***Courts CP

1NCText: The United States Supreme Court should

Courts should be the first mover on surveillance policy- causes follow-on Eric Tucker, 14, journalist,“Focus on NSA surveillance limits turns to courts.”, http://www.seattletimes.com/nation-world/focus-on-nsa-surveillance-limits-turns-to-courts/, 10-28-2014, 07-06-2015, GAO

While Congress mulls how to curtail the NSA's collection of Americans' telephone records,

impatient civil liberties groups are looking to legal challenges already underway in the

courts to limit government surveillance powers. Three appeals courts are hearing lawsuits against the bulk

phone records program, creating the potential for an eventual Supreme Court review. Judges in lower courts, meanwhile, are grappling with the admissibility in terror prosecutions of evidence gained through the NSA's warrantless surveillance. Advocates say the flurry of activity, which follows revelations last year by former NSA contractor Edward Snowden of once-secret intelligence collection programs, show how a post-9/11 surveillance debate once primarily hashed out among lawmakers in secret is being increasingly aired

in open court — not only in New York and Washington but in places like Idaho and Colorado. "The thing that is

different about the debate right now is that the courts are much more of a factor in it," said

Jameel Jaffer, deputy legal director at the American Civil Liberties Union. Before the Snowden disclosures, he said, courts were

generally relegated to the sidelines of the discussion. Now, judges are poised to make major decisions on at

least some of the matters in coming months. Though it's unclear whether the Supreme Court will weigh in, the

cases are proceeding at a time when the justices appear increasingly comfortable taking up digital privacy matters — including GPS tracking of cars and police searches of cellphones. The cases "come at a critical turning point for the Supreme Court when it comes to expectations of privacy and digital information," said American University law professor Stephen Vladeck. Revelations that the government was collecting bulk phone records of millions of Americans who were not suspected of crimes forced a rethinking of the

practice, and President Barack Obama has called for it to end. Since then, the House has passed legislation that

civil libertarians say did not go far enough. In the Senate, Vermont Democrat Patrick Leahy, the Judiciary

Committee chairman, is seeking a vote on a stricter measure to ban bulk collection, which has bipartisan backing and support from the

White House. As Congress considers the matter, the federal judiciary has produced divided opinions that are winding through appeals. The New York-based 2nd U.S. Circuit Court of Appeals recently heard arguments in an

appeal of a judge's opinion that had upheld the program's legality. The D.C. appeals court hears arguments next week after a judge there found that the program is probably unconstitutional. Anna Smith, a nurse in Idaho who contends the program is unconstitutional and that bulk record collection violates her privacy rights, will soon have her appeal heard by the appeals court in the 9th Circuit. Separately, a Somali cab driver convicted in California of funneling money to a

terror group is now challenging a phone records program the government says was vital for his prosecution. Any court

opinion before Congress takes action could influence the lawmakers' debate. Congress

could also act first, but even if it clears up disputes about the government's statutory

authority to collect bulk records, courts might still be left confronting constitutional

questions. Besides those cases, multiple defendants notified in the past year that the Justice Department had obtained NSA-derived evidence against them are now challenging the government. At issue is a provision of the Foreign Intelligence Surveillance Act known as Section 702, which allows the government to collect communications of non-Americans located outside the U.S. for counterterrorism purposes. The program also

sweeps up communications of U.S. citizens who have contact with overseas terror suspects. The Justice Department for the first time last year began notifying individual defendants that it had gathered evidence

against them through warrantless surveillance, setting the stage for legal challenges. A judge

in Oregon rejected an effort by Mohamed Mohamud, a Somali-American convicted of plotting to detonate a bomb at a Christmas tree-lighting ceremony, to suppress such evidence and sentenced him to 30 years in prison, though that issue will likely resurface on

appeal. A similar defense request is pending in the Colorado case of Jamshid Muhtorov, who is charged with trying to provide material support to an Uzbek terror organization and wants information about the government's surveillance methods so he can challenge their legality. In Chicago, a man charged with trying to ignite a bomb outside a bar is scheduled for trial next year after fighting unsuccessfully to see secret intelligence-court records. Albanian citizen Agron Hasbajrami, who earlier admitted trying to go to Pakistan to join a radical jihadist insurgent group, recently withdrew his guilty plea in New York following the government's notification of how it obtained evidence in his case. Congressional supporters of limiting surveillance see an urgent need for action, and say changes are better addressed through legislation than litigation. A critical deadline is June 1, 2015, when the section of law authorizing the bulk records collection is set to expire. If no action is taken before then, that could lessen the chances of a Supreme Court review. Congress may also wind up acting first, which could resolve some of the outstanding statutory issues. The ACLU's

Jaffer said he hopes that Congress will overhaul the program but that courts also have a natural role to play. "To

the extent that Congress is authorizing mass surveillance of Americans' telephone calls, the

Constitution has something to say about that — and only the courts are in a position to

enforce the Constitution," he said.

Solvency

2NC Solvency- Policy Judges formulate public policyGeistfield 8 What is the role of the courts in making social policy? Mark Geistfeld is currently the Sheila Lubetsky Birnbaum Professor of Civil Litigation at New York University School of Law, Jul 10, 2008, http://newtalk.org/2008/07/what-is-the-role-of-the-courts.php

The premise of our discussion–that judges exercise a lawmaking or policymaking role–is undeniable , but worth

considering more closely. One could imagine a regime in which all matters of public policy were resolved by the executive and legislative branches. Courts would resolve factual disputes and could certify any ambiguities regarding law application back to the legislature . Such a regime, of course,

is not feasible for the simple reason that a centralized decisionmaker does not have the capacity to resolve all of our varied legal problems. Decentralization is an inevitable outcome of scarce governmental resources, as illustrated by the early English common law. Judges will have to formulate public policy , so the real questions are ones of degree and so on. Without addressing those questions, one cannot criticize a case by the simple assertion of “judicial activism,” as Alan points out.

Supreme Court can set policy that results in significant changeErole 10 CORRELATIONS BETWEEN THE U.S. SUPREME COURT AND PUBLIC OPINION ON THE ISSUES OF ABORTION AND THE DEATH PENALTY, A Thesis Presented to the Faculty of California State University, Chico, Slande Erole, Fall 2010

The Supreme Court is foremost a legal institution, the highest court in the United States judicial system. Though the Court is often thought of as being a “nonpolitical” office, its role as the third branch of government in the United States defines it as a political institution (Baum 2001). Lawrence Baum

notes that the Supreme Court is able to set policy through its legal interpretations of the Constitution. The mere existence of a Constitution makes it possible for the Supreme Court to set policy because it offers a foundation for individuals to challenge the actions of the other two branches of government (Baum 2001). Through its use of judicial review, which the Court claimed for itself

earlier on in its existence, the Supreme Court is able to engage in judicial activism, using its decisions to set policy that result in significant changes in American lif e (Baum 2001). Like Congress and the Executive

Branch, the Supreme Court also has an agenda, which is represented by the number of cases it chooses to hear in certain policy areas. But for the Court to have an impact or shape public policy in certain areas, it has to address multiple cases in that area, something that can be difficult because the Court is able to hear only a limited number of cases each term (Baum 2001). The Court makes important decisions on major issues that affect the general public. These decisions are often also salient enough to make the public want to influence the decisions of the Court (Baum 2001). As a result, appointments to the Supreme Court have been increasingly contentious political battles between Congress and the Executive Branch (Baum 2001).

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

In this study we focus on the United States Supreme Court as a bellwether of systemic attention to policy issues. In Federalist 78, Hamilton offered his by now famous and often repeated opinion that the Court would be "the least dangerous branch." Without the power of the sword or purse at its disposal, the Court's authority in American politics would ultimately depend on its ability to persuade . The Supreme Court, however, may be more effective in drawing attention to issues and identifying problems than in changing preferences about them (cf. Franklin and Kosaki 1989; Hoekstra 1995). The judicial venue may increase issue visibility and legitimacy for issue advocates. As with other United States political institutions, Supreme Court decisions confer and remove benefits, both material and symbolic,

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

United States , and in doing so constitute an institutional source of change in American public policy and politics.

Courts good- positive public opinion proves Robert B. McKay,59, dean of NYU Law School, former president of the New York City Bar Association, “The Supreme Court and its Lawyer Critics.”, http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1647&context=flr, 1959, 07-01-2015, GAO

In the midst of the controversy that centers upon the Supreme Court of the United States-now and perennially-there would presumably be general agreement on one point, and perhaps only one. The Supreme Court has consistently been more influential in shaping the course of governmental action than would have seemed predictable from the slim power-potential committed to the Court by the spare language of the Constitution. In a nation newly dedicated to the experiment of representative democracy, an observer would scarcely have anticipated that the branch of the tripartite government most completely insulated from the democratic process should be given the most completely unchecked power. Yet the function of judicial review by a Court of tenure-secured Justices, final save by the cumbersome technique of constitutional amendment, is the central and inescapable fact about the Court as originally conceived, and as practiced since at least 1803.' Neither friend nor foe of the Court seriously suggests alteration of this scheme whereby presidential programs with strong popular support have been rejected for lack of authority, and Congresses have been for a considerable time

frustrated in the achievement of the manifest popular will. A probable reason for the almost

surprising acquiescence in such judicial decisions is the fact that there has been, at least

until recently, an enormous reservoir of public respect for the Court as an institution. In turn this "mystique" of the Court's rectitude, if not necessarily its infallibility, is supported by what must be an intuitive understanding that the Court is not undemocratic after all, despite the seemingly nonrepresentative character of the federal judiciary. Judge Wyzanski has expressed the idea as follows: [B]y necessity the legislature represents rather than reflects the people. Once this is recognized, it is not a far cry to say that the judiciary also represents the people. It is true that the people do not elect and cannot retire a federal judge. But it may not be presumptuous to suggest that the majority of the people are as satisfied with their judges as with their congressmen

2NC Solvency- Follow-onFollow-on true with surveillance policy Alexander Abdo and Jameel Jaffer, 15, legal director of ACLU and staff attorney at ACLU “The courts stood up to NSA mass surveillance. Now congress must act.”, http://www.theguardian.com/commentisfree/2015/may/09/the-courts-stood-up-to-nsa-mass-surveillance-now-congress-must-act, 05-9-2015, 7-1-2015, GAO

Thursday’s decision rejects this argument categorically. “The interpretation the

government asks us to adopt defies any limiting principle”, the court writes. To adopt it,

the court observes, would permit the government to appropriate any private collection of

data into a government database for future review. This, the court writes: “would be an

unprecedented contraction of the privacy expectations of all Americans.” The decision focuses on

the NSA’s call-records program, but its implications are broader. This is because the same defective legal theory that underlies the call-records program is at work in some of the NSA’s other mass-surveillance programs as well. The NSA once collected the internet metadata of millions of Americans, arguing that all of the data was relevant because some of it might be. The CIA is reported to be amassing records of international financial transactions on the same theory. And, until recently, the Drug Enforcement Administration

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

the provision, scale it back or allow it to expire. The appeals court’s decision should strengthen the hand of advocates who believe the revisions currently being considered by Congress don’t go far enough, and it should strengthen the resolve of legislators who have been pushing for more comprehensive reforms. If Congress can’t coalesce around more comprehensive reform, the best course would be to let Section 215 expire. The intelligence community hasn’t even attempted to make a serious case that this authority is actually necessary.

And as the recent ruling reminds us, it’s an authority that’s been grossly abused already and that could readily be abused again. The

court has done its part. Now it’s Congress’s turn.

Supreme court action creates congressional follow onErole 10 CORRELATIONS BETWEEN THE U.S. SUPREME COURT AND PUBLIC OPINION ON THE ISSUES OF ABORTION AND THE DEATH PENALTY, A Thesis Presented to the Faculty of California State University, Chico, Slande Erole, Fall 2010

Other scholars disagree with Rosenberg’s conclusion and argue that it is inaccurate of him to conclude that because the Court did not bring about immediate significant effectual change,

then it had absolutely no impact on social reform (Dahl 1957; Casper 1976; Baum 2001). By handing down the decisions that it did, though it may have taken long for the changes to be implemented, the Court did set a precedent . The decision of the Supreme Court in Brown v. Board of Education set in motion at least an awareness of the problems facing African Americans and that there was a need for change. The Court’s decision sent a message that at least one part of the government was ready to act towards social reform. And it enabled Congress to pass anti-discriminatory legislation, such as the Civil Rights Act of 1964. Without the previous decisions of the Supreme Court towards ending

discrimination, Congress may not have had a basis for passing the anti-discriminatory laws

that it did. If the Court had not decided against the “separate but equal” doctrine, would Congress or the Executive Branch have acted at all? It is impossible for Rosenberg to prove that there was not some type of correlation between the Supreme Court’s decisions and social reform. Ultimately, it can be said that in concert with the other branches of government, political support, economic incentives, mass

media, and public opinion, the Supreme Court is able to produce change . Though the changes may not be immediate or

dramatic, they do exist. It is very hard to determine 10 the direction that abortion rights, civil rights, or criminal rights would have taken had the Supreme Court not taken action as a policymaker . For example, Jonathan Casper argues that the Court has a particular importance in placing issues on the agenda of the other branches of government and that the Court can provide legitimacy to certain issues, as well as serve to mobilize individuals towards those issues (Casper 1976).

2NC Solvency- Modeled InternationallyInternational courts look to the US for precedentKommers 9 Donald P. Kommers, professor of political science and law, Notre Dame, M.A. & Ph.D. in political science, Wisconsin-Madison. Answers.com: "US Supreme Court: International Impact of Court Decisions,” written: 7/19/09 http://www.answers.com/topic/international-impact-of-court-decisions

Marbury v. Madison (1803) held that the power of a court to say what the Constitution means was implicit in an independent judiciary. This power of

judicial review was a unique feature of American constitutionalism well into the twentieth century. The perceived success of this experiment prompted several nations emerging from the ruins of World War II to include explicit provisions for courts of judicial review in their new constitutions. By the end of the century, almost every constitutional democracy in the world had adopted judicial review in one form or another. In explicit recognition of the American tradition of judicial review, many nations conferred this power on special constitutional courts. But several common law countries, following the American model, empowered all

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

received substantial attention in nearly all these courts. Even when such decisions are not cited, foreign courts often employ terminology clearly borrowed from American case law; they have also borrowed heavily from

the rhetoric of liberty found in the judicial dissents of justices like Louis Brandeis, Oliver Wendell Holmes, Earl Warren, and William Brennan. The fierce independence associated with the exercise of judicial review by these and other justices has served as a model of constitutional justice around the world

Supreme Court is perceived internationally Mishali 6 Jessica Mishali, J.D. candidate at the Touro Law Center, 2006, Touro Law Review, 21 Touro L. Rev. 1299

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

mark." These words imply that Supreme Court decisions affect the way the world views the U nited S tates . Now, more than ever, this country is in need of improving the world's impression of it. In the words of Justice Ginsburg, "even more today,

the United States is subject to the scrutiny of a candid world ... what the United States does, for good or for ill, continues to be watched by the international community ..." The world is watching and judging, and if the Supreme Court were to give credence to foreign law, other countries may perceive that as a sign of solidarity. It is, therefore, possible that Supreme Court recognition of international law and opinion would be a means of improving the international community's perception of the United States. Arguably, it is not the judiciary's role to improve the world's view of the United States. The Supreme Court is not intended to be a political entity; policy and politics are supposed to be left to the legislative and executive braches of the

federal government. But in reality, the Supreme Court does have a major policy setting function. It interprets the Federal Constitution in making decisions, and those decisions are binding on the entire country. Hence, the judiciary may be technically non-political, but inherent in the powers of the Court is the ability to have a serious

effect on policy. The Court's opinions are also studied by the rest of the world, and represent, to

the international community, American laws and views. The Supreme Court should not ignore that reality and should recognize its part in creating the international opinion of the United States.

