from this list: the United States. While a handful of
the states embrace the death penalty, many do not. Nineteen prohibit it by statute 4 or in their constitution, 5 with a
gubernatorial moratorium in an additional three 6 and state court bans in several others. 7 The number of death sentences decreased
dramatically over the past two decades, down to just 39 in 2017 [*2] compared with 295 in 1998. 8 Only eight states conducted executions in
2017. 9 Harris County, Texas, once the leading jurisdiction for capital punishment by a substantial margin, 10 imposed no death sentences and
engaged in no executions in 2017. 11 At the same time, the United States Supreme Court seems to similarly disfavor
the death penalty, having narrowed its scope over the past few decades . The Court even brought it to a halt briefly
for a few years in the mid-1970s. 12 But permanent abolishment is unlikely to occur there. In a recent opportunity to end
the death penalty, only Justices Breyer and Ginsburg would have done so. 13 They believe it is unconstitutional under the Eighth Amendment,
which prohibits "cruel and unusual punishments" 14 because of the "(1) serious unreliability, (2) arbitrariness in application, and (3)
unconscionably long delays." 15 Justice Breyer, authoring the dissent, proposed that "rather than try to patch up the death penalty's legal
wounds one at a time, I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution." 16 Justice
Scalia countered in a scathing concurrence: "It is impossible to hold unconstitutional that which the Constitution explicitly contemplates." 17
His successor appears to hold a similar view. 18 This makes it doubtful that the present Court would reach the [*3] five votes necessary to find
that the death penalty violates the Eighth Amendment. Yet, the
Court regularly faces capital punishment cases, often
siding for the criminal defendant. 19 As I write this essay, the Court has taken up eight cases involving death penalty issues during
the 2017-18 Term. 20 That the Constitution contemplates the death penalty does not , however, mean that it
forever remains constitutional. Indeed, the Framers deliberately designed the Constitution so that the
document could be revisited and adjusted over time. Thus, a constitutional amendment appears to be a
more feasible path to abolishing the death penalty , at least absent a dramatic change in the
composition of the Court. This essay, written for the Duke Journal of Constitutional Law and Public Policy Symposium, An Even
More Perfect Union: Proposed Amendments to the Constitution, makes the case for a constitutional amendment to
abolish the death penalty and lays out possible routes to enactment. Part one of the essay opens by recounting one Congress
member's unsuccessful efforts at launching a death penalty amendment. It then describes the present state of the law in the United States
regarding capital punishment, including recent data showing a significant decline in death sentences and executions among the few states still
engaging in the practice. Part two provides an overview of the process established by Article V for amending the Constitution, and then
evaluates the potential paths for a successful death penalty abolition amendment.
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Text: the fifty states, District of Columbia, and all relevant territories should abolish
the death penalty and life without parole, decommission any execution chambers in
their jurisdiction and rescind protocols for lethal injection.

States solve – the courts model

Stubbs 19 – director of the ACLU’s Capital Punishment Project (3/28/19, Cassy Stubbs, Jeremy Stahl
interviewer - Slate senior editor, “Is the Tide Finally Turning on the Death Penalty? The momentum
gained at the state level might be enough to break through on the federal level,”
https://slate.com/news-and-politics/2019/03/momentum-to-abolish-death-penalty-growing.html,
accessed on 4/5/2020, JMP)

As recently as three years ago, California voters rejected a ballot measure to end the death penalty, but earlier this month California Gov. Gavin Newsom

announced he was ordering a moratorium on executions in the largest state in the country .* Newsom’s order
would offer a reprieve to the state’s 737 death row inmates, making it a landmark day in the history of death penalty abolition in this country. This is just

one event in the quiet revolution against the death penalty that is happening across the country, says
Cassy Stubbs, director of the ACLU’s Capital Punishment Project. The governor in Colorado, which already has an effective moratorium in place, has been pushing
legislators to make a permanent decision about the state’s death penalty before 2021. In New Hampshire, the state Senate is due to vote on a measure abolishing
the death penalty that already passed the House by a veto-proof majority. In Ohio, Republican Gov. Mike DeWine put an effective halt to the state’s death
sentences earlier this year. It’s all part of a nationwide trend that Stubbs sees as altering the landscape of the death penalty in this country in a way that has not
happened in decades. I spoke with Stubbs last week about these events and how the
case for abolition is playing out in courts and
statehouses throughout the United States. The conversation has been condensed for length and clarity. Jeremy Stahl: What background do you
think is important for people to understand about Newsom’s announcement and the broader picture surrounding the death penalty in the United States? Cassy
Stubbs: This year feels like a turning point for the death penalty. Last year, obviously, Washington abolished the death penalty. That was a big victory. But I think
what’s kind of unique right now is that we see a lot of different camps moving in the same direction at the same time. For example, there’s the pope coming out
with the strongest statement in history about the death penalty and the church’s view of the death penalty. We see there are conservative groups that are really
becoming concerned about the death penalty from a religious and moral perspective—and also from cost—while at the same time you have the Democratic Party
announcing that [abolition is] part of their platform. Kamala Harris just talked about how the death penalty is never appropriate in any case in her view. Newsom
just issued that powerful defense about why we can no longer stand behind the death penalty and it is morally incumbent on us to break from this when it’s been
shown to be so racially biased and inherently discriminatory and unfairly applied. This kind of full-spectrum attack on the death penalty is just reaching a noise level
that, to me, at least it feels very different than I’ve seen in over a decade, in terms of a critical mass of voices. There was [also] kind of a trajectory [where] we saw a
number of governors do things that were good on the death penalty, like issue stays or moratoriums or commutations, and then survive political attacks. We saw
that the electorate was no longer voting on the death penalty. There was not the kind of backlash against folks who came out saying “we need death penalty
reform” that we had seen in the 1980s. That was the first stage. Now, we’re really in this new phase where we see people both from the right and the left
aggressively promoting death penalty repeal. Who are you thinking of when you talk about recent politicians who have not necessarily faced a backlash? We saw
the governor of Colorado [John Hickenlooper] was targeted around the death penalty and was re-elected [in 2014], despite his granting of reprieves on the death
penalty and despite [an effective] moratorium on the death penalty in Colorado. We saw in Oregon, Gov. Kate Brown was re-elected [last year] with a moratorium
on the death penalty. We saw in Kansas, the Kansas state judges had been very robust in their review and had appropriately overturned death sentences that [we
believe] violated the U.S. Constitution on a pretty regular basis, and they got attacked for that and they survived those challenges. We saw it in the Washington
state Supreme Court, which [last year] wrote this really sweeping opinion finding racial bias in the application of the death penalty under the Washington state
Constitution. They issued that opinion right before the judicial elections, which in the lore of litigator strategy, you’d never expect a state court to issue a big
decision right before judicial elections. There’s no backlash. What are some of the states where you see potential for the next big moves on this issue? Ohio is
another example where there has been this legal injection litigation for some time that has been really bogged down in questions of whether or not the defendant
has shown and proposed a better way—a less painful way—of killing himself. A lot of the lethal injection litigation has lost sight of the fact that there’s this
enormous compelling record that we are carrying out executions with a drug, midazolam, that is in fact leading to torture of prisoners in a number of states. We just
saw the [Republican] governor of Ohio [Mike DeWine] say, we’re not going to do this. We have this huge [death] row in California, a row that I think is so much
bigger than any other row in the country. So [Newsom’s]
announcement all alone would be a major development in the
history of the death penalty in America. But the fact is that it’s happening at the same time you have a
state like Ohio moving forward with a moratorium, and you have a state like Pennsylvania that’s got a
large [death] row [moving ahead] with a moratorium. You’re talking a lot about state-level action. Is that
because action at the federal level is such a heavy lift? For advocates of abolition, it seems to me that recent decisions from the
Supreme Court may not have been so inspiring. I’m talking about that recent case before the Supreme Court, where the court let Domineque Ray be executed in
Alabama despite being denied access to his imam, and the court deciding not to rule on the religious discrimination question there. There is a lot of
movement in states and by state executives and state courts, and I think that’s in part because we
haven’t seen enough movement from the U.S. Supreme Court yet. But that does not mean that I am in any way
giving up on federal courts, or giving up on the U.S. Supreme Court abolishing the death penalty. I do think that is coming. The Jones case
was this case out of California where the federal district court found the death penalty in California unconstitutional because of the incredibly broken nature of
California’s death penalty and the delays there—it’s just absolutely arbitrary who might get executed in California. At the same time, there was a federal court in
New Hampshire that ruled the death penalty unconstitutional a number of years ago. Those cases ultimately did not stand, but the merits of those cases did not
actually reach the Supreme Court. I think that when you look at the benchmarks that the Supreme Court has set forward for
whether or not the death penalty today is constitutional under the Eighth Amendment, the evolving
standard of decency says let’s look at what’s happening in the states . Let’s look at the number of
executions, let’s look at the trends, let’s look at the new death sentences. All of those are moving in the
same direction. It is just an incredible downward-sloping number. We certainly would not have predicted where we are today
in terms of the low number of new death sentences, the low number of executions each year. There is an incredible showing, I think, under

the Eighth Amendment, and it is just a matter of time before the Supreme Court is going to take one
of these cases. I think if you look at the Supreme Court’s record, it has issued a number of opinions where
we’ve seen that it is concerned about some of these same things that Newsom was talking about, some
of these same things that the Washington state Supreme Court was talking about. Now, we were very
dismayed, and I would not ever defend the Supreme Court’s allowing Ray’s execution to go forward . I think
that that was a coming together of some of the worst ways in which the death penalty plays out, including the fact that, because of the way that

Supreme Court rules work under [deadline] of an execution, it’s very difficult to get a claim heard that
you would otherwise normally get heard. So they had enough votes to hear the briefing and make a reasoned decision on the merits of the
religious discrimination that was going on in that case, but they didn’t have enough votes to stop the execution because of the way the state rule works. Time and
time again, super important legal issues don’t get a real hearing because the push for finality and moving to execution just ends up outweighing decency and justice.
So that was really a setback, and discouraging, but I think that we’ve
seen from this court over the years— even though they
rule against a claim that is brought on the eve of execution, that doesn’t tell you how they would rule
on the merits of the claim.
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Biden wins because of swing states – BUT his lead is fragile
Kilgore 9/17 – Ed; political columnist and former Democratic strategist. (“Biden Maintains Electoral
College Lead, But It’s Fragile” New York Magazine. September 17, 2020.
https://nymag.com/intelligencer/2020/09/polls-biden-keeps-electoral-college-lead-but-its-
fragile.html)//SR

Now that we are in the stretch drive of the 2020 presidential election, polls are coming in hot almost every day,
and on any given day there’s some good news for both Biden and Trump. The big picture is a bit ambivalent: Biden continues to enjoy
a broad advantage in the battleground states that will determine the Electoral College winner, but his
margin for error remains small. Biden’s lead in national popular-vote polling is slowly eroding but
remains formidable compared to past Democratic candidates, particularly given the fact that most pollsters have
already begun applying likely voter screens that usually benefit Republicans. In the FiveThirtyEight
polling averages, Biden leads Trump 50.3 to 43.5, or by 6.7 percent (down from a peak of 9.1 percent on August 29). At
RealClearPolitics (which averages raw polling data without the weighting and adjustments FiveThirtyEight deploys), Biden’s lead is
down to 5.8 percent (likely because a new Rasmussen poll shows Trump actually leading, the first in RCP’s database to show that since
February). One national survey that’s been getting a lot of attention is the USC-Dornsife tracking poll, the only major national pollster that
consistently showed Trump ahead just prior to Election Day in 2016 (though that meant it was even more inaccurate than some others, since
HRC did win the popular vote by 2.1 percent even as the final USC survey showed Trump up by three points). As recently as last week, USC-
Dornsife showed Biden with a double-digit lead, but its latest numbers have cut that to under seven
points. It does seem to have a pattern of regularly oscillating pro-Biden and pro-Trump trends. But it’s state polls that have drawn the
most attention this week, and they provide relatively good news for Biden, as Nate Silver explains in a handy graph showing
recent polling trends in all the competitive states: [graph omitted] As Geoffrey Skelley explains, the Arizona and Minnesota numbers are
particularly significant if they hold: Biden’s
improvement in Arizona is particularly noteworthy as Arizona is a
cornerstone of most Electoral College maps in which Trump wins. That is, if Trump carries the state, he wins the
election 59 percent of time, according to our forecast; but if Biden wins Arizona, Trump has less than a 7 percent chance of winning overall …
Meanwhile, Biden’s improvement in Minnesota is also bad news for Trump , as the campaign has long viewed
Minnesota as apotential target to expand the map — the president only lost the state by about 2 points in 2016. However,
Minnesota seems to be steadily moving away from Trump. Arizona remains close, though: A new Monmouth survey released after
Skelley wrote about the state showed Biden up by just two points (48-46) among likely voters if turnout is higher than in 2016 (more likely than
not), and tied with Trump at 47 percent if turnout drops (e.g., because of fresh COVID-19 concerns or voter-suppression efforts). Florida’s
the most important state providing relatively good news to Team Trump in the last few days, with Biden’s lead in the
RCP polling averages declining to 1.4 percent (it’s at 2.1 percent at FiveThirtyEight) and two recent polls (from Florida Atlantic
University and NBC News–Marist) showing the race tied. The megatrend in Florida is that Biden is overperforming with the senior
voters who went heavily for Trump in 2016, while Trump is posting big margins among South Florida’s intensely anti-communist Latino
communities. Florida Democrats took a big hit late last week, however, when a federal appeals court upheld the state GOP’s efforts to halt
implementation of a voter initiative reenfranchising ex-felons. The
big picture remains: Trump’s Electoral College
advantage (as illustrated by his relative standing in battleground state as opposed to national polls) means Biden starts losing a
lot of states if his national lead drops to below, say, 3 percent. Above that level, he has a lot of ripe targets in
states Trump really must carry.

Trump’s trying to portray himself as a criminal justice reformer – that rings hollow
because of no accomplishments beyond FIRST STEP
Sullum 20 – Cornell graduate, senior editor at Reason and a nationally syndicated columnist. Sullum is
the author of two critically acclaimed books: Saying Yes: In Defense of Drug Use (Tarcher/Penguin, 2004)
and For Your Own Good: The Anti-Smoking Crusade and the Tyranny of Public Health (Free Press, 1998).
(Jacob, “Trump Attacks Biden on Drug Policy From the Left,” Reason,
https://reason.com/2020/03/09/trump-attacks-biden-on-drug-policy-from-the-left/)//BB

As part of President Donald Trump's attempt to portray himself as a criminal justice reformer , his reelection
campaign last week attacked former Vice President Joe Biden, the leading contender for the Democratic nomination, for
supporting harsh drug policies that have "wreck[ed] countless lives" and endangered overdose victims by discouraging bystanders
from seeking help. It's an interesting gambit from a man who ran for president in 2016 on a "law and order"
platform borrowed from Richard Nixon. Whether it will amount to more than that seems doubtful at this point,
given Trump's silence on how he would reform drug policy or make the criminal justice system less
mindlessly punitive. "In addition to wrecking countless lives with the 1994 crime bill, during his time in the Senate, Biden's 'priority' was
legislation that policy experts agree made the opioid epidemic far more deadly," says a March 4 press release from the Trump campaign. "Biden
pioneered legislation that decreases the likelihood of people to call 911 if they witness a drug overdose and has even led to prosecutors filing
homicide charges against drug overdose victims' loved ones." The Violent Crime Control and Law Enforcement Act of 1994, which Biden was
still bragging about as recently as 2015, created 60 new capital offenses, increased drug penalties, provided $10 billion for prison construction,
and encouraged states to pass "truth in sentencing" laws that curtailed or eliminated parole. As Udi Ofer of the American Civil Liberties Union
puts it, "the 1994 Biden Crime Bill" (as Biden has proudly called it) marked "the moment when both parties, at a national level, fully embraced
the policies and political posturing that exacerbated the mass incarceration crisis we are trying to fix today." While the bill was not "the key
driver of mass incarceration," the Sentencing Project's Marc Mauer observes, "it certainly escalated the scale of its impact." And Biden also
played a leading role in earlier legislation that ramped up penalties for drug offenses, including the Comprehensive Crime Control Act of 1984,
the Anti-Drug Abuse Act of 1986, and the Anti-Drug Abuse Act of 1988. Today, Biden has repudiated his longtime support for mandatory
minimum sentences, which he says should be abolished. He also wants to eliminate the irrational sentencing disparity between the smoked and
snorted forms of cocaine, which was created by the 1986 law and reduced by the Fair Sentencing Act of 2010. And while continuing to resist the
repeal of federal marijuana prohibition, Biden does now call for decriminalizing cannabis consumption and automatically expunging "all prior
cannabis use convictions" (neither of which would have much of an impact at the federal level, since the Justice Department rarely prosecutes
low-level marijuana cases). Although
Trump touts his support for the FIRST STEP Act—a 2018 law that, among other
things, retroactively applied the shorter crack cocaine sentences approved in 2010 —he has said nothing

about further steps beyond the relatively modest reforms included in that law . The Trump campaign's
charge that "Joe Biden made the opioid crisis worse" refers to a provision of the 1986 Anti-Drug Abuse Act that prescribed a sentence of 20
years to life for drug distribution when it results in death. Like many anti-drug policies enacted in the 1980s and '90s, that provision ostensibly
was aimed at "kingpins" who make a fortune by selling drugs that kill people. But prosecutions for "drug-induced homicide" (mostly at the state
level) usually involve low-level dealers and acquaintances close to overdose victims, since those are the cases in which the causal link is easiest
to prove. And Trump is right that such cases can involve "homicide charges against drug overdose victims' loved ones." These prosecutions are
not only cruel and unjust; they are potentially deadly, since fear of homicide charges is a powerful deterrent to calling 911 when someone
overdoses. The Trump campaign backed up its charge against Biden by linking to a 2019 Politico story by Zachary Siegel, which also discusses
another harm-promoting policy backed by Biden. The 1986 Anti-Drug Abuse Act included a provision known as the "crack house statute," which
made it a felony, punishable by up to 20 years in prison, large fines, and property forfeiture, to "knowingly open or maintain any place for the
purpose of manufacturing, distributing, or using any controlled substance," or to "manage or control any building, room, or enclosure" and
knowingly make it available for illegal drug use. Biden's Reducing Americans' Vulnerability to Ecstasy (RAVE) Act, the essence of which was
included in the PROTECT Act of 2003, expanded that provision to cover temporary venues used for raves or other events where people
consume drugs. Critics of the RAVE Act pointed out that it discouraged harm-reducing measures such as allowing the distribution of pamphlets
with advice for minimizing MDMA risks or even providing bottled water, since such precautions could be cited as evidence that a rave organizer
knew attendees would be using drugs. Today federal prosecutors argue that the crack house statute makes it illegal to establish supervised
injection facilities where people can use drugs in a safe, medically monitored setting. Prohibiting such facilities, which operate legally in scores
of cities around the world, is arguably another way that "Joe Biden made the opioid crisis worse." But the president's re-election campaign is
silent on that point, presumably because the Trump administration is using the threat of criminal prosecution to block supervised consumption
sites. Trump also has "made the opioid crisis worse" by ham-handedly cracking down on prescription analgesics, a policy that has hurt bona fide
patients while driving nonmedical users toward black-market substitutes that are far more dangerous because their potency is highly variable
and unpredictable. For his part, Biden threatens to prosecute employees of companies that make pain medication, although he is vague about
the legal basis for that. He also vows to "eliminate overprescribing of prescription opioids for pain" and "improve the effectiveness of and
access to alternative treatment for pain," which does not sound promising for people with chronic pain who have found that opioids are the
only treatment that makes their lives bearable. Trump has highlighted his use of clemency, and his administration reportedly is considering
reforms that could help reduce the huge backlog of applications for pardons and commutations. Biden promises to "use the president's
clemency power to secure the release of individuals facing unduly long sentences for certain non-violent and drug crimes." Citing the example
of Barack Obama, who issued more commutations than any president in history, Biden's campaign says he "will continue this tradition and
broadly use his clemency power for certain non-violent and drug crimes." Given Biden's long history as a zealous drug
warrior, his recent conversion should be viewed with skepticism . But at least he has laid out specific
reforms he would pursue as president, while Trump has done nothing beyond bragging about his
accomplishments and sniping at Biden's.

The plan gives Trump that key accomplishment – CJR is a salient issue that flips the
election
Chung 19 – JD @ Georgetown, vice president for Criminal Justice Reform at American Progress (Ed,
“Do 2020 candidates care about criminal justice?,” USA Today,
https://www.usatoday.com/story/opinion/2019/06/07/2020-candidates-should-make-criminal-justice-
central-campaigns/1289640001/)//BB

Last month, criminal justice reform became an issue in the 2020 presidential elections in a manner befitting the
Trump era: through a series of tweets from the president on Memorial Day insulting his potential Democratic rivals. Trump
first declared that anyone associated with the 1994 Crime Bill , the sweeping legislation known for exacerbating mass
incarceration, was “unelectable.” He then pronounced himself to be “responsible for criminal justice
reform” because he signed the FIRST STEP Act into law , even though some of the most ardent supporters of
the federal sentencing and prison reform bill say the legislation is but an incremental step. Trump is, of course, no
reformer. One can look at his actions before he became president when he publicly campaigned for the execution of the wrongfully accused,
and later convicted, Central Park Five. Or consider that his first Attorney General was Jeff Sessions, who rolled back virtually every meaningful
Trump is an opportunist who
reform effort from the previous administration. Candidates aren't talking about criminal justice Rather,
is taking advantage of the void left by the current crop of candidates who have failed to discuss criminal justice
reform on the campaign trail in a meaningful way. Senator Cory Booker of New Jersey has been by far the most vocal about the need to
reform the system, and Senator Amy Klobuchar of Minnesota published an op-ed describing some of her policy ideas. Other candidates have
weighed in on single issues. But by and large, criminal justice reform has been cabined off to a question at the CNN Town
Halls about whether people who are currently incarcerated should have the right to vote (answer: they should). The lack of engagement on this
issue by 2020 candidates is shown starkly in an interactive piece that The Washington Post published in April. The Post listed 15 broad topics —
such as healthcare, economic inequality, and climate change along with criminal justice — and measured the candidates’ share of words on
social media posts about each of the topics. Of the 15 issue areas, 13 had at least two candidates devote a double-digit percentage of their
social media posts to the topic. The only two issues that did not meet this low threshold were infrastructure and criminal justice. These
numbers likely have changed since April. But overall, those
running for the highest office in the country are
underestimating the importance to the electorate of reforming the criminal justice system. Just look at
recent polling from the battleground state of Ohio which shows that 64% of Ohioans overall — including 78% of
Democrats and 68% of independents — believe that the criminal justice system needs significant improvement .
Moreover, 70% of Democrats and 60% of independents believe too many people are in prison, while only 24%
and 26% respectively think there are too few or about the right number or people incarcerated. Against that backdrop it remains unclear why
so few candidates are talking about criminal justice reform. Perhaps they don’t consider mass incarceration to be a crisis, even though there are
nearly 7 million people locked up in prisons and jails across the country or otherwise supervised by the system. For context, that’s the size of
Los Angeles and Houston combined. Or maybe candidates think the criminal justice system grew “naturally” because more people committed
crimes, but they do not realize that national crime rates are near historic lows and the system’s expansion is the result of deliberate policy
choices to criminalize more behavior and to do it in a harsher fashion. Criminal justice should be central for candidates It
could be that candidates don’t talk about criminal justice because they don’t see the connection with other traditionally “major” policy areas,
like the economy. But mass incarceration has been a key driver of poverty that has led to depressed physical, mental, and social outcomes
especially for children, and especially African American children, growing up in distressed communities. Thus, criminal justice reform can and
should be considered an important tool for social mobility. Perhaps candidates are listening to the wrong people — or at least defining relevant
stakeholders too narrowly. The conventional approach has been for politicians to consult mainly with judges, prosecutors, and law enforcement
on public safety and criminal justice matters. But candidates must recognize and learn from victims and survivors,
people who have been incarcerated, and their families. The expertise of those who have been impacted by the system
must be valued as much as, if not more than, those who work to maintain it. Criminal justice reform must be integral to the
candidacy of anyone running for elected office instead of merely a wedge for Trump to exploit. Candidates need to
develop substantive policy platforms and cast a vision for how they are going to address the crisis of mass
incarceration. It’s an issue voters care about and one for which candidates will be held accountable if
they take it for granted.