2NC Solvency- Surveillance Courts better than congress- congress can’t curtail surveillance Glenn Greenwald 14, constitutional lawyer, journalist, author “Congress is irrelevant on mass surveillance. Here’s what matters instead.”, https://firstlook.org/theintercept/2014/11/19/irrelevance-u-s-congress-stopping-nsas-mass-surveillance/, 11-19-2014, 7-5-2015, GAO

When pro-privacy members of Congress first unveiled the bill many months ago, it was

actually a good bill: real reform. But the White House worked very hard— in partnership

with the House GOP—to water that bill down so severely that what the House ended up

passing over the summer did more to strengthen the NSA than rein it in , which caused even the

ACLU and EFFto withdraw their support. The Senate bill rejected last night was basically a middle ground between that original, good bill and the anti-reform bill passed by the House. * * * * * All of that illustrates what is, to me, the most important point from all

of this: the last place one should look to impose limits on the powers of the U.S. government is

. . . the U.S. government. Governments don’t walk around trying to figure out how to limit

their own power, and that’s particularly true of empires. The entire system in D.C. is designed at its

core to prevent real reform. This Congress is not going to enact anything resembling

fundamental limits on the NSA’s powers of mass surveillance . Even if it somehow did, this White House

would never sign it. Even if all that miraculously happened, the fact that the U.S. intelligence community and National Security State operates with no limits and no oversight means they’d easily co-opt the entire reform process. That’s what happened after the eavesdropping scandals of the mid-1970s led to the establishment of congressional intelligence committees and a special FISA “oversight” court—the committees were instantly captured by putting in charge supreme servants of the intelligence community like Senators Dianne Feinstein and Chambliss, and Congressmen Mike Rogers and “Dutch” Ruppersberger, while the court quickly became a rubber stamp with subservient judges who operate in total secrecy. Ever since the Snowden reporting began and public opinion (in both the U.S. and globally) began radically changing, the White House’s strategy has been obvious. It’s vintage Obama: Enact something that is called “reform”—so that he can give a pretty speech telling the world that he heard and responded to their concerns—but that in actuality changes almost nothing, thus strengthening the very system he can pretend he “changed.” That’s the same tactic as Silicon Valley, which also supported this bill: Be able to point to something called “reform” so they can trick hundreds of millions of current and future users around the world into believing that their communications are now safe if they use Facebook, Google, Skype and the rest. In pretty much every interview I’ve done over the last year, I’ve been asked why there haven’t been

significant changes from all the disclosures. I vehemently disagree with the premise of the question, which

equates “U.S. legislative changes” with “meaningful changes.” But it has been clear from

the start that U.S. legislation is not going to impose meaningful limitations on the NSA’s powers of

mass surveillance, at least not fundamentally . Those limitations are going to come from—are now coming

from —very different places: 1) Individuals refusing to use internet services that compromise their privacy. The FBI

and other U.S. government agencies, as well as the U.K.Government, are apoplectic over new products from Google and Apple that are embedded with strong encryption, precisely because they know that such protections, while far from perfect, are serious impediments to their power of mass surveillance. To make this observation does not mean, as some deeply confused people try to suggest, that one believes that Silicon Valley companies care in the slightest about people’s privacy rights and civil liberties. As much of the Snowden reporting has proven, these companies don’t care about any of that. Just as the telecoms have been for years, U.S. tech companies were more than happy to eagerly cooperate with the NSA in violating their users’ privacy en masse when they could do so in the dark. But it’s precisely because they can’t do it in the dark any more that things are changing, and significantly. That’s not because these tech companies suddenly discovered their belief in the value of privacy. They haven’t, and it doesn’t take any special insight or brave radicalism to recognize that. That’s obvious. Instead, these changes are taking place because these companies arepetrified that the perception of their collaboration with the NSA will harm their future profits, by making them vulnerable to appeals from competing German, Korean, and Brazilian social media companies that people shouldn’t use Facebook or Google because they will hand over that data to the NSA. That—fear of damage to future business prospects—is what is motivating these companies to at least try to convince users of their commitment to privacy. And the more users refuse to use the services of Silicon Valley companies that compromise their privacy—and, conversely, resolve to use only truly pro-privacy companies instead—the stronger that pressure will become. Those who like to claim that nothing has changed from the NSA revelations simply ignore the key facts, including the serious harm to the U.S. tech sector from these disclosures, driven by the newfound knowledge that U.S. companies are complicit in mass surveillance. Obviously, tech companies don’t care at all about privacy, but they care a lot about that.

Just yesterday, the messaging service WhatsApp announced that it “will start bringing end-to-end encryption to its 600 million users,” which “would be the largest implementation of end-to-end encryption ever.” None of this is a silver bullet: the NSA will work hard to circumvent this technology and tech companies are hardly trustworthy, being notoriously close to the U.S. government and often co-opted themselves. But as more individuals demand more privacy protection, the incentives are strong. As The Verge notes about WhatsApp’s new encryption scheme, “‘end-to-end’ means that, unlike messages encrypted by Gmail or Facebook Chat, WhatsApp won’t be able to decrypt the messages itself, even if the company is compelled by law enforcement.” 2) Other countries taking action against U.S. hegemony over the internet. Most people who claim nothing has changed from the Snowden disclosures are viewing the world jingoistically, with the U.S. the only venue that matters. But the real action has long been in other countries, acting individually and jointly to prevent U.S. domination of the internet. Brazil is building a new undersea internet infrastructure specifically to avoid U.S. soil and thus NSA access. That same country punished Boeing by denying the U.S. contractor a long-expected $4.5 billion contract for fighter jets in protest over NSA spying. Another powerful country, Germany, hastaken the lead with Brazil in pushing for international institutions and regulatory schemes to place real limits on NSA mass surveillance. U.S. diplomatic relations with numerous key countries have been severely hampered by revelations of mass surveillance. In July, Pew reported that “a new…survey finds widespread global opposition to U.S. eavesdropping and a decline in the view that the U.S. respects the personal freedoms of its people” and that, while the U.S. remains popular in many countries, particularly relative to others such as China, “in nearly all countries polled, majorities oppose monitoring by the U.S. government of emails and phone calls of foreign leaders or their citizens.” After just one year of Snowden reporting, there have been massive drops in the percentage of people who believe “the U.S. government respects personal freedom,” with the biggest drops coming in key countries that saw the most NSA reporting: All of that has significantly increased the costs for the U.S. to continue to subject the world, and the internet, to dragnets of mass surveillance. It has resulted in serious political, diplomatic, and structural impediments to ongoing spying programs. And it has meaningfully altered

world opinion on all of these critical questions. 3) U.S. court proceedings. A U.S. federal judge already

ruled that the NSA’s domestic bulk collection program likely violates the 4th Amendment,

and in doing so, obliterated many of the government’s underlying justifications. Multiple cases

are now on appeal, almost certainly headed to the Supreme Court. None of this was possible in the absence of Snowden disclosures. For a variety of reasons, when it comes to placing real limits on the NSA, I place almost as little faith in the judiciary as I do in the Congress and executive branch. To begin with, the Supreme Court is dominated by five right-wing justices on whom the Obama Justice Department has repeatedly relied to endorse their most extreme civil-liberties-destroying theories. For another, of all the U.S. institutions that have completely abdicated their role in the post-9/11 era, the federal judiciary has probably been the worst, the most

consistently subservient to the National Security State. Still, there is some chance that one of these cases will

result in a favorable outcome that restores some 4th Amendment protections inside the

U.S. The effect is likely to be marginal, but not entirely insignificant.

ACLU vs. Clapper proves courts have a lot of influence in restricting surveillance Toomey, 5/7/15 (Patrick, Staff Attorney, Why Today’s Landmark Court Victory Against Mass Surveillance Matters, ACLU National Security Project, https://www.aclu.org/blog/speak-freely/why-todays-landmark-court-victory-against-mass-surveillance-matters. MS)

In a landmark victory for privacy, a federal appeals court ruled unanimously today that the mass phone-records program exposed two years ago by NSA whistleblower Edward Snowden is illegal because it goes far beyond what Congress ever intended to permit when it passed Section 215 of the Patriot Act. The ruling in ACLU v. Clapper is enormously significant, and not only because the program in question — the first to be revealed by Edward Snowden — is at the heart of a legislative reform effort playing out right now, or because it

sparked the most significant debate about government surveillance in decades. The

decision could also affect many other laws the government has stretched to the breaking

point in order to justify dragnet collection of Americans’ sensitive information. Under the program, revealed in the Guardian on June 5, 2013, telecommunications companies hand over to the NSA, on a daily basis, records relating to the calls of all of their customers. Those records include information about who called whom, when, and for how long. The ACLU sued the NSA over the program just days after it was revealed, and we took the case to the Second Circuit Court of Appeals after it was dismissed by a district court. A few points on what makes the decision so

important.¶ 1. It recognizes that Section 215 of the Patriot Act does not authorize the government to collect information on such a massive scale. Section 215 allows the government to demand from third parties “any tangible thing” relevant to foreign intelligence or terrorism investigations. “Relevant” is a pretty abstract term, but the government employed a pretty fantastical interpretation to argue that every single call record in America is “relevant” because some of those records might come in handy in a future investigation. The decision says: Excerpt from 2nd Circuit ruling on NSA call records program.

2. The decision’s significance extends far beyond the phone records program alone. It

implicates other mass spying programs that we have learned about in the past two years and — almost certainly — others that the government continues to conceal from the public. For example, we know that the Drug Enforcement Administration, for decades, employed a similar definition of “relevance” to amass logs of every call made from the United States to as many as 116 different

countries. The same theory was also used to justify the collection of email metadata. Both those programs have been discontinued, but the legal reasoning hasn’t, and it could very well be the basis for programs the government has never acknowledged to the public, including the CIA’s bulk collection of Americans’ financial records.The judges wrote: Excerpt from 2nd Circuit decision on NSA call records program. 3. Metadata is incredibly sensitive and revealing. The government has long argued that the phone records program doesn’t reveal the contents of calls, and as such, it is not an invasion of privacy. But metadata, especially in aggregate, can be just as revealing as content, painting a detailed picture of a person’s life. The decision reads:Excerpt from 2nd Circuit Court decision in NSA call records program case. 4. The importance of

adversarial review. The court recognized that public, adversarial litigation concerning the lawfulness

of this spying program was vitally important to its decision — and it drew a direct contrast

to the secret, one-sided proceedings that occur in the Foreign Intelligence Surveillance

Court. The FISC operates in near-total secrecy, in which it almost always hears only from the government. It oversees a wide variety of broad surveillance programs without any public participation or input, approving a body of secret law that has no place in a democracy. This decision affirms the role that federal courts — and the public — have in overseeing practices with such sweeping constitutional implications. 5. The congressional reforms under consideration just don’t cut

it. Ahead of Section 215’s sunset on June 1, Sen. Majority Leader Mitch McConnell (R-Ky.) is trying to push through a straight reauthorization of the provision, extending its life by another five years. After today’s decision came down, he took to the floor to defend the program — a position altogether at odds with the appeals court decision, with the conclusions of multiple executive-branch review groups who found the program hasn’t been effective in stopping terrorism, and with the clear consensus that supports far-reaching surveillance reform. Another bill in play (which the ACLU neither supports nor opposes), the USA Freedom Act of 2015, doesn’t go nearly far enough, most notably in ensuring that the government cannot engage in broad collection of innocent Americans’ private information. CONGRESS: LET SECTION 215 DIE FIGHT PATRIOT ACT We didn’t do this alone. Members of Congress — Rep. James Sensenbrenner (R-Wisc.) and Sen. Ron Wyden (D-Ore.) among them — have played an instrumental role in the fight for surveillance reform. Along with a number of organizations and experts, including the NRA, they filed amicus briefs on the ACLU’s behalf and championed the cause in Congress. We hope that today’s ruling prompts Congress to consider and enact legislation that’s more robust than what’s currently on the table. Short of that, we continue to believe that Congress should seize the June 1 expiration date as an opportunity to let Section 215 die.

Congress cannot curtail surveillance- too many obstacles Glenn Greenwald, 14, constitutional lawyer, journalist, author “Congress is

irrelevant on mass surveillance. Here’s what matters instead.”,

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

11-19-2014, 7-01-2015,GAO

The entire system in D.C. is designed at its core to prevent real reform. This Congress is not going to

enact anything resembling fundamental limits on the NSA’s powers of mass surveillance. Even if it

somehow did, this White House would never sign it. Even if all that miraculously happened, the fact that the U.S.

intelligence community and National Security State operates with no limits and no oversight means they’d easily co-opt the entire reform process. That’s what happened after the eavesdropping scandals of the mid-1970s led to the establishment of congressional intelligence committees and a special FISA “oversight” court—the committees were instantly captured by putting in charge supreme servants of the intelligence community like Senators Dianne Feinstein and Chambliss, and Congressmen Mike Rogers and “Dutch” Ruppersberger, while the court quickly became a rubber stamp with subservient judges who operate in total secrecy.

Judicial oversight of surveillance is essentialAmie Stepanovich Drew Mitnick May 2014“Competent Judicial Authority & Due Process”

Drew is a junior policy counsel working on cybersecurity, digital due process, and privacy. He has experience working on human rights in Asia and the United States. Drew was previously a Senior Research Associate for the Public International Law and Policy Group and served as the Managing Online Editor of the Human Rights Brief. He received his law degree from American University

Washington College of Law where he is currently a JD Distinguished Fellow. mie Stepanovich is U.S. Policy Manager at Access. Amie is an expert in domestic surveillance, cybersecurity, and privacy law. At Access, Amie leads projects on digital due process and responds to threats at the intersection of human rights and communications surveillance. Previously, Ms. Stepanovich was the Director of the Domestic Surveillance Project at the Electronic Privacy Information Center, where she testified in hearings in both the Senate and the House of Representatives, as well as in State legislatures. She was co-chair for the 2014 Computers, Freedom, and Privacy Conference and is the Committee on Individual Rights and Responsibilities' Liason to the American Bar Association's Cybersecurity Working Group.

[https://en.necessaryandproportionate.org/LegalAnalysis/principles-6-and-7-competent-judicial-authority-due-process]

As noted above, the Principles require that all decisions relating to Communications Surveillance be made by a competent judicial

authority acting independently of the government and in accordance

with due process of law . This reflects the core requirement of international human rights law that the use of

lawful surveillance powers by public officials must not only be necessary and proportionate but also be attended by independently monitored strict safeguards against abuse.87 As the European Court of Human Rights held in its 1979 decision in Klass v. Germany:88 Although the Court in Klass agreed that “it is in principle desirable to entrust supervisory control to a judge,” it did not

go so far as to hold that prior judicial authorization was required in every case so long as the relevant authorizing body was “sufficiently independent” of “the authorities carrying out the surveillance” to “give an objective ruling” and was also vested “with sufficient powers and competence to exercise an effective and continuous control."89 In subsequent cases, however, the Court has

made clear the desirability of judicial authorization for the use of lawful surveillance. In a case in 1999, for instance, the Court stated that: The Principles,

however, reflect the view that prior judicial authorization of

surveillance powers is not merely desirable but essential. This is

because neither of the other two branches of government is capable of

providing the necessary degree of independence and objectivity to

prevent the abuse of surveillance powers . The Court's view in Klass—that oversight by a

parliamentary body might be sufficiently independent—no longer seems tenable, particularly in the wake of

the 9/11 attacks in which legislators have shown themselves all too

willing to sacrifice individual rights in the name of promoting security.

In the case of the executive branch, the dangers are even more acute . In

the UK, for instance, the same government ministers who are responsible for the activities of the intelligence services are also responsible for authorizing interception warrants, and do so on the advice of those agencies—hardly a credible safeguard against abuse.

Judicial influence key to solving surveillance Philip Bump. June 7, 2013. “How the government can fix the spying problem it doesn’t want to fix” Philip Bump is a policy analysis and writer at the Washington post. http://www.thewire.com/politics/2013/06/nsa-privacy-government-fixes/66014/

Part of the reason for that support, as various other senators made clear on Thursday, is a desire

to grant the government the benefit of the doubt in drawing the line between civil liberties

and the need to investigate and prevent terror attacks. Which is where the judiciary is

meant to come in, to help draw that line between what the government wants to do and

what the Constitution says it can do . For the FBI or NSA to instantiate the collection of data, it needs sign off from the FISC, the Foreign Intelligence Surveillance Court. The FISC rarely says no. But how it makes its decisions isn't clear. Last month, we detailed efforts by the Electronic Frontier

Foundation to get more information about an incident in which the NSA admitted that it had violated the

Fourth Amendment. In light of the new revelations, the organization suggested to The

Verge that it now sees a judicial response as critical . It filed a lawsuit in 2006 in an attempt to discover how the government was working with AT&T to collect phone data. "We’re waiting for the judge’s decision," [Cindy] Cohn told The Verge, noting that EFF would bring the recent Verizon surveillance order to

the judge’s attention. "Hopefully the court will issue an injunction to stop the program." Even if that happens, surveillance won’t stop right away, as the US government will have a chance

to appeal the ruling. "It may go all the way to the Supreme Court ," Cohen said. "The American people deserve their day in court." This is possible. It is possible that the EFF's petition for more

data on the NSA's activity will be revealed; it is possible that a court fight over halting the government's

efforts could result in the program being stopped and the judiciary finalizing where the

line between security and privacy is drawn . It's possible. It's perhaps not likely.

Judicial branch key to curtailing any type of surveillance Stan Ward. April 22, 2014 “Judicial branch finally acting as a check against government overreach”

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

Over the past year, the actions by two U.S. judges may at last signal a change of direction

in the battle to curtail government surveillance of electronic data . It has been all too common for judges to rubber-stamp law enforcement’s requests for warrants from electronics firms in order to gather information on its clients. The judges, both U.S. Magistrates have in their rulings refrained from arbitrarily granting government requests for access to email accounts and cell phone data. Their actions are framed against the landscape of the legal and political global debate raging since Edward Snowden informed the world about the NSA’s snooping practices. For years, the governments modus operandi has been to obtain all information and then cherry-pick what it wanted to keep to

suit the particular investigation.. The judges , John Facciola in Washington, D.C. and David Waxse in Kansas City, Kan., have raised the bar with law enforcement requests from

companies for data. They have decided that the government must modify its requests if it is

to be in compliance with the Fourth Amendment’s protection against unreasonable

searches. It is a blow to the law enforcement practice of obtaining all electronic

information on a person under surveillance and then using names and key words to discern what may be useful to the investigation. Both Facciola’s and Waxse’s decisions

seek to deny the government unbridled access to information unless they meet certain

additional criteria . They suggest that ISPs and other web firms could perform searches based on guidelines from the Justice Department. Then, release only apparent pertinent data. Alternatively, they suggest a process in which a court appointed official does the initial search thus providing a buffer between investigators and bulk data. The government, as expected, disagrees with these suggestions. Unfortunately for privacy lovers, there are too many judges in the law enforcement camp. And they are all too willing to grant the government broad latitude when seeking warrants. Part of the problem is that many judges are technically illiterate- they lack the knowledge to challenge law enforcement officials to be more forthcoming. But the actions by Facciola and Waxse give hope that the governments practice of throwing broad warrant requests at judges and getting instant compliance may be ending. This will only happen in great numbers if judges better understand recent technological advances and how ISPs operate. And that will only happen if there is enough public outcry against law enforcement’s encroachment. For if

there is to be protection under the Fourth Amendment there must be a restoration of the

checks and balances the Founding Fathers installed centuries ago. More judicial courage

and more judges like John Facciola and David Waxse are needed.

The Supreme Court can provide oversight for mass surveillance operationsGreene and Rodriguez, senior staff attorney and international rights director for the EFF, 14 (David and Katitza, “NSA Mass Surveillance Programs Unnecessary and Disproportionate”, Electronic Frontier Foundation, https://www.eff.org/files/2014/05/29/unnecessary_and_disproportionate.pdf, accessed 7/1/15, EOT@GDI)

The Principles require that “determinations related to communications surveillance must be made by competent judicial authority that is impartial and independent. This judicial authority must be: 1) separate from the authorities conducting communications surveillance; 2) conversant in issues related to and competent to make judicial decisions about the legality of communications surveillance, the technologies used and human rights; and 3) have adequate resources in exercising the functions assigned to them.” Significant doubts exist as to whether the mass surveillance operations are reviewed by “competent” judicial authority. With regard to surveillance under Patriot Act section 215 or FISA Amendments Act section 702, there are serious questions about whether the FISC has a sufficient understanding of the technologies used, or has sufficient resources to conduct the oversight required of it. The Chief Judge of the FISC, Judge Walton, has recognized that the court is limited in its ability to scrutinize the NSA's abuses: “The FISC is forced to rely upon the accuracy of the information that is provided to the Court…The

FISC does not have the capacity to investigate issues of noncompliance."32 And as discussed above, there is no judicial oversight at all for NSA surveillance justified under EO 12333.

Courts can curtail NSA surveillance powersHayes, fellow at the Transnational Institute, 14 (Ben, PhD at the University of Ulster, “State of surveillance: the NSA Files and the global fightback”, Transnational Institute,

http://www.tni.org/files/download/state_of_surveillance_chapter.pdf, accessed 7/1/15, EOT@GDI)

As to the USA, for all the opining on the terrible state of democracy in that country, it is already streets ahead of EU member states in considering the domestic reforms that maybe necessary to safeguard its citizens’ against intelligence “overreach”. A Federal judge has just produced a preliminary ruling stating that the NSA’s bulk phone record collection is likely to be in violation of the US constitution, also labelling the practice “indiscriminate”, “arbitrary” and “almost-Orwellian”. This sentiment was then echoed by a Presidential ‘Review Group on Intelligence and Communications Technologies’ whose 46 recommendations – if implemented in full – would at least lead to some significant curbs on the NSA’s surveillance powers. Time will tell if Obama is up for the fight; the historical precedents are not encouraging.

2nd Circuit Court ruling on Patriot Act proves courts can curb surveillance programsHattem, staff writer, 15 (Julian, 5/7/15, “Court ruling upends congressional surveillance fight”, The Hill, http://thehill.com/policy/technology/241328-court-ruling-upsets-congressional-surveillance-fight, accessed 7/3/15, EOT@GDI)

A sweeping appeals court ruling against government surveillance powers on Thursday could recast Congress’s fight over expiring provisions of the Patriot Act. The federal court decision could strengthen the hand of Capitol Hill’s civil libertarians who are facing an uphill battle to make significant reforms to the National

Security Agency (NSA) in the next two and a half weeks. The ruling ”should help propel Congress to end the program as it is currently structured, and only allow the government to request data from the telephone companies after individualized court approval,” Rep. Adam Schiff (Calif.), the top Democrat on the House Intelligence Committee, said in a statement on Thursday morning. “It also shows that a straight reauthorization is not only politically untenable but on shaky legal ground as well.”

Earlier on Thursday, the Second Circuit Court of Appeals ruled that the NSA’s bulk collection of Americans’ phone records “exceeds the scope of what Congress has authorized” and, as such, is illegal. The decision was a major victory for critics of the NSA and offered the firmest legal blow yet to the spy agency. The provision of the Patriot Act that the government has used to justify that program, known as Section 215, is scheduled to expire at the end of the month.

Federal courts empirically Rule against meta-dataHattem 05/07/15 (http://thehill.com/policy/technology/241305-top-court-rules-against-nsa-program) Hattem, Julian CL

A federal court has decided that the National Security Agency’s bulk, warrantless collection of millions of Americans’ phone records is illegal. The sweeping decision from the Second Circuit Court of Appeals on Thursday represents a major court victory for opponents of the NSA and comes just as Congress begins a fight over whether to renew the underlying law used to justify the program. That program “exceeds the scope of what Congress has authorized,” Judge Gerard Lynch wrote on behalf of the three-judge panel. The law “cannot be interpreted in a way that defies any meaningful limit,” he added. Additionally, the government’s rationale behind the program represents “a monumental shift in our approach to combating terrorism,” which was not grounded in a clear explanation of the law. The Second Circuit’s decision provides the most significant legal blow to the NSA operations to date and comes more than a year after a lower court called the program “almost-Orwellian” and likely unconstitutional. The appeals court did not examine the constitutionality of the surveillance program in its ruling on

Thursday. The Second Circuit is just one of the three appeals courts examining challenges to the NSA’s phone records program, which may ultimately land at the Supreme Court.

2NC Solvency- Executive PowerCourts can limit executive power Ronald Brownstein, 14,“The Court, Not the Congress, Is Obama’s Biggest Obstacle.”, http://www.nationaljournal.com/political-connections/the-court-not-congress-is-obama-s-biggest-obstacle-20140814, 08-14-2014, 07-06-2015, GAO

Continuing a pattern followed by George W. Bush, Obama is increasingly implementing his priorities

through unilateral action , like executive orders and regulation, rather than legislation. That choice diminishes the ability

of congressional opponents to derail Obama's ideas. But it increases his risk that the courts—in particular

the five Republican-appointed Supreme Court justices—will block him. In other words, as he

reduces his vulnerability to John Boehner, Obama is increasing his exposure to John Roberts. This dynamic didn't start with Obama

and won't likely end with him. As polarization stalemates Congress, it's inevitable that presidents will rely more

on executive action—as Bush did on national security, and Obama is now doing on domestic issues. That is

heightening the courts' role in deciding how far presidents can stretch their authority. "The

implication of more gridlock is more of a role for the Supreme Court in sorting out these big disputes," says Donald Kettl, a University

of Maryland professor of public policy. The roots of this trend run deep. The first is that voters have granted one party unified control of the White House, House, and Senate for only 12 of the past 46 years, far less than in previous generations. Except for brief periods (like Obama's first two years), that's meant presidents have been unable to advance their agenda legislatively without winning some support from the other party. That frequently worked through the 1970s and 1980s.

But after the flurry of deals between Bill Clinton and congressional Republicans in the mid-1990s, such cooperation has

virtually vanished as legislators in each party, especially the GOP, have faced growing

pressure from their base not to compromise with a president on the other side. While that trend

rippled through Clinton's final years and most of Bush's presidency, it has roared to new heights under Obama. Among other things,

congressional Republicans have expanded use of the filibuster; shut down the government and repeatedly threatened default; fought implementation of health reform with the most persistent legislative and litigious rearguard campaign against a national initiative since Brown v. Board of Education; and, for the first time, sued a president

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

Richard Nixon. But there's no question that Obama is acting alone on more consequential issues than earlier, including climate change and health care—with the potential looming for a historic executive

order to provide legal status for millions of undocumented immigrants. The recent House lawsuit tacitly

acknowledges that opponents are less likely to block Obama's initiatives in Congress than

the courts . Legal scholar Jeffrey Rosen notes that courts have judged executive power primarily through the standards set in the Supreme Court's 1952 Youngstown Sheet & Tube Co. v. Sawyer decision that stopped President Truman from seizing steel mills to keep them operating during the

Korean War. While the courts have occasionally rebuked presidents for defying Congress, that decision's famous framework—which said the president operated in "a zone of twilight" when he acts without explicit congressional approval or disapproval—has generally led the judiciary to avoid interfering "in explicit squabbles between the [other] two branches," notes Rosen, president of the nonpartisan National

Constitution Center. "The question is will the courts … hold to this historic pattern?" The

Roberts Court could intervene more than its predecessors to limit executive power. It rebuffed

Bush's unilateral action on security issues like establishing military tribunals to try suspected terrorists. And it recently

blocked Obama's reach for greater authority on recess appointments. But Obama nonetheless may

be better off taking his chances with the Court than the House. Boehner's greatest risk is that the GOP base won't consider him

confrontational enough. But, after the backlash to the Justices' role in deciding the 2000 election,

many believe Roberts sees his greatest risk as the Court appearing too confrontational with

political leaders. "That colors how each man sees his role," notes one former high-ranking Democratic legal official. Still,

Roberts's sense of institutional self-preservation is a thin reed for presidents to lean on. With presidents from each party likely to assert more executive power, the stakes will rise for both sides in controlling the courts that limit that power. That's why one of the most relevant facts in the 2016 presidential election may be that three Supreme Court Justices—Republican appointees Antonin Scalia and Anthony Kennedy and Democratic-appointed Ruth Bader Ginsburg—will be at least 80 when Obama's successor is sworn in.

Courts influence executive behvior on national securityAshley Deeks, 13, “Courts Can Influence National Security Without Doing a Single Thing.”,

http://www.newrepublic.com/article/115270/courts-influence-national-security-merely-watching ,

10-21-2013, 07-08-2015

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

Judicial review creates incentives for the executive to change national security policy Ashley Deeks, 13, “Courts Can Influence National Security Without Doing a Single Thing.”,

http://www.newrepublic.com/article/115270/courts-influence-national-security-merely-watching ,

10-21-2013, 07-08-2015

Here’s another example: in the face of some adverse lower court decisions (which the Government ultimately won on appeal), the Government curtailed its own use of the “state secrets” privilege. That’s a privilege the government may invoke when a lawsuit raises legal challenges that cannot be proven or defended without disclosing information that would jeopardize U.S. national security. And the Government altered the policies pursuant to which it uses secret evidence to deport aliens, due in part to critical language in court decisions, even though the Government likely would have won the cases on the merits. When should we expect to see the observer effect? In general, we should look for three things. First, there must be a triggering event. This ranges from the filing of a non-frivolous case, to some indication from a court that it may reach the merits of a case (i.e., ordering briefing on an issue, or rejecting the government’s motion for summary judgment), to the court’s consideration of the issue on the

merits. The observer effect most clearly comes into play when a court becomes seized with a national security case after an extended period of judicial non-involvement in security issues, such as when federal courts started to consider the type of person the Executive lawfully may detain on the battlefield. The observer effect then kicks in to influence the Executive’s approach to the policy being challenged in the triggering case, as well as to future (or other pre-existing) Executive policies in the vicinity of that triggering case. Second, future uncertainty plays a critical role in eliciting the observer effect. In some cases, the question for the Executive will be whether a court will conclude that it can or should exercise jurisdiction over a case. In other cases, Executive uncertainty will exist when it is not obvious what law will govern the dispute at issue, or where there is little precedent to guide the courts in resolving the dispute. It is this uncertainty that leaves the Executive with doubt about whether it will win the case, and that creates incentives for the Executive to alter its policies in anticipation of litigation or its outcome. After all, there are real advantages to the Executive in retaining the power to shape these national security policies, even under a potentially watchful eye of the courts. The third factor that helps secure the observer effect’s operation is the likelihood of future litigation on related issues. If a court declines to defer to the Executive in a particular case, that decision is unlikely to create an observer effect if the Executive has confidence that the factual and legal questions at issue in that case will not arise again. In contrast, when the Executive perceives that a set of policies is likely to come under sustained litigation (and thus under the potential oversight of multiple judges over time), it is more likely to concertedly review—and alter—those policies.