Trump re-election causes irreversible and existential climate change

Starr 19 – PhD, professor of sociology and public affairs at Princeton and a winner of the Pulitzer Prize
for General Nonfiction. He is the author of Entrenchment: Wealth, Power, and the Constitution of
Democratic Societies (Paul, “Trump’s Second Term It’s more likely than most people think—and
compared with his first term, its effects would be far more durable.,” The Atlantic,
https://www.theatlantic.com/magazine/archive/2019/05/trump-2020-second-term/585994/)//BB

Of all the questions that will be answered by the 2020 election, one matters above the others: Is
Trumpism a temporary aberration or a long-term phenomenon? Put another way: Will the changes brought about by Donald
Trump and today’s Republican Party fade away, or will they become entrenched? Trump’s reelection seems implausible to many people, as
implausible as his election did before November 2016. But despite the scandals and chaos of his presidency, and despite his party’s midterm
losses, he approaches 2020 with two factors in his favor. One is incumbency: Since 1980, voters have only once denied an incumbent a second
term. The other is a relatively strong economy (at least as of now). Alan Abramowitz, a political scientist at Emory University who weights both
of those factors heavily in his election-forecasting model, gives Trump close to an even chance of reelection, based on a projected 2 percent
GDP growth rate for the first half of 2020. So far, much of the concern about the long-term effects of Trump’s presidency has centered on his
antidemocratic tendencies. But even if we take those off the table—even if we assume that Trump continues to be hemmed in by other parts of
the government and by outside institutions, and that he governs no more effectively than he has until now—the
impact of a second
term would be more lasting than that of the first. In normal politics, the policies adopted by a president
and Congress may zig one way, and those of the next president and Congress may zag the other . The
contending parties take our system’s rules as a given, and fight over what they understand to be reversible policies and power arrangements.
But some situations are not like that; a zig one way makes it hard to zag back . This is one of those
moments. After four years as president, Trump will have made at least two Supreme Court appointments, signed into law tax cuts, and
rolled back federal regulation of the environment and the economy. Whatever you think of these actions, many of them can probably be offset
or entirely undone in the future. The effects of a full eight years of Trump will be much more difficult, if not impossible,
to undo. Three areas—climate change, the risk of a renewed global arms race, and control of the Supreme Court—illustrate the
historic significance of the 2020 election. The first two problems will become much harder to address as time goes on . The
third one stands to remake our constitutional democracy and undermine the capacity for future change. In short, the biggest difference
between electing Trump in 2016 and reelecting Trump in 2020 would be irreversibility. Climate policy is now the
most obvious example. For a long time, even many of the people who acknowledged the reality of climate change thought of it as a
slow process that did not demand immediate action. But today, amid extreme weather events and worsening scientific forecasts, the costs of
our delay are clearly mounting, as are the associated dangers. To
have a chance at keeping global warming below 1.5
degrees Celsius—the objective of the Paris climate agreement—the Intergovernmental Panel on Climate Change says that by 2030, CO2
emissions must drop some 45 percent from 2010 levels. Instead of declining, however, they are rising. In his first term, Trump has
announced plans to cancel existing climate reforms, such as higher fuel-efficiency standards and limits on emissions from new coal-fired power
plants, and he has pledged to pull the United States out of the Paris Agreement. His reelection
would put off a national
commitment to decarbonization until at least the second half of the 2020s, while encouraging other countries to do
nothing as well. And change that is delayed becomes more economically and politically difficult . According to
the Global Carbon Project, if decarbonization had begun globally in 2000, an emissions reduction of about 2
percent a year would have been sufficient to stay below 2 degrees Celsius of warming. Now it will need to be approximately 5
percent a year. If we wait another decade, it will be about 9 percent. In the United States, the economic
disruption and popular resistance sure to arise from such an abrupt transition may be more than our
political system can bear. No one knows, moreover, when the world might hit irreversible tipping points such as the
collapse of the West Antarctic Ice Sheet, which would likely doom us to a catastrophic sea-level rise . The 2020 election will also determine
whether the U.S. continues on a course that all but guarantees another kind of runaway global change—a stepped-up arms race, and with it a heightened risk of nuclear accidents and nuclear war. Trump’s “America first” doctrine,
attacks on America’s alliances, and unilateral withdrawal from arms-control treaties have made the world far more dangerous. After pulling the United States out of the Iran nuclear agreement (in so doing, badly damaging
America’s reputation as both an ally and a negotiating partner), Trump failed to secure from North Korea anything approaching the Iran deal’s terms, leaving Kim Jong Un not only unchecked but with increased international
standing. Many world leaders are hoping that Trump’s presidency is a blip—that he will lose in 2020, and that his successor will renew America’s commitments to its allies and to the principles of multilateralism and
nonproliferation. If he is reelected, however, several countries may opt to pursue nuclear weapons, especially those in regions that have relied on American security guarantees, such as the Middle East and Northeast Asia. At stake
is the global nonproliferation regime that the United States and other countries have maintained over the past several decades to persuade nonnuclear powers to stay that way. That this regime has largely succeeded is a tribute to
a combination of tactics, including U.S. bilateral and alliance-based defense commitments to nonnuclear countries, punishments and incentives, and pledges by the U.S. and Russia—as the world’s leading nuclear powers—to make
dramatic cuts to their own arsenals. In his first term, Trump has begun to undermine the nonproliferation regime and dismantle the remaining arms-control treaties between Washington and Moscow. In October, he announced
that the U.S. would withdraw from the Intermediate-Range Nuclear Forces (INF) Treaty signed in 1987 by Ronald Reagan and Mikhail Gorbachev. While the Russian violations of the treaty that Trump cited are inexcusable, he has
made no effort to hold Russia to its obligations—to the contrary, by destroying the treaty, he has let Russia off the hook. What’s more, he has displayed no interest in extending New START, which since 2011 has limited the
strategic nuclear arsenals of Russia and the United States. If the treaty is allowed to expire, 2021 will mark the first year since 1972 without a legally binding agreement in place to control and reduce the deadliest arsenals ever
created. The prospect of a new nuclear arms race is suddenly very real. With the end of verifiable limits on American and Russian nuclear weapons, both countries will lose the right to inspect each other’s arsenal, and will face
greater uncertainty about each other’s capabilities and intentions. Already, rhetoric has taken an ominous turn: After Trump suspended U.S. participation in the INF Treaty on February 2, Vladimir Putin quickly followed suit and
promised a “symmetrical response” to new American weapons. Trump replied a few days later in his State of the Union address, threatening to “outspend and out-innovate all others by far” in weapons development. The treaties
signed by the United States and Russia beginning in the 1980s have resulted in the elimination of nearly 90 percent of their nuclear weapons; the end of the Cold War seemed to confirm that those weapons had limited military
utility. Now—as the U.S. and Russia abandon their commitment to arms control, and Trump’s “America first” approach causes countries such as Japan and Saudi Arabia to question the durability of U.S. security guarantees—the
stage is being set for more states to go nuclear and for the U.S. and Russia to ramp up weapons development. This breathtaking historical reversal would, like global warming, likely feed on itself, becoming more and more difficult
to undo. Finally, a second term for Trump would entrench changes at home, perhaps the most durable of which involves the Supreme Court. With a full eight years, he would probably have the opportunity to replace two more
justices: Ruth Bader Ginsburg will be 87 at the beginning of the next presidential term, and Stephen Breyer will be 82. Whether you regard the prospect of four Trump-appointed justices as a good or a bad thing will depend on your
politics and preferences—but there is no denying that the impact on the nation’s highest court would be momentous. Not since Richard Nixon has a president named four new Supreme Court justices, and not since Franklin D.
Roosevelt has one had the opportunity to alter the Court’s ideological balance so decisively. In Nixon’s time, conservatives did not approach court vacancies with a clear conception of their judicial objectives or with carefully vetted
candidates; both Nixon and Gerald Ford appointed justices who ended up on the Court’s liberal wing. Since then, however, the conservative movement has built a formidable legal network designed to ensure that future judicial
vacancies would not be squandered. The justices nominated by recent Republican presidents reflect this shift. But because the Court’s conservative majorities have remained slim, a series of Republican appointees—Sandra Day
O’Connor, Anthony Kennedy, and most recently John Roberts—have, by occasionally breaking ranks, held the Court back from a full-scale reversal of liberal principles and precedents. With a 7–2 rather than a 5–4 majority,
however, the Court’s conservatives could no longer be checked by a lone swing vote. Much of the public discussion about the Court’s future focuses on Roe v. Wade and other decisions expanding rights, protecting free speech, or
mandating separation of Church and state. Much less public attention has been paid to conservative activists’ interest in reversing precedents that since the New Deal era have enabled the federal government to regulate labor and
the economy. In the late 19th and early 20th centuries, conservative justices regularly struck down laws and regulations such as limits on work hours. Only in 1937, after ruling major New Deal programs unconstitutional, did the
Court uphold a state minimum-wage law. In the decades that followed, the Court invoked the Constitution’s commerce clause, which authorizes Congress to regulate interstate commerce, as the basis for upholding laws regulating
virtually any activity affecting the economy. A great deal of federal law, from labor standards to the Civil Rights Act of 1964 to health and environmental regulation, rests on that foundation. But the Court’s conservative majority
has recently been chipping away at the expansive interpretation of the commerce clause, and some jurists on the right want to return to the pre-1937 era, thereby sharply limiting the government’s regulatory powers. In 2012, the
Court’s five conservative justices held that the Affordable Care Act’s penalty for failing to obtain insurance—the so-called individual mandate—was not justified by the commerce clause. In a sweeping dissent from the majority’s
opinion, four of those justices voted to strike down the entire ACA for that reason. The law survived only because the fifth conservative, Chief Justice Roberts, held that the mandate was a constitutional exercise of the
government’s taxing power. If the Court had included seven conservative justices in 2012, it would almost certainly have declared the ACA null and void. This is the fate awaiting much existing social and economic legislation and
regulation if Trump is reelected. And that’s to say nothing of future legislation such as measures to limit climate change, which might well be struck down by a Court adhering to an originalist interpretation of our 18th-century

Much more hangs in the balance next year. With a second

Constitution. Democracy is always a gamble, but ordinarily the stakes involve short-term wins and losses .

term, Trump’s presidency would go from an aberration to a turning point in American history. But it would not
usher in an era marked by stability. The effects of climate change and the risks associated with another nuclear arms race are
bound to be convulsive. And Trump’s reelection would leave the country contending with both dangers under the worst possible
conditions, deeply alienated from friends abroad and deeply divided at home. The Supreme Court, furthermore, would be far out of line with
public opinion and at the center of political conflict, much as the Court was in the 1930s before it relented on the key policies of the New Deal.
The choice Americans face in 2020 is one we will not get to make again . What remains to be seen is whether voters
will grasp the stakes before them. In 2016, Hillary Clinton’s emails absorbed more media and public attention than any other issue. In 2018,
Trump tried to focus attention on a ragtag caravan of a few thousand Central Americans approaching the southern border. That effort failed,
but the master of distraction will be back at it next year. If we cannot focus on what matters, we may sleepwalk into a truly
perilous future.
 OFF
Progressive opposition to the Court is increasing now
McElwee 18 --- writer and researcher based in New York City and a co-founder of Data for Progress
(10/25/18, Sean, “The Fight For The Supreme Court Is Just Beginning,”
https://www.huffingtonpost.com/entry/opinion-supreme-court-
progressives_us_5bd09cd4e4b0a8f17ef34d1c, accessed on 12/19/18, JMP)
Brett Kavanaugh is an associate justice of the Supreme Court, his confirmation solidifying a five-vote majority for the court’s extreme
conservatives. Progressives are bracing themselves for the effects of a fully empowered right-wing court, and so they should. Yet most
Americans are unaware of how deeply the court has already damaged American society, even without a
conservative majority. Over the past two decades, the extremist court has resegregated schools, made
it easier for abusive cops to avoid punishment, weakened protections for survivors , poisoned children,
empowered racist vote suppressors and even thrown elections ― including the presidency ― to the
Republican Party. Now, the limited restraints offered by Justice Anthony Kennedy have disappeared, and the
threat is even greater. There is, however, one difference between the past two decades and now:
Progressives are finally paying attention. The Supreme Court has rarely been a force for
progress. In its most famous and popular decisions — such as Brown, Griswold and Obergefell — the
court largely hedged its bets and acted after social movements had already paved the way . It has rarely
the court can and
acted, much less acted effectively, without support from the legislative and executive branches. Of course,

sometimes does promote progressive change, but it’s a narrower avenue for
change than many people assume. And pursuing that change in court often
means investing less in other tactics because lawsuits are costly and resources
are limited. Nonetheless, progressives have waged their battles primarily before the
court ― clinging to what Gerald Rosenberg called The Hollow Hope ― instead of taking issues directly to
voters. Measures like Amendment 4 in Florida to restore voting rights, automatic voter registration in Alaska and right-to-work repeal in
Missouri suggest that taking our issues directly to voters is effective. Across the country, direct democracy and

organizing have reaped rewards, while the courts — and in particular the
Supreme Court — have remained a “hollow hope.” The costs of over-investing in this
uphill legal strategy have been immense but largely unseen. Money that pays high-priced lawyers can’t
fund canvassers and signature collectors. And talented progressives who go to law school generally
don’t become organizers; many, burdened by student debt, get stuck on the corporate track, where
they may well perpetuate injustice by defending corporate interests. Meanwhile, the right, knowing that its
agenda is deeply unpopular, has turned to the courts to override the popular will, aggressively filing
lawsuits that will be ruled on by radical right-wing judges . And while the right has recruited and empowered armies of
political operatives to wage war on behalf of Trumpist judges and judicial nominees, the left has relied largely on members of the academy.
When soldiers battle scholars, the soldiers win. Because
the right has weaponized the courts, progressives must do
so as well. That means more organizations like Demand Justice, with political operatives doing the dirty
work, and more local organizers ready and able to pressure key senators during close confirmation votes
and in response to bad court decisions. This effort must be built from the ground up because few cases
reach the Supreme Court. Far-right lower court judges like the George W. Bush-appointed Judges Edith Jones of the Court of Appeals
for the 5th Circuit, William Pryor of the Court of Appeals for the 11th Circuit and Andrew Hanen of the District Court for the Southern District of
Texas should be the subject of activist scrutiny. Hanen enjoined Deferred Action for Parents of Americans and Lawful Permanent Residents,
nearly enjoined Deferred Action for Childhood Arrivals (the Trump administration actually advised him against it) and is one of the most anti-
immigrant judges on the bench. Jones is basically a right-wing chain email with a gavel: She once said in a speech that African-Americans and
Hispanics are “prone to commit acts of violence” and she once told a liberal colleague to “shut up.” Pryor opposes Miranda warnings, criticized
the Violence Against Women Act and believes the government should be allowed to execute mentally ill people. And we haven’t even discussed
Bobby Shepherd, Raymond Gruender, Edward Earl Carnes, Jerry Smith, Kyle Duncan, James Ho, Joel Fredrick Dubina and Reed O’Connor. Or
birther blogger-turned-federal appeals judge John Bush. These are just a few examples of some of the most extreme right-wing judges, who
should be household names in progressive circles. Unfortunately, there are many, many more. Progressives should be much more aggressive
about stocking these lower courts, because most decisions end there; a liberal Supreme Court is less meaningful if the Joneses and Hanens of
the world have free rein. The next Democratic president should feel more outside pressure, about both the speed of nominations and identities
of nominees — progressives should prepare lists of potential progressive judges just like conservatives do. Right now, every conservative justice
on the Supreme Court is a Federalist Society member and there are even more on lower courts. But not a single federal judge owes their career
— and, thus, their allegiance — to the American Constitution Society, the Federalist Society’s closest thing to a liberal counterpart. (I asked the
ACS if there were any judges who were members of the ACS. The ACS claims that they exist but refused to name any.) Analysis by my think tank
Data for Progress suggests that progressives have messaged poorly to members of their base about exactly how the Supreme Court has made
their lives miserable. Progressive presidential candidates need to take the gloves off, landing punches that are both hard and precise, and
operatives should as well. The norm against attacking justices made sense when they were nonpartisan. But Kavanaugh has shown himself to
be less a judge than a partisan hatchet man, and a predatory one at that. Democrats should attack him, track his approval ratings and regularly
run ads against him. Ideally, Democrats would be spending millions on each Supreme Court seat both during and after confirmations fights and

the court’s reputation, and thus its power, derives

a few million around each major decision. Ultimately,

almost exclusively from popular and elite opinion. If Americans understood the court to
be a partisan institution, they would demand that it act more modestly. The other branches of
government have at least some democratic legitimacy; the court does not. Chief Justice John Roberts may be a bit
more of an institutionalist than the four justices to his right, but only a bit: He did, after all, write the decisions gutting the Voting Rights Act and
upholding Trump’s Muslim ban, and he joined virtually all of the court’s other most troubling decisions over the past decade. Better strategic
thinking about the court is a key first step, but a second step is more aggressive tactics. Progressives must put adding justices to the court on
the table. While “centrist elites” may howl, unelected right-wing justices striking down every piece of progressive
legislation threatens American democracy far more than does a democratically elected legislature
expanding the court, which has expanded and contracted throughout American history. Project 1/20/21, an organization I work for, is
working to make this case to progressive voters. Benches full of reactionary old white men, systematically dismantling
progress, are not an inevitable product of our Constitution; they’ve been built by decades of
conservative activism. Progressives
can win this fight, but only if they understand
that this is an exercise in politics, not justice.
Sustained liberal opposition discourages court overreach, BUT progressive rulings
renew the narrative of the Court as an honest broker
McElwee 18 --- researcher and writer based in New York City, and co-Founder of Data for Progress
(10/10/18, Sean, “Opinion: It's Time To Go To War With The Supreme Court. Here's How.; The time has
come for the left to constrain the court and limit the power of its right-wing majority,”
https://www.buzzfeednews.com/article/seanmcelwee/time-for-left-to-go-to-war-with-the-supreme-
court, accessed on 12/13/18, JMP)
The Supreme Court is only as powerful as we allow it to be, something well expressed in the apocryphal line attributed to Andrew Jackson: that
Chief Justice John Marshall “has made his decision; now let him enforce it.” Thecourt’s power has been challenged twice in
more recent history, and in both cases it lost: First, when FDR’s court-packing plan forced it to stop
repealing the New Deal, and again when widespread resistance to desegregation succeeded in slowing school
integration in the South. Long before either of these cases, Abraham Lincoln actively fought the Supreme Court’s Dred Scott v. Sandford
decision, briefly increasing the number of justices to secure emancipation. With the court now on the verge of returning to
the dark days of the Lochner era — a time when conservatives used phony constitutional doctrines like the “freedom of contract”
to strike down commonsense New Deal–era laws on issues like child labor — the time has come for a new effort to constrain
the court and limit its power. The appointment of Brett Kavanaugh has pushed the court into uncharted territory: There has never
been a justice who was confirmed with such low favorability numbers, nor one whose confirmation was defined by such intense partisanship.
Progressives should be concerned about a far-right Supreme Court majority , but we cannot despair — we have
options. Because of its institutional weakness, the court is constrained by public opinion and by elite
opinion. Now is the time for activist groups to assemble a constant war footing toward the court. That in
for a long time the court was largely seen as an honest
itself would be a major change, because

broker among Democrats. Research from Data for Progress suggests one reason why: Democrats tend to
talk about the court in positive terms and mostly discuss the court when it
issues decisions that liberals like, such as on the issue of marriage equality. In contrast, Republicans have historically
rallied their base by highlighting the court’s abortion jurisprudence, which they despise, while saying very little about the consistently pro-
corporate decisions that form the core of conservative judicial activism. In the Trump era, this warm and fuzzy Democratic view of the court
shifted dramatically. In 2016, 70% of Republicans said Supreme Court appointments were “very” important to their vote, compared with 62% of
Democrats. As of late September, 81% of Democrats said Supreme Court appointments are “very important,” compared with 72% of
Republicans. For the first time in a decade, Americans are also more likely to see the Supreme Court as “too conservative” rather than “too
liberal” — a welcome development, but a stunning one given that the court has been a conservative force the entire time. Many
Americans think of same-sex marriage as the defining ruling of the past decade, but they overlook the
court’s gutting of the Medicaid expansion, ending of voluntary desegregation programs, enabling of
right-wing voter suppression, and crushing of state-level public financing laws . The shift in public
opinion is good news, and it alone will act as a disincentive for the further right-
wing overreach of the court. But that’s just a starting point for the progressive movement; there is much more work to
be done. Groups like Demand Justice should produce advertisements designed to reduce support for specific decisions and raise awareness of
how the court damages progressive constituencies. The goal should be explicit: Pull down the favorable numbers for
Justices Roberts, Alito, Thomas, Gorsuch, and the court to negative, and make sure Brett Kavanaugh’s public support never rises from its
current low. The Be a Hero campaign to fund a challenger to Susan Collins indicates the sort of tactical innovation progressives should pursue
on this. And the protests of grassroots groups like the Center for Popular Democracy (where a survivor of sexual assault confronted Jeff Flake in
an elevator) can further influence perceptions. Getting cameras in the courtroom would demystify its proceedings and reveal them as little
more than law school dorm-room bull sessions — Congress can, and should, pass a law demanding it. Activists should disrupt the events of
Justices Clarence Thomas and Neil Gorsuch, who disgrace the institution with their corruption. (Thomas’s wife is a Republican lobbyist, but he
does not recuse himself from cases she is involved in.) These are all minor but important tactical escalations, but larger escalations should be on
the table to prevent a neo-Lochnerite court from dismantling progressive policies. Central to all of this is understanding that Kavanaugh
and company are politicians, not judges, and their goal is to wage ideological warfare, not interpret the
law. That means they must be seen as political appointees who work under the threat of impeachment — a threat that should loom over
Thomas and Kavanaugh in particular. Progressives should also design laws to be more difficult for the court to strike down. Complicated
expansions of the welfare state that require the participation of state and federal governments and the private sector will always be more
vulnerable to court intervention than straightforward redistributions of wealth. And simpler government interventions will both contain fewer
vulnerabilities for exploit by conservative legal activists and be more easily understood among the general public, who will recognize judicial
misconduct if they’re overturned. This also means front-loading the benefits of new laws — in 2012, the benefits of Obamacare hadn’t kicked
in, and striking it down would have seemed less provocative. But by 2015, when when the most significant challenge made its way to the court,
the nine justices would have been affirmatively taking things away from millions of people, and that made it harder to gut the law. It’s
important to note that at the end of the day there is an extent to which this won’t matter as long as there is a five–four radical conservative
court. Last, to restore some small-d democratic semblance to the court, Democrats should consider adding two or more new justices beyond
the existing nine, two of whom have been chosen by a president who lost the popular vote and confirmed by senators representing a minority
of the American public. A Democratic president should make sure Chief Justice John Roberts is aware of these goals: He must
understand that if he strikes down a progressive law, he will be crushed . All of this will require a
significant investment of political capital from progressives , who might be wise to put these ideas on the table and dare
Roberts to overstep (as FDR did). There are signs that Roberts is aware of these risks: Many court watchers believe
the reason he sided with the court’s four liberals to preserve the Affordable Care Act was his
understanding that, were he to overplay his hand, the court would quickly lose its legitimacy . But just
because the court has occasionally pulled back when its authority was most seriously threatened — from the Civil War to the New Deal and
Roberts’ Obamacare compromise — does not guarantee it will do so again with its new ultra-conservative majority. Either way, the
biggest
reason to worry about an illegitimate, out-of-control court is that Democrats may not be prepared to
fight it.