2NC Solvency- Drones Court’s empirically rule against surveillance airborne technology Richard M. Thompson II March 30, 2015 “Domestic Drones and Privacy: A Primer” Richard Thompson is a legislative attorney and works in congressional research services. http://fas.org/sgp/crs/misc/R43965.pdf

The Fourth Amendment provides in relevant part: “The right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be violated.”84 This Amendment, like most constitutional protections, applies only to acts by public actors,85 and, as such, will provide the minimum legal requirements for government use of drones.86 In order for the Fourth Amendment to apply in a particular situation, a reviewing court must assess whether the government conducted a “search” by asking whether it invaded an individual’s “reasonable expectation

of privacy.”87 Although no court has had the opportunity to apply the Fourth Amendment to drone technology, similar

cases regarding traditional aircraft and location monitoring provide insight. In three cases

from the 1980s, the Supreme Court upheld the government’s warrantless use of traditional

aircraft to surveil both private and commercial property .88 In Florida v. Riley, the case most closely resembling potential UAS surveillance, the police flew a helicopter 400 feet above a private residence to determine if marijuana was growing in a greenhouse in the backyard.89 The Court held that this fly-over was not a Fourth Amendment search, as anyone from the public could have seen the property from that vantage point since the aircraft was in federal airspace.90 Similarly, in the 1983 case United States v. Knotts, the Court held that it was not a Fourth Amendment search to track a person’s public movements

using an electronic tracking device.91 There is a general consensus among commentators that a strict application of these cases would accord limited privacy safeguards to individuals located on both public and private property from UAS surveillance being conducted from lawful federal airspace.

Courts could curtail drone use by applying the reasonable expectation of privacy testMolko, assistant professor of law at Western State College of Law, 12 (Robert, 8/24/12, “The Drones are Coming! Will the Fourth Amendment Stop Their Threat to Our Privacy?”, Brooklyn Law Review Vol. 78 No. 4, http://practicum.brooklaw.edu/sites/default/files/print/pdfs/journals/brooklyn-law-review/volume-78/issue-4/blr_v78iv_1.pdf, accessed 7/5/15, EOT@GDI)

Drone surveillance also presents the danger of the accumulation or “mining” of this information by the government over the course of several years.349 Congress could provide a reasonable solution to this concern by imposing a time limit on the storage of this data if “there is no reasonable suspicion that the images contain evidence of criminal activity or are relevant to an ongoing investigation or

pending criminal trial.”350 Another possible solution is to “minimiz[e] the collection . . . of information and data unrelated to the investigation of a crime.”351 The Court could later use that statutory limitation to help identify “what society is prepared to recognize as reasonable” when applying Katz’s second prong to drone surveillance. Until Congress acts, however,

the Court should be able to continue protecting individual privacy from warrantless governmental drone surveillance by applying the reasonable expectation of privacy test, which will set the outer boundaries of permissible conduct under the Fourth Amendment. Under this analysis, the Court should prohibit surveillance of the interior of the home, limit monitoring of the curtilage to short intervals, and allow longer surveillance operations of perhaps one week of public places. Because drone surveillance would necessarily entail the use of photography and videotaping, the devices used should be limited to technology

generally available to the public. Drawing such bright-line rules will provide a workable and predictable balance between the needs of law enforcement and the protection of individuals’ civil liberties. And the reasonable-expectation-of-privacy test may indeed survive another round.

Deference NB

1NCJudiciary defers to executive now- CP flips that Hornberger, president of The Future of Freedom Foundation, 15 (Jacob, 6/11/15, “FEDERAL JUDICIAL DEFERENCE TO THE NATIONAL-SECURITY STATE”, The Future of Freedom Foundation, http://fff.org/2015/06/11/federal-judicial-deference-national-security-state/, accessed 7/2/15, EOT@GDI)

If you’d like a good example of the power that the national-security branch of the federal government has acquired within our federal governmental

structure, all you have to do is consider the judicial system that the Pentagon has established and runs at Guantanamo Bay, Cuba, for terrorism prosecutions. It is a perfect example of how the federal judiciary, out of deference to the national-security branch of the government, has abrogated its responsibility of declaring its acts unconstitutional. The judicial system that the Pentagon runs at Gitmo isn’t about putting soldiers on trial for offenses committed inside the military bureaucracy. That’s what the Uniform Code of Military Justice is all about. If a soldier, say, is caught violating drug laws on base, he’s prosecuted within the military system, not the civilian judicial system.What we are talking about instead is a judicial system that the Pentagon established in cases involving terrorism to compete against the federal judicial system that was

established under the Constitution. The way the system works is that federal prosecutors in the executive branch of the government, working with people in the national-security branch, now decide which judicial system to use in terrorism cases — the Pentagon’s system or the federal judicial system.

Unitary executive is bad---fuels global warGiraldi 12 Philip Giraldi, a former CIA officer, is executive director of the Council for the National Interest. “Defending the Indefensible Eric Posner gives intellectual cover to the unitary executive,” 9-13-12, http://www.theamericanconservative.com/articles/defending-the-indefensible/, y2k

My college alumni magazine is featuring an article entitled “Octopotus” on the kind of reasoning in some jurisprudential circles that has supported the “unitary executive.” The article is about the University of Chicago Law School’s Professor Eric Posner, whose most recent book is The Executive Unbound: After the Madisonian Republic, co-authored with Harvard’s Adrian Vermeule. Posner and Vermeule would appear

to agree that when George W. Bush declared the US Constitution to be just a piece of paper he was being candid and also acting in the best interests of the American people. Posner unambiguously sees

the non-constitutional accumulation of presidential power as a good thing, enabling rapid response to

crises , and describes the Madisonian separation of powers in government as a “historical relic.” The article, written by one Jason Kelly of the magazine staff, is a strange amalgam of political correctness

combined with a puff piece on Posner’s Straussian views, which I suspect most U of C alumni would find repugnant if they bother to read the article. Kelly cites “undocumented immigrants” at one point and refers to Posner’s support of executive power as a “common view” in legal circles. He accepts Posner’s lead in defining those who criticize the unitary executive as engaging in “irrational fear” that Posner labels “tyrannophobia,” which colors the discussion that follows. Kelly might equally have referred to critics of Posner as constitutionalists, which would result in a different perception. Per Posner, legal restraints on the executive branch have been replaced by “political considerations,” by which he means “democratic” public approval, to constrain executive action. He explains that presidents operate in a bubble defined by their own popularity and what the public will accept “to maintain the credibility to govern” which he also refers to as “political legitimacy.” He expands on this by asserting that the “public values stronger federal regulation of national concerns” because the nation has evolved politically, no longer restrained by “rule of law,” into an “administrative state.” It is “a natural development, reflecting public opinion and the institutional advantages of the presidency.” Eric Posner further explains that “Most people want government to foster security and prosperity” and the “administrative state best serves those ends” because “it became evident to people that they benefit from having most policy being made at the federal level … making them willing to give up that kind of fine-grain choice in return for the benefits that you get from having a very powerful government and a very powerful president.” Posner takes particular exception to the “slippery slope argument that, for example, [a White House decision to undertake] targeted killing could be used against average citizens,” refuting the notion by asserting that there is nothing sinister in such a policy beyond possibly bad-decision making, saying “It’s just wild exaggeration to say that the president who does those things is a

tyrant.” Posner is comfortable with the only restraint on executive power being the somewhat

amorphous consent of those who are generally speaking disengaged and virtually powerless in our

political system. His view would astonish America’s Founders, who saw democracy as little more than mob rule and who, as a consequence, devised a republic resting on a system of

constitutional restraints to avoid giving that power to the demos. What the Founders feared even more than an unrestrained presidency was tyranny by the majority, a constraint on government that Posner, ironically, sees as a protection against executive overreach. Be that as it may, real pushback against Washington is largely ineffective as today’s Americans are poorly informed about issues and the media has largely abandoned its role as the Fourth Estate. Meanwhile the government is able to cite secrecy to protect its illegal actions, giving the president the ability to create and manage a suitable narrative supporting his policies, no matter

how harmful they might be. It is difficult to imagine that there is a genuine popular consensus supporting illegal

detention, targeted killings , torture, warrantless surveillance, secret wars, or an immigration program that includes deliberate non-enforcement of laws, but they are all current government

policies. And, contrary to Posner’s assertion, there is indeed a slippery slope . I’m not sure what Posner means by it being

unlikely that an “average citizen” might targeted for death by drone , but certainly three citizens that I know of have been

executed in that fashion and several more are believed to be on the death list. Increased use of state secrets privilege is a symptom of

executive privilege , violation of what was once regarded as privacy is now systemic, and the U nited S tates has been going to war more

frequently and without any regard for national interest ever since the constitutional norms to limit the authority to do so were abandoned in Korea. If the main purpose of

government as seen from the ground up is, per Posner, to “foster security and prosperity” then the unitary executive

has failed miserably , as the U nited S tates policy of executive-inspired global armed intervention has

made the entire world less safe while the standard of living for most Americans (possibly excluding University of Chicago law professors) has fallen sharply. Posner studied

philosophy as an undergraduate at Yale. He might have been better served if he had paid more attention to history. His views are not dissimilar to those of Carl Schmitt, the Nazi jurist, who argued in similar terms to those promoted by Posner, that a powerful executive is imperative in time of crisis. Schmitt favored a military dictatorship to solve Weimar Germany’s problems. Posner is, in fact, an admirer of Schmitt, having written approvingly “governance through ex post standards, rather than ex ante rules, is inevitable and even desirable where political, economic or military conditions change rapidly and cause exogenous shocks to the constitutional order.” Like Schmitt, Posner contends in his book Terror in the Balance (also co-authored with Vermeule) that “There is a straightforward tradeoff between liberty and security” where any increase in security requires a decrease in liberty. The argument is itself fallacious because security and liberty are not causally connected, but it is rarely challenged by those in government or in academia. Expanding on his thesis, Posner explained how “Constitutional rights should be relaxed so that the executive can move forcefully against the threat. If dissent weakens resolve, then dissent should be curtailed. If domestic security is at risk, then intrusive searches should be tolerated … The reason for relaxing constitutional norms during emergencies is that the risks to civil liberties inherent in expansive executive power–the misuse of the power for political gain–are justified by the national security benefits.” Posner also wrote in Terror that torture, which he prefers to call “coercive interrogation,” and ethnic profiling are permissible in a crisis; that normal

protections in criminal trials should be suspended; and that the ability to commit what are regarded as war crimes is desirable because it can serve as a deterrent. The tragedy of 9/11

and developments in 1933 Germany exhibit certain similarities , at least in terms of strengthening

executive authority. After the shock of the Reichstag fire of February 1933 German Chancellor Adolph Hitler, who did not have a majority in

parliament, exploited the situation to obtain passage of the Enabling Act which gave him the authority to ignore parliament and pass laws by decree. The full name of the Enabling Act

was, in English, the “Act for the Removal of Distress from People and Reich.” Aided by leading jurists like Schmitt, who argued that a powerful

executive could ignore restraints imposed by bureaucrats and constitutions when required to cope with a “crisis,” and supported by conservatives and the army,

Hitler quickly moved to consolidate power and the communist and socialist parties as well as any “new” parties were subsequently made illegal. In 1934, upon the death

of Hindenburg, Hitler assumed the powers of the presidency and the army began to swear allegiance to him rather than to the constitution. Germany became a dictatorship

and the rest is history . The March 1933 election was the last free election in Germany until the creation of the Federal Republic in 1949. I suppose Posner would respond with a version of “it

can’t happen here.” But the truth is that it can happen anywhere and does happen even if a genocidal

dictatorship is unlikely to spring up in the United States . Guantanamo happened and continues to happen and Jose Padilla is testimony to the

fact that government believes it can ignore the constitutional rights of any citizen. The list of states that have constitutions but that have nevertheless evolved into something like dictatorships is a long one.

Those seizing control consistently cite a need for security and efficiency as their principal motives, not unlike the justifications offered by both Republicans and Democrats during

the post 9/11 years. The restraints imposed by the US Constitution offer a legal recourse against a President Barack Obama or a Mitt

Romney declaring a state of emergency and deciding that whole categories of citizens would benefit from being shipped off to reeducation camps. The White House would cry

“ terrorism !,” the media and congress would fall in line , and the poorly informed public

would believe the fiction being dispensed. That is pretty much what Franklin D. Roosevelt did in 1942 with Japanese-Americans. There was no mob storming

the Bastille at that time to protest the threatened fellow citizens and there would be little outcry now if selected minority groups were to be on the receiving end. Executive primacy is by

its very nature a dangerous zero sum game, with political power accruing to the president taken away

from the American people, the judiciary, from congress, and from the states. The Posner

formula enables bad decisions by the White House to become the unchallengeable norm while

Posner himself personally provides intellectual legitimacy to a set of bad ideas not to mention criminal behavior.

Consider the government fabrications that led to the rush to war with Iraq as an example of how fraud by government can work. Posner’s granting of de facto carte blanche to someone who, quite possibly by a set of curious

chances, winds up in the Oval Office and is restrained only by the limits of his own popularity should be seen as a threat to every American , not as a necessary or inevitable advance in governance.

2NC Deference- UnqMilitary operations prove executive deference nowRamo, Professor of Law at Golden Gate University, 14 (Alan, “U.S. Military Accountability For Extraterritorial Environmental Impacts: An Examination Of Okinawa, Environmental Justice, And Judicial Militarism”, Tulane Environmental Law Journal vol. 28, Winter 2014, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2479600, accessed 7/3/15, EOT@GDI)

For that reason, the ability of U.S. courts to oversee U.S. military operations is a critical question

for the Okinawans. Federal courts continue to inconsistently sort out the extraterritoriality of U.S. laws, including environmental laws. Already, one federal court has applied the National Historical Preservation Act (NHPA) to this controversy in Okinawa.' Strong arguments remain that the National Environmental Policy Act (NEPA) and the Endangered Species

Act (ESA) should also apply to the U.S. military's actions in Okinawa. The modern United States Supreme Court has reversed earlier decisions and given great deference to military operations, establishing what this Article charges is a kind of 'judicial militarism." Thirty-two years ago, Justice Douglas could write the words quoted at the beginning o f this Article calling the U.S. military just another administrative agency during the

unpopular Vietnam War. Today, Chief Justice Roberts has no hesitation to hold that military preparedness in the absence of a war is a sufficient basis to trump environmental laws even in U. S. coastal waters.

Courts defer to the executive- navy case proves Hunton and Williams, 08,“U.S Supreme Court Decision Balances National Security and Environment.”, https://www.hunton.com/files/News/79a6f2a0-5c07-417c-af78-1943a8d68bd6/Presentation/NewsAttachment/261e1f88-9be8-4ad7-8e15-33b791ac0e00/us_supreme_court_balances_national_security_and_environment.pdf, November 2008, 07-05-2015, GAO

On November 12, in Winter v. Natural Resources Defense Council, the U.S. Supreme Court

held in favor of the Navy in a closely watched dispute over the effects of active sonar on

marine mammals. In a case seen as balancing national security against environmental

protection, the Supreme Court rejected the Ninth Circuit’s “possibility of harm” standard

for preliminary injunctions in environmental litigation. The decision can be found at http://www.supremecourtus. gov/opinions/08pdf/07-1239.pdf. The Navy uses active sonar, which transmits sound waves and analyzes their echo off underwater objects, to detect and track enemy submarines. Plaintiffs sued the Navy over its use of active sonar during training exercises in the Pacific, alleging that the sonar harms whales and other marine mammals and that the Navy should have prepared an Environmental Impact Statement (EIS) rather than an Environmental Assessment (EA) to analyze the effects of use of the sonar on marine mammals. The district court preliminarily enjoined the Navy’s use of active sonar unless the Navy followed several conditions, including shutting down the sonar when a marine mammal is spotted within 2,200 yards and powering the sonar down during certain water conditions. In holding that the plaintiffs had established a basis for a preliminary injunction, the district court concluded that the plaintiffs had demonstrated a likelihood of success on their National Environmental

Policy Act (NEPA) claims, “at least a possibility of irreparable harm,” and that the balance of equities favored an injunction. The

U.S. Court of Appeals for the Ninth Circuit affirmed. The Supreme Court reversed,

limiting its decision to the proper standard for issuing preliminary (and permanent)

injunctions. The Supreme Court held that a showing of “likely” rather than “possible” irreparable injury is required under long-established precedent in light of the extraordinary nature of an injunction. The Court noted that the district court failed to consider whether irreparable injury remained likely even though the Navy agreed to comply with several of the injunction conditions (such as a 12-mile exclusion zone along the coastline), the training exercises had been taking place for 40 years with no documented sonar-related injury to a marine mammal in the southern

California region, and the training exercises had already been evaluated in a 293-page, detailed EA. The Court further held that the public interest in effective, realistic antisubmarine training by the Navy to protect national security “plainly out weighs” possible harm to the ecological, scientific and recreational interests asserted by the plaintiffs (including whale watching, scientific research and photography). Finally, the Court held that the same factors considered for purposes of a preliminary injunction would be pertinent to a permanent injunction if the lower courts conclude that an EIS is required, and that a permanent injunction “does not follow from success on the merits as a matter of course.” Chief Justice Roberts authored the majority opinion, in which Justices Scalia, Kennedy, Thomas and Alito joined. Justice Breyer filed an opinion concurring in part and dissenting in part, in which Justice Stevens joined. Justice Ginsberg filed a dissenting opinion in which Justice Souter joined.”