The plan gives the Court a jolt of legitimacy

Ford 19 (4/2/19, Matt, “The Supreme Court’s Twisted Devotion to the Death Penalty; The conservative
justices' convoluted opinions are undermining the court's legitimacy more than any confirmation battle
could,” https://newrepublic.com/article/153437/supreme-courts-twisted-devotion-death-penalty,
accessed on 4/29/2020, JMP)

Between the partisan dogfight to confirm Justice Brett Kavanaugh last fall and some Democrats’ troubling calls
for court-packing this spring, it’s been a bad few months for the Supreme Court’s legitimacy. But the
court has done itself no favors in its recent death-penalty rulings. In deciding that Bucklew had no right
to an alternative method of execution, the majority does what it increasingly feels like it must do:
mangle facts and precedent to keep the machinery of state-sanctioned death rolling. That habit may
ultimately do more harm to the court than any external force ever could. Russell Bucklew was not challenging his
conviction in the 1996 murder of a neighbor. (Bucklew’s wife had fled to the neighbor’s home one night after a series of beatings.) Bucklew suffers from cavernous
hemangioma, which causes blood-filled tumors to grow throughout his head, neck, and throat and they are too fragile to remove through surgery. His lawyers
warned the court that lethal injection could cause the tumors to rupture midway through his execution, filling his lungs with blood and suffocating him. Bucklew
faced a daunting legal precedent. In the 2015 case Glossip v. Gross, the Supreme Court laid down a high threshold for death-row prisoners who challenge a state’s
chosen method of execution. The prisoner must prove that the method in question offers a “substantial risk of severe pain” and propose an alternative method that
would suffice. What’s more, the prisoner must also demonstrate that the alternative method is “feasible” and could be “readily implemented.” Bucklew asked the
courts to choose nitrogen hypoxia to suffocate him instead. Several states, including Missouri, have laws to authorize the method, but none have used it yet.
Gorsuch spent part of the opinion disputing testimony by Dr. Joel Zivot, an anesthesiologist who appeared on Bucklew’s behalf in the district court. Zivot warned
Bucklew would likely experience “suffocation, convulsions, and visible hemorrhaging” for “more than a few minutes to many minutes” before falling unconscious.
But Gorsuch still concluded that there’s “nothing in the record to suggest that Mr. Bucklew will be capable of experiencing pain for significantly more than 20 to 30
seconds.” He also doubted the feasibility of nitrogen hypoxia, criticizing Bucklew for a “bare-bones” proposal: He has presented no evidence on essential questions
like how nitrogen gas should be administered (using a gas chamber, a tent, a hood, a mask, or some other delivery device); in what concentration (pure nitrogen or
some mixture of gases); how quickly and for how long it should be introduced; or how the State might ensure the safety of the execution team, including protecting
them against the risk of gas leaks. Set aside the macabre demand for Bucklew to design the gas chamber in which he will be executed. Why is it his responsibility,
and not the state’s, to make sure prison employees are protected from gas leaks? Gorsuch’s questioning is part of a pattern for the
Roberts Court, which
has now made it incredibly difficult for prisoners to challenge the method by which they die, apparently
because the conservative justices don’t want the challengers to succeed . Death-penalty abolitionists have spent the past
decade taking on execution methods, and have had plenty of success. U.S. drugmakers and the European Union were pressured into imposing an embargo on selling
lethal-injection drugs to U.S. states. Some states responded by turning to more widely available sedatives or even to illegal and unregulated suppliers. Others simply
stopped executing people. In theory, this campaign shouldn’t affect the Eighth Amendment rights of the condemned. But some of the conservative justices have
signaled that it does. “I guess I would be more inclined to find that [midazolam] was intolerable if there was even some doubt about this drug when there was a
perfectly safe other drug available,” Justice Antonin Scalia mused during the Glossip oral arguments, referring to a controversial sedative used in two botched
executions in Oklahoma. “But the states have gone through two different drugs, and those drugs have been rendered unavailable by the abolitionist movement
putting pressure on the companies that manufacture them so that the states cannot obtain those two other drugs,” he noted. Justice Samuel Alito was even more
blunt. “Those who oppose the death penalty are free to try to persuade legislatures to abolish the death penalty,” he told the prisoners’ lawyer. “Some of those
efforts have been successful. They’re free to ask this court to overrule the death penalty. But until that occurs, is it appropriate for the judiciary to countenance
what amounts to a guerilla war against the death penalty which consists of efforts to make it impossible for the States to obtain drugs that could be used to carry
out capital punishment with little, if any, pain?” His majority opinion in Glossip enshrined his underlying premise: If abolitionists prevent a state from carrying out
less painful executions, the Eighth Amendment allows states to use more painful ones. This urge permeates Monday’s decision. Gorsuch complains throughout the
majority opinion that it has taken more than two decades to execute Bucklew. “Courts should police carefully against attempts to use such challenges as tools to
interpose unjustified delay,” he wrote, adding that last-minute stays of execution “should be the extreme exception, not the norm.” The timing of Bucklew’s lawsuit,
coming twelve days before his scheduled execution, wasn’t a question before the court; Gorsuch’s criticism of it is wholly superfluous. His apparent purpose was to
give the justices an opportunity to revisit their clash over a separate death-penalty case from February. That case, Dunn v. Ray, seems to have intensified the
justices’ fissures over the death penalty. Domineque Ray, a Muslim death-row inmate in Alabama, sued the state in January on religious-freedom grounds less than
a fortnight before his scheduled execution. Alabama allowed Christian death-row inmates to have a Christian minister in the same room during their executions, but
refused Ray’s request to have an imam by his side when he died—a fairly clear-cut violation of the First Amendment’s command of religious neutrality. The Eleventh
Circuit Court of Appeals issued an order staying Ray’s execution so his lawsuit could proceed. The court’s five conservative justices lifted the Eleventh Circuit’s stay
and let Ray’s execution go forward. The majority said in a brief, unsigned statement that Ray had filed his appeal too late to be considered. Justice Elena Kagan,
joined by three colleagues, wrote a forceful dissent from what she called a “profoundly wrong” decision. She criticized the majority for misstating the timeline in
which Ray brought the case, for ignoring his strong claim of religious discrimination, and for “short-circuiting” the normal appellate process to reach their preferred
result. Legal observers from across the political spectrum agreed with her analysis. Last week, in Murphy v. Collier, the court halted an execution in Texas on similar
grounds. Patrick Murphy, a Buddhist death-row inmate, challenged Texas’s practice of allowing Christian and Muslim clergy in the execution chamber but none from
his faith. Murphy’s case prompted curiosity and speculation among court-watchers. Had some of the conservative justices reversed themselves in response to
Kagan’s public shaming and the near-universal public criticism? The court, as usual, did not say. Justice Brett Kavanaugh alone wrote an opinion to concur with the
move, stating outright that the Constitution “prohibits such denominational discrimination.” But Gorsuch’s majority opinion on Monday dispels any suggestion of
doubt on the justices’ part. It affirmatively cites Ray’s case as precedent and doubles down on the reasoning behind it. “For example, we have vacated a stay
entered by a lower court as an abuse of discretion where the inmate waited to bring an available claim until just 10 days before his scheduled execution for a
murder he had committed 24 years earlier,” Gorsuch wrote as part of his larger critique of execution delays. He then offered a more substantive defense of the
court’s actions in Dunn in a footnote, noting a state statute that allows a “spiritual adviser of the condemned” to “be present at an execution,” but doesn’t specify
the level of access. “The inmate thus had long been on notice,” Gorsuch wrote, “that there was a question whether his adviser would be allowed into the chamber
or required to remain on the other side of the glass.” It’s stunning that five Supreme Court justices would return to a point that has been so readily disproven by one
of their colleagues. The aforementioned statute, Kagan explained back in February, “makes no distinction between persons who may be present within the
execution chamber and those who may enter only the viewing room. And the prison refused to give Ray a copy of its own practices and procedures (which would
have made that distinction clear). So there is no reason Ray should have known, prior to January 23, that his imam would be granted less access than the Christian
chaplain to the execution chamber.” The Roberts Court’s support for the death penalty is not out of step with public opinion: a majority of Americans support it,
too. But in
their zeal to keep capital punishment running, the justices are increasingly twisting themselves
into absurdities. Death-row prisoners with rare medical conditions have to overcome impossible legal hurdles to avoid drowning in their own blood. Those
with religious-freedom claims must act with superhuman perceptiveness or else be faulted by a merciless court on procedural grounds. This is a dangerous path to
trod. The
Supreme Court’s legitimacy is grounded in the idea that the Constitution is more than
whatever five justices happen to think it means at any given time. The post-Kennedy court’s approach
to capital punishment suggests otherwise. The Eighth Amendment now seems to say whatever the
court’s conservative majority think it says— any interpretation will do, as long as it keeps execution
chambers running. That attitude is more corrosive to the court’s integrity than any political maneuver
could ever be.

Firm liberal opposition prevents the Court from shredding democracy

Wilentz 18 --- Professor of the American Revolutionary Era at Princeton (10/9/18, Sean, “How Can
Progressives Stand Up to Kavanaugh and Trumpism? The legitimacy of yet another government branch
is under attack,” https://www.rollingstone.com/politics/politics-features/kavanaugh-confirmation-
effects-735109/, accessed on 12/13/18, JMP)
The confirmation of Brett Kavanaugh to the Supreme Court has capped the most brutal partisan judicial campaign in American history. For 40
years, movement conservatives plotted tirelessly and spent untold millions to install a solid hard-right majority on the court. Checked by the
four appointments made by Bill Clinton and Barack Obama — and nearly undone by the sudden death of Justice Antonin Scalia — the
Republicans would stop at nothing, including blocking the nomination of the moderate Merrick Garland by thwarting a constitutional process.
On Saturday, they finally won by ramming through the appointment of a long-time GOP operative and conspiracy-monger who would save his
nomination by brazenly lying to the world under oath about details large (not knowing about Deborah Ramirez’s allegations) and small

Kavanaugh’s confirmation is and

(boofing? the devil’s triangle?) and doing so with a smug and angry smirk. Still, terrible as

likely will continue to be for the Constitution and the American people, there may be a saving grace or two, but only if the

Democrats can learn the right lessons and then fight as fiercely and tirelessly as the right wing has for these
many years. Let no one mistake the enormity of what’s just happened. Kavanaugh’s nasty role in the unconstitutional, partisan drive to remove
President Clinton; his covered-up actions regarding both torture and controversial judicial nominations while serving in the George W. Bush
White House; and his evident lack of truthfulness in previous sworn testimony to the Senate were enough to raise serious questions about his
integrity. The ideological rigidity of his positions on the Court of Appeals raised further serious questions about his neutrality and open-
mindedness. But those were grounds for opposition, not outright disqualification. It was his performance in response to the charges of Dr.
Christine Blasey Ford that ought to have been disqualifying, as retired Justice John Paul Stevens (an old-school Republican) observed just prior
to the confirmation. I’ve heard it said on the public airwaves and in conversations with friends that Kavanaugh had every right to be angry, even
furious, after being hit at the last minute with uncorroborated charges of committing a filthy and violent crime. But that argument only
amplifies why Kavanaugh is unfit for the court. Let’s hold aside for a minute that Dr. Ford’s charges were, in fact, strongly corroborated, not
least by what she’d been telling intimates and therapists for years before Kavanaugh’s nomination. Let’s even assume, for the sake of
argument, that Kavanaugh had nothing to do with any of the things Dr. Ford and the other two women claimed he did. Here would be an acid
test of Kavanaugh’s temperament and suitability for the court, dealing with unfair charges that threatened his reputation — but by that
standard, the standard invoked by his strongest defenders, he flunked miserably. Since the nation’s founding, Americans have expected all
members of the judiciary, above all the justices on the Supreme Court, to be able to hold their emotions at least reasonably in check — in their
rulings, in their other writings and especially in their public pronouncements. We don’t expect them to be saints, but we do expect them to at
least be better than most of the rest of us: That’s one reason we elevate them to the highest court. We don’t expect them to be wishy-washy,
or to hold back one whit in arguing their interpretations of the law, but we do expect them to make their arguments reasonably, without rancor
and without obviously closed-minded partisan allegiances. That ability to rise above the fray, the personal fray as well as the partisan,
constitutes a large part of what’s meant by judicial temperament. It’s what gives the court its standing as disinterested and impartial, even in
the most trying and embittered circumstances. Clarence Thomas managed to show such a temperament in 1991 when, offended and even
seething at Anita Hill’s charges, he remained in command of himself and never crossed the line into gratuitous and insulting displays of fury.
Kavanaugh instead put on a calculated, unhinged performance. Perhaps he intended to intimidate the Democrats on the Judiciary Committee,
turning the tables after Dr. Ford’s powerful testimony. Perhaps he intended to whip up support among President Trump’s already angry and
resentful supporters. But in doing so, he acted, in his moment of truth, precisely in the way that the nation’s founders warned against as a
threat to national comity and even-handed government. He lashed out at the Democratic Party and cooked up wild conspiracy theories to
explain what he called his plight. He scorned and derided members of the Senate exactly as a trash-talking bully would. He blatantly lied about
things he didn’t have to lie about, and practically dared anyone to do anything about it. Yet Mitch McConnell and the rest of the radicalized
GOP would not let anything as trivial as historically disqualifying behavior stop them. No, they rejoiced in and encouraged that behavior, then
stifled investigation into Kavanaugh’s lies. With
Kavanaugh now the fifth vote in a 5-to-4 hard-right majority, the court has come
perilously close to losing its legitimacy on any matters even remotely connected to partisan concerns,
ranging from voting rights and campaign-contribution laws to issues concerning women’s reproductive
rights, environmental law, labor law, gun safety, corporate regulation and a long list of other crucial matters on which
the court will certainly rule in the near future. But maybe that loss of legitimacy is not the very worst thing that could have happened. After
Kavanaugh’s performance and his strong-armed confirmation, the
5-to-4 decisions that ensue will at least clarify exactly
what the long-term right-wing campaign has been all about . It’s had nothing to do with restoring the “original intent” of
the framers of the Constitution, which has been transparent mumbo-jumbo propaganda from the start. It’s had nothing to do with reining in
judicial activism. It
has to do with unleashing judicial activism, in the form of judicial attacks on and possible
repeal of fundamental laws as well as court decisions that have checked inequality and injustice, from
the Affordable Care Act back to Roe v. Wade and the Voting Rights Act, and then back even further to the reforms of
the New Deal and Progressive eras. Above all, it is of a piece with a decades-long assault on democratic
institutions that has set the pace for the illiberal counterrevolutions that are now sweeping though
the Western world. As early as the 1950s, American conservatives and reactionaries understood that their plutocratic and racist causes
were doomed unless they took radical measures. It wouldn’t suffice to be the kind of conservative who, as William F. Buckley remarked, “stands
athwart history, yelling Stop.” It would be necessary to bend history to the right-wing will, which required more drastic action. It would require
changing the very structure of American politics and government, taking aim at everyone and everything that stood in the conservatives’ way,
from organized labor, which had become a bulwark of social reform and democratic politics, to the vindication of voting rights that upended
traditional Jim Crow. And the extremists would have to do these things without appearing to violate the Constitution. They would use all of
the legal tools that were available to them to undermine democracy, like gerrymandering; they would adopt scorched-earth strategies and
tactics in Congress and state legislatures, abandoning any pretense of respect; they would scrap the Fairness Doctrine and build dynamos of
hyper-partisan disinformation, above all Fox News; and, crucially, they would
stock the judiciary with ideologues who would
gut existing Great Society and even New Deal legislation and put their seal of approval on new
reactionary triumphs. Trump and Trumpism have been the logical outcomes of this long-standing
attack on our democratic institutions. At a moment when, in the aftermath of Barack Obama’s re-election, mainstream
conservative Republicans looked like they might soften their implacable appeal just a bit, on issues like immigration, Trump commandeered
their base and pursued with a vengeance (and a madcap viciousness) the most extreme reactionary agenda, undoing as much as possible of not
only Obama’s legacy but of the New Deal and Great Society and, atop that, repudiating the liberal democratic international order erected after
World War II. And, coming full circle, those authoritarianregimes — from the right-wing governments in Poland and Hungary
to Duterte in the Philippines, often with the backing of Trump’s great friend Vladimir Putin — have endeavored to build
warm relations with the White House and vice versa, even as the White House trashes relations with the
Western liberal democracies and the international alliances that sustain them . The Kavanaugh
confirmation is a landmark in the American counterrevolution. But in its starkness as well as its profound
consequences — and by awakening us to the full dimensions of the counterrevolution — it can be a source of
resolve, not despair. This is not the first time in American history where a reactionary minority has used the instruments of democracy
to gain power over the entire national government. The Slave Power of the pre-Civil War years did precisely that, giving a tiny minority of
southern slaveholders and their supporters a hammerlock on the White House, the Congress and the Supreme Court. Nor
is the newly
revised John Roberts Supreme Court the first high court in our history with a clearly reactionary agenda. The Roger
Brooke Taney court of the 1850s, infamous for its Dred Scott decision in 1857, was dominated by partisan,
proslavery justices; Abraham Lincoln (who didn’t actually dispute the court’s legitimacy as others did) was moved to
repudiate the Scott ruling as “based on assumed historical facts which are not really true,” and basically
vowed to appoint a new court. Eighty years later, Franklin Delano Roosevelt, trying to advance the New Deal, faced a Supreme Court that, in
one commentator’s view, had “convinced even the most reverent that five stubborn old men had planted themselves squarely in the path of
progress.” Two generations of modern-day liberals and progressives , though, having come of age during the
very different era of the Earl Warren court and its immediate successors, have grown accustomed to
turning to the courts to expand civil and social rights , beginning with the landmark Brown v. Board of Education ruling in
1954. Even as the courts grew more conservative during the Reagan years and after, liberals and progressives
looked to the courts to achieve victories on various fronts, most recently over gay marriage. An ever-growing
downside of that strategy, though, was that liberal causes over the years may have grown more adept at
designing legal strategies than in building mass support with the electorate. This reliance on judges
helped secure the perception, endlessly drummed up by conservatives, that liberals were out-of-touch elitists who
wanted to impose their will on the people through the courts . If nothing else, the Kavanaugh confirmation
makes it clear that those days are over – that until and unless Democrats can do something about it, the federal
judiciary will be the enemy of the will of the American majority on numerous crucial issues. And what can
the Democrats do? First, obviously, we need to vote Trump out while winning solid legislative majorities, not just in the House and Senate but
in the governors’ mansions and state legislatures where so much of the assault on democratic institutions has taken place. But what then? How
can Democrats undo the damage done to the federal courts over the past 35 years and ensure that their reforms will not be killed outright by
the ideologically rigid judges and justices appointed since the days of Ronald Reagan, and being appointed at an unprecedented rate by Trump?
We can start doing it by, for once, playing for keeps and reforming the Supreme Court — not just by naming non-reactionaries to the bench, but
by restructuring the court itself, as a growing number of commentators have suggested. The Constitution does not dictate that the court consist
of nine justices. Originally, the court had six members, a chief justice and five associates; Congress then enlarged it, first to seven and then to a
high of 10 members. In 1866, in order to thwart the racist president Andrew Johnson, Congress knocked the number down to nine. And in
1937, FDR tried to persuade Congress to allow the appointment of new justices to a maximum of 15. Republicans squealed at what they called
Roosevelt’s court packing, and there was a public backlash. But under FDR’s threat, the existing court backed off of its reactionary stance and
stopped killing New Deal reforms. Should the current Supreme Court prove illegitimate — its majority tainted by the Merrick Garland outrage,
the Kavanaugh bullying and the questionable legitimacy of the entire Trump presidency — and, as seems likely, the court starts striking down,
in a string of 5-to-4 decisions, everything from Roe v. Wade to what remains of the New Deal’s National Labor Relations Act, Democrats
ought to fight back with everything we’ve got, and pledge to the American people that we will do
what FDR threatened to do and break the reactionary majority . We would do well to make that pledge as soon as the
first 5-to-4 decision comes down. If that happens, and if the Democrats succeed, the Kavanaugh confirmation may
prove a very different kind of turning point than it appears to be today — the moment when the
nation finally awakened and began to destroy the extremist GOP’s subversion of American
democracy. But none of that will matter if the Trump Republicans retain their control of Congress next month. Should the Democrats fail to
win a majority, at the very least in the House, then the American majority will awaken to a true nightmare beyond its worst imaginings.

Democratic backsliding shatters the international order

Kendall-Taylor 16 (Andrea Kendall-Taylor is a deputy national intelligence officer for Russia and
Eurasia at the National Intelligence Council and a nonresident senior associate in the Human Rights
Initiative at the Center for Strategic and International Studies in Washington, D.C., 7-15-16, “How
Democracy’s Decline Would Undermine the International Order”, https://www.csis.org/analysis/how-
democracy%E2%80%99s-decline-would-undermine-international-order, accessed 11-20-18, DFY)
It is rare that policymakers, analysts, and academics agree. But there is an emerging consensus in the world of foreign policy: threats to
the stability of the current international order are rising. The norms, values, laws, and institutions that have undergirded
the international system and governed relationships between nations are being gradually dismantled. The most discussed sources of this
pressure are the ascent of China and other non-Western countries, Russia’s assertive foreign policy, and the
diffusion of power from traditional nation-states to nonstate actors , such as nongovernmental organizations,
multinational corporations, and technology-empowered individuals. Largely missing from these discussions, however, is the specter of
widespread democratic decline. Rising challenges to democratic governance across the globe are a
major strain on the international system, but they receive far less attention in discussions of the shifting
world order. In the 70 years since the end of World War II, the United States has fostered a global order dominated
by states that are liberal, capitalist, and democratic. The United States has promoted the spread of
democracy to strengthen global norms and rules that constitute the foundation of our current
international system. However, despite the steady rise of democracy since the end of the Cold War, over the last 10 years we have seen
dramatic reversals in respect for democratic principles across the globe. A 2015 Freedom House report stated that the “acceptance of
democracy as the world’s dominant form of government—and of an international system built on democratic ideals—is under greater threat
than at any point in the last 25 years.” Although the number of democracies in the world is at an all-time high,
there are a number of key trends that are working to undermine democracy. The rollback of democracy
in a few influential states or even in a number of less consequential ones would almost certainly accelerate
meaningful changes in today’s global order. Democratic decline would weaken U.S. partnerships and erode an important
foundation for U.S. cooperation abroad. Research demonstrates that domestic politics are a key determinant of the
international behavior of states. In particular, democracies are more likely to form alliances and
cooperate more fully with other democracies than with autocracies. Similarly, authoritarian countries have established
mechanisms for cooperation and sharing of “worst practices.” An increase in authoritarian countries , then, would provide a
broader platform for coordination that could enable these countries to overcome their divergent histories,
values, and interests—factors that are frequently cited as obstacles to the formation of a cohesive challenge to
the U.S.-led international system. Recent examples support the empirical data. Democratic backsliding in Hungary
and the hardening of Egypt’s autocracy under Abdel Fattah el-Sisi have led to enhanced relations between these
countries and Russia. Likewise, democratic decline in Bangladesh has led Sheikh Hasina Wazed and her ruling Awami
League to seek closer relations with China and Russia , in part to mitigate Western pressure and bolster the regime’s domestic
standing. Although none of these burgeoning relationships has developed into a highly unified partnership, democratic backsliding in
these countries has provided a basis for cooperation where it did not previously exist. And while the United
States certainly finds common cause with authoritarian partners on specific issues, the depth and reliability of such cooperation is
limited. Consequently, further democratic decline could seriously compromise the United States’ ability to
form the kinds of deep partnerships that will be required to confront today’s increasingly complex
challenges. Global issues such as climate change, migration, and violent extremism demand the coordination
and cooperation that democratic backsliding would put in peril. Put simply, the United States is a less
effective and influential actor if it loses its ability to rely on its partnerships with other democratic
nations. A slide toward authoritarianism could also challenge the current global order by diluting U.S.
influence in critical international institution s, including the United Nations , the World Bank, and the International
Monetary Fund (IMF). Democratic decline would weaken Western efforts within these institutions to advance
issues such as Internet freedom and the responsibility to protect. In the case of Internet governance, for example,
Western democracies support an open, largely private, global Internet. Autocracies, in contrast, promote state control over the Internet,
including laws and other mechanisms that facilitate their ability to censor and persecute dissidents. Already many autocracies, including
Belarus, China, Iran, and Zimbabwe, have coalesced in the “Likeminded Group of Developing Countries” within the United Nations to advocate
their interests. Within the IMF and World Bank, autocracies—along with other developing nations—seek to water down
conditionality or the reforms that lenders require in exchange for financial support. If successful, diminished
conditionality would enfeeble an important incentive for governance reforms. In a more extreme scenario, the rising influence of
autocracies could enable these countries to bypass the IMF and World Bank all together. For example, the
Chinese-created Asian Infrastructure and Investment Bank and the BRICS Bank—which includes Russia, China, and an increasingly authoritarian
South Africa—provide countries with the potential to bypass existing global financial institutions when it suits their interests.
Authoritarian-led alternatives pose the risk that global economic governance will become fragmented
and less effective. Violence and instability would also likely increase if more democracies give way to
autocracy. International relations literature tells us that democracies are less likely to fight wars against other democracies, suggesting that
interstate wars would rise as the number of democracies declines. Moreover, within countries that are
already autocratic, additional movement away from democracy, or an “authoritarian hardening,” would
increase global instability. Highly repressive autocracies are the most likely to experience state failure, as was
the case in the Central African Republic, Libya, Somalia, Syria, and Yemen. In this way, democratic decline
would significantly strain the international order because rising levels of instability would exceed the
West’s ability to respond to the tremendous costs of peacekeeping, humanitarian assistance, and
refugee flows. Finally, widespread democratic decline would contribute to rising anti-U.S. sentiment that
could fuel a global order that is increasingly antagonistic to the United States and its values. Most autocracies
are highly suspicious of U.S. intentions and view the creation of an external enemy as an effective means for boosting their own public support.
Russian president Vladimir Putin, Venezuelan president Nicolas Maduro, and Bolivian president Evo Morales regularly accuse the United States
of fomenting instability and supporting regime change. This vilification of the United States is a convenient way of
distracting their publics from regime shortcomings and fostering public support for strongman tactics.
Since 9/11, and particularly in the wake of the Arab Spring, Western enthusiasm for democracy support has waned. Rising levels of
instability, including in Ukraine and the Middle East, fragile governance in Afghanistan and Iraq, and
sustained threats from terrorist groups such as ISIL have increased Western focus on security and
stability. U.S. preoccupation with intelligence sharing, basing and overflight rights, along with the perception that autocracy equates with
stability, are trumping democracy and human rights considerations. While rising levels of global instability explain part of
Washington’s shift from an historical commitment to democracy, the nature of the policy process itself is a less appreciated factor. Policy
discussions tend to occur on a country-by-country basis—leading to choices that weigh the costs and benefits of democracy support within the
confines of a single country. From this perspective, the benefits of counterterrorism cooperation or access to natural resources are regularly
judged to outweigh the perceived costs of supporting human rights. A serious problem arises, however, when this process is replicated across
countries. The bilateral focus rarely incorporates the risks to the U.S.-led global order that arise from widespread democratic decline across
multiple countries. Many of the threats to the current global order, such as China’s rise or the diffusion of power, are driven by factors that the
United States and West more generally have little leverage to influence or control. Democracy, however, is
an area where
Western actions can affect outcomes. Factoring in the risks that arise from a global democratic decline
into policy discussions is a vital step to building a comprehensive approach to democracy support.
Bringing this perspective to the table may not lead to dramatic shifts in foreign policy, but it would
ensure that we are having the right conversation.
ON
 1nc – framing
Existential risks outweigh
Ord 20. Toby Ord, Senior Research Fellow in Philosophy at Oxford University & world-renowned risk-assessment
expert who’s advised the World Health Organization, the World Bank, the World Economic Forum, the US National
Intelligence Council and the UK Prime Minister’s Office. (3-3-2020, “The Precipice: Existential Risk and the Future of
Humanity,” Hachette Book Group & Bloomsbury Publishing,
https://www.google.com/books/edition/The_Precipice/3aSiDwAAQBAJ?hl=en&gbpv=0, Google Books)//pacc + AM
*bracketed for clarity*

UNDERSTANDING EXISTENTIAL RISK

Humanity’s future is ripe with possibility. We have achieved a rich understanding of the world we inhabit
and a level of health and prosperity of which our ancestors could only dream . We have begun to explore the other
worlds in the heavens above us, and to create virtual worlds completely beyond our ancestors’ comprehension. We know of almost no
limits to what we might ultimately achieve. Human extinction would foreclose our future. It would destroy
our potential. It would eliminate all possibilities but one: a world bereft [lacking] of human flourishing.
Extinction would bring about this failed world and lock it in forever—there would be no coming back. The philosopher Nick
Bostrom showed that extinction is not the only way this could happen: there are other catastrophic outcomes in which we lose not just
the present, but all our potential for the future. Consider a world in ruins: an immense catastrophe has triggered a global
collapse of civilization, reducing humanity to a pre-agricultural state. During this catastrophe, the Earth’s
environment was damaged so severely that it has become impossible for the survivors to ever reestablish
civilization. Even if such a catastrophe did not cause our extinction, it would have a similar effect on our future. The
vast realm of futures currently open to us would have collapsed to a narrow range of meager options.
We would have a failed world with no way back. Or consider a world in chains: in a future reminiscent of George Orwell’s
Nineteen Eighty-Four, the entire world has become locked under the rule of an oppressive totalitarian regime, determined to perpetuate itself.
Through powerful, technologically enabled indoctrination, surveillance and enforcement, it has become impossible for even a handful of
dissidents to find each other, let alone stage an uprising. With everyone on Earth living under such rule, the regime is stable from threats,
internal and external. If such a regime could be maintained indefinitely, then descent into this totalitarian future would also have much in
common with extinction: just a narrow range of terrible futures remaining, and no way out. [FIGURE 2.1 Omitted] Following Bostrom, I
shall call these “existential catastrophes,” defining them as follows: 3 An existential catastrophe is the destruction of humanity’s longterm
potential. Anexistential risk is a risk that threatens the destruction of humanity’s longterm potential.
These definitions capture the idea that the outcome of an existential catastrophe is both dismal and
irrevocable. We will not just fail to fulfill our potential, but this very potential itself will be permanently lost.
While I want to keep the official definitions succinct, there are several areas that warrant clarification. First, I am understanding humanity’s
longterm potential in terms of the set of all possible futures that remain open to us. 4 This is an expansive idea of possibility, including
everything that humanity could eventually achieve, even if we have yet to invent the means of achieving
it. 5 But it follows that while our choices can lock things in, closing off possibilities, they can’t open up new ones. So any reduction in
humanity’s potential should be understood as permanent. The challenge of our time is to preserve our vast
potential, and to protect it against the risk of future destruction. The ultimate purpose is to allow our descendants to fulfill
our potential, realizing one of the best possible futures open to us. While it may seem abstract at this scale, this is
really a familiar idea that we encounter every day. Consider a child with high longterm potential: with futures open to her in which she leads a
great life. It is important that her potential is preserved: that her best futures aren’t cut off due to accident, trauma or lack of education. It is
important that her potential is protected: that we build in safeguards to make such a loss of potential extremely unlikely. And it is important
that she ultimately fulfills her potential: that she ends up taking one of the best paths open to her. So too for humanity. Existential risks
threaten the destruction of humanity’s potential. This includes cases where this destruction is complete (such as extinction) and where it is
nearly complete, such as a permanent collapse of civilization in which the possibility for some very minor types of flourishing remain, or where
there remains some remote chance of recovery. 6 I
leave the thresholds vague, but it should be understood that in
any existential catastrophe the greater part of our potential is gone and very little remains. Second, my
focus on humanity in the definitions is not supposed to exclude considerations of the value of the
environment, other animals, successors to Homo sapiens, or creatures elsewhere in the cosmos. It is not that I think only humans count.
Instead, it is that humans are the only beings we know of that are responsive to moral reasons and moral
argument—the beings who can examine the world and decide to do what is best. If we fail, that upward force, that capacity to
push toward what is best or what is just, will vanish from the world. Our potential is a matter of what humanity
can achieve through the combined actions of each and every human. The value of our actions will stem in part from
what we do to and for humans, but it will depend on the effects of our actions on non-humans too. If we somehow give rise to new kinds of
moral agents in the future, the term “humanity” in my definition should be taken to include them. My focus on humanity prevents threats to a
single country or culture from counting as existential risks. There is a similar term that gets used this way—when people say that something is
“an existential threat to this country.” Setting aside the fact that these claims are usually hyperbole, they are expressing a similar idea: that
something threatens to permanently destroy the longterm potential of a country or culture. Third, any notion of risk
must involve
some kind of probability. What kind is involved in existential risk? Understanding the probability in terms of objective
long-run frequencies won’t work, as the existential catastrophes we are concerned with can only ever happen
once, and will always be unprecedented until the moment it is too late. We can’t say the probability of
an existential catastrophe is precisely zero just because it hasn’t happened yet. Situations like these require an
evidential sense of probability, which describes the appropriate degree of belief we should have on the
basis of the available information. This is the familiar type of probability used in courtrooms, banks and betting shops. When I
speak of the probability of an existential catastrophe, I will mean the credence humanity should have that it will occur, in
light of our best evidence.9 There are many utterly terrible outcomes that do not count as existential catastrophes. One way this
could happen is if there were no single precipitous event, but a multitude of smaller failures. This is because I take on the usual sense of
catastrophe as a single, decisive event, rather than any combination of events that is bad in sum. If we were to squander our future simply by
continually treating each other badly, or by never getting around to doing anything great, this could be just as bad an outcome but wouldn’t
have come about via a catastrophe. Alternatively, there might be a single catastrophe, but one that leaves open some way for humanity to
eventually recover. From our own vantage, looking out to the next few generations, this may appear equally bleak. But a thousand years hence
it may be considered just one of several dark episodes in the human story. A
true existential catastrophe must by its very
nature be the decisive moment of human history—the point where we failed . Even catastrophes large enough to
bring about the global collapse of civilization may fall short of being existential catastrophes. While colloquially referred to as “the end of the
world,” a global collapse of civilization need not be the end of the human story. It has the required severity, but may not be permanent or
irrevocable. In this book, I shall use the term civilization collapse quite literally, to refer to an outcome where humanity across the globe loses
civilization (at least temporarily), being reduced to a pre-agricultural way of life. The term is often used loosely to refer merely to a massive
breakdown of order, the loss of modern technology, or an end to our culture. But I am talking about a world without writing, cities, law, or any
of the other trappings of civilization. This would be a very severe disaster and extremely hard to trigger. For all the historical pressures on
civilizations, never once has this happened— not even on the scale of a continent.10 The fact that Europe survived losing 25 to 50 percent of its
population in the Black Death, while keeping civilization firmly intact, suggests that triggering the collapse of civilization would require more
than 50 percent fatality in every region of the world.11 Even if civilization did collapse, it is likely that it could be reestablished. As we have
seen, civilization has already been independently established at least seven times by isolated peoples.12 While one might think resource
depletion could make this harder, it is more likely that it has become substantially easier. Most disasters short of human extinction would leave
our domesticated animals and plants, as well as copious material resources in the ruins of our cities—it is much easier to re-forge iron from old
railings than to smelt it from ore. Even expendable resources such as coal would be much easier to access, via abandoned reserves and mines,
than they ever were in the eighteenth century. 13 Moreover, evidence that civilization is possible, and the tools and knowledge to help rebuild,
would be scattered across the world. There are, however, two close connections between the collapse of civilization and existential risk. First, a
collapse would count as an existential catastrophe if it were unrecoverable. For example, it is conceivable that some form of extreme climate
change or engineered plague might make the planet so inhospitable that humanity would be irrevocably reduced to scattered foragers.14 And
second, a global collapse of civilization could increase the chance of extinction, by leaving us more vulnerable to subsequent catastrophe. One
way a collapse could lead to extinction is if the population of the largest remaining group fell below the minimum viable population—the level
needed for a population to survive. There is no precise figure for this, as it is usually defined probabilistically and depends on many details of
the situation: where the population is, what technology they have access to, the sort of catastrophe they have suffered. Estimates range from
hundreds of people up to tens of thousands.15 If a catastrophe directly reduces human population to below these levels, it will be more useful
to classify it as a direct extinction event, rather than an unrecoverable collapse. And I expect that this will be one of the more common
pathways to extinction. We rarely think seriously about risks to humanity’s entire potential . We encounter them
mostly in action films, where our emotional reactions are dulled by their overuse as an easy way to heighten the drama.16 Or we see them in
online lists of “ten ways the world could end,” aimed primarily to thrill and entertain. Since the end of the Cold War, we rarely encounter sober
discussions by our leading thinkers on what extinction would mean for us, our cultures or humanity. 17 And so in casual contexts people are
sometimes flippant about the prospect of human extinction. But when a risk is made vivid and credible—when it is clear
that billions of lives and all future generations are actually on the line—the importance of protecting
humanity’s longterm potential is not, for most people, controversial. If we learned that a large asteroid was heading toward
Earth, posing a greater than 10 percent chance of human extinction later this century, there would be little debate about whether to make
serious efforts to build a deflection system, or to ignore the issue and run the risk. To the contrary, responding to the threat would
immediately become one of the world’s top priorities. Thus our lack of concern about these threats is much more to do with
not yet believing that there are such threats, than it is about seriously doubting the immensity of the stakes. Yet it is important to spend a little
while trying to understand more clearly the different sources of this importance. Such an understanding can buttress feeling and inspire action;
it can bring to light new considerations; and it can aid in decisions about how to set our priorities.

Disads are systematically underestimated

Wiener 16 – Jonathan B. Wiener, Law and Public Policy Professor at Duke University, University Fellow
at the Resources for the Future, Past President of the Society for Risk Analysis, the scientific committee
member at the International Risk Governance Council. [The Tragedy of the Uncommons: On the Politics
of Apocalypse, Global Policy, 7(S1): Too Big to Handle: Interdisciplinary Perspectives on the Question of
Why Societies Ignore Looming Disasters, 6-6-16, https://onlinelibrary.wiley.com/doi/10.1111/1758-
5899.12319]//BPS

My point is not that

rare global catastrophic ‘uncommons’ risks outweigh other risks. That depends on their probability
and consequence compared to other risks, and the appropriate response to each will depend on the merits of
the policy options. And I do not mean to say that uncommons risks are now (or should be) replacing or superseding commons risks, or
that the two types necessarily proceed in sequence through time. Both types of tragedies may be occurring at the same time in different
settings, or combined in the same setting. For example, extreme climate change may exhibit both a tragedy of the commons (free‐riding by
multiple actors who would share the benefits of abatement, hence a need for collective action) and a tragedy of the uncommons (rare extreme
risk of global catastrophe that remains underappreciated, regardless of the number of actors). Nor are uncommons risks an inevitable result of
new technology. The main point here is that tragedies of the uncommons are a distinct problem from tragedies of the commons, with distinct
causes and potential solutions. 2 The tragedy of neglect Tragedies of the commons arise when multiple rational actors, perceiving their options
and individual payoffs, choose actions that are collectively undesirable (Hardin, 1968, p. 1244; Barrett, 2007). Tragedies of the uncommons, by
contrast, can arise when even one actor neglects to appreciate a looming risk or mass damage, and mismanages the risk. Research in
psychology and political economy indicates several reasons why extreme mega‐catastrophic risks are
systematically neglected. Here I seek to bring greater clarity to the causes of rare catastrophic uncommons risks by identifying three
main sources. Unavailability One important source of the neglect of uncommons risks is their very rare or ultra‐low‐frequency character.
Extensive research shows that people exhibit heightened concern about risks that are ‘available’ to the
mind, both in the sense of awareness and affect – the ability to envision and feel the importance of the event. These are often recent, visible,
salient events that trigger strong visual images (Kahneman, Slovic and Tversky, 1982; Kuran and Sunstein, 1999; Weber, 2006; Pinker, 2011, p.
220). Such ‘available’ risks are then seen as more worrisome for the future . The ‘availability heuristic’ helps explain why
so much regulation is crisis‐driven, adopted only after a crisis event spurs public outcry and mobilizes collective political action to overcome
interest group opposition (Percival, 1998; Kuran and Sunstein, 1999; Birkland, 2006; Repetto, 2006; Wiener and Richman, 2010; Wuthnow,
2010; Barrett, 2016; Balleisen et al., 2016). A standard depiction of this phenomenon is that the public is more concerned about unusual
dramatic risks, and less concerned about familiar routine risks, than are experts who take a quantitative approach combining likelihood and
consequence (Breyer, 1993; Sunstein, 2005). This relationship is illustrated conceptually in Figure 1. The
‘availability heuristic’ helps
explain why people appear to express greater concern about airplane accidents than automobile accidents,
even though the statistical risk of airplane accidents (per km traveled, and possibly per trip) is lower: airplane accidents
are shocking and dramatic and make news headlines, while automobile accidents are routine and familiar and become ordinary.2 Similarly,
public concern may be greater regarding coal mining accidents than the (larger) public health risks from coal combustion air pollution, and
regarding ebola than the (larger) toll from malaria. Figure 1, ‘Availability’ in expert vs public perceptions of risk, omitted. This difference in
perspectives, depicted in Figure 1, also corresponds to many debates over the proper role of expert vs public appraisal of risk.
Early studies showed significant differences between public vs expert appraisals of risk (Slovic, 1987; EPA, 1987; EPA, 1990). Some argued that
these differences occur because the public makes errors about risks, such as exaggerating concern over unusual risks, while experts are more
accurate, and that therefore policy should be based more on experts’ views in order to avoid overregulating small (but unusual) risks while
underregulating large (but routine) risks (Breyer, 1993). Others argued that public appraisals were based not on factual errors but on value
choices, such as preferring to avoid involuntary risks, which should govern public policy (Shrader‐Frechette, 1991). Still others argued that
public values about risk might reflect prejudice and bias and should not necessarily be the direct basis for public policy (Cross, 1997). A typical
assumption in these debates was that the public favored more regulation (at least of unusual risks) and the experts favored less. Thus this
relationship might suggest that the public would also be more worried than experts about rare ‘uncommons’ risks. Indeed, some
commenters have suggested that the public exhibits exaggerated paranoia about remote risks, overstating the
likelihood and calling for precautionary policies that would be (in experts’ views) an overreaction (Efron, 1984; Wildavsky, 1997; Mazur, 2004).
This may be the case for unusual but experienced events that are ‘available’ in the public mind and
induce strong feelings such as dread; in response to experienced calamities, people are often highly motivated to take action,
even if that action is ineffective or excessively costly (Wuthnow, 2010). For example, public reactions to the tragic 9/11 terrorist attacks
included shifting from flying to driving with potentially greater injury risk (Deonandan and Backwell, 2011; Gaissmaier and Gigerenzer, 2012),
and supporting two wars that were costly in money and lives (Stern and Wiener, 2008; Wuthnow, 2010). But with regard to ultra‐
low‐frequency catastrophic risks, events that perhaps only occur once in eons, and hence are not
experienced, it is not the case that the public is calling for overreaction while experts urge calm (Weber, 2006). Rather, it is experts,
applying their quantitative methods, who are warning about future rare extreme risks such as abrupt climate change, artificial
intelligence and large asteroid collisions (Posner, 2004; Bostrom and Cirkovic, 2008; Weitzman, 2009), while the public seems less
interested if it takes these extreme risks seriously at all. My conjecture, supported by the evidence cited above (but worth
further study and refinement), is that ‘tragedies of the uncommons’ add a twist to the typical debate about public vs
expert risk appraisal. Adding ultra‐low‐frequency (not experienced) risks to the picture shows that it is not the case that the public always
favors more regulation and experts less. For both routine risks and ultra‐rare risks, it is often experts who favor more regulation than the public.
My conjecture of this twist in relative concern is depicted conceptually in Figure 2. Here, public concern is higher than experts’ concern for
unusual and experienced (hence available) risks, in the middle region of the frequency dimension; but public concern is lower than experts’
concern both for routine familiar risks, and for ultra‐low‐frequency rare extreme risks. Figure 2, ‘Unavailability’ of extreme risks in expert vs
public perceptions of risk, omitted. The reason for this reversal in relative appraisal at the very low end of the frequency spectrum is again
related to the ‘availability’ heuristic. It
predicts that people become concerned about recent, visible, salient events
that trigger strong feelings. But the rare mega‐catastrophic risks are not recent, visible or salient. They
have not been experienced, so the trigger for mental availability is lacking (Weber, 2006). Describing such
rare risks, such as in a speech or in an opinion survey, is less effective in stimulating public reaction than an
experienced risk (Weber, 2006). Relatedly, a longer time interval without experiencing a recurrence of a damaging event can lead to
complacency (neglect due to unavailability) and increased vulnerability to a recurrence (which can then trigger new availability and alarm)
(Turner, 1976). Although people may envision humans going extinct at some point centuries in the future
(Tonn, 2009), and express pessimism about the future direction of humanity (Randle and Eckersley, 2015), that viewpoint may not
translate into concern about specific risks warranting policy responses in the present (nor did these studies
compare public with expert perceptions). Movies depicting rare unexperienced risks (e.g. the large asteroid collision in Deep Impact or
Armageddon ; alien pathogens in The Andromeda Strain ; the rise of the machines in The Matrix ) may be viewed as humorous entertainment
and even elicit laughter – though perhaps that is nervous laughter rather than neglect. There is some evidence that those who watched the film
The Day After Tomorrow were more concerned about climate change afterward (Leiserowitz, 2004), though the audience was not randomly
selected and may have been more concerned going in. It is unclear whether films can effectively ‘synthesize availability’; perhaps new
techniques of virtual reality can do better, but they still may not call public attention to the most important uncommons risks, nor to the best
policy responses. The role of experience in triggering the availability heuristic, and raising concern about available events in public appraisals of
future risks, may be rooted in the ways the brain processes information. Humans process immediate risk stimuli in part through the amygdala,
which manages fear and the instant choice to flee or fight (Ledoux, 2007). At the same time, using the prefrontal cortex, humans are able to
envision hypothetical future scenarios and analyze choices among them (Gilbert and Wilson, 2007). These two neural pathways are sometimes
dubbed ‘system 1’ and ‘system 2’ (Kahneman, 2011). One possibility is that the faster processing of system 1 is generating fear before the
slower processing of system 2 can develop a more analytic appraisal; but the two systems may also be interacting, and system 2 can also
generate fear after its analysis. Even if system 2 analysis is applied, the
prefrontal cortex, when it envisions hypothetical
scenarios of the future, appears to draw on experienced events (from the brain's memory centers) in order to
construct a collage or pastiche of the future – a ‘prospection’ (Gilbert and Wilson, 2007; Schachter et al., 2008). Thus
the human brain typically relies on ‘available’ experienced events even for its analytic prospection about
future scenarios.3 If so, the ‘unavailability’ of rare extreme risks contributes importantly to their being
neglected in public concern. A mid‐level example is the increase in parents seeking exemptions from vaccines for their children: past
success in controlling a disease may create unavailability and neglect (though subsequent disease outbreaks may revive concern). A more
extreme example is that a very large asteroid (> 10 km diameter) has not hit the earth for about 65 million years (Reinhardt et al., 2016),
evidently causing the demise of the dinosaurs and about 75 per cent of all life on earth (a 15 km asteroid hit Chicxulub, off the Yucatan
peninsula of Mexico, and another dubbed Shiva may have hit near the Indian land mass about 40,000 years later (Lerbekmo, 2014)). Smaller
objects hit the earth frequently, and regional damage was caused by the impacts at Tunguska (1908) and Chelyabinsk (2013) (about 19 m in
diameter, see Borovicka et al., 2013). The Chelyabinsk impact prompted calls for increased detection efforts. Early detection enables a longer
lead time to devise new deflection methods. Improved probabilistic analysis indicates that rare asteroid impacts, even < 1000 m diameter, may
be more risky than commonly thought (Reinhardt et al., 2016). The neglect of rare uncommons risks in public psychology
may in turn yield neglect in politics. This is a distinct additional factor on top of others that may also contribute to such neglect, such
as free‐riding (if the problem is also a ‘commons’ problem requiring collective action by multiple actors); short‐term costs vs long‐term benefits
(if the risk would occur in the long‐term future) mismatched with the short‐term election cycles; inattention to the plight of people far away in
other countries and cultures; and others. Individual neglect of rare global catastrophic risk may be compounded by
societal disdain for such warnings; despite the prevalence of apocalyptic scenarios in religion and literature (Lisboa, 2011), the
person warning that ‘the end is near’ is often viewed as insane (and might be). That most doomsday stories are
unfounded, though, does not mean that all rare catastrophic risks are illusory . Mass numbing A second source of
the neglect of uncommons risks is their large magnitude of impact. It might seem that larger impacts should prompt more, not less,
concern. For experts applying quantitative analytic methods, this appears to be the case. But for the general public, a surprising finding
of recent psychology research is that a large or ‘mass’ impact yields ‘numbing’ (Slovic, 2007; Slovic et al., 2013). In
these studies, people are asked in opinion polls (stated preference surveys) their willingness to pay (WTP) to save different numbers of other
people from some risk. One might expect people to offer more money to save more people (a linear relationship, with each life valued the
same), or even an increasing amount to reflect the greater value of averting a catastrophe (supra‐linear). Or, one might expect people to offer
amounts that rise but at a declining rate, such as if willingness to pay (WTP) reaches some plateau when the risk becomes large (diminishing
marginal value of life saving). (In stated preference surveys, ability to pay may not be a strong constraint on responses.) These relationships are
illustrated in Figure 3. Figure 3, ‘Mass numbing’ in valuation of risk, omitted. Surprisingly, Slovic recounts several studies finding that none of
these depicts public attitudes; rather, in these studies, willingness to pay rises at first, but then as the number of people at risk grows,
willingness to pay declines – not just marginally (as in the plateau relationship) but absolutely, to levels below the amount people were willing
to pay to save one or two individuals. And the number of people at which the stated willingness to pay peaks and begins to decline is not very
high – sometimes fewer than ten people at risk. Slovic (2007) terms this ‘psychic numbing’ or ‘mass numbing’, and argues that it
helps explain public neglect of genocide and other mass calamities (for further evidence, see Rheinberger and Treich, 2015). There is
also evidence that it occurs for valuing nonhuman life (environmental conservation) (Markowitz et al., 2013). Hence the mass
catastrophic impacts of uncommons risks may face undervaluation. One reason for this response may be feelings of personal
inefficacy (Vastfjall et al., 2015): as the number of lives rises, respondents may feel overwhelmed and doubt that
their contribution can really make a difference to such a large problem. The ‘end of the world’ may be
too much for people to act on; it may feel disabling rather than mobilizing. Relatedly, people may have a
limited capacity to worry (Weber, 2006), and thus may deflect problems so large that they would consume all
of that capacity. A second reason for mass numbing may be the stronger public response to an identified individual – such as an identified
victim or an identified villain. The public may be eager to save the baby who fell down the well, or the refugee child
drowned on the beach, or the three whales stuck in the ice, but less willing to save a large and unidentified
population of victims (Kogut and Ritov, 2005; Small and Loewenstein, 2005; Small, Loewenstein and Slovic, 2007). Kogut and Ritov
(2005) and Slovic (2007) report that WTP to save a single victim also increases if the victim is described in more detail, and even more if the
victim is given a face. Vastfjall et al. (2014) find that compassion is highest for a single child, and may decline after just one. Slovic (2007, p.79)
quotes Mother Teresa: ‘If I look at the mass I will never act. If I look at the one, I will.’ These studies explain why charitable organizations try to
feature a ‘poster child’ for a broader cause. But extreme mega‐catastrophic risks typically lack a single identified
individual, unless rendered in fiction (e.g. a movie). The public may also be more eager to combat an identified
villain than a faceless natural disaster or a ubiquitous social problem (Sunstein, 2007, p. 63, on the ‘Goldstein effect’). This
may help explain public outcry at villains highlighted in the news media, such as Osama Bin Laden and Saddam Hussein,
compared with the apparently lesser public outcry regarding tsunamis (Indian Ocean 2006, killing 200,000 people; Japan 2011, killing
20,000 people), global climate change harming large populations, or large asteroids hitting the earth.
Use consequences
Hirschel-Burns 16 - PhD Student in Political Science @ Yale
Danny, In Defense of Consequentialism: A Response to Shadi Hamid," Apr 19,
https://thewideninglens.wordpress.com/2016/04/19/in-defense-of-consequentialism-a-response-to-
shadi-hamid/