2NC Deference- Rights ImpactDeference undercuts individual rightsAshley Deeks, 13, “Courts Can Influence National Security Without Doing a Single Thing.”,

http://www.newrepublic.com/article/115270/courts-influence-national-security-merely-watching ,

10-21-2013, 07-08-2015

One of the most persistent fights in the national security arena since the September 11 attacks has

been about the proper allocation of power between two branches of government: the Executive

and the courts . Specifically, how much authority does and should the Executive Branch have to establish and implement national security

policies, and how much oversight can and should courts provide over these policies? People tend to divide into one of two schools of thought when answering these questions. The first school favors extensive deference to Executive branch national security decisions and celebrates what it sees as a limited role for courts. The Executive, this school contends, is constitutionally charged with such decisions and structurally better suited than the judiciary to make them. After all, Alexander Hamilton famously remarked that housing powers in a unitary executive provides the advantages of

“[d]ecision, activity, secrecy, and dispatch”—qualities our federal courts simply don’t have. The other school of thought bemoans such judicial deference, even as this school admits that it occurs. Members of this school fear that this deference will undercut individual rights, leaving the Executive to maximize security over liberty again and again. This school also worries more broadly about creating an imbalance in the separation of powers: an unchecked Executive can impose draconian security measures without a reliable counter-weight. But both sides assume that the courts’ role in influencing security policy is minimal. Both sides are wrong. While courts rarely intervene directly in national security disputes, they nevertheless play a significant role in shaping Executive branch security policies. Let’s call this the “observer effect.” Physics teaches us that observing a particle alters how it behaves. Through psychology, we know that

people act differently when they are aware that someone is watching them. In the national security context, the “observer effect” can be thought of as the impact on Executive policy-setting of pending or probable court consideration of a specific national security policy. The Executive’s awareness of likely judicial oversight over particular national security policies—an awareness that ebbs and flows—plays a significant role as a forcing mechanism. It drives the Executive to alter, disclose, and improve those policies before courts actually review them

2NC Deference- A2: Courts FailCourts don’t cause bad foreign policyGlashausser 5 Alex Glashausser, Associate Professor of Law, Washburn University School of Law. 2005 50 Vill. L. Rev. 25

Even when judicial interpretation does deviate from that of the executive branch, disdaining

deference would not cause the chaos that some fear . The Framers' main concern about courts and treaties was the "hydra" problem n157 - that the voices of multiple courts would turn foreign policy into a cacophony. But that problem will not rear its head because the independent judiciary has one ultimate arbiter. And that unitary head, the Supreme Court, unlike many countries' highest courts, considers itself bound by stare decisis. n158 Therefore, although the federal judiciary might speak with a voice different from that of the executive, that voice is stable enough to help maintain positive foreign relations. n159 The inconstancy of

treaties need not spawn instability of interpretation within a single branch of government. With that in mind, courts should fulfill their constitutional duty to interpret treaties without being cowed into silence. They need not be indifferent to executive interpretations, but nor should they be deferent.

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

The enemy combatant litigation also underscores the extent to which the classic realist assumptions about courts' legitimacy in foreign affairs have been turned on their head. In an

anarchic world, legitimacy derives largely from brute force. The courts have no armies at their disposal and look weak when they issue decisions that

cannot be enforced. n441 But in a hegemonic system, where governance depends on voluntary acquiescence, the courts have a greater role to pla y. Rather than hobbling the exercise of foreign policy, the courts are a key form of "soft power." n442 As Justice Ken-nedy's majority opinion observed in Boumediene, courts can bestow external legitimacy on the acts of the political branches. n443 Acts having a basis in law are almost universally regarded as more legitimate than merely political acts. Most foreign policy experts believe that the Bush Administration's detention scheme "hurt America's image and stand-ing in the world." n444

The restoration of habeas corpus in Boumediene may help begin to counteract this loss of prestige .

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

The hegemonic model also reduces the need for executive branch flexibility, and the institutional competence ter-rain shifts toward the courts . The stability of the current U.S.-led international system depends on the ability of the U.S. to govern effectively. Effective governance depends on, among other things, predictability . n422 G. John Ikenberry analo-gizes America's hegemonic position to that of a "giant corporation" seeking foreign investors: "The rule of law and the institutions of policy making in a democracy are the political equivalent of corporate transparency and [*155]

account-ability." n423 Stable interpretation of the law bolsters the stability of the system because

other nations will know that they can rely on those interpretations and that there will be at least some degree of enforcement by the United States . At the same time, the separation of powers serves the global-governance function by reducing the ability of the executive branch to make "abrupt or aggressive moves toward other states." n424

2NC Deference- A2: Flex GoodPerceived presidential resolve is irrelevant for global stabilityKitfield 11 James Kitfield is Senior Correspondent for The National Journal, three-time winner of the Gerald R. Ford Award for Distinguished Reporting on National Defense, “Power Down,” 11-17-11, http://www.nationaljournal.com/magazine/an-indispensible-nation-no-more--20111117, y2k

Republicans lay the blame for those international woes on President Obama’s doorstep . They object to his squishy multilateralism, his willingness to engage odious adversaries in diplomacy, and his apologies for past American

mistakes. They see insufficient fealty to Israel, indecision in Afghanistan, and a refusal to lead —out front, the way they’re accustomed to

seeing—on Libya. They doubt Obama’s conviction that America is a “shining city upon a hill” and a beacon to all

free peoples. “As president of the United States, I will devote myself to an American Century, and I will never, ever apologize for America,” Republican presidential candidate Mitt Romney said during a recent foreign-policy speech. In it, he advanced the notion of America’s singularity, its role as a bulwark against tyranny, and its leadership of the free (and, by extension, the entire) world. “America’s strength rises from a

strong economy, a strong defense, and the enduring strength of our values,” he said. “Unfortunately, under this president, all three of those elements have been weakened.” Wait just a minute. Only three years ago, Obama and the Democrats blamed President Bush and his administration for failing to check

China and deter Iran. They objected to Bush’s swashbuckling unilateralism, his decision to ignore diplomacy with disagreeable countries, and his with-us-or-against-us triumphalism that alienated even close allies. They

questioned his one-sided fealty to Israel and blamed him for a war in Iraq that was dragging toward … what, exactly? They charged that he tarnished the American beacon by endorsing torture and conflating the

spread of democracy with regime change at the point of a gun. Why did two presidents with such different foreign-policy

instincts run up against — and , in many cases, get foiled by—the same international challenges ? In “George

W. Bush, Barack Obama, and the Future of U.S. Global Leadership,” a recent article in International Affairs, James Lindsay wrote that presidents today, no matter their

styles , must manage friends and foes who feel increasingly empowered to ignore or contest American

dominance. “Americans have this ingrained notion that U.S. leadership and predominance is the natural state

of world affairs, with Democrats thus concluding that gentle engagement will automatically cause countries to rally to our banner, and Republicans

believing that firmness and consistency will have the same effect ,” Lindsay said in an interview. “They are both fundamentally

misreading the geostrategic environment.” The post-Cold War period was an era of victory that left the United States standing atop the global order—a

superpower with unmatched military, economic, social, and diplomatic might. No wonder expectations are so high. But things have changed . Brazil, India, Indonesia, Turkey, and especially China are clawing their way to the top of the international system,

“insisting on all the privileges that come with their newly elevated status,” as Lindsay puts it. Revolution is sweeping the Middle East, the world’s energy basket.

Revisionist powers (Russia) and perennial outliers (Iran, North Korea) sense opportunity and new room to maneuver. “If a unipolar

moment ever really existed, it’s not just passed, it’s gone permanently ,” says Richard Haass, the former senior official in the first Bush White House who now runs the Council

on Foreign Relations. Partly, that follows from two costly wars, a recession, and political dysfunction that blocks a long-term debt solution or a bipartisan foreign-policy consensus. More than that, though, it flows

from globalization. “ Power is simply too diffuse now, and the challenges we confront are complex,

transnational, and they defy the efforts of any one nation ,” Haass says.

Judicial Independence NB

1NCJudicial independence sends a global signal- key to democracy Center for Justice and Accountability 4 Amici Curiae in support of petitioners in Al Odah et al. v USA, "Brief of the Center for Justice and Accountability, the International League for Human Rights, and Individual Advocates for the Independence of the Judiciary in Emerging Democracies," 3-10, http://www.jenner.com/files/tbl_s69NewsDocumentOrder/FileUpload500/82/AmiciCuriae_Center_for_Justice_Int_League_Human_Rights_Adv_For_Indep_Judiciary2.PDF

Many of the newly independent governments that have proliferated over the past five decades have adopted these ideals. They have emerged from a variety of less-than-free contexts, including the end of European colonial rule in the 1950's and 1960's, the end of the Cold War and the breakup of the former Soviet Union in the late 1980's and 1990's, the disintegration

of Yugoslavia, and the continuing turmoil in parts of Africa, Latin America and southern Asia. Some countries have successfully transitioned to stable and democratic forms of government that protect individual freedoms and human rights by means of judicial review by a strong and independent judiciary. Others have suffered the rise of tyrannical and oppressive rulers who consolidated their hold on power in part by diminishing or abolishing the role of the

judiciary. And still others hang in the balance, struggling against the onslaught of tyrants to establish stable, democratic governments. In their attempts to shed their tyrannical pasts and to ensure the protection of individual rights, emerging democracies have consistently looked to the United States and its Constitution in fashioning frameworks that safeguard the independence of their judiciaries . See Ran Hirschl, The Political Origins of Judicial Empowerment through Constitutionalization:

Lessons from Four Constitutional Revolutions, 25 Law & Soc. Inquiry 91, 92 (2000) (stating that of the “[m]any countries . . . [that] have engaged in fundamental constitutional reform over the past three decades,” nearly all adopted “a bill of rights and establishe[d] some form of active judicial review”).

Establishing judicial review by a strong and independent judiciary is a critical step in stabilizing and protecting these new democracies. See Christopher M. Larkins, Judicial Independence and Democratization: A Theoretical

and Conceptual Analysis, 44 Am. J. Comp. L. 605, 605-06 (1996) (describing the judicial branch as having "a uniquely important role" in transitional countries, not only to "mediate conflicts between political actors but also [to] prevent the arbitrary exercise of government power; see also Daniel C. Prefontaine and Joanne Lee, The Rule of Law and the Independence of the Judiciary, International Centre for Criminal Law Reform and Criminal Justice

Policy (1998) ("There is increasing acknowledgment that an independent judiciary is the key to upholding the rule of law in a free society . . . . Most countries in transition from dictatorships and/or statist economies recognize the need to create a more stable system of governance, based on the rule of law."), available at http://www.icclr.law.ubc.ca/Publications/Reports/RuleofLaw. pdf (last

visited Jan. 8, 2004). Although the precise form of government differs among countries, “they ultimately constitute variations within, not from, the American model of constitutionalism . . . [a] specific set of fundamental rights and liberties has the status of supreme law, is entrenched against amendment or repeal . . . and is enforced by an independent court . . . .” Stephen Gardbaum, The New Commonwealth Model of Constitutionalism, 49 Am. J. Comp. L. 707, 718 (2001). This phenomenon became most notable worldwide after World War II when certain countries, such as Germany, Italy, and Japan, embraced independent judiciaries following their bitter experiences under totalitarian regimes. See id. at 714- 15; see also United States v. Then, 56 F.3d 464, 469 (2d Cir. 1995) (Calabresi, J., concurring) (“Since World War II, many countries have adopted forms of judicial review, which — though different from ours in many particulars — unmistakably draw their origin and inspiration from American constitutional theory and practice. See generally Mauro Cappelletti, The Judicial Process in Comparative Perspective (Oxford: Clarendon Press, 1989).”). It is a trend that continues to this day. It bears mention that the United States has consistently affirmed and encouraged the establishment of independent judiciaries in emerging democracies. In September

2000, President Clinton observed that "[w]ithout the rule of law, elections simply offer a choice of dictators. . . . America's experience should be put to use to advance the rule of law, where democracy's roots are looking for room and strength to grow." Remarks at Georgetown University Law School, 36 Weekly Comp. Pres. Doc. 2218 (September 26, 2000), available at http://clinton6.nara.gov/2000/09/2000-09-26- remarks-by-president-at-georgetown-international-lawcenter. html. The United States acts on these principles in part through the assistance it provides to developing nations. For example, the United States requires that any country seeking

assistance through the Millenium Challenge Account, a development assistance program instituted in 2002, must demonstrate, among other criteria, an

"adherence to the rule of law." The White House noted that the rule of law is one of the "essential conditions for successful development" of these countries . See

http://www.whitehouse.gov/infocus/developingnations (last visited Jan. 8, 2004).12

This is key to solve extinctionLarry Diamond 95 is Hoover Institution Senior Fellow and Political Science and Sociology Professor @ Stanford, and former Baghdad CPA senior adviser, "Promoting Democracy in the 1990s," http://wwics.si.edu/subsites/ccpdc/pubs/di/fr.htm

This hardly exhausts the lists of threats to our security and well-being in the coming years and decades. In the former Yugoslavia nationalist aggression tears at the stability of Europe and could easily spread. The flow of illegal drugs intensifies through increasingly powerful international crime syndicates

that have made common cause with authoritarian regimes and have utterly corrupted the institutions of tenuous, democratic ones. Nuclear ,

chemical , and biological weapons continue to proliferate . The very source of life on Earth ,

the global ecosystem , appears increasingly endangered . Most of these new and unconventional threats to

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

offers important lessons. Countries that govern themselves in a truly democratic fashion do

not go to war with one another. They do not aggress against their neighbors to aggrandize

themselves or glorify their leaders. Democratic governments do not ethnically "cleanse" their own populations, and they are much less likely to face ethnic insurgency. Democracies do not sponsor terrorism against one another. They do not build weapons of mass destruction to use on or to threaten one another. Democratic

countries form more reliable, open, and enduring trading partnerships. In the long run they offer better and more stable climates for investment. They are more environmentally responsible because they must answer to their own citizens, who organize to protest the destruction of their environments. They are better bets to honor international treaties since they value legal obligations and because their openness makes it much more difficult to breach agreements in secret. Precisely because, within their own borders, they respect competition, civil liberties, property rights, and the rule of law, democracies are the only reliable foundation on which a new world order of international security and prosperity can be built.

2NC JI- Tyranny Add-on Independent judiciary is key to check tyrannyCox 87 Archibald, Former Special Prosecutor During Watergate, The Court and the Constitution, p. 373

Nor should our personal good fortune in experiencing unbroken liberty lead us to forget that the Dolly Mapps, Jehovah’s Witnesses, and Ishmael Jaffrees are fighting our battles, not because we expect our homes to be invaded or our children to refuse to salute the flag and join in prayer but because the constitutional safeguards and judicial assistance that they invoke are our own bulwarks against the imposition of strict orthodoxy, conformity, and suppression of political dissent. Both the English history known to the Framers and later experience in many other lands convincingly demonstrate that

when a popular leader seizes power and moves to suppress dissent, an independent Judiciary affords the best, and perhaps the

only protection against such threats to truly fundamental liberties as arbitrary arrest and detention without trial, the invasion of homes by security forces without judicial warrants, and the suppression of political opposition, including all freedom of expression. In countries with

written constitutions and other democratic forms of government, the switch to a dictatorship or another form of authoritarian rule has usually been accomplished by declaration of an emergency suspending the constitution and the customary

powers of independent courts.

ExtinctionBenoit 80 Emile, Senior Research Associate and Professor Emeritus – Columbia University, Progress and Survival: An Essay on the Future of Mankind, p. 97-8

It must be clear, however, that nonresistance to tyranny offers no true safeguard for human survival since rival

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

2NC JI- Solves rightsJudicial independence is critical to rightsRosenburg 1 Gerald N., Jack N. Pritzker Distinguished Visiting Professor of Law – Northwestern University Law School, “The Road Taken: Robert A. Dahl's Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker”, Emory Law Journal, Spring, 50 Emory L.J. 613, Lexis

If the Supreme Court is understood as a political institution, and as a national policymaker, the question naturally arises as to how it relates to other

political, policymaking institutions. The conventional and classic view is that the Court is structurally independent from the other branches of the federal government. 43 Indeed, the independence of the judiciary from political control is a hallmark of the American legal system. Institutionally separate and distinct from the other branches of the federal government, the federal judiciary is electorally unaccountable. Federal judges and justices are insulated from the political process through constitutional guarantees of

life appointments and salaries that may not be diminished during their terms of office. 44 In theory, this independence, plus the power to hold

legislative and executive acts unconstitutional, allows courts to "stand as the ultimate guardians of our fundamental rights." 45 An independent federal judiciary , Chief Justice Rehnquist said in 1996, is "one of the crown jewels of our system of government today." 46

Judicial independence checks tyrannySpriggs 6 James, Associate Professor of Political Science – University of California, Davis, et al., Courting the Public: Judicial Behavior and Public Views on Court Decisions

Because the Court’s legitimacy is so closely tied to its role as a significant check on the potential tyranny of majoritarian sentiment, Justices most obviously would want to appear to behave in a way that satisfies popular expectations of judicial impartiality.

Although lifetime tenure renders the Court in part an undemocratic institution, it serves an essential function in American liberal-democratic tradition by safeguarding the integrity of fundamental rights against “the effects of occasional ill humors in the society” (Fed. 78). Indeed, Hamilton notes that permanent tenure allows for “that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty” (Fed. 78). This prescriptive understanding of the Court’s role generally conforms to the actual subjective expectations of the American public (Hibbing

and Theiss-Morse 1995; Scheb and Lyons 2001). The Court’s function as an independent arbiter of the law thus places it in a peculiar position within the American governmental arrangement: it must remain above popular passions while it simultaneously must court public opinion.

2NC JI- A2: Perm Solves Perm crushes the judicial independenceRusson 3 Leonard, Former Justice – Utah Supreme Court, “The Constitutional Guarantee of an Independent Judiciary, 16 Utah Bar J. 22, Lexis

An independent judiciary, free from control or pressure by the executive or legislature, is essential and

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

executive powers." To state again the words of the United States Supreme Court: "A judiciary free from control by the Executive and Legislature is essential if there is a right to have claims decided by judges who are free from potential domination by the other branches of government." If we are to

maintain the autonomous, independent, and impartial judicial branch that is so essential to our system of government , we, as members of the bar and bench, must be ready to diligently and consistently invoke these

fundamental principles and defend our judicial institutions and prerogatives. It would be a sad day, indeed, if a Utah judge, when asked the question "what happens when the state, its agencies, or officers appear as a party in your courtroom?" had to reply, "Well, it makes it pretty tough."

Ptx NB

1NC Court decisions avoid congressional political battlesWard 9 Artemus, Professor of Poli Sci @ NIU “Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court”, Congress & the Presidency, Jan-Apr, (36)1; p. 119

After the old order has collapse the once- united, new-regime coalition begins to fracture as original commitments are extended to new issues. In chapter 3 Whittington combines Skowronek's articulation and disjunctive categories into the overarching "affiliated" presidencies as both seek to elaborate the regime begun under reconstructive leaders. By this point in the ascendant regime, Bourts are staffed by justices from the dominant ruling coalition via the

appointment process - and Whittington spends time on appointment politics here and more fully in chapter 4. Perhaps counter-intuitively, affiliated political actors - including presidents - encourage Courts to exercise vetoes and operate in issue areas of relatively low political salience. Of course, this "activism" is never used against the affiliated president per se. Instead, affiliated Courts correct for the overreaching of those who operate outside the preferred constitutional vision, which are often state and local governments who need to be

brought into line with nationally dominant constitutional commitments. Whittington explains why it is easier for affilitated judges, rather than affiliated presidents, to rein in outliers and conduct constitutional maintenance. The latter are saddled with controlling opposition political figures, satisfying short-term political demands, and navigating intraregime gridlock and political thickets . Furthermore, because of their electoral accountability, politicians engage in position-taking, credit-claiming, and blame-

avoidance behavior. By contrast, their judicial counterparts are relatively sheltered from political pressures and have more straightforward decisional processes. Activist Courts can take the blame for advancing and legitimizing constitutional commitments that might have electoral costs. In short, a division of labor exists between politicians and judges affiliated with the dominant regime.

2NC Ptx- No Link Courts evade electoral consequences Stoutenborough 6 et al., Political Science Dept @ Utah, [James, Political Science Dept @ Utah, Reassessing the Impact of Supreme Court Decisions on Public Opinion, Political Research Quarterly, p. 419]

In many cases, courts have been empowered by and served the interests of other political actors . While this undermines the countermajoritarian difficulty as an empirical hypothesis, it is not at all reassuring from a democratic perspective.

Judicial review can provide an opportunity for elected political actors to evade responsibilities or to pursue policies while evading electoral consequences. Such actions may

enhance or enable domination by letting those actors pursue policies that might lead to domination without suffering electoral consequences. The

possibility that judicial review can provide another outlet that permits legislators to "run from daylight"85 and effect important policy changes with a minimum of public scrutiny is a serious

concern, and may especially contribute to domination by powerful economic elites. An additional concern is that judicial review can have the perverse effect of making legislators less attentive to their constitutional responsibilities, as they may vote for legislation they believe to be unconstitutional under the assumption that the courts will correct their mistake.86

Politics is a net benefit Intoccia 1, practicing attorney specializing in telecommunications, [Gregory Intoccia, practicing attorney specializing in telecommunications, 2001, Reassessing Judicial Capacity to Resolve Complex Questions of Social Policy, 11 USAFA J. Leg. Stud. 127, pg. np]

Elected politicians appear to "pass the buck" to the judiciary when an issue divides the electorate in a manner that is not in keeping with conventional party divisions. As the judiciary is a non-partisan institution that has traditionally resolved specific controversies, the courts offer politicians the opportunity to deflect issues potentially disruptive to partisan debate. For example, judicial policy on abortion suggests that this principle is valid. For at least a decade prior to the Supreme Court's abortion decision in Roe v. Wade, many mainstream politicians generally

sought to avoid the abortion issue. In the mid-1960s, the two major parties remained divided over New Deal economic issues, but

voters were increasingly interested in other issues such as law and order, race, gender equity and social lifestyles. At that time, the majority Democratic Party was divided between liberals who were attracted to new views of social

lifestyles and traditionalists who condemned them. The Republican Party was also divided internally over these issues, but to a lesser degree. While the two parties primarily debated economic issues, many mainstream

politicians sought to avoid debate on a number of non-economic social issues. As the debate over such issues as abortion intensified, elected officials increasingly deferred to the judiciary for resolution. In the months prior to the Roe v. Wade decision, many politicians sought to remove themselves from the potential fall-out of a legislative solution to the abortion question, preferring instead that the judiciary decide whether to eliminate abortion restrictions .

The Court is not influenced by surrounding politics Scheb and Lyons, 01 (John M., Professor of political Science at University of Tennessee, William, Professor of Political Science at University of Akron, JUDICIAL BEHAVIOR AND PUBLIC OPINION: Popular Expectations Regarding the Factors That Influence Supreme Court Decisions, Political Behavior, Vol. 23, No. 2, June 2001, P.182.MS)

The myth of legality implies what political scientists have dubbed the “legal¶ model”of judicial decision making (Segal and Spaeth, 1993, 1996a, 1996b).¶ The legal model holds that court decisions are based on rules that are derived ¶ and applied through a neutral legal reasoning process. In terms of constitutional¶ interpretation by the United States Supreme Court, the legal

model ¶ dictates that justices rely on the original intent and on precedent in assigning ¶ meaning to constitutional text. Thus, according to the legal model, the ideologies, ¶ party affiliations, personalities, and social backgrounds of justices are ¶ simply irrelevant to the process of

Supreme Court decision making. Similarly,¶ the Court is uninterested in, and unaffected by,

public opinion, political parties,¶ interest groups, and the positions of the other

governmental actors . Because¶ the Court is a legal institution, not a political one, only legal

factors are ¶ permitted to influence its decisions.

Court action avoids political criticism Shinar 14

(Adam Shinar, Assistant Professor, Radzyner School of Law, Interdisciplinary Center, Herzliya. S.J.D. & LL.M. Harvard Law School, LL.B. Hebrew University ENABLING RESISTANCE: HOW COURTS FACILITATE DEPARTURES FROM THE LAW, AND WHY THIS MAY NOT BE A BAD THING, LEGISLATION AND PUBLIC POLICY [Vol. 17:98 2014] http://www.nyujlpp.org/wp-content/uploads/2015/03/Shinar-Enabling-Resistance-17nyujlpp990.pdf) BHS-CW

By contrast, when courts decide whether an issue is committed to other branches, or whether they should, as a prudential matter, avoid deciding the issue, two additional observations

come into play. First, the court is able to portray itself as standing outside the vicissitudes

of politics . In this way, the unlawfulness is happening elsewhere, and the court will not be

perceived as complicit , despite its facilitation . For example, when the constitutionality of

keeping troops in Libya came before a district court, the court refused to intervene.123

Criticism of President Obama’s move —maintaining troops without congressional

authorization in violation of the War Powers Act— stuck with him. No one thought that the

court was somehow at fault . Second, courts often choose to punt particular issues to the political branches, not necessarily because they lack the judicial tools to resolve them, but because there is a concern that if the court rules in favor of the plaintiffs, the decision will

not be obeyed and consequently the court’s status will bejeopardized. Thus, the best way to

safeguard the court’s legitimacy would be by picking its fights .124 In this way, the court

saves face and the alleged illegality can continue . Some commentators have questioned this explanation. John Hart Ely, for example, acknowledged that in the past courts were reluctant to address issues if they thought they would be disobeyed, but given the place the Court has in today’s society, overt defiance is unlikely.125 Alexander Bickel famously worried “not so much that judicial judgment will be ignored, as that perhaps it should be, but won’t.”126 However, contrary to Bickel and Ely, there are clearly instances—perhaps in high salience cases—where courts are reluctant to use their authority if they suspect that authority will be resisted, disobeyed, or incur severe criticism.127 This is surely what would have happened in the Vietnam cases had the Court gone the other way. Would the Johnson and Nixon administrations have stopped the war if a lower court (or even the Supreme Court) held it to be unconstitutional?128 Indeed, one of the things that separates the Vietnam War cases from, for example, United States v. Nixon, where the Court denied the President’s claim of absolute executive privilege,129 is that the public and Congress were completely behind the Court’s ruling, whereas a substantive decision in the Vietnam cases might have been perceived either as an illegitimate judicial intervention or as an

attempt to stop what was, at least initially, a popular campaign. Ultimately, the political question doctrine is about the latitude the Court gives the political branches, which in turn creates a space that can be exploited. While it is true that referring the issue to the political branches does not mean that they can exercise absolute discretion free of principled rules,130 removing the judicial check means taking out a meaningful constraint on official action. By declining to rule on the issue, even in the face of seemingly straightforward provisions such as the Declare War Clause, courts are in effect creating a space where constitutional resistance will have an easier time flourishing.

2NC Ptx- A2: HarrisonThe Harrison evidence is not qualified, not supported by evidence, and should not be evaluatedHarrison 7 Lindsay Harrison, edebate, “Please post this email to edebate on my behalf” March 3, online

It has come to my attention that teams are reading "evidence" from a debate blog that I ran last year when the high school topic was a legal one. I started the blog because, in judging debates on the topic, I was frustrated by what I saw as misunderstandings of the legal system by many in the debate community. I also was frustrated by a lack of creativity in devising arguments as a result of a lack of broad legal knowledge. I intended the blog both to

educate and to generate new ideas for argumentation. I did NOT intend the blog to be used as evidence, especially

not in college debates where I figured the community would recognize that none of my posts were peer-reviewed (or

reviewed by anyone at all), none of my posts were backed up by specific research, and none of my posts would ever qualify as "legal scholarship." In fact, I am merely giving people ideas for arguments and I do not necessarily advocate any of the ideas as my own - I consider evidence to be taken out of context if it says, "debaters should argue that bush would get credit" and folks read only the part suggesting "bush would get credit," thereby attributing that idea to me. When I found out that people were reading "Harrison 06" evidence from the blog as link cards on the court politics argument, I made an effort to end this. Whenever anyone read this evidence in front of me, I asked that they not do so in the future. I also posted something on the blog that I intended as a disclaimer for people not to read "evidence" from the blog. I have been traveling internationally for several months and, upon my return, I found out that people have continued to read this evidence in debate rounds. Accordingly, I am

now sending this to edebate in the hope that the community will recognize definitively that I do not want blog posts from my debate education blog to be read as "evidence" in rounds. Please do not read evidence from my debate education

blog in rounds. I consider it to be taken out of context. I hope that if people do read this evidence in rounds that judges will penalize those teams for reading evidence that the author considers out of context.

A2’s:

2NC A2: Agent CP badAgent CP are good:

Neg flex- agent ground is vital on a large topic and to offset literature biased impacts

Education- agent debates are paramount policy questions- especially on a topic about surveillance and national security

Err Neg- Aff bias, first and last speech, unlimited prep check abuse.