My difference of opinion is fundamental: I

believe most US foreign policy to be short-sighted, and
consequentialism, or the weighing of long-term ramifications against the initial intended effect of a particularly intervention to
represent the ideal method of policymaking. Policies cannot solely be judged on intention, due to the
frequency with which good intentions produce negative outcomes, nor can they be judged solely on
initial effects due to the long-running causal chains produced by order-altering things like military
interventions. However, Hamid is right that it is impossible to foresee some ramifications (even if we can see general correlations) of
foreign policy, but he doesn’t apply that standard of doubt consistently across his analysis. Early in the essay, Hamid makes the point that to evaluate the Libyan intervention, it is necessary to compare the current situation with the
counterfactual: what would Libya look like if the US hadn’t intervened. In general, the assertion is correct, but the practice of counterfactuals is tricky. Hamid’s analysis of where the Libyan conflict was at when the US intervened is enlightening, but his conclusion that Libya would likely look like Syria today had the US not intervened is highly questionable. Political prediction,
especially on rare events like mass atrocities or civil wars, is really, really hard. And when you consider all the differences between Libya and Syria (total population, population density, salience of sectarian divides, regime configuration, military capability of opposition, etc.) along with all contingencies that could have occurred in the past four years, it is impossible to say with any
certainty that Libya would bear a resemblance to Syria. Syria is merely a convenient standard of comparison because it’s an ongoing civil war in the Middle East, but saying Libya would be Syria doesn’t actually tell us that much about Libya or the effects of intervention. It’s not that the intervention can’t be justified with counterfactuals, but they need to be more carefully

The central thrust of Hamid’s essay is to deride what he calls consequentialism, or evaluating the efficacy of foreign policy based on events
constructed.

years after the initial intervention in the target location. For Hamid, such an approach is particularly problematic because it a policy cannot be
retroactively deemed a mistake if the limited goal of the intervention is achieved initially. Therefore consequentialism creates an impossibly
high bar for foreign policy decisions: unless a foreign policy results in a peaceful, liberal democracy, than it’s a failure. This is, however, a major
straw man. Certainly there are some critics that would deem the Libyan intervention a failure based on this
standard, but Hamid lumps in those with reasonable concerns that a civil war (likely to continue for many years
based on what we know about civil wars and foreign intervention) at least partially produced by the NATO intervention
will have more negative long-term effects on Libyans than Gaddafi’s intended repression. Worrying
about consequences does not preclude making foreign policy decisions. Recognizing that every decision
has potential positive and negative effects is no more than an accurate framework for analyzing policy.
There are an additional two problems with Hamid’s argument here. First, the dismissal of consequentialism is one of the
central dynamics that leads Western policymakers to struggle with conflict prevention. Short-term
thinking produces short-term solutions. Policymakers become trapped in a vicious circle of continual
crises that overwhelm them and prevent longer-term thinking that could go a long way in preventing
violence. Second, Hamid’s insistence that the initial moral righteousness of an intervention negates any negative effects, is deeply
problematic. As many before me have argued, focusing only on moral imperatives disincentives careful planning and
allows policymakers to wash their hands of responsibility if the situation starts to go south. Evaluating military
interventions isn’t personal morality, because very rarely can doing the right thing in your personal life lead to deaths of thousands of people.
Afghanistan is a valid example. The United States was going after the Taliban in response to 9/11 initially, but the war has had disastrous long-
term effects for the country. It would take quite a bit of chutzpah to declare it a success. Moral
arguments without strategic and
humanitarian (writ large) considerations are also prone to abuse, because liberal interventionists and
neoconservatives aren’t actually that far apart : both believe in the wisdom of Western democracies to improve the world
through military force. Without more consequentialist standards, there’s not a clear line the prevents Iraq-like
decisions. So Hamid’s own argument that Obama being right about Iraq decreases his likelihood he’ll be right about other situations is
undermined by a lack of a standard that allows leaders to tell the difference between the two.

Discussion of ex-risks does not displace focus on structural violence – it allows an

injection of complexity
Barkawi 12 – Professor Politics at the New School for Social Research (Tarak, “Of Camps and Critiques:
A Reply to 'Security, War, Violence'” Millennium - Journal of International Studies, Vol 41 No 1, p 124-
130, SagePub)
A final totalising move in ‘Security, War, Violence’ is the idea that the study of war should be subsumed under the category of ‘violence’. The reasons offered for this
are: violence does not entail a hierarchy in which war is privileged; a focus on violence encourages us to see war in relational terms and makes visible other

kinds of violence besides that of war; and that the analysis of violence somehow enables the disentangling of politics from war and a proper critique of liberal
violence.22 I have no particular objection to the study of violence, and I certainly think there should be more of it in the social sciences. However, why and how this

obviates or subsumes the study of war is obscure to me. Is war not historically significant enough to
justify inquiry into it? War is a more specific category relative to violence in general , referring to reciprocal organised
violence between political entities. I make no claims that the study of war should be privileged over that of other forms of violence. Both the violence of war, and

that of, say, patriarchy, demand scholarly attention, but they are also distinct if related topics requiring different forms of
theorisation and inquiry. As for relationality, the category of war is already inherently relational; one does not need the concept of violence in general to see this. What precisely

distinguishes war from many other kinds of violence, such as genocide or massacre, is that war is a relational form of
violence in which the other side shoots back. This is ultimately the source of war’s generative social
powers, for it is amidst the clash of arms that the truths which define social and political orders are brought into question. A broader focus on violence in
general risks losing this central, distinctive character of the violence of war . Is it really more theoretically or politically
adequate to start referring to the Second World War as an instance of ‘violence’? Equally, while I am all for the analysis of liberal violence, another broad category which would include issues

of ‘structural violence’, I also think we have far from exhausted the subject of liberalism and war, an important area of
inquiry now dominated by the mostly self-serving nostrums of the liberal peace debates. What perhaps is most interesting about Aradau’s remarks on violence is that she assumes we
know what war is. So, for example, she suggests that we attend to a continuum of violence in which war is considered alongside ‘insurrections, revolts, revolutions, insurgencies, rebellions,
seditions, disobediences, riots and uprisings’.23 Apparently, on her understanding, these other things are not war, even though most of them typically involve reciprocal, organised violence.
This is precisely to take as given the IR disciplinary view of ‘real interstate war’ that underlies Correlates of War and other mainstream work. This is the definition of war that I sought to critique
in ‘From War to Security’, a critique Aradau has overlooked. I was posing new questions and possibilities for the study of war, not proffering definitive answers about what war is and what it is
not, or about where and when it starts and ends. It is, I would suggest, Aradau who is most concerned about hierarchy and privilege, particularly in respect of perceived slights to Critical
Security Studies and her demand that any study of war be in dialogue with Critical Security Studies. In this, she overlooks the fact that, conceived another way, with a more holistic vision of the
community of relevant scholars, my article was already an engagement with critical inquiry into security relations. Perhaps it was the opening rhetoric of my article that inspired Aradau’s ire,
my reference to partygoers from Copenhagen and Aberystwyth dancing on graves, or my suggestion that contemporary ‘wider agenda’ security scholars know rather less about the
composition of carrier battle groups than did their traditional predecessors.24 But does anyone seriously doubt that ‘wider agenda’ scholars are less familiar with histories and sociologies of
wars and militaries than were the traditional predecessors, who even so still managed to overlook their significance? These passages were meant to serve a very specific purpose, to
denaturalise our images of the new and old security studies, and to open up the reader to the possibility that, with respect to the study of war, these fields of study share more in common

Neither traditional nor ‘wider agenda’ security studies are centrally

than is conceivable within the current terms of debate.

interested in war. Given the significance of war in the human past and present, and the dire state of
the study of war in the Anglo-American academy, this seems to me a serious problem for critical
thought.

Their arguments don’t assume debate where dropped arguments are true – prefer the
specificity of our scenarios.

We access their framing through turns case and counterplans – proves we have
intentions of resolving structural violence.
 1nc – advantage
Federal executions will be suspended over drug litigation – presumption
TCR 8/27 – The Crime Report; news service covering criminal justice. (“Judge Halts Planned Friday
Execution Over Drug Issue” The Crime Report. August 27, 2020.
https://thecrimereport.org/2020/08/27/judge-halts-planned-friday-execution-over-drug-issue/)//SR
**content warning---mentions of sexual violence

A judge halted the federal government’s planned Friday execution of a man who kidnapped, raped and killed a 10-
year-old Kansas girl, saying the law requires the government to get a prescription for the drug it plans to use ,
The Associated Press reports. U.S. District Judge Tanya Chutkan in Washington, D.C., said a federal law that regulates drugs
requires the government to get a prescription for the lethal injection drug pentobarbital, which it plans to use
to execute Keith Nelson. The government is appealing. Nelson’s execution is scheduled to be the fifth out this year by the federal government in
the federal prison in Terre Haute, In. The Trump administration’s said last year it would resume executing inmates for the first time since 2003.
Two more executions are scheduled for September. All of the executions have been carried out using
pentobarbital. Chutkan said that under previous court decisions, when pentobarbital is being used for an execution it is
still subject to the requirements in the Food, Drug, and Cosmetic Act, so a prescription is required. The government
argues that pentobarbital is not subject to the act when used for lethal injections. Nelson pleaded guilty in 2001 and was sentenced to death in
the 1999 kidnapping, rape and killing of Pamela Butler. The 10-year-old was rollerblading in front of her Kansas home when Nelson abducted
her. He raped her before strangling her to death with a wire.

Squo solves – the death penalty is declining globally

Follet 19 --- MA in Foreign Affairs from the University of Virginia (7/29/19, Chelsea, “Despite Federal
Return, Capital Punishment Is Dying Out,” https://www.cato.org/blog/despite-federal-return-capital-
punishment-dying-out, accessed on 3/13/20, JMP)

The U.S. federal government recently ordered the death penalty to be reinstated for the first time in sixteen years
and has scheduled the execution of five death row inmates. This policy change goes against the widespread trend
toward fewer executions. Twenty-one U.S. states, plus the District of Columbia, have totally abolished
the death penalty for all crimes. Seven of those states abolished the practice in my lifetime. New Hampshire just officially abolished
it in 2019. In many U.S. states where executions are still legal, none have been carried out for years and
the law is mainly symbolic. Kansas, for example, has not executed any prisoners in over forty years. The U.S. federal government,
similarly, never officially abolished the death penalty but has had a moratorium on the practice since 2004 – a moratorium ended by the new
policy ordered by Attorney General William Barr. Harvard
University’s Steven Pinker has chronicled the decline of
capital punishment in his book, The Better Angels of Our Nature. He estimated that the execution rate in the United States
has been falling for four centuries, from nearly 3.5 executions per 100,000 people in the 17th century. His graph is pictured below.
[image of graph omitted] Trends against capital punishment can also be observed abroad as well. Consider Europe.
Prior to the Enlightenment, European nations once used the death penalty for a vast number of crimes. England, for example, had 222 capital
offenses in its legal system well into the 18th century. Until the early 19th century, it deemed many minor crimes, such as stealing anything
worth more than four dollars in today’s currency, to be worthy of execution. As the values of the Enlightenment spread, that number of capital
offenses shrunk to four by the middle of the 19th century. Today, in Europe, capital punishment remains legal only in Belarus and Russia. The
change extends beyond Europe. This year, Malaysia abolished mandatory capital punishment. Last year, Burkina Faso abolished the
death penalty in its new penal code. Moreover, Gambia and Malaysia declared an official moratorium on executions. Last year, Amnesty
International noted, at least 690 executions took place in 20 countries. That number was 31 percent lower than in 2017. The vast majority of
recorded executions happen in Iran, Saudi Arabia, Vietnam and Iraq. Then there are China and North Korea. The two communist countries
execute more people than other countries and may well execute more people individually than the rest of the world combined. Unfortunately,
there are no reliable statistics for those secretive societies. The move to reinstate capital punishment federally in the United
States represents
a reversal after more than a decade-long hiatus in the federal use of capital punishment.
But opponents of the practice can take heart in the successful abolition of the death penalty in an
increasing number of U.S. states and countries around the world.

They don’t solve dignity – abolition won’t spur wider acceptance

Steiker & Steiker 20 --- *Professor at Harvard Law, AND **Professor of Law at University of Texas
School of Law (January 2020, Carol S. Steiker and Jordan M. Steiker, “The Rise, Fall, and Afterlife of the
Death Penalty in the United States,” https://www.annualreviews.org/doi/full/10.1146/annurev-
criminol-011518-024721, accessed on 6/1/2020, JMP)

Another often expressed hope is that the abolition of the death penalty will bring the United States closer to its peer
countries by expressing acceptance of a human rights framework to govern that issue . On a formal level, this
hope will almost certainly be realized. If nationwide abolition were achieved, the United States would no longer need to cast a nay vote when
the UN General Assembly adopts resolutions calling for a worldwide moratorium on the death penalty, as it has done seven times since 2007
(Caplan 2016, UN 2018). Furthermore, the
structure of punishment within the United States would be less grossly out of
step with international norms, given that the world's most serious crimes are not punishable by death under international law
(Bessler 2017). As a result, the United States would enjoy less friction with its allies, especially in the context of seeking extradition of suspects
facing serious (formerly capital) charges in American courts (Steiker & Steiker 2016). However, on a more substantive level, it
seems
doubtful that American abolition would represent a deeper acceptance of the norm of respect for
human dignity that the international consensus on the death penalty embodies . Some experts hope that
worldwide abolition of the death penalty will mark the success of an increasingly global postwar international human rights agenda and the
general acceptance of the concept of human dignity as part of a new global common law (Novak 2019). But American abolition, if and
when it comes, will likely be rooted in more pragmatic concerns, which tend to dominate American
discourse on the issue (Steiker & Steiker 2016). Extreme criminal punishments like the death penalty both reflect and reinforce a vision
of offenders as less than human (Christie 2014). But even without capital punishment , the vigorous use of other
extremely harsh punishments (like LWOP) and the maintenance of degrading conditions of
incarceration (such as excessive use of solitary confinement and tolerance of sexual violence) stand in
the way of a full embrace of human dignity in punishment practices. And although the death penalty
may have facilitated the rise of mass incarceration in the United States (Scherdin 2014), the converse does not
follow: The dismantling of the death penalty will not immediately or inevitably do much to reverse the
massive scale of American imprisonment.

No follow-on – countries circumvent with opaque reporting

Killalea 16 Debra Killalea is a senior journalist with 20 years’ experience working in the national and
international press and online media. She has spent the past three years covering international affairs
and has a special interest in Asia and the Koreas. [“Amnesty death penalty report: The secret China
won’t share with the world,” 04-06-2016, news.com.au, URL:
https://www.news.com.au/world/asia/amnesty-death-penalty-report-the-secret-china-wont-share-
with-the-world/news-story/f8c406c3301992b28bbfc5d6f8e2eb51] kly

ASIAN nations are continuing to put thousands of people to their deaths every year. Yet while the rest of the
world is abolishing the death penalty, China and North Korea refuse to reveal how many people it executes each
year. China claims its figures are a state secret while North Korea remains uncooperative with human
rights organisations. Information surrounding its figures remain so tight that the world can only sit back and guess how many people
they put to death every year. Once again Asian powerhouse China has been named as the world’s biggest executioner in Amnesty
International’s Death Sentences and Executions 2015 report. In releasing the annual report this morning, the human rights group said it
was impossible to obtain an exact figure on the number of people China has executed, but it is believed
the figure is in the thousands, and is more than all the other countries in the world combined. Amnesty International Australia
spokesman Rose Kulak said the group obtained a rough figure based on non-government agencies, families who’ve had bodies returned to
them and activists on the ground. Ms Kulak, Individuals at Risk Program Coordinator at Amnesty, told news.com.au said the main issue at hand
was China’s lack of transparency. “There is close to 50 crimes that people can get executed for,” she said. “These crimes include things like
embezzlement which in Australia would amount to jail time. China was also named as the world’s top executioner in 2014, with Amnesty
estimating it was at least 1000 — a conservative figure, and one it believes is much higher. However this year’s report did note, there are
indications that the number of executions has decreased since the Supreme People’s Court began reviewing the implementation of the death
penalty in 2007. NOT ALONE China was not the only nation in the spotlight. The rogue nation of North
Korea was also criticised for
its lack of transparency and refusal to co-operate with human rights organisations, or release figures
surrounding its execution rates. Amnesty said it continued to receive reports, which it could not independently verify, indicating
that executions were carried out and death sentences imposed for a wide range of alleged offences including questioning the leader’s policies.
However, accordingto media reports, North Korean leader Kim Jong-un has executed 70 officials since
taking power in late 2011 in a “reign of terror” that far exceeds the bloodshed of his father. In 2013, Kim
executed his uncle, Jang Song Thaek, for alleged treason . Jang was married to Kim Jong-il’s sister and was once considered
the second most powerful man in North Korea. More recently, South Korean media outlet Yonhap News agency reported 15 high-ranking
officials were executed in North Korea prior to April. Last August, it also reported Vice Premier Choe Yong-gon and Defence Minister Hyon Yong-
cool had been executed in May by shooting. Ms Kulak said it was also a concern that Pakistan, another country in our region,
has resumed executions on a massive scale, with 320 killed last year alone. She said the government’s reasoning of
a terror crackdown on militants simply wasn’t justified. [GRAPH OMITTED] THE BIG OFFENDERS The number of executions recorded in
Iran and Saudi Arabia have increased by 31 per cent and 76 per cent respectively, and executions in
Pakistan were the highest Amnesty International has ever recorded in that country, the report found. Pakistan
recorded a massive rise in executions after lifting a moratorium on civilian executions in December 2014. More
than 320 people were put to death in 2015, the highest number Amnesty International has ever recorded for Pakistan. Iran put at least
977 people to death in 2015, compared to at least 743 the year before — the vast majority for drug-related crimes. In Saudi
Arabia, executions rose by a whopping 76 per cent compared to 2014’s figures, with at least 158 people
being executed last year.