Reject the argument not the team

2NC A2: Perm Do Both Links to the net benefits- (Explain)

Perm forces the court to rule on a moot issue- this makes the decision meaningless King 2 JD Fordham University, 2002, Matthew, “COMMENT: TOWARDS A PRACTICAL CONVERGENCE: THE DYNAMIC USES OF JUDICIAL ADVICE IN UNITED STATES FEDERAL COURTS AND THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES”, Spring, 63 U. Pitt. L. Rev. 703, lexis

The Court conceded that it would hear cases "when actual litigation brings to the court the question of the constitutionality of such

legislation," but it will never simply test Congress's law-making savvy without an actual case or controversy. n39 Harking back to Taney, the Court relied on the execution of a [*710] timely, meaningful judgment as a primary factor in determining whether the case was legitimate. n40 Over time, the Court has molded the cases and controversies requirement of Article III into a doctrine

of justiciability. The central guideline and goal of this doctrine is the ability of a court to provide a meaningful decision . While courts reserve the right to declare cases non-justiciable for general reasons, time has honed this jurisprudence into

three specific arenas: ripeness, mootness, and standing. 1. The Issue Must Be Ripe Ripeness means the case and facts at hand must be fully and actually developed. n41 If not, no real case or controversy exists and the matter is to be dismissed . In his full summation of rules against advisory opinions, Justice Brandeis stated that the "Court will not

'anticipate a question of constitutional law in advance of the necessity of deciding it.'" n42 The next year, Anniston Manufacturing Co. called into question the constitutionality of numerous vital provisions of the 1936 Revenue Act. n43 Only the cotton taxes and procedures for recovery of monies

under the Agricultural Adjustment Act pertained to Anniston, yet it challenged the Act generally. n44 In dismissing the case the Court specifically declined to rule on matters that had not yet created (and might never create) an aggrieved party. n45 The Court bolstered Anniston with Electric Bond & Share Co. v. S.E.C. n46 There, the Court refused to assess the validity of the entire Public Utility Holding Company Act when only three provisions applied to the companies bringing suit: n47 "defendants seek a judgment that each and every provision of the Act is unconstitutional. It presents a variety of hypothetical controversies which may never become [*711] real." n48 The Court would not decide the issues until they had ripened into a concrete set of facts and parties. n49 2. The Issue Must Not Be Moot

Second is mootness, which requires that the case or facts have not yet run their course. n50 A moot case is essentially the opposite of an unripe case. n51 In United States v. Alaska Steamship Co., n52 steamship companies contested the Interstate Commerce Commission's authority to require two different forms for bills of lading for domestic and export transportation. n53 After the suit was filed, Congress passed an act amending federal power to regulate commerce and requiring a change in format for

both types of bills. n54 Under the new circumstances, the issue became moot. n55 The Court described what a moot case is, and what it must do with one: Where by an act of the parties, or a subsequent law, the existing controversy has come to an end, the case becomes moot and should be treated accordingly. However convenient it might be to have decided the question of the power of the Commission to require the carries to comply with

an order prescribing bills of lading, this court "is not empowered to decide moot questions or abstract propositions, or to declare, for the government of future cases, principles or rules of law which cannot affect the result as to the thing in issue in the case before it. No stipulation of parties or counsel, whether in the case before the court or in any other case, can enlarge the power, or affect the duty, of the court in this regard." n56

Violates separation of powers Watson 91 Corey C. Watson, Professor at Northwestern, 1991 (86 Nw. U.L. Rev. 143, lexis

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

Therefore, a court that decides the issue and administers a "remedy" when neither an actual harm nor a real plaintiff exists performs a legislative function. To inflate the judicial power through prudential considerations (such as preserving judicial resources) tips the balance of powers through these cases. n226 The constitutional constant becomes variable when prudential factors become overreaching. This undermines our system of separated powers.

Risks tyranny and should be rejectedRedish 91 Martin Redish, professor of law and public policy at Northwestern, 1991, Duke L.J. 449, lexis

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

2NC A2: Perm Shields PtxNo shielding-

Legislative process makes controversial fights independent of the substance of the policy

The courts have to act before congress to get shielding- but the perm is at the same time Simmons 95 Courtney, Law clerk to the Honorable J. Michael Luttig, Circuit Judge on the United States Court of Appeals for the fourth Circuit, Emory Law Journal, Winter, 44 Emory L.J. 117

Sometimes a legislative compromise entails a decision not to make a decision. Congress standing at a stalemate may choose not to prescribe one side or the other, or an intermediate point. Rather, the legislature may allow the courts to make the ultimate determination. Judge Posner, in The Federal Courts, described this

phenomenon: Often when there are political pressures to do something about a problem but the

legislature cannot agree exactly what to do about it, it will pass a statute the effect (as well as the undisclosed purpose) of which is to dump the problem in the lap of the courts, taking advantage of the fact that the courts are a kind of political lightning rod .

2NC A2: Perm Do CP Severance is a reason vote neg- destroys neg ground, and makes the plan conditional

Resolved means firm decisionAHD 6 American Heritage Dictionary, http://dictionary.reference.com/browse/resolved

Resolve TRANSITIVE VERB:1. To make a firm decision about. 2. To cause (a person) to reach a decision. See synonyms at decide. 3. To decide or express by formal vote.

Should means mustWords & Phrases 6 Permanent Edition 39, p. 369

C.D.Cal. 2005. “Should,” as used in the Social Security Administration’s ruling stating that an ALJ should call on the services of a medical advisor

when onset must be inferred, means “must.”—Herrera v. Barnhart, 379 F.Supp.2d 1103.—Social S 142.5.

Severs certainty- we'll win compliance but its not something we fiat Pacelle 2 Associate Professor of Political Science at the University of Missouri-St. Louis, 2002 (Richard, “The role of the Supreme Court in American politics: the least dangerous branch?” pg 102

Judicial decisions are not self-fulfilling directives. Because of institutional limitations, courts cannot implement their own decisions. Thus, the Court must rely on other individuals and institutions to carry out its directives. Because of these potential problems, many argue that the Court should not be active in policy-making. Ultimately, it is an empirical question, like broader notions of capacity. If the justices make decisions that lower courts do not apply or implementers ignore there is a loss of institutional legitimacy for the Court.

Defending certainty and immediacy are good- key to stable DA links and reflect a real world discussion of the literature since authors don’t write about things happening 6 months from now.

2NC A2: Rollback- CongressShouldn’t have to debate CP rollback:Fiat solves- its durable

Reciprocal- plan can be overturned- our fiat is no different

Ground- it ensures the Aff doesn’t lose on backlash and ensures neg DA ground

Court will have the last wordLipak 12 Adam Litpak, Writer for the New York Times, August 20, 2012 “In Congress’s Paralysis, a Mightier Supreme Court” http://www.nytimes.com/2012/08/21/us/politics/supreme-court-gains-power-from-paralysis-of-congress.html

The Supreme Court does not always have the last word. Sure, its interpretation of the Constitution is the one that counts, and only a constitutional

amendment can change things after the justices have acted in a constitutional case. But much of the court’s work involves the interpretation of laws enacted by Congress. In those cases, the court is, in theory at least, engaged in a dialogue with lawmakers. Lately, though, that conversation has become pretty one-sided, thanks to the legislative paralysis brought on by Congressional polarization. The upshot is that the Supreme Court is becoming even more powerful . Here is the way things are supposed to work. In cases concerning the interpretation of

ambiguous federal statutes, the justices give their best sense of what the words of the law mean and how they apply in the case before them. If Congress disagrees, all it needs to do is say so in a new law. The most prominent recent example of this dynamic was Ledbetter v. Goodyear Tire and Rubber Company, the 2007 ruling that said Title VII of the Civil Rights Act of 1964 imposed strict time limits for bringing workplace discrimination suits. In her dissent, Justice Ruth Bader Ginsburg reminded lawmakers that on earlier occasions they had overridden what she called “a cramped interpretation of Title VII.” “Once again,” she wrote, “the ball is in Congress’s court.” Congress responded with the Lilly Ledbetter Fair Pay Act of 2009, which overrode the

2007 decision. This sort of back and forth works only if Congress is not paralyzed. An overlooked consequence of the current polarization and gridlock in Congress, a new study found, has been a huge transfer of power to the Supreme Court. It now almost always has the last word, even in decisions that theoretically invite a Congressional response. “Congress is overriding the Supreme Court much less frequently in the last decade,” Richard L. Hasen, the author of the study, said in an

interview. “I didn’t expect to see such a dramatic decline. The number of overrides has fallen to almost none.” The few

recent overrides of major decisions, including the one responding to the Ledbetter case, were by partisan majorities. “In the past, when Congress overturned a Supreme Court decision, it was usually on a nonpartisan basis,” said Professor Hasen, who teaches at the University of California, Irvine.

In each two-year Congressional term from 1975 to 1990, he found, Congress overrode an average of 12 Supreme Court decisions. The corresponding number fell to 4.8 in the decade ending in 2000 and to just 2.7 in the last dozen years. “Congressional overruling of Supreme Court cases,” Professor Hasen wrote, “slowed down dramatically since 1991 and essentially halted in January 2009.” Tracking legislative overrides is not an exact science, as some fixes may be technical and trivial. And there may be other reasons for the decline, including drops in legislative activity generally and in the Supreme Court’s docket. But scholars who follow the issue say that Professor Hasen has

discovered something important. “Particularly since the 2000 elections, there has been a big falloff in overrides,” said William

N. Eskridge Jr., a law professor at Yale and the author of a seminal 1991 study on which Professor Hasen built his own. “It gives the Supreme Court significantly more power and Congress significantly less power.” Richard H. Pildes,

a law professor at New York University, said the findings were further proof that “the hyperpolarization of Congress is the single most important fact about American governance today.” It is, he said, a

phenomenon that has “been building steadily over the last 30 years and is almost certainly likely to be enduring for the foreseeable future.” “The assumption,” he added, “has long been that when the court interprets a federal statute, Congress can always come back in and fix the statute if it disagrees with the court. Now, however, the court’s decisions are likely to be the last word, not the first word, on what a statute means.”

Congress will complyBaum 3 Lawrence, Professor of Political Science – Ohio State University, “The Supreme Court in American Politics”, Annual Review of Political Science, 6(1), p. 173

In recent years, some scholars with a strategic perspective have analyzed relationships between the Supreme Court and lower courts in formal terms, terms that facilitate comparison between implementation processes in the judiciary and hierarchical relationships in other settings (Kornhauser 1995, Hammond et al. 2001; see Brehm & Gates 1997, pp. 13–20). Especially important is collaborative work by Segal, Songer, and Cameron (Songer et al. 1994, 1995; Cameron et al. 2000), who have employed principal-agent theory to guide empirical studies of the relationship between the Supreme Court and federal courts of appeals. Even in this new wave of research, however, there has been little systematic comparison between courts and other policy enactors. The natural comparison is between the Supreme Court and Congress, each of which acts to shape administrative policy. It is reasonable to posit that Congress does better in getting what it wants from administrators, because its powers (especially fiscal) and its capacity to monitor the bureaucracy are appreciably stronger. The sequences of events that overcame school segregation and racial barriers to voting in the Deep South support that hypothesis. But it remains essentially untested, in part because good tests are difficult to design. Thus, we still know little about the relative success of implementation for legislative and judicial policies. Once we know more about the implementation of the Court’s decisions in absolute and relative terms,

the most important question might well be why implementation is as successful as it is. The Court’s limited concrete powers would seem to aggravate the difficulties faced by all organizational leaders, so why do judges and administrators follow the Court’s lead so frequently ? Within the judiciary , part of the answer undoubtedly lies in

selection and socialization processes that enhance agreement about legal policy and acceptance of hierarchical authority. Even the Court’s limited powers may be sufficient to rein in administrators, especially in the era of broad legal mobilization that Epp has described: Groups that undertake litigation campaigns to achieve favorable precedents can also litigate against organizations that refuse to accept those precedents. Both judges and administrators may reduce their decision costs by using the Court’s legal rules as a guide. In any event, the relationship between the Court and policy makers who implement its policies may be an especially good subject for studies to probe the forces that reduce centrifugal tendencies in hierarchies. It is

also worth asking why the Court fares so well in Congress. As noted above, few of the Court’s most controversial

interventions in the past half century have been directly reversed. Nor has Congress enacted any of the numerous bills to remove the Court’s jurisdiction over areas in which the Court has aroused

congressional anger. A large part of the explanation lies in the difficulty of enacting legislation in a process with so many veto points . That difficulty is especially great in an era like the current one, which lacks a strong or stable law-making

majority. In such an era, interventions are likely to have significant support in government regardless of their ideological direction, and even decisions that strike down federal laws may enjoy majority support. The line of decisions since 1995 that has limited the regulatory power of the federal government (e.g., Alden v. Maine 1999, United States v. Morrison 2000) constitutes the most significant judicial attack on federal policy since the 1930s. But since 1995, Congress has had

Republican majorities except for the bare Democratic Senate majority in 2001–2002. In that situation, any significant action to counter the Court’s policies has been exceedingly unlikely. Beyond the difficulty of enacting legislation, two other factors may come into play. First, Congress often adopts measures that limit the impact of a Court policy or that attack the policy symbolically, actions that suffice for members who want to vent their unhappiness with the Court or to claim credit with constituents who oppose the decision (see Keynes & Miller 1989). In response to Roe v. Wade (1973), for instance, Congress (often with presidential encouragement) has mandated various limits on federal funding of abortion. Two years after Miranda v. Arizona (1966), it enacted a statutory provision purportedly to supersede the Miranda rules in federal

cases, a provision that federal prosecutors ignored and that the Court ultimately struck down in Dickerson v. United States (2000). Second, the Court may enjoy a degree of institutional deference in Congress, similar to that found in other relationships among the three branches but buttressed by the symbolic status of the Constitution itself. This deference tinges certain courses of action, such as restrictions on court jurisdiction, with illegitimacy. The failure of proposals to overturn the flag-burning decisions with a constitutional amendment,

despite broad and deep public opposition to those decisions, reflects the symbolic power of the First Amendment. Congressional deference to the Court is not limitless, but in combination with other factors it may help to explain why the

Court’s recent interventions and the Court itself have survived congressional scrutiny so well.

Prefer our evidence- theirs uses selection biasBaum 3 Lawrence, Professor of Political Science – Ohio State, “The Supreme Court in American Politics”, Annual Review of Political Science, 6(1), p. 172

Yet both this impression and what it suggests about the Court are misleading in two respects. First, the early research overstated the

Court’s implementation failures . For one thing, scholars emphasized failures more than successes.

Was it more remarkable that so many schools maintained religious exercises prohibited by the Court or that so many others eliminated exercises that had strong public support? The absence of desegregation in the Deep South in the decade after Brown was noteworthy, but so was the gradual elimination of

school segregation in the border states. Moreover, this research reflected a strong selection bias in that scholars were attracted to the

study of decisions that had run into visible implementation problems. Later research that avoided this bias

indicates that, at least at the federal level, judges and administrators respond more favorably to Supreme Court decisions in general than the early research suggested (Johnson 1987, Songer et al. 1994, Stidham & Carp 1982, Songer

1987, Songer & Sheehan 1990, Spriggs 1997; see Canon & Johnson 1999). Second, the early research typically treated implementation of Supreme Court decisions as a unique phenomenon. Scholarship on imperfect hierarchy

elsewhere in government (e.g., Kaufman 1960, Pressman & Wildavsky 1973) and in work organizations (e.g., Mechanic 1962, Crozier 1964) had little

impact on the judicial research. As a consequence, judicial scholars seldom considered whether noncompliance with Supreme Court decisions

resulted chiefly from universal imperfections in implementation rather than special weaknesses of courts. The first possibility has become even more credible with the accumulation of research on policy implementation (e.g., Lipsky 1980, Wilson 1989, Brehm & Gates 1997).