State jurisdiction determines whether the plan’s rationale gets properly interpreted –
Texas proves they’ll circumvent
Steiker & Steiker, 16 --- Professors of Law at Harvard and University of Texas respectively (Carol S. &
Jordan M., Courting Death: The Supreme Court and Capital Punishment, ebook from University of
Michigan, pg. 127-129) //ILake-JQ
In some extreme cases, state courts not only have underenforced Supreme Court doctrines, they have
expressed open skepticism about the wisdom of the Court’s regulation. A little over a decade after Gregg, the
Court addressed in a Texas case whether the Eighth Amendment forbids the execution of persons with
intellectual disability (formerly “mental retardation”). Given the paucity of states prohibiting the practice, the Court sided with Texas
and established no categorical bar. Thirteen years later, the Court , responding to a flood of new states condemning the practice,
ruled that the execution of persons with intellectual disability violates prevailing standards of decency.
Despite straightforward language in the decision affirming that “death is not a suitable punishment for a
mentally retarded criminal,” the Texas Court of Criminal Appeals, as it purported to implement the Court’s decision,
doubted whether all persons with intellectual disability should be exempt from execution. Instead, the
CCA suggested that it should “define that level and degree of mental retardation at which a consensus
of Texas citizens would agree that a person should be exempted from the death penalty .”18 The CCA rejected
the idea that all persons recognized as having intellectual disability under prevailing clinical norms should be spared, arguing instead that the
exemption was more appropriate for persons like the fictional character Lennie in John Steinbeck’s novel Of Mice and Men.19 Accordingly, the
CCA created its own, nonclinical approach to assessing intellectual disability with the avowed goal of
weeding out offenders with mild intellectual disability whom Texans might regard as sufficiently culpable for execution.
The nonclinical approach builds on and reinforces outdated stereo types about intellectual disability ,
focusing, for example, on whether the off ender can respond “rationally” to questions, lie in his own interest, and engage in planning. The
approach explicitly invites the decision maker to consider facts of the capital offense, ostensibly to gauge whether the offense was “impulsive”
or involved “forethought.” But critics of the Texas approach argue that the effort to focus on the details of the
offense is inconsistent with clinical practice (where the determination of intellectual disability is rooted in assessments of
deficits in particular areas of adaptive be havior), and inappropriately encourages decision makers (jurors and judges) to
reject the exemption where the circumstances of the crime are highly aggravated and disturbing. 20 As a
result of Texas’s court- created ad hoc approach to intellectual disability, numerous Texas defendants who satisfy
traditional clinical criteria for the diagnosis have nonetheless been sentenced to death and executed.
Many of these inmates undoubtedly would be deemed exempt from the death penalty in other jurisdictions, and Texas offenders seeking relief
based on intellectual disability have had a far lower rate of success than off enders outside the state.21 The Supreme Court recently
moved to rectify a related problem in Florida , where the Florida courts had imposed a strict IQ cutoff for the exemption in
conflict with professional clinical norms (which include a “standard error of measurement”). The Texas courts, though, continue to
adhere to their nonclinical approach, and the Court of Appeals for the Fifth Circuit has declined to intervene. In fact, the Court of
Appeals recently explained that the Supreme Court decision in the Florida case did not call into question the Texas nonclinical approach
because “the word ‘Texas’ nowhere appears in the [Supreme Court] opinion.” The
underenforcement in Texas of the Court’s
prohibition against executing persons with intellectual disabilities demonstrates how constitutional
regulation can produce very different outcomes depending on a jurisdiction’s willingness to embrace
the principles animating the Court’s intervention.2

Next is the liberal overrules turn –

Liberal rulings like the aff generate conservative justification for rolling back the
Warren Court based on new precedent
Wilson and Balanson 9, *Professor of Law, Cleveland-Marshall College of Law, **JD @ Cleveland-
Marshall College of Law (James, “Taking Stare Decisis Seriously: A Cautionary Tale for a Progressive
Supreme Court,” SSRN)
To better understand stare decisis and to normatively explore our constitutional future, this article assumes that President Obama’s election
signifies a constitutional shift similar to the one occurring after President Nixon won in 1968. From that contentious, self-righteous era to the
present day, all American Presidents selected Supreme Court nominees who were more conservative than the members of the Warren Court
majority, much less that aggressively liberal duo, Justices Brennan and Marshall. Justice Stevens, appointed by the moderate Republican
President Gerald Ford, is arguably the most liberal member on the Court.1 It is impossible to predict how far the country may tack leftward.
Nixon’s initial electoral triumph was an uncertain beginning for modern conservatism that hardly satisfied his party’s more militant wing: he
was more liberal domestically than any President after Carter (whose own administration began the process of deregulation which eventually
degenerated into catastrophic speculative frenzy). It is possible that Obama’s administration will readjust existing norms or fail, suddenly
reviving modern conservatism. If this essay’s prediction is accurate, how
should a gradually more “progressive” Court
evaluate conservative judicial triumphs over the past forty years? Should an emerging liberal majority
overrule most closely contested constitutional decisions —those five-to-four and six-to-three cases won by
conservatives that have been the focus of most liberal political and academic ire ? Should this new bloc confine
those determinations to their facts, thereby stripping supporting reasoning of vitality? Or should they let most of these
constitutional sleeping dogs lie? The answers to those questions partially reside in one’s attitude toward the doctrine of stare
decisis, a doctrine which means, at a minimum, that new Supreme Court Justices should presumptively integrate
their constitutional jurisprudence into the existing framework even though they would have decided many
prior cases differently had they had been on the Court when those cases were originally argued. Ultimately, this hypothetical liberal
Court should not transform constitutional law by overruling many previously contested cases and/or by

construing them narrowly.2 Nor should it create a wide range of new rights. Aggressive use of both
forms of “judicial activism” could undermine our nation’s desperate need to address wealth inequality,
environmental problems, energy independence, racism, and sexism. To support that claim, we utilize important
disputed cases, won by conservatives, as exemplars of the numerous justifications for a robust conception of stare
decisis. For example, the Court should retain New York v. United States3 , which struck down a federal law requiring States to comply with
federal nuclear waste policies by either joining a State compact or taking title to privately generated nuclear waste, because that decision
prevents Congress from targeting States. Under New York, Congress can regulate state behavior through general laws affecting the entire
populace (such as prohibiting disability discrimination),4 but those laws will not be onerous because the burdens fall upon private parties as
well as the States.5 Congress cannot pass the buck to States by forcing them to absorb regulatory costs and/or making them the unwilling face
of regulatory power. Thus, New York is an archetypal example of the Supreme Court’s using egalitarian doctrines to protect legitimate,
protected parties from being targeted by more powerful interest groups. Furthermore, there is a presumption favoring formal equality (these
New York defenses will be developed later in this essay). Nevertheless, no single factor is determinative under this model of stare decisis. The
wide range of justifications favoring stare decisis (as well as countervailing reasons to ignore precedent) necessitates a malleable assessment of
different, often conflicting factors, an adjudicatory methodology that should drive anyone seeking a unified theory of constitutional law to
despair. Demonstrating the incredible complexity of the decision making process tends to make reason the servant of intuition, intimating
wariness of sweeping, syllogistic theories of practical reasoning. In other words, this article is an exploration of the limits of human
understanding.6 By limiting the inquiry to closely contested cases, itself a major stare decisis factor, this essay partially imagines a more left-
leaning constitutional future. A thorough analysis would consider all previous cases. It is easier, however, to design a widely
acceptable theory of constitutional law if the constitutional architect starts with determinations that liberal and
conservative Justices, who represent the intelligentsia within each party, initially found acceptable. For
instance, all nine Justices rejected Jerry Falwell’s attempt to collect damages against Hustler magazine for publishing a vile, hurtful parody of a
liquor ad featuring an obviously invented interview in which Falwell claimed to have had drunken sex in an outhouse with his mother, who had
recently died.7 By upholding this repulsive attack, the Court reaffirmed its commitment to protect a wide range of political speech, a
commitment most liberal and conservative jurists support, finding common ground through the metaphor of “the marketplace of ideas.”8
Dissent, on and off the Court, enables our legal and political systems to resemble the scientific method: aside from discourse, nothing is
permanently settled; everything remains open to criticism and refutation. Political dissent protects the electoral process; public criticism and
elections are the defining characteristic of any Open Society9 . Thus, it would be all but impossible to convince this two essay’s authors to adopt
any all-inclusive theory of constitutional interpretation that jettisons the “viewpoint discrimination” doctrine, which protects
the core of that most fundamental of rights, free political speech. However, the daunting task of making an overall assessment of
the conservative era requires someone as gifted, inspired, and sympathetic as the late John Hart Ely, who eloquently and gracefully

reconfigured existing constitutional law to strengthen most Warren Court jurisprudence while
undermining such controversial decisions as Roe v. Wade. 10 Perhaps this less ambitious inquiry, which sifts through the battleground of
contentious cases with an often saddened and skeptical eye, will assist anyone attempting to duplicate Ely’s dazzling achievement. And even if
most readers across the political spectrum reject our particular normative assessments, we believe we have more precisely described the
structure of stare decisis.

Last is deterrence –
Capital punishment preserves a system of marginal deterrence that reduces the
incidence of the most egregious crimes like murder – benefits outweigh
Zycher 19 --- Resident Scholar at the American Enterprise Institute (7/30/19, Benjamin, “Capital
punishment and the conservative dilemma: Marginal deterrence vs. the perverse incentives of
prosecutors,” https://www.aei.org/politics-and-public-opinion/criminal-justice/capital-punishment-and-
the-conservative-dilemma-marginal-deterrence-vs-the-perverse-incentives-of-prosecutors/, accessed on
4/15/2020, JMP)
For conservatives the issue of capital punishment, whether imposed at the state or federal level, confronts a dilemma much more fundamental.
On the one hand, an effective system of capital punishment is necessary to rationalize the system of penalties for greater
and lesser crimes, that is, to preserve an effective system of “marginal deterrence.” On the other hand, the traditional
conservative skepticism of government power generally, and of the perverse incentives of prosecutors in particular, might lead toward a net
conservative opposition to capital punishment, the imposition of which cannot be limited in those cases in which the innocent are convicted
wrongfully. The discussion here attempts to find a route escaping this dilemma. With respect to marginal deterrence, consider for example the
case in California of Jesse James Hollywood. (Yes, that is his real name.) He is serving a life sentence (without the possibility of parole) for the
kidnapping and murder of 15-year-old Nicholas Markowitz in August 2000. After Hollywood “called his lawyer and learned the severe penalty
for kidnapping, police say, the young men decided they had to kill Nicholas” (Los Angeles Times, August 26, 2001). In other words, since the
penalty for kidnapping was a life sentence, or close to it, the marginal (or “extra”) penalty for murdering the young and innocent Markowitz
was perceived to be small or zero, in that the actual application of capital punishment in California was and remains both unusual and subject
to long delay. More generally: If
a criminal faces a life term for a given crime, and if there is no effective threat of
a death sentence, why not get rid of the witnesses? Stiff penalties and other policies are likely to deter
crimes, as suggested by the scholarly literature, but if the structure of the penalty system makes even
stiffer penalties difficult to impose, that structure actually can encourage crimes even more egregious.
Such crimes as attempted murder, aggravated rape, or kidnapping for ransom are so egregious that they
appropriately carry very stiff penalties approximating life sentences . In the absence of capital
punishment, that necessarily reduces the marginal penalties for offenses even worse, a state of affairs
that can be predicted to increase the rate at which such terrible crimes are committed. One way around this
deterrence problem is to reduce penalties for the large array of lesser crimes so as to preserve marginal deterrence for the more serious ones.
But that would yield an increase in the rate at which the lesser crimes — many of which are hardly trivial — are committed, and might actually
increase the rate at which the truly serious crimes are observed, in that some offenses, such as unplanned killings of convenience store clerks,
are outcomes of lesser felonies. In short, an
attempt to preserve marginal deterrence by reducing penalties across
the board is likely to increase serious crime generally and the taking of innocent life . Therefore, a society
serious about deterring egregious crimes generally and murders in particular, and anxious to use
punishment as a moral expression of the value of innocent life, must have an effective system of
capital punishment. But: Can there be any doubt that prosecutors have perverse incentives to hide
exculpatory evidence, to suborn perjury, and to use plea bargaining as a hammer to induce the accused
to plead guilty so as to avoid penalties even more severe, including capital punishment? I betray no secret
when I report that many prosecutors are loath to allow new evidence to threaten their prior conviction “victories,” the pursuit of justice be
damned. It often is asserted that prosecutors have an ethical obligation not to threaten filing of capital charges in order to obtain a plea bargain
in exchange for, say, a life sentence. How this ethical constraint is to be implemented in practice is far from obvious. More generally: That
prosecutors often are elected and have ambitions for higher office create incentives far from salutary in the context of the fundamental pursuit
of justice rather than convictions. In the absence of capital punishment, a second conceptual solution to the problem of marginal deterrence
would be a Soviet-style system of general-, strict-, and special-regime prisons offering inmates declining standards of comfort in inverse
proportion to the seriousness of the crimes committed. Even the general-regime prisons were brutal, and it is not obvious that inmates would
prefer years in a special-regime facility to a quick execution. Obviously, such a prison system would violate traditional norms of American
morality, and the courts would be unlikely anyway to uphold it as consistent with the 8th Amendment. The goal is to preserve marginal
deterrence while limiting the effects of perverse prosecutorial incentives. A third solution to this conundrum — consistent with the moral
pursuit of justice and the preservation of political support for capital punishment — would be that those accused of capital crimes be given the
resources, say, $750,000 or whatever the funding necessary for a serious defense and appellate process. (Whether such funding would be
need-based and other administrative details are not of direct concern here.) This hardly would be an important fiscal burden in an economy
with a GDP approximating $20 trillion. Such a political compromise restoring an effective system of capital punishment might also include a new
state or federal court of appeal specializing in capital cases, combined with strict time limits on the number and length of appeals. This new
court would be subordinate to the Supreme Court, but it is likely that the latter would accept few or no appeals from the former. The common
argument that a humane society cannot risk even one execution of an innocent is misguided: Just as
most of us risk death daily in order to drive automobiles, participate in extreme sports, or watch the
Lifetime channel, it is axiomatic that virtually anyone would be willing to bear the infinitesimal risk of
wrongful execution in order to obtain the far more important reductions in serious crime that an
effective system of capital punishment makes possible. Capital punishment is an extremely difficult
business. The alternative is worse.
2NC
 T
Sentencing reform is legislative
Bradley 17 --- Mindy S. Bradley, Professor in the Department of Sociology and Criminal Justice at the
University of Arkansas, “Handbook on Punishment Decisions”, Taylor & Francis, Oct 2017,
https://www.google.com/books/edition/Handbook_on_Punishment_Decisions/8yA6DwAAQBAJ?
hl=en&gbpv=0 (BJN)

I have used the term "sentencing reform" broadly to refer to legislative changes designed to change
sentencing practices. Tonry refers to the 1970s and early 1980s as the "sentencing reform" era, and the mid-
1980s to 1990s as the "tough on crime" era, when the emphasis shifted to making punishment more certain and
severe.

3---presumption – only the Court can overturn

Steiker & Steiker 16 --- Professors of Law at Harvard and University of Texas respectively (Carol S. &
Jordan M., Courting Death: The Supreme Court and Capital Punishment, ebook from University of
Michigan, pg.255-258, JMP)

Nor is federal legislative action a likely route to nationwide abolition. Although the matter is not settled, the
Constitution may well
prevent Congress from abolishing capital punishment in the states, even if Congress wanted to do so.
In the early 1970s, congressional hearings addressed the constitutionality of potential top- down abolition (as
well as a more limited proposal to stay executions), and some scholars opined that such a path might be open to
Congress.5 But a series of Supreme Court decisions since then has imposed limits on federal power that
make such a course more doubtful today.6 It is unlikely that Congress could use its otherwise broad
power to regulate interstate commerce to override states’ choice to retain the death penalty, given the
remote connection between the death penalty and commerce and the prerogative of states (protected
by the Tenth Amendment) to choose their own criminal justice policies. 7 Congress might also be
precluded from using its enforcement powers under the Fourteenth Amendment to achieve abolition.
Unless the Supreme Court itself were to embrace the view that state capital punishment practices are
constitutionally problematic, congressional abolition might not satisfy the Court’s increasingly
restrictive test for appropriate Fourteenth Amendment legislation. Perhaps Congress could use its spending power
to condition receipt of targeted federal funds on states’ willingness to abandon the death penalty (such as funds for indigent defense), but that
type of legislation could only encourage, and not command, state abolition across the board. Even if congressional abolition were
constitutionally permissible, its political prospects appear remote. Congress has the power to reform or abolish its own capital provisions, but
there have been no significant initiatives to withdraw the federal death penalty. The federal government— with its small number of death
sentences, death row prisoners, and executions— may seem to have more in common with states considering repeal than those actively
engaged in executions. Despite these similarities, friction
between the federal government and the states regarding
the death penalty in recent times has come not from the federal government trying to inhibit states’ use
of the death penalty, but rather from the federal government seeking to impose the death penalty for a
federal crime committed in an abolitionist jurisdiction , such as the recent capital prosecution of Dzhokhar Tsarnaev in
Massachusetts for the 2013 Boston Marathon attack. The Tsarnaev case illustrates the unique federal considerations that support retention:
the view that the death penalty might be essential to punish extraordinary crimes such as treason, espionage, military offenses, or terrorism.
Experience in Europe and elsewhere demonstrates that these uses of the death penalty tend to be the last to be repealed, representing the
final step toward full abolition. Accordingly, Congress
is an unlikely candidate to initiate (much less complete) the
process of American death penalty abolition . Consequently, if truly nationwide abolition is to occur in the
foreseeable future, it must come by means of a federal constitutional ruling— a “Furman II.” Given the close
divide on the Court on this and other contested social issues, much depends on the Court’s changing composition. The death of Justice Antonin
Scalia in February of 2016 underscored how crucial the next Supreme Court appointment will be in either maintaining or shifting the current
balance on the death penalty. But the
consistent movement of justices toward abolition and the creation of a
doctrinal “blueprint” for abolition under the Eighth Amendment suggest that the moment may be
coming, and coming sooner rather than later. The possibility of an imminent “Furman II” has engendered speculation and debate even
among those who would be expected to welcome it, as abolitionist lawyers ponder the tactics of constitutional litigation under conditions of
uncertainty.
 States CP
State abolition spurs Court follow on
Scherzer 9 - Chief of Strategic Initiatives, New Jersey Division on Civil Rights at New Jersey Attorney
General's Office, and writer for Yale Law School. (Aaron, “The Abolition of the Death Penalty in New
Jersey and Its Impact on Our Nation's "Evolving Standards of Decency.”” Michigan Journal of Race and
Law. 2009. DOA: June 20, 2020. https://repository.law.umich.edu/cgi/viewcontent.cgi?
article=1081&context=mjrl)//MGalian **edited for ableist language

If other states follow New Jersey's lead, fulfilling Justice Brandeis' vi- sion of states as laboratories of experimentation,188 this state-by-state
repeal could spark nationwide repeal. Under this vision, states might look to see the results of legislative death penalty repeal in New Jersey and New Mexico.
States may be particularly interested in examining the effect that the repeals have on criminal justice
system costs, violent crime rates, and the way that victims' families feel about the criminal justice system. As one preliminary piece
of evidence, the number of murders in New Jersey actually decreased slightly in the year after the death penalty was

abolished.' 9 If these statistics hold up over time, this would seem to un- dermine the argument that the death penalty is a necessary deterrent to murder. 90 Politicians in other states
will no doubt be interested in the political repercussions of repeal for those politicians who voted for the repeal stat- utes in New Jersey and New Mexico. Death penalty

repeal in New Jersey does not appear to have had negative political repercussions for New Jer- sey politicians. In
fact, Chris Christie, a former U.S. Attorney who recently beat Governor Corzine in a bitter campaign for New Jersey Governor, did not make death penalty repeal into a campaign issue and does

. If politicians
not seem inclined to reinstate the death penalty Although he sup- ports the death penalty, his campaign website did not appear to mention the death penalty at all.' 9'

in other states pass death penalty abolition bills, the Supreme Court may view this legislative action as
pertinent evidence in its evaluation of the constitutionality of the death penalty. In previous capital
punishment decisions, the United States Supreme Court has examined state trends to help determine what
constitutes cruel and unusual punishment. 92 In recent years, the Supreme Court has overturned the death 93
penalty for the mentally retarded [intellectually disabled] in Atkins v. Virginia,' and for minors in Roper v.
Simmons, '94 in part based on the number of states that had abolished the death penalty for those classes
of defendants. In Atkins, the Court, in justifying its reliance on changes in state law, held that A claim that punishment is excessive is judged not by the standards that prevailed in
1685 when Lord Jeffreys presided over the 'Bloody Assizes' or when the Bill of Rights was adopted, but rather by those that currently prevail. As ChiefJustice War- ren explained in his opinion in

'The basic concept underlying the Eighth Amendment is nothing less than the dignity of man.... The
Trop v. Dulles:

Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.'9 5
In fact, the Justices have looked to changes in state law in areas as diverse as sodomy and evidentiary

privileges to help determine the outcome of Supreme Court cases . For example, in Lawrence v. Texas 96 the majority opinion noted
the changes that had occurred in state laws around the country since the Court's decision upholding Georgia's sod- omy ban in Bowers v. Hardwick.197 The majority noted that "[t]he [twenty-
five] States with laws prohibiting the relevant conduct referenced in the Bowers decision are reduced now to [thirteen]" '98 The Court considered this, among several other factors, as

the Court has demonstrated that it will look to state policy to

weighing in favor of overruling the Bowers precedent. In an analogous context,

help determine evidentiary privileges. In Jaffee v. Redmond, 99 the Court held that "the fact that all [fifty] States and the Dis- trict of Columbia have enacted
into law some form of psychotherapist privilege" confirmed that it was appropriate for the federal courts to rec- ognize this privilege.200 The Court found the changes in state evidentiary law

The Court found that "the policy decisions of the States

to be relevant even though most of these changes were legislative and not judicial.2 0 '

bear on the question whether federal courts should recognize a new privilege or amend the coverage
of an existing one., 2 2 This is not to say that state-level action is the only way to get the Supreme Court to over- turn precedent; however, it is clear that a change of
state law in a significant number of states is one way to facilitate Supreme Court action. Given that many
states modeled their death penalty statutes on the Model Penal Code (MPC),20 3 it is also significant that the American Law Institute
(ALL), which developed the MPC, recently decided to withdraw the capital punishment section of the MPC.2°4 In withdrawing the section, the ALl cited concerns about the administration of

The ALI's action, after forty-seven years of keeping the capital punishment
capital punishment in the United States. 20

section on the books, may further spur state-level abolition. If the twelve states that have executed fewer than three defen-
dants since 1976 were to abolish the death penalty , they would join the fifteen states that have already

abolished the death penalty. This would mean that more than half of the states would have abolished
the death penalty. Most importantly, the change would presumably be in one direc- tion. The Court has made clear that in the death
penalty context, "it is not so much the number of these states that is significant, but the consistency of
direction of change.' '20 6 In fact, at the time of Roper v.Simmons, only five 207 states had abolished the death penalty for minors for minors was upheld in Stanford v.
Kentucky.2 8 However, in other con- texts, the Supreme Court has indicated a reluctance to overturn laws favored by at least half of the states." It is not clear that the Supreme Court would

if in the future, only twenty-three states retained the death penalty,

apply the same test in the death penalty context. However,

the Supreme Court could declare the death penalty to be unconstitutional under either test.

State abolition makes Court follow-on inevitable

Von Drehle 19 (3/15/19, David - author of a number of books, including the award-winning bestseller
“Triangle: The Fire That Changed America”, “The death penalty makes a mockery of our justice system.
Abolish it,” https://www.washingtonpost.com/opinions/the-death-penalty-makes-a-mockery-of-our-
justice-system-abolish-it/2019/03/15/fccbcf66-4670-11e9-aaf8-4512a6fe3439_story.html, accessed on
4/5/2020, JMP)

California Gov. Gavin Newsom (D) announced that he will not pursue the execution of any of the 737
death-sentenced inmates at San Quentin State Prison. Calling capital punishment “ineffective, irreversible and immoral,” Newsom
ordered the decommissioning of the execution chamber and rescinded the state’s protocol for lethal
injection. These steps will make it more difficult for future California governors to reverse course. The
governors of Colorado, Oregon and Pennsylvania have already renounced the death penalty and have
suffered no appreciable political backlash. Including California, these four indefinite pauses cover
roughly one-third of all death row prisoners in the United States. Ohio Gov. Mike DeWine (R) has suspended the death
penalty in his state — home to another 144 condemned prisoners — until an execution protocol can be devised that meets court standards.
Elsewhere, halts originally ordered by governors have led to outright abolition. Last year, Washington’s state
Supreme Court cemented a 2014 moratorium by declaring the death penalty unconstitutional. In Illinois, a governor’s moratorium became
permanent in 2011 when the legislature abolished capital punishment. What used to be political dynamite has become
about as explosive as damp newsprint. By walking away from capital punishment, elected leaders are
essentially converting death sentences to life imprisonment without parole — and getting away with it
for much the same reason Newsom was able to scale back California’s pie-in-the-sky bullet train earlier this year. The public is wise to
expensive gestures that produce scant results. The U.S. Supreme Court has ruled repeatedly over nearly half a century that the
death penalty is different from all other punishments. It must meet stringent standards to be lawful. This perfectionism, fine on paper, has
proved impossible for lower courts to satisfy reliably and efficiently. So Newsom’s moratorium comes some 13 years after California’s last
execution. In 2006, the state ended the life of a triple-murderer whose appeals had been rattling through the courts for nearly 25 years. Since
then, nothing. Just endless waiting and endless litigation, with a price tag that experts reckon is in the billions. Nationwide,
fewer than
1 percent of death row prisoners were executed in 2018. A death row prisoner in 2016 (the most recent year for which
data is available) was almost exactly as likely to die of natural causes as by execution. That’s not surprising given that the median age of inmates
on death row was approaching 50. These
realities — high costs and rare results — first altered the politics of the
death penalty at the local level, beginning some 20 years ago. Elected prosecutors, seeing their budgets
decimated by the expense of capital trials and appeals, stopped seeking the death penalty. Between 1981 and
2000, U.S. courts imposed more than 200 death sentences per year — sometimes more than 300. But then the number fell sharply and hasn’t
topped 50 per year since 2014. Meanwhile, police officials came to the same realization . A poll of 500 police chiefs in 2008,
commissioned by the Death Penalty Information Center, found that capital punishment ranked last among their preferred crime-fighting
strategies. This is the background against which so many governors have felt safe to be sane. State by state,
they’re putting an end to this wasteful folly. State legislators are inching in the same direction. From
New Hampshire to Wyoming, lawmakers are advancing bills to end capital punishment — led, in many
cases, by conservatives. Sooner or later, this sea change is likely to register on the institution that gave
us this mess. In 1972, the Supreme Court looked out at a nation in which hundreds of prisoners languished on death rows and
hardly any were executed. The court struck down this arbitrary system, and for four years there was no death
penalty in the United States. But states promised that a more elaborate system would deliver reliable results.
Well, the results of that experiment are in. After more than four decades of tinkering with the system,
capital punishment is a costly mockery of justice. What was unconstitutional in 1972 remains so
today. The high court should call the whole thing off.

The federal government is distinct from state governments

WEBSTER'S 76 NEW INTERNATIONAL DICTIONARY UNABRIDGED, p. 833.
Federal government. Of or relating to the central government of a nation , having the character of a federation as
distinguished from the governments of the constituent unites (as states or provinces).
Framing
 Advantage
Global executions are decreasing absent modelling
Amnesty 19 (4/10/19, “Death penalty 2018: Dramatic fall in global executions,”
https://www.amnesty.org/en/latest/news/2019/04/death-penalty-dramatic-fall-in-global-execution/,
accessed on 7/7/2020, JMP)

Global executions fell by almost one-third last year to the lowest figure in at least a decade, Amnesty
International said in its 2018 global review of the death penalty published today. The statistics assess known executions
worldwide except in China, where figures thought to be in their thousands remain classified as a state
secret. Following a change to its anti-narcotics laws, executions in Iran – a country where the use of the death penalty is rife – fell by
a staggering 50%. Iraq, Pakistan and Somalia also showed a significant reduction in the number they
carried out. As a result, execution figures fell globally from at least 993 in 2017, to at least 690 in 2018. “The dramatic global fall
in executions proves that even the most unlikely countries are starting to change their ways and realize
the death penalty is not the answer,” said Kumi Naidoo, Amnesty International’s Secretary General. “Despite regressive
steps from some, the number of executions carried out by several of the worst perpetrators has fallen
significantly. This is a hopeful indication that it’s only a matter of time before this cruel punishment is consigned to history, where it
belongs.”

Saudi proves trends

Fahim 8/27 – Kareem; Instanbul bureau chief and Middle East correspondent. (“Saudi Arabia, a world
leader in executions, weighs ending capital punishment for drug crimes” Washington Post. August 27,
2020. https://www.washingtonpost.com/world/middle_east/saudi-arabia-executions-
mbs/2020/08/26/b6488bb4-e314-11ea-82d8-5e55d47e90ca_story.html)//SR

Saudi Arabia is considering ending the use of the death penalty for drug-related offenses, a change
that could spare the lives of dozens of prisoners in the kingdom every year, according to a Saudi official and human rights
groups that monitor capital punishment in the country. The initiative appeared aimed at countering outrage over the
kingdom’s human rights record, including its mass executions. The consequences of removing drug offenses from the list of capital
crimes could be significant: Nearly 40 percent of the roughly 800 executions carried out in Saudi Arabia over the past five
years were for offenses such as narcotics trafficking, according to Reprieve, a human rights group that tracks the use of the
death penalty in the kingdom. A Saudi official said that the kingdom was in the process of revising penalties for
drug-related crimes and that a decision to “abolish” capital punishment for drug offenses was “expected very
soon.” The official spoke on the condition of anonymity to discuss internal government discussions.
1NR
 Prog Op DA
The squo solves – abandoning the Court facilitates progressive reforms through other
channels
 the Court will model once public sentiment shifts

Margulies, civil rights attorney and professor at Cornell University, 18 (10/12/18, Joseph, “How a
Conservative Supreme Court Could Actually Benefit Progressives,”
http://time.com/5422451/progressives-supreme-court-never-ally/, ***for confirmation it was written
by Margulies please visit https://as.cornell.edu/news/how-conservative-supreme-court-could-actually-
benefit-progressives, accessed on 12/16/18, JMP)
If intentions lead to action, the process by which Judge Brett Kavanaugh became a Supreme Court Justice will send a great many people on the
Left to the polls in November. That is a good thing. But still more exciting is the
possibility that the Left will finally relinquish
the dangerous fantasy that progressive change originates with, and depends upon, the Supreme Court.
The Left clings to this hope because it prizes so many of the rights once declared by the Court: to attend desegregated schools, to end some
pregnancies and to exclude prayer from public schools. Even leaving aside the extent to which these decisions have already been neutered, the
fact is that, apart
from a few short decades in the middle of the 20th century, the Court has never been a
force for progressive reform. On the contrary, it is far more inclined to block progressive change than
promote it. To put it plainly, the Court is not now, and has almost never been, a friend to the Left. And all evidence points to the
conclusion that the Court will soon become even more of what it has almost always been. The sooner
liberals realize that, the better they will be. Despite the Court’s antagonism, however, the contest for progressive
reform is not over. It simply moves the work elsewhere . Consider, for instance, the experience in capital punishment. In
1972, the Court struck down all existing death-penalty statutes, which triggered a massive backlash
that brought capital punishment back with a vengeance. The day after the Supreme Court decision, legislators in five
states introduced bills to restore the death penalty. President Nixon asked the FBI for the names of convicted murderers who had committed a
second murder after being released from prison. By 1976, thirty-five states plus the federal government had enacted
new death penalty statutes. Since then, the Court has been a steadfast supporter of the ultimate punishment. Though individual
Justices have now and again announced their opposition to the death penalty, they have never spoken for anything like a majority of the Court.
Some anti–death penalty advocates still hold out hope the Court will strike down capital punishment, but no one credibly thinks it will happen
any time soon. And so advocates long ago turned elsewhere. For years, they have devoted extraordinary energy to assembling and
publicizing the ample evidence of a flawed system, a system that tolerates egregious levels of racial imbalance, official misconduct and legal
caprice. And they have deployed this evidence to influence attitudes about capital punishment among
state legislators, policymakers and the public. They have also assiduously trained those who handle
these cases in the best practices at every stage of a capital case. The results have been impressive.
According to the Death Penalty Information Center, both death sentences and executions have fallen to historic lows .
So far this year, there have been 18 people executed in the United States, down from a high of 98 in 1999 and putting 2018 roughly on track
with the recent past. And even this tends to overestimate the extent to which the death penalty actually exists in the United States, since 10 of
the 18 executions this year are from a single state (Texas). The number of death sentences is likewise a fraction of its former total. In 2017, the
most recent year for which we have numbers, there were 39 new sentences, up from 31 in 2016 but down dramatically from 295 in 1998.
Meanwhile, recognizing the hostility in the Supreme Court, litigators are looking elsewhere for relief. Just
this week, for instance, the Washington Supreme Court struck down the state’s death penalty “because it is
imposed in an arbitrary and racially biased manner.” Notably, the court relied on the state constitution,
meaning its opinion cannot be reviewed or reversed by the U.S. Supreme Court. Other campaigns have
also had great success outside the courts, including the nascent efforts to reform police practices,
shrink the prison population and sand down the roughest edges of the criminal justice system. Perhaps
the most consequential of these efforts has been the recent move to end or restrain the use of solitary confinement. Thanks to the work of a
small army of advocates and reformers, many federal, state and local jurisdictions across the country — red and blue — have either made or
are considering changes that will limit their use of solitary confinement, especially for juveniles and the mentally ill, according to a 2018 report
by the Association of State Correctional Administrators and researchers at Yale Law School. Everyone agrees that much remains to be done, in
some states more than others. The point, however, is that progressive change has taken place with the Court on the
sidelines. Indeed, on Justice Kavanaugh’s first official day as a Justice, the Supreme Court denied review in a case involving solitary
confinement. Justice Sotomayor dissented from the denial, but the remainder of the Court was silent. I do not mean to suggest that progressive
advocates should ignore the Court. That would be as foolish as idolizing it. But we should recognize that the Court in this country has rarely
been particularly courageous; it is much more inclined to follow than lead. Ever
mindful of its political capital, the Court
hates to find itself out of step with dominant sentiments in society. But once it discerns that public
sentiment has shifted, it tends to follow the crowd , reinterpreting the law to fit the perceived
demands of the day. Perhaps the best recent example of this was the 2015 decision in Obergefell v. Hodges, which struck down state
laws that barred same-sex marriage. By the time the Court entered the fray, popular opinion had already shifted dramatically in favor of same-
sex marriage and the law at issue in Obergefell was already an outlier. In this setting, the Court dutifully found a right to same-sex marriage.
There are undeniably times when early recourse to the Court cannot be avoided. That was the case in 2002, for instance, when my colleagues
and I started the litigation challenging detentions at Guantanamo. At the time, the great hostility to our clients in the public square, combined
with the conditions of their detention and interrogation, left us no option but to seek relief in the courts. But when advocates seek
review in a controversial case without previously building a base of public support, as we were forced to do,
the Court is not likely to be receptive and any victory is apt to be narrow and more symbol than
substance, as ours was in Rasul v. Bush. At best, the Court is a tool that progressive advocates must keep in their arsenal. But it is only one
of many tools, and not apt to be successful until progressive changes on the ground have taken hold, leaving the Court little to do but cement
these changes into place. The
confirmation of Judge Kavanaugh has inspired a great many people to vote . But it
will be even better if it leads them to refine their views of the Court and motivates them to enter the
fray. Eventually, even this Court will follow us.

Courts aren’t key to the death penalty

Garrett, 17 --- professor of law at the Duke University School of Law (Brandon L., End of Its Rope: How
Killing the Death Penalty Can Revive Criminal Justice, ebook from University of Michigan, pg. 13-14, JMP)

A Different Death

America’s death penalty has been turned on its head, and I explore the end game for the death penalty
in Chapter 9. Most recently, in Glossip v. Gross, Justice Stephen Breyer, joined by Justice Ruth Bader
Ginsburg, announced his opposition to the death penalty, citing examples of death row exonerations,
data on wrongful convictions, the change in public opinion, and the decline in death sentences across
the country.13 I am not sure it matters when or whether the U.S. Supreme Court abolishes the death
penalty legally. The death penalty will have largely disappeared with a whimper before any such bang,
due to the hard work of lawyers and a growing realization, in part driven by declining crime, that the
death penalty serves no useful purpose. The people have spoken.

Legal venues – state courts solve

Garrett, 17 --- professor of law at the Duke University School of Law (Brandon L., End of Its Rope: How
Killing the Death Penalty Can Revive Criminal Justice, ebook from University of Michigan, pg.228-230,
JMP)

Perhaps we should not even be looking to the courts to abolish the death penalty—we can do it
ourselves. Some law professors think the courts provide false hope, and only by changing public
opinion and the law on the ground can meaningful and lasting change occur. Then again, the pace of social and
legal change in recent years on other constitutional issues has surprised many observers. None thought that same-sex marriage would be so
quickly adopted in states and then found constitutionally protected by the Supreme Court. Are there lessons from the same-sex-marriage
movement, which resulted in a victory in the Supreme Court, for the anti–death penalty movement? The same-sex-marriage litigators achieved
victories in many lower courts before they took their case to the Supreme Court, building a substantial factual record in the process. They also
achieved victories in statehouses. Anti–death penalty forces have done the same, actually, with more states abolishing the death penalty and
vanishingly few death sentences on the ground. Groundhog Day will repeat itself many times in the years ahead. Death row inmates are filing
briefs, heeding Justice Stephen Breyer’s call to bring to the Supreme Court the question whether the entire death penalty is unconstitutional.
Some law professors argue that the courts have constructed the American death penalty since the 1970s, and
that it must be the courts that finally reckon with their creation. Still, it is not at all clear that many on
the Supreme Court would make such a bold move after decades of incremental regulation of the death
penalty. The justices may be too invested in the modern death penalty they created. Law professors Carol and
Jordan Steiker, in their magisterial book describing the Supreme Court’s decades of experience regulating capital punishment, conclude that the
death penalty will ultimately be abolished not “primarily because of noble considerations marking moral advancement,” but instead because it
is a “failed and perhaps impossible effort” to use the death penalty consistent with the Constitution.35 Justice Antonin Scalia
thought
that the issue must be left “to the People to decide.” 36 Perhaps he was right, and perhaps the Justices
are unlikely to abolish the death penalty any time soon. State court judges may be more likely to do so,
and litigation is underway in several states. Still more important, because it is a failed effort, as Carol and Jordan
Steiker describe, the people are already doing away with the death penalty as voters and as jurors. One
more sign of this change is that the desire for mercy increasingly comes from perhaps the most
unlikely source: the survivors and the family members of the victims. As public support for the death
penalty wanes, more family members of murder victims ask prosecutors not to seek the death penalty.
The sister of the victim of a mass shooting in California commented that she wanted the culprit to die “alone and unnoticed,” serving life in
prison so that “next time we see his face in the paper, it would be for his obituary.” A district attorney in Texas commented in 2015 that “a
healthy percentage” of victims’ families now say they do not want the prosecutors to seek the death penalty.37 Prosecutors do not have to
listen to them, but they of course try to serve their community and crime victims. In death penalty cases, the Supreme Court permitted broad
use of victim-impact testimony in its 1991 decision in Payne v. Tennessee.38 One concern is that jurors will sentence people to death if the
victim’s family members speak in an articulate, impassioned way in support of the death penalty, or just appeal to the jurors.39 While the court
did impose minimal boundaries on the use of victim-impact testimony in death penalty cases, in
a number of states juries can
freely hear victim-impact testimony at sentencing . In many states, victim-rights statutes entitle victims to be heard. More
family members expressing discomfort with the death penalty can therefore have a real impact.

GOP replacement for Ginsburg cements progressive opposition to SCOTUS AND opens
up the way for post-election packing
Somin 9-19 (Ilya, Professor of Law at George Mason University, “A Possible Deal on Ginsburg's
Replacement that Could Prevent Court-Packing,” 9-19-20, https://reason.com/2020/09/19/a-possible-
deal-on-ginsburgs-replacement-that-could-prevent-court-packing/, DOA: 9-19-2020) //Snowball

But any such victory could easily prove to be Pyrrhic. It

is very possible that the Democrats take the White House and
Senate in this year's election while retaining control of the House. Biden is the clear favorite to win the
White House, and the respected 538 model gives the Dems a 58% or more chance of taking the Senate,
as well. In almost any scenario where the Democrats control the Senate, they will also have the presidency
and the House.

Should that happen in the aftermath of a last-minute GOP replacement for Ginsburg, the Democrats are
highly likely to "pack" the Court by increasing the number of justices to counterbalance all recent GOP
gains. In that event, the Democrats are unlikely to limit themselves to adding just one new justice (to offset
the Ginsburg replacement). They would probably add at least three or four, in order to give them the
majority they believe they were unfairly denied due to the "theft" of the Garland/Scalia seat, and the
controversial confirmation of Brett Kavanaugh. If the Democrats are willing to pack the Court at all, they
might as well go "whole hog." The political risk of adding three or four justices is unlikely to be much
greater than that of adding one or two .

Up until now, left-wing pressure for court-packing has been blocked by such factors as opposition from
Democratic nominee Joe Biden and Democratic moderates (crucial swing voters in any potential Democratic Senate
majority), and the Supreme Court's growing popularity. But that opposition is likely to crumble if the GOP
forces through a last-minute nominee in contravention of the principles they themselves advocated in
2016. Even for moderate Democrats, that would likely be the proverbial last straw after what they regard as a
long series of GOP misdeeds in nomination battles. Indeed, Democratic support for court-packing is gathering
momentum even as I write these words.

Court packing proposals are directly tied to public perceptions about court legitimacy.
Mathis 9-18 (Joel, Contributing Writer, “Ruth Bader Ginsberg's passing makes a scary moment even
worse,” 9-18-20, https://theweek.com/articles/938484/ruth-bader-ginsbergs-passing-makes-scary-
moment-even-worse, DOA: 9-20-2020) //Snowball

The streets will be a different question. Left-of-center activists, haunted by the prospect of a
conservative supermajority on the Supreme Court, can be expected to protest nationwide . Conservatives will
probably meet them there. Tensions will run high. The summer of unrest in the wake of George Floyd's death in Minneapolis may prove
to be just a prelude to the disturbances to come.

Three other observations about the fallout from Ginsburg's passing:

* Ifand when Trump's nomination is approved, you can expect Democrats to increasingly advocate
"court packing." The idea of increasing the number of justices on the Supreme Court in order to create a
liberal majority has gained traction on the left in recent years . After all, if Republicans keep changing the
rules for nominees to give themselves an advantage on the court, why shouldn't Democrats? "Democrats
need to start issuing threats to make their counterparts understand there will be no more unilateral surrenders in the court wars," my
colleague David Faris wrote last year. "If
the GOP is determined to press its advantage to the very boundaries of
constitutionality and decency, Democrats must be willing to entertain similarly transgressive, yet
perfectly legal, maneuvers."

That’s an external impact that solves extinction — we only have to win the aff causes
a bolt in court legitimacy
Willis 9-18 (Jay, senior contributor at The Appeal, “ABOLISH THE FILIBUSTER AND PACK THE COURT,”
9-18-20, https://theappeal.org/abolish-the-filibuster-and-pack-the-court/, DOA: 9-19-2020) //Snowball

Packing the Court would not retroactively return Justice Neil Gorsuch’s seat to the Democratic side of
the ledger, or remove Republican Justice Brett Kavanaugh from the seat he won only after making perhaps the most
nakedly political appeal for confirmation in the Court’s history. But it would certainly dilute the impact of their
appointments, and give the new few decades of groundbreaking, lifesaving, planet-preserving
progressive initiatives—Medicare for All, a Green New Deal, and so on—a fighting chance at surviving
judicial review.
Current Gorusch majorities are insufficient to shift – BUT further left decisions rebuild
legitimacy
Robinson 20 -- the editor of Current Affairs and a Guardian US columnist (Nathan, "Don't be fooled.
The US supreme court hasn't suddenly become leftwing," Guardian,
https://www.theguardian.com/commentisfree/2020/jun/19/us-supreme-court-leftwing-daca-lgbt-
gorsuch-roberts, 6-19-2020)// gcd

If your theory of judicial behavior is a purely political one, these results might seem mystifying. Why is Gorsuch
siding with the liberals? Donald Trump’s “shotgun to the face” is one he himself loaded and fired, by appointing Gorsuch to the court.
Was Gorsuch a Trojan horse, a person of secret left-ish sympathies? No, of course not. Because while the court is
extremely political, it’s not completely political, and sometimes judges do in fact make rulings for reasons other than
where they stand on the left-right spectrum. And that’s important, because it means we shouldn’t really
think of the court as having made “progressive decisions” at all . They were rulings that had progressive outcomes. But
the justices’ politics haven’t changed, and we can’t assume there is any kind of pattern here . The court is still fundamentally
conservative, and these rulings are more the product of luck than any kind of shift in the “hearts and
minds” of Neil Gorsuch and John Roberts. Do not be surprised if next year, they rule in ways that hurt
LGBTQ+ people and immigrants just as much as this week’s rulings have helped them. We can
celebrate the outcome, but we certainly shouldn’t treat Roberts and Gorsuch as champions of the
rights of the oppressed. To think about what the decisions imply about the court itself, it’s helpful to understand the justices’ actual
reasoning in each case. In Bostock, Gorsuch’s reasoning was very simple: the 1964 Civil Rights Act prohibits discrimination on the basis of
sex, and while it does not specifically prohibit discriminating against people for being LGBTQ+, in practice there is no way to discriminate
against a person for being LGBTQ+ without discriminating against their sex. After all, if I fire a man for being attracted to men, but I would not
fire a woman for being attracted to men, what is making the difference in my conduct? The sex of the employee. Gorsuch
said that it
doesn’t matter whether Congress intended to prohibit discrimination against LGBTQ+ people, because
the thing they did prohibit covers acts of anti-LGBTQ+ discrimination . It’s very straightforward reasoning. It’s also
quite “conservative”, in the sense that Gorsuch is applying a form of judicial interpretation usually
associated with conservatives, most notably Antonin Scalia. Scalia was an advocate of textualism,
meaning that the words of a statute matter far more than what the lawmakers writing it intended for it
to do. If applying the law in its most literal form has a negative unintended consequence , tough luck. Gorsuch
felt that a consistent application of textualism required ruling in favor of LGBTQ+ rights. But if Gorsuch’s vote resulted from his highly literal
interpretive theory, there’s no reason to expect he will be progressive in cases involving LGBTQ+ people more generally. The Human Rights
Campaign opposed Gorsuch’s confirmation originally citing worrying past decisions, and while there is evidence that he is not personally
homophobic, if the “textualist” reading of a statute goes against LGBTQ+ people next time, they are unlikely to find Gorsuch so friendly to the
cause. In the Daca case, too, there is more going on than simply “John Roberts being favorably disposed toward immigrants.” Roberts
himself wrote in his opinion that the decision had nothing to do with the merits or justice of Daca, but was purely about a procedural
issue: “We do not decide whether Daca or its rescission are sound policies… We address only whether the agency complied with the procedural
requirement that it provide a reasoned explanation for its action.” Of course, judges always say that what they’re doing isn’t political, even
when it is, but there are justices with fetishes for procedural regularity, whose loyalty to the process far exceeds their loyalty to any kind of
“justice” or political value. The ostensible issue in the Daca case was whether, under the Administrative Procedure Act, the Trump
administration’s had undergone the proper process for presenting its justifications for ending the program, and whether the administration’s
judgments about Daca’s legality had undergone the correct amount of deliberation. This is a rather dull question of administrative law, and the
issues being argued about have very little to do with whether or not Daca is a good thing. Of course, it could be that John Robert’s subconscious
sympathies for immigrants are influencing his judgment on the administrative law question. But it could also be that they aren’t, and that he’s
genuinely committed to ensuring that executive branch agencies undergo a particular series of steps in order to make or rescind new rules. If
that’s the case, under a Democratic administration, progressives might find that Roberts proves just as much an obstacle to the
accomplishment of progressive goals as he is currently proving to the accomplishment of Trump’s goals. The law that is applied in our favor one
day will be applied against us the next. Judges make decisions for all kinds of reasons, ranging from their ideals of justice to whether or not they
have had lunch. Sometimes partisan
political values guide a judge, but sometimes the desire to avoid looking
like a political partisan guides them. The point is: we can’t rely on the justices’ conscience to improve the world.
Even “progressive” justices like Ruth Bader Ginsburg often turn out to have unexpectedly conservative streaks, and while
a conservative
may look like a lefty from time to time, it’s frequently because of an obscure procedural issue that
nobody except lawyers understands or cares about. Justice is sometimes served at the supreme court, but when it is it’s
often by chance. The court won’t save us, and conservative justices are still not our friends.

Bostock is neg uniqueness – it increases conservative legitimacy by conveying a

balanced swing vote – BUT – that’s dependent on continued conservative rulings
down the line
Harris ’20 [Mary; June 16; Reporting, citing Mark Stern, a judicial analyst with a J.D. from Georgetown
University; Slate, “Why Conservative Justices Gave Progressives a Victory,” https://slate.com/news-and-
politics/2020/06/supreme-court-lgbtq-bostock-abortion-trump-tax-cfpb.html; RP]

At the beginning of this term, you came on the show and literally said, “I

am here to terrify you and hopefully make you extremely
afraid of the judiciary for the rest of your life.” Does a decision like this change that opinion?

Oh, no. In some ways, it actually frightens me even more.

Why?

Roberts and Gorsuch have just given themselves a huge amount of political capital. Remember, the court
doesn’t have its own standing army to enforce its decisions. It relies, basically, on magic: our belief in its institutional
legitimacy to have any power at all. If the court had only issued a ton of conservative opinions this term—if
the court had said no to abortion, no to DACA, no to the CFPB, just totally crashed through all of these liberal
projects—I think that court packing would be a real conversation on this campaign trail, and I think Joe Biden would be forced to take a
position on it. And I think you would see a lot of liberals saying, we’re not even paying attention to the court
because it’s illegitimate. But instead, you have a day of everybody on the left celebrating the Supreme Court
and Gorsuch and Roberts. That gives both of them a huge amount of cover to erode Roe v. Wade, to let Trump hide his
financial records and deport Dreamers, to gut the independence of the CFPB. Then they can still turn around and say, We’re
impartial and independent and you should respect our decisions because sometimes we swing left. This
is a classic trick. This is what Roberts has been doing for a long time. I don’t think it should cheapen the victory for
LGBTQ rights, but it should put everyone on high alert for some pretty far-right decisions that may be coming down
the pipeline.

DACA was a conservative victory -- it protected the legal authority to end the program
Cardona ’20 [Maria; June 21; Democratic strategist and co-chair of the Democratic National
Committee’s rules and bylaws committee for the party’s 2020 convention; The Hill, “Supreme Court
DACA decision a win for Trump,” https://thehill.com/opinion/immigration/503794-supreme-court-daca-
decision-a-win-for-trump; RP]

The Supreme Court’s decision last week on the Deferred Action for Childhood Arrivals (DACA) program is seen as a huge
political loss for President Trump. It is anything but.