2NC A2: Rollback- ExecutivePresident followsPrakash & Ramsey 12 Saikrishna Prakash is law professor @ UVA—AND—Michael Ramsey is law professor @ University of San Diego, “The Goldilocks Executive” http://www.texaslrev.com/wp-content/uploads/Prakash-Ramsey-90-TLR-973.pdf, p.990-2, y2k

3. The Courts .—The courts constrain the Executive , both because courts are necessary to the

Executive imposing punishments and because courts can enforce the Constitution and laws against the Executive. It is true, as Posner and Vermeule say, that courts often operate ex post and that they may defer to executive determinations, especially in sensitive areas such as national security. But these

qualifications do not render the courts meaningless as a Madisonian constraint. First, to impose punishment, the Executive must bring a

criminal case before a court. If the court, either via jury or by judge , finds for the defendant, the

Executive does not suppose that it can nonetheless impose punishment (or even, except in the most extraordinary cases, continue

detention). This is so even if the Executive is certain that the court is mistaken and that failure to punish will lead to bad

results. As a result, the Executive’s ability to impose its policies upon unwilling actors is sharply limited by the need

to secure the cooperation of a constitutionally independent branch , one that many suppose has a built-in dedication to the rule of law.84

And one can hardly say, in the ordinary course, that trials and convictions in court are a mere rubber stamp of Executive Branch conclusions. Second, courts issue injunctions that bar executive action. Although it is not clear whether the President can be enjoined,85 the rest

of his branch surely can and thus can be forced to cease actions that judges conclude violate federal law or the

Constitution.86 As a practical matter, while courts issue such injunctions infrequently, injunctions would be issued more often if an administration repeatedly ignored the law. Third, courts’

judgments sometimes force the Executive to take action , such as adhering to a court’s reading of a

statute in areas related to benefits, administrative process, and even commission delivery. Though the claim in Marbury v. Madison87 that courts could issue writs of mandamus to executive officers was

dicta,88 it was subsequently confirmed in Kendall v. United States ex rel. Stokes,89 a case where a court ordered one executive officer to pay another.90 Finally, there is the

extraordinary practice of the Executive enforcing essentially all judgments . The occasions in which the Executive has refused to

enforce judgments are so few and far between that they are the stuff of legend. To this day, we do not know whether Andrew Jackson said, “John Marshall has made his decision, now let him enforce it.”91 Lincoln’s

disobedience of Chief Justice Taney’s writ of habeas corpus is so familiar because it was so singular. Yet to focus on actual court cases and judgments is to miss the broader influence of the courts. Judicial review of executive action matters because

the knowledge of such review affects what the Executive will do . Executives typically do not wish to be sued, meaning that they often will take

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

Political pressures ensure complianceStephen I. Vladeck 9, Professor of Law and Associate Dean for Scholarship at American University Washington College of Law, senior editor of the peer-reviewed Journal of National Security Law and Policy, Supreme Court Fellow at the Constitution Project, and fellow at the Center on National Security at Fordham University School of Law, JD from Yale Law School, 3-1-2009, “The Long War, the Federal Courts, and the Necessity / Legality Paradox,” http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1002&context=facsch_bkrev

Moreover, even if one believes that suspensions are unreviewable, there is a critical difference between the Suspension Clause and the issue here: at least with regard to the former, there is a colorable claim that the Constitution itself ousts the courts from reviewing whether there is a “Case[ ] of Rebellion or Invasion [where] the public Safety may require” suspension––and even then, only for the duration of the suspension.179 In contrast, Jackson’s argument sounds purely in pragmatism—courts should not review whether military

necessity exists because such review will lead either to the courts affirming an unlawful policy, or to the potential that the political branches

will simply ignore a judicial decision invalidating such a policy .180 Like Jackson before him, Wittes seems to believe

that the threat to liberty posed by judicial deference in that situation pales in comparison to the threat posed by judicial review. ¶ The problem is that such a belief is based

on a series of assumptions that Wittes does not attempt to prove . First, he assumes that the executive branch would ignore a judicial decision invalidating action that might be justified by military necessity.181 While Jackson may arguably have had credible reason to fear

such conduct (given his experience with both the Gold Clause Cases182 and the “switch in time”),183 a lot has changed in the past

six-and-a-half decades , to the point where I, at least, cannot imagine a contemporary President

possessing the political capital to squarely refuse to comply with a Supreme Court decision. But perhaps I am naïve.184

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

While courts rarely intervene directly in national security disputes, they nevertheless play a significant role in shaping Executive branch

security policies . Let’s call this the “observer effect.” Physics teaches us that observing a particle alters how it behaves. Through psychology, we know that people act

differently when they are aware that someone is watching them. In the national security context, the “observer effect” can be thought of as the impact on

Executive policy-setting of pending or probable court consideration of a specific national security

policy . The Executive’s awareness of likely judicial oversight over particular national security policies

— an awareness that ebbs and flows — plays a significant role as a forcing mechanism . It drives

the Executive to alter , disclose, and improve those policies before courts actually review them.

2NC A2: Rollback- Lower CourtsThe Lower Courts will follow Supreme CourtKim 7 Professor of Law, Washington University School of Law, St. Louis. 2007, Pauline, Pauline T. Kim, New York University Law Review LexisNexis, “Lower Court Discretion,”

If the fear of reversal is insufficient to explain judicial behavior, then the principal-agent model presents a puzzle. In the absence of any effective

sanction, why would lower court judges - assumed to be motivated by their policy preferences - choose to follow legal authority rather than pursuing their own \preferred outcomes? The simplest explanation for lower court compliance is that judges have legal preferences independent of their political preferences. More precisely, even if judges care about whether the outcome in a given case advances their preferred policy, they likely care about whether it conforms to legal norms as well. Judges may have a variety of legal preferences regarding matters such as the appropriate mode of interpreting statutes, or the

relevance of foreign legal materials, and these preferences may vary from judge to judge. But their decisions are also guided by a set of widely shared norms - some of which are formulated as legal rules - regarding their role in the judicial hierarchy. One fundamental and widely accepted norm requires that lower federal court judges follow precedent established by a court directly in line above them in the judicial hierarchy. Adherence to this norm offers a straightforward explanation of why lower courts comply with superior court precedent, even that with which they disagree. n8

Lower courts follow precedentRiggs 6 political science professor at BYU, 2006, Robert, “ARTICLE: The Supreme Court and Same-Sex Marriage: A Prediction”, 20 BYU J. Pub. L. 345, lexis

A second proposition, namely that precedent is not a very useful predictor when regarded as a restraint upon what the Court may do, requires further

elaboration. Lower courts usually feel constrained to follow Supreme Court precedent because contrary decisions may be overturned on appeal. However, there remains considerable wiggle room for lower courts because not all decisions are appealed and, realistically, the Supreme Court is limited in the number of cases it can agree to hear. In addition,

Supreme Court decisions are often fuzzy enough to allow latitude in their interpretation. Nevertheless, precedent is usually followed by lower courts.

2NC A2: No Test CaseDon’t need to specify a test case:

Fiat solves- its should/would question

Reciprocal- they have to specify which bill the plan is passed on

Many surveillance test cases Cyrus Farrivar, 15 “If the Supreme Court tackles the NSA in 2015, it’ll be one of these five cases” Cyrus [suh-ROOS] is the Senior Business Editor at Ars Technica, and is also an author and radio producer. His book, The Internet of Elsewhere – about the history and effects of the Internet on different countries around the world, including Senegal, Iran, Estonia and South Korea – was published by Rutgers University Press in April 2011. He previously was the Sci-Tech Editor, and host of "Spectrum" at Deutsche Welle English, Germany's international broadcaster. He has also reported for the Canadian Broadcasting Corporation, National Public Radio, Public Radio International, The Economist, Wired, The New York Times and many others. January 1, 2015 http://arstechnica.com/tech-policy/2015/01/if-the-supreme-court-tackles-the-nsa-in-2015-itll-be-one-of-these-five-cases/

Roughly a year and a half since the first Snowden disclosures, there's already been a

judicial order to shut down the National Security Agency's bulk metadata collection

program. The lawsuit filed by Larry Klayman, a veteran conservative activist, would

essentially put a stop to unchecked NSA surveillance. And at the start of 2015, he remains the only plaintiff whose case has won when fighting for privacy against the newly understood government monitoring. However, it's currently a victory in name only—the judicial order in Klayman was stayed pending the government’s appeal. DC Circuit Court of Appeals may confirm ruling that ended practice, was stayed. Klayman v. Obama is only one of a number of notable national security and surveillance-related civil and criminal cases stemming

fully or partially from the Snowden documents. In 2014, a handful of these advanced far enough through

the legal system that 2015 is likely to be a big year for privacy policy . One or more could even end up before the Supreme Court. "I think it's impossible to tell which case will be the one that does it, but I believe that, ultimately, the Supreme Court will have to step in and decide the constitutionality of some of the NSA's practices," Mark Rumold, an attorney with the Electronic Frontier Foundation, told Ars. Rumold is one of the attorneys in First Unitarian Church, a case that is challenging government surveillance much like Klayman. Along with that pair, headline watchers should set alerts for cases such as American Civil Liberties Union

(ACLU) v. Clapper, United States v. Moalin, and United States v. Muhtorov. Not only are there several other related cases that will likely be influenced by these decisions, but those five cases represent the strongest and most direct legal challenges to the current NSA surveillance state.

Don’t need a test caseO’Brien 5 David M., Professor of Judicial Politics and Public Law – Woodrow Wilson Department of Politics at the University of Virginia, Storm Center: The Supreme Court in American Politics, p. 170-171

Although most cases now come as certiorari petitions, Congress provides that appellate courts may also submit a writ of certification to the court, requesting the justice to clarify or “make more certain” a point of

federal law. The court receives only a handful of such cases each term. Congress also gave the court the power to issue extraordinary writs, or order. In a few cases, the court may issue writes of mandamus and prohibition ordering lower courts or public officials either to do something or refrain from some action.

The court can pick and choose cases O’Brien 00 David O’Brien, Professor of Government and Foreign Affairs at the University of Virginia, Storm Center: The Supreme Court in American Politics, 2000, p. 227-228.

The current Court’s power to pick the cases it wants from a very large docket enables it to assume the role of a super legislature . The overwhelming number of cases on the docket involve indigents’ claims and

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

2NC A2: PQD/SS DAUpsetting political question doctrine is empirically denied Gwynne Skinner 14 is Professor of Law @ Willamette, “Misunderstood, Misconstrued, and Now Clearly Dead: The 'Political Question Doctrine' in Cases Arising in the Context of Foreign Affairs,” papers.ssrn.com/sol3/papers.cfm?abstract_id=2315237, y2k

Lower federal courts often erroneously cite the “political question doctrine” to dismiss as nonjusticiable individual rights claims arising in foreign or military affairs contexts, a trend that has increased since the 1962 case of Baker v. Carr. Similarly, lower courts have begun citing “special factors counselling hesitation” when dismissing constitutional claims (“Bivens claims”) in similar contexts, inappropriately treating “special

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

types of cases for over 200 years . The Court affirmed this approach in the 2012 case of

Zivotofsky v. Clinton, a case in which the Court once and for all rung the death knell for the

application of the “ p olitical q uestion d octrine” as a nonjusticiability doctrine in cases involving individual rights – even those arising in a foreign policy context. In fact, a historical review of Supreme Court cases demonstrates that the Supreme Court has never applied the so-called “ p olitical q uestion d octrine ” as a true nonjusticiable doctrine to dismiss individual rights claims (and arguably, not to any claims at all), even those arising in the context of foreign or military affairs. This includes the seminal “political question” case of Marbury v. Madison. Rather, the Supreme Court has almost always rejected the “political question doctrine” as a basis to preclude adjudication of individual rights claims, even in the context of foreign or military affairs. Moreover, the Supreme Court has consistently admonished lower

courts regarding the importance of the judiciary branch’s adjudication of individual rights claims, even in such contexts.13 That is not to say that from time to time the Court has not cited a “political question doctrine” in certain of its cases. However, a close review of those cases demonstrates that rather than dismissing such claims in those cases as “nonjusticiable,” the Court in fact adjudicated the claims by finding that

either the executive or Congress acted constitutionally within their power or discretion. Moreover, the post-9/11 Supreme Court cases of Hamdi v. Rumsfeld, Rasul v. Bush, and Bush v. Boumediene, in which the Supreme Court consistently

found that the political branches overstepped their constitutional authority, clarified that the doctrine should not be used to dismiss individual rights claims as nonjusticiable , even those arising in a foreign or military affairs context. In case there remained any doubt, the Supreme Court in Zivotofsky rejected the “political question doctrine” as a nonjusticiability doctrine, at least in the area

individual rights, if not altogether. The Court found the case, involving whether the parents of a boy born in Jerusalem had the right to list Israel as his place of birth pursuant to a Congressional statute, was justiciable.17 The Court addressed the real issue, which was whether Congress had the authority to trump the President over whether Israel could be listed as the country of birth on passports where a person was born in Jerusalem, notwithstanding the President’s sole authority to recognize other governments. 18 In ruling as it did, the Court stayed true to many of its earlier cases involving “political questions” by adjudicating the

claim through deciding whether one of the political branches took action that was within its constitutional authority. In the case, the Court showed its willingness

to limit the power of the President in the area of foreign affairs rather than finding the claim nonjusticiable.

No precedent spill-overRoy Flemming 00 is Texas A&M University political science professor, "Majority Rule or Minority Will: Adherence to Precedence on the U.S.Supreme Court," Canadian Journal of Political Science, Vol 33, No. 2, jstor

In the United States, proponents of legal realism in its various forms have continuously challenged since the 1920s the belief that the law and legal reasoning determine the outcome of litigation in courts. For nearly

eight decades, successive generations of sceptical scholars have argued that judges pick the legal principles they want to apply, that these choices reflect extralegal considerations, like the judges' own values or ideology, and that judges ignore earlier cases and refuse to be bound by precedent . Political scientists influenced by these views and by the behavioural revolution in public law in the late 1950s and early 1960s joined this

critical assault on legal formalism. Harold J. Spaeth was among the pioneering political scientists who promoted the construction of behavioural models of judicial politics. He has continued to research widely in this

area. In 1993, he and Jeffrey A. Segal presented a major restatement of these models in The Supreme Court and the Attitudinal Model (New York: Cambridge University Press). Since then they have

collaborated to develop a systematic assessment of the influence of stare decisis . The book under review here was

preceded by Stare Indecisis in 1995, which Spaeth wrote with Saul Brenner (New York: Cambridge University Press) and looks at the Court's reversal of precedents since the Second World War. In 1996, Spaeth and Segal's article on the justices' voting behaviour and whether they adhered to stare decisis was the subject of a symposium published by the American Journal of Political Science. Now, Spaeth and Segal, in Majority

Rule and Minority Will, conclude their attack on one of the fundamental principles of common law jurisprudence and a linchpin of the legal model. The point of their book is simple: American justices do not heed precedent unless they agree with it. Justices dissenting from original opinions

do not reverse their votes in the succeeding "progeny" and fall into line with the precedents, which they

presumably would have if the justices adhered to stare decisis. Instead, they continue to vote their own preferences. Skeptics may point out that precedents are rarely overruled, but that does not mean individual justices feel constrained by stare decisis. Moreover, when given the chance, as when voting alignments on the Court shift in their favour after the appointment of a sympathetic new justice, American justices previously in the minority will vote to overturn precedents that run counter to their preferences. In a word or two, American justices are rarely influenced by stare decisis. Majority Rule and Minority Will analyzes 2,425 votes and opinions cast by 77 justices in 1,206 progeny of 341 cases. Spaeth and Segal cannot be

faulted for selecting a particular era that might favour their legal realist hypothesis; the study extends from 1793 through 1990, almost the entire history of the U.S. Supreme Court. Nearly 200 years of Supreme Court decisions means of course literally thousands of opinions and cases. While their hypothesis required that they look only at precedents with dissenting votes and opinions, sampling nevertheless was an imperative. Equally as important as the sampling procedure was the identification of the progeny of precedentsetting cases.

Their DA already happenedKaufman 8, Marc Kaufman is a staff writer at the Washington Post, http://www.washingtonpost.com/wp-dyn/content/article/2008/01/03/AR2008010303887.html

A federal judge yesterday severely limited the Navy's ability to use mid-frequency sonar on a training range off the

Southern California coast, ruling that the loud sounds would harm whales and other marine mammals if not tightly