The high court’s decision allows immigrants who have received DACA status, sometimes referred to as “Dreamers,” to stay in
the country safely without threat of deportation. But that protection remains temporary.   
The Supreme Court provided a Band-Aid that can be abruptly ripped off at any minute, exposing the fear,
anxiety and danger these residents have had to live with for so long.

The court simply declared that Trump failed to end DACA in the correct manner, not that he couldn’t end it.  

“That failure was arbitrary and capricious in violation” of the Administrative Procedure Act, Chief Justice John Roberts wrote. That
means Trump has the legal authority to end the program but that he had technically gone about doing it in the
wrong way. The court gave Trump a road map to do it correctly next time around. And Trump seems
intent on following it.  

At his sparsely attended campaign rally in Tulsa, Okla., on Saturday night, Trump told

the truth about DACA. “People don't
understand, but we actually won on DACA yesterday,” he told rallygoers. “We actually won, because [the court]
basically said, ‘You won, but you have to come back and redo it.’”

“So we're refiling it,” Trump continued. “Most people would say that we lost. We didn't lose. We're gonna refile it.”

Trump’s words were meant to buoy the spirits of his supporters, who have been disillusioned with a recent
stream of Trump losses — at the Supreme Court, his continued mishandling of COVID-19, the John Bolton book revelations and
his tumbling poll numbers. 

Trump’s assurance that he will continue to try to end DACA is a nod to his base, which wants to rid the country of all undocumented
immigrants. 

But is it a politically smart move to make? Will Trump and his advisers immediately try again to deport more than 700,000 “Dreamers” so close
to the election?

I think it would backfire. Die-hard Trump supporters would love it if he ended DACA, but he could lose less enthusiastic supporters and
independents. An overwhelming majority of Americans — 74 percent, according to one poll — support letting the “Dreamers” stay and work,
study or serve in the military legally. This includes 64 percent of Trump supporters. These numbers suggest “Dreamers” could be the glue of a
coalition that brings together both sides to find a real solution.

That is what DACA recipients and this country deserve. The politically brilliant move for Trump would be immediately to offer legislation that
would give “Dreamers” permanent legal status with a pathway to citizenship. But he won’t. He is too tied to his anti-immigrant base.

Instead, he
will resort to xenophobic immigrant bashing in an attempt to maximize turnout
among his voter base.

The Supreme Court’s DACA decision allows Trump to do just that. In that sense, it is a win for him, and
a huge loss for the peace of mind of “Dreamers.” The only way to protect and honor “Dreamers” and the only country many of them
have ever known and loved is to vote Donald Trump out of office in November.

Link turns case – judicial action without public support gets rolled back – preemptive
action triggers backlash that undermines momentum
Klarman, 15 --- professor at Harvard Law School (7/6/15, Michael, “The Supreme Court Is Most
Powerful When It Follows Public Opinion,” https://www.nytimes.com/roomfordebate/2015/07/06/is-
the-supreme-court-too-powerful/the-supreme-court-is-most-powerful-when-it-follows-public-opinion,
accessed on 4/28/2020, JMP) **edited for ableist language

The Supreme Court reflects shifting social mores at least as much as it influences them. Rulings such as
Brown v. Board of Education and Obergefell were inconceivable until enormous changes in the surrounding
social and political context had first occurred. Before Brown, President Franklin D. Roosevelt appointed the first black general
in American history, President Harry S Truman issued executive orders desegregating the federal military and the civil service, and Jackie
Robinson desegregated major league baseball. Even in the South, black voter registration increased from 3 percent in 1940 to 20 percent in
1950, and blacks began serving on juries and in local political offices for the first time since Reconstruction. Justice Sherman Minton noted “a
different world today” with regard to race, during the Brown deliberations, and Felix Frankfurter remarked upon “the great changes in the
relations between white and [black] people.” Obergefell was rendered possible only by enormous shifts in attitudes and practices. The number
of states forbidding discrimination based on sexual orientation increased from zero in 1980 to over 20 by 2015. In 1992, not a single Fortune
500 corporation extended benefits to the partners of gay employees, but in 2015 the vast majority of them do so. In 1990, fewer than one
American in four supported gay marriage; in 2015, 60 percent of them do so. At the oral argument in the Defense of Marriage Act case in 2013,
Justice Antonin Scalia noted a “sea change” in attitudes regarding gay marriage. Judicial
interventions can cause powerful
political backlashes that retard [hinder] the progress of social reform movements. The court’s
provisional ruling against the death penalty in 1972 generated tremendous support for capital
punishment, as 35 states quickly enacted new death penalty statutes . Similarly, Roe’s aggressive defense
of abortion rights fostered a right-to-life movement that fundamentally reshaped American politics
and arguably made abortion reform more contentious and resistant to compromise. Sensitive to the
possibility of backlashes, justices often delay or minimize their interventions. In Brown, the justices hedged their
remedial order — school desegregation was to take place “with all deliberate speed” — because they feared that ordering immediate
desegregation would produce school closures and violence. Even
though state supreme courts began wrestling with gay
marriage in the early 1990s, the Supreme Court did not grant review in such a case until 2012 — then
ducked the issue the following year. By the time of Obergefell, 11 states had enacted gay marriage by legislation or referendum.
By waiting until 2015 to issue a broad ruling in favor of marriage equality, the Obergefell majority probably will have managed to forestall
significant backlash. Moreover, while Brown’s opponents thought that sending their children to integrated schools would be cataclysmic and
Roe’s opponents regard abortion as murder, a marriage equality ruling will have little direct impact on opponents’ lives. Some state and local
politicians — especially in the Deep South — may express outrage at the court’s decision, but one cannot imagine a governor mimicking George
Wallace and “standing in the courthouse door” in opposition to marriage equality.

It empirically fuels tough-on-crime policies

Goldfarb, 16 --- Professor of Clinical Law, George Washington University Law School (Summer 2016,
Phyllis, “Matters of Strata: Race, Gender, and Class Structures in Capital Cases,” 73 Wash & Lee L. Rev.
1395, Nexis Uni via Umich Libraries, JMP)
[*1410]

1. Departure and Return of the Death Penalty

There is yet more evidence of the racial pedigree of the death penalty in America. Furman v. Georgia, 60 the 1972 U.S. Supreme Court
case that temporarily halted America's death penalty , was brought to the Supreme Court by the NAACP Legal Defense Fund,
a legal organization founded by Thurgood Marshall and dedicated to the advancement of civil rights and racial justice. 61 Those in the
contemporary movement to abolish the death penalty are known as abolitionists, a racial justice echo
that voices its link with the abolitionist movement of the nineteenth century that sought to end slavery.
62 As Evan Mandery writes in A Wild Justice, his book about the Furman case, "everyone understood Furman to have been
about race." 63 Four years later, when the Supreme Court reinstated the death penalty in the 1976 case of
Gregg v. Georgia, 64 it was clear that this retrenchment was tied to backlash against the civil rights
movement and the civil rights advances that it had precipitated . 65 This backlash expressed itself in a
racially charged tough-on-crime movement. 66 But for the resentment of civil rights [*1411] progress that led
to restoration of capital punishment, the death penalty would have been unavailable to the Virginia courts that imposed it on Joe
Giarratano in 1979. 67 Long after its abolition in most Western democracies, the death penalty survived in America, a relic of America's
centuries-old and still highly charged racial dynamics. 68
2---judicial capital – the plan forces progresses to burn their capital that would
otherwise challenge the worst elements of Trump’s conservative agenda
 power to wage war, the suspension of the writ of habeas corpus, encroachments on the First
Amendment

Gross, 18 --- Professor of Law at Michigan (Summer 2018, Samuel R, “CHILDRESS LECTURE: THE DEATH
PENALTY, PUBLIC OPINION, AND POLITICS IN THE UNITED STATES,” 62 St. Louis L.J. 763, Nexis Uni via
Umich Libraries, JMP)
For more than a year, the Glossip dissent generated excitement among many people who oppose the death penalty. Support for the death
penalty was way down, its use was dropping like a stone, and now Justice
Breyer had said, in effect, "Please - ask us to revisit Gregg.
It's time for the Court to hear a case that we could use to decide that the death penalty is
unconstitutional." By now, nobody thinks it's going to happen any time soon. That moment has passed.
We now have Justice Neil Gorsuch, who is highly unlikely to vote to outlaw the death penalty. More
important, we have President Donald Trump. [*777] Trump may have a chance to appoint additional justices in the next few years. But
even if the composition of the Court does not change, I don't see any justice voluntarily taking on an
issue that would be as politically controversial as the abolition of capital punishment . The justices
know that at any time they might face a constitutional crisis in which they have to confront the
President over the power to wage war, the suspension of the writ of habeas corpus, encroachments
on the First Amendment, or who knows what Trump might do in the next three years. If I were in their shoes, I'd keep
my powder dry for a potential fight about the very structure of the Republic.

Roberts won’t moderate the court

Epps 19 --- Professor of constitutional law at the University of Baltimore (4/2/19, Updated on 4/4/19,
Garrett, “Will John Roberts Block the Triumph of Legal Conservatism? His hesitations about moving the
Court to the right are only a question of pace,”
https://www.theatlantic.com/ideas/archive/2019/04/john-roberts-isnt-really-moderate/586273/,
accessed on 6/13/2020, JMP)

Despite his direct rebuke to Trump, however, it is not obvious that Roberts can or would resist the
transformation of the Court into an extension of the Republican Party. John Roberts is perhaps the most enigmatic
figure in national politics and government today. As the crisis of American democracy engulfs the Court, now is a good time to ask who Roberts
is and what he believes. Readers seeking answers to those questions should turn first to Joan Biskupic’s fine new biography of Roberts, The
Chief: The Life and Turbulent Times of Chief Justice John Roberts. Biskupic, who has covered the Supreme Court for The Washington Post, USA
Today, and Reuters, is now a full-time legal analyst for CNN. Her years of experience and scrupulous fairness have given her access to the
Court’s inner circle—top appellate lawyers, lower-court judges, former clerks, some of the justices themselves, and even the chief—that
provides the best view of Roberts we are likely to have for years to come. Biskupic documents the career of a young conservative whose ideas
were formed during the exhilaration of the “Reagan revolution”; in the four decades since, he seems (like the Bourbon dynasty in the
apocryphal quote from Talleyrand) to have learned nothing and forgotten nothing. Roberts is not a “movement conservative”; Justices Samuel
Alito, Clarence Thomas, and Neil Gorsuch are proud members of the conservative Federalist Society and ostentatiously bask in its adulation.
Roberts has never fully identified with the society and tends toward greater decorum in his public appearances. During his confirmation
hearing, he described the work of an Article III judge in the American system as that of a baseball umpire who calls “balls and strikes,” rather
than determining who scores and who wins. He strives publicly to cut a smaller-than-life figure. Yet Roberts
is absolutely not a
legal technocrat who seeks to further only process and separation-of-powers values. Anyone who has studied
the record knows that Roberts came to Washington with a set attitude on a number of core issues— hostile
toward civil-rights statutes like the Voting Rights Act and affirmative-action programs; solicitous of wealth in areas like
labor relations and campaign finance; deferential to executive and military authority and correspondingly contemptuous
of the legislative branch; socially conservative on matters of reproduction and sexuality; antagonistic to environmental protection,
economic regulation, and government health-care programs. His public career before rising to the bench was entirely
devoted to extending the power of the executive branch—an instinct on display in his early memos in the Ronald Reagan
White House and fully embodied in his obsequious 2018 opinion in Trump v. Hawaii, upholding the administration’s anti-Muslim “travel ban.”

We’ll insert data that confirms—

Belkin & McElwee 19 – Aaron Belkin, Political Science Professor at San Francisco State University,
director of Take Back the Court. Sean McElwee is director of research and polling at Take Back the Court
and co-founder of Data for Progress. [Chief Justice Roberts is Not a Moderate, October 2019, Take Back
the Court,
https://static1.squarespace.com/static/5ce33e8da6bbec0001ea9543/t/5d98d1c2a141d425ee063bcf/15
70296259377/Chief+Justice+Roberts+Is+Not+A+Moderate.pdf]//BPS
Of the 21 precedent-overturning cases that Roberts has presided over, fifteen were decided by split 5-4 votes in which liberal and conservative
blocs aligned against one another. By examining this subset of fifteen decisions, one can assess how Justice Roberts votes in hot-button,
ideologically charged cases in which past Supreme Court precedent is at stake.

As noted above, Roberts

is one of only ten justices since 1946 to support 100% of decisions overturning
precedent that led to conservative outcomes. 13 While the frequency of Roberts’s votes to overturn precedent to achieve
conservative outcomes alone undermines his reputation for moderation, a qualitative assessment of these rulings reveals the extent of the
impact of his ideological rulings. Roberts voted to overturn precedent across a wide range of ideological issues including campaign finance,
reproductive health, workers’ rights, gun safety, affirmative action, and procedural justice, and voted against overturning precedent when
doing so would lead to liberal outcomes such as marriage equality.
 ⊲ Campaign Finance - Roberts voted with the 5-4 majority in Citizens United v. Federal Election Commission, a decision that
overturned previous campaign finance limitations by applying First Amendment Rights to corporations and allowing unlimited
funding for independent political broadcasts in elections. Roberts wrote in his concurrence, “The text and purpose of the First
Amendment point in the same direction: Congress may not prohibit political speech, even if the speaker is a corporation or union.”
Thanks to Citizens United, special interests play a greater role in influencing election outcomes.

⊲ Reproductive Health – Chief Justice Roberts voted in the 5-4 majority in Gonzales v. Carhart, a case that struck down past
precedent by upholding aspects of the Partial Birth Abortion statute. This decision, which the majority ruled was in accordance with
the undue burden standard spelled out in Planned Parenthood v. Casey, significantly curtails abortion options, especially for
pregnancies beyond the earliest stages.

⊲ Workers’ Rights – Chief Justice Roberts joined the 5-4 majority in Janus v. American Federation of State, County, and
Municipal Employees, Council 31, a case that overturned past precedent that had required all public sector employees to pay union
dues. Observers fear that this ruling could lead to a decrease in funding and membership for public sector unions.

⊲ Procedural Justice- In Montejo v. Louisiana, Roberts joined the 5-4 majority that limited protections for defendants from
unwanted interrogation. In overturning past precedent, the majority in Montejo held that a defendant who invokes a right to
counsel may be interrogated. The ruling cleared the way for more admissible statements from defendants and curbed protections
for defendants against making statements that previously would have been excluded without the presence of an attorney.

⊲ Gun Safety - Roberts joined the 5-4 majority in McDonald v. Chicago, a ruling that protected Second Amendment rights from
infringement by state and local governments and extended the scope of gun rights in states and cities by limiting their ability to
enforce gun safety laws. By extending protections to gun owners, the decision raised questions about the constitutionality of
Chicago’s handgun ban.

⊲ Affirmative Action - Roberts supported the conservative plurality decision in Parents Involved in Community Schools v.
Seattle School District No. 1, a ruling that found an affirmative action program to be unconstitutional, and that overturned past
decisions that had allowed broader affirmative action protections. The Court held that racial imbalances in a population are no
longer a sufficient basis for upholding the constitutionality of affirmative action programs, thus limiting school districts’ ability to
address racial imbalances in education that resulted from decades of discriminatory practices.

⊲ Same-Sex Marriage - In Obergefell v. Hodges, Roberts was one of four dissenting justices who voted to uphold Supreme
Court precedent enforcing marriage as only valid between members of opposite sex. Roberts argued that the Court overstepped its
boundaries when, “[it took] the extraordinary step of ordering every State to license and recognize same-sex marriage.”

No internal link - Legitimacy is resilient and doesn’t spill-over.

2AC Nelson & Tucker ’17 (Michael & Patrick; 5/20/17; Assistant Professor of Political Science at Pennsylvania University; Ph.D.
Candidate in the Department of Political Science at Washington University; Papers Online Sharing, “The Stability of the U.S. Supreme Court’s
Legitimacy,” http://mjnelson.org/papers/NelsonTuckerPanel.pdf)

Even where panel data have been used to study the Court, they cover relatively short periods of time or are not representative of the American
people. Of course, a handful of important studies of public opinion and the Court have relied on panel data. Christenson and Glick (2015) used a
short, 4-wave panel survey that spanned a month around the Court’s ruling on the Affordable Care Act, and Hoekstra (2000) used panels
spanning the time between oral argument in a case and two weeks after the decision to understand local reactions to U.S. Supreme Court
decisions. While both of 1Recent research (e.g. Gibson and Nelson 2017; Nelson 2018), however, suggests that perceived politicization may
pose a uniquely potent threat to the Court’s legitimacy. these studies expanded our understanding of the Court’s support in important ways,
neither study is nationally-representative. To our knowledge, only a single nationally representative panel, that used by Gibson and Caldeira
(2009) to study Americans’ support for the Court in the wake of the confirmation hearings for Samuel Alito, has been conducted, and that panel
lasted one year. As a result, we simply
do not know the extent to which any dips or gains in the Court’s support
among individuals survive the passage of more than a handful of months. Given that the Court clusters its most important
decisions during the month of June (Epstein, Landes and Posner 2015), it may be the case that what appear to be meaningful changes in the
Court’s support revert to an equilibrium level of support by the time the Court’s next term begins (or, under a more generous theory, until the
Court decides important cases again the following June). Indeed, were this the case, support
for the Court would appear to
change in short-term panel surveys or in experimental settings but would actually be relatively stable
over time. Because the Court decides most of its important cases in June of each year, panel surveys
that encompass only a single year are unable to assess the sort of change that existing theory predicts
will erode diffuse support: a number of displeasing decisions, made over a period of time (Easton 1965; Gibson
and Caldeira 1992). Indeed, in their pioneering study of the stability of public opinion toward the Court, Mondak and Smithey (1997) suggest
that, for even important cases, the window of opportunity for a decision to affect public support for the
court is about one month. At that point, support reverts back to its equilibrium level. Short panels, therefore,
can help us understand whether support for the Court shifts in response to a displeasing decision (or set of decisions), but they are unable to
examine the persistence of these effects. And it is persistence that is important: if support for the Court tends to revert back to an equilibrium
level, as Mondak and Smithey (1997) suggest, then the Court is free to make decisions that anger the American people with relatively impunity.
The existence of persistent change in support, however, would suggest that the
Court’s legitimacy is more malleable than
existing theory suggests; the normative implications of either finding are both obvious and important. We
take up these challenges in this paper, drawing upon the most comprehensive panel data concerning support for the U.S. Supreme Court ever
assembled. Tracking attitudes toward the Court 4measured over 11 waves and four years, our data enable us to test
hypotheses about change and stability toward the U.S. Supreme Court that have been beyond the
capacity of prior research designs to test. Our analysis thus enables us to address both micro-level and
macro-level change in support for the U.S. Supreme Court over a period of time in which the Court’s rulings
have been highly salient in American life, including rulings on the constitutionality of health care reform, voting
rights, affirmative action, and same-sex marriage. Moreover, we are able to trace the persistence of any shifts in support,
thereby providing some of the first evidence about the extent to which displeasing decisions are actually damaging to the Court. 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.

Court packing cements Trumpism for decades

Zengerle, 18 --- political correspondent for GQ (8/22/2018, Jason Zengerle, “How the Trump
Administration Is Remaking the Courts; Thanks to ruthless discipline — and a plan long in the making —
the G.O.P is carrying out a sweeping transformation of the federal judiciary,”
https://www.nytimes.com/2018/08/22/magazine/trump-remaking-courts-judiciary.html, accessed on
11/22/2018, JMP)

While Trump has lagged behind other presidents in political appointments, the streamlining of the
judicial-selection process has helped him deliver a historic number of judges to the federal bench. In 2017,
the Senate confirmed 12 of Trump’s appeals court picks — the most for any president in his first year in office. This year, the Senate has already
confirmed 12 appellate judges and, according to a Republican Judiciary Committee aide, hopes to confirm at least four more. The
White
House refers to every new batch of judicial appointees Trump selects as “waves” — in early June, it
announced the “Fifteenth Wave of Judicial Nominees”— as if they’re soldiers landing on the beaches of
Normandy. Trump’s appointees have tended to be unusually well credentialed and conservative. Republicans like to emphasize their
academic and professional bona fides — the summa cum laudes, the Phi Beta Kappas, the Supreme Court clerks — and jokingly celebrate their
“deep bench” of candidates. Democrats, for their part, prefer to focus on the appointees’ ideology. “If
someone had said or written
something half as controversial as these Trump nominees, they never would have been picked by President
George W. Bush,” says Kristine Lucius, a former Democratic Senate Judiciary Committee aide and now the executive vice president for policy
at the Leadership Conference on Civil and Human Rights. “What once would have been disqualifying” — a nominee’s stated views on
contraception or gay rights or consumer protection — “is now motivating this president.” Or perhaps, the nominees’ views are what’s
motivating many conservatives to go along with Trump’s presidency — which is what’s motivating Trump. When
it comes to Trump’s
judicial appointments, the public has been understandably focused on the Supreme Court , with first Neil
Gorsuch and now Brett Kavanaugh receiving most of the attention. When one of Trump’s lower-court nominees has managed to penetrate
public consciousness, it has usually been an outlier, like Brett Talley, whom Trump picked last year for an Alabama Federal District Court
judgeship. Talley, who had never tried a case and whom the American Bar Association rated unanimously “not qualified,” ultimately withdrew
his nomination after it was discovered that he was a member of a ghost-hunting group and had apparently defended the honor of the early Ku
Klux Klan on an Alabama Crimson Tide football fan message board. More representative of Trump’s judicial appointees are judges like James C.
Ho. Born in Taiwan, Ho moved to the United States as a toddler. He graduated from Stanford and the University of Chicago law school before
going on to clerk for Clarence Thomas at the Supreme Court. After working in George W. Bush’s Justice Department, he succeeded Ted Cruz as
Texas solicitor general. Ho is as pure a product as exists of the conservative legal movement created by the Federalist Society. Last October,
Trump nominated Ho to the United States Court of Appeals for the Fifth Circuit. In December, he was confirmed by the Senate. And in April, Ho
issued his first opinion — a blistering dissent in a campaign-finance case after a Fifth Circuit appellate panel ruled, 12 to 2, that the City of
Austin, Tex., could prohibit individuals from donating more than $350 per election to municipal candidates. Ho used his dissent not only to
voice his disapproval of campaign-finance laws but also to criticize those that regulated gun purchases and protected abortion; he even threw
in a swipe, in a citation, at the Supreme Court’s Obamacare ruling. Lamenting a government that has grown so large that it “would be
unrecognizable to our founders,” Ho wrote: “If there is too much money in politics, it’s because there’s too much government. The size and
scope of government makes such spending essential.” To be sure, Ho’s was a dissenting opinion, but what so cheered members of the
conservative legal movement is that it was likely the first of many, because Ho is only 45. And because there will be more and more judges like
Ho on the federal bench, it’s only a matter of time before such opinions will no longer be dissents. Indeed, after just 18 months,
Trump has “flipped” two circuits — the Sixth and Seventh — from what Trump’s supporters in the conservative legal
movement consider “liberal” to more properly conservative. Two more — the Eighth and the 11th — are on the
verge of tipping. Even circuits that are decidedly liberal are undergoing significant changes . “It’ll be
really important for the Second and the Ninth Circuits to have between two and four really good,
high-octane intellectual conservative jurists,” explains a person close to the judicial-nominations process, “because
dissents provide a signaling function to the U.S. Supreme Court, and those are very important
circuits.” In short, a radically new federal judiciary could be with us long after Trump is gone .

MARKED

Brian Fallon, a veteran Democratic operative who leads Demand Justice, a group formed to help Democrats with research and
“We can win back the House this November, we can defeat
communications in the judicial wars, says,

Trump in 2020 and we’ll still be dealing with the lingering effects of Trumpism
for the next 30 or 40 years because of the young Trump-appointed judges.” And if
Trump is re-elected? Newt Gingrich, who during the 2016 campaign began emphasizing the importance of judges to Trump, posits: “He could,
by the end of his time in office, be the most important president since Franklin Delano Roosevelt in shaping the judiciary.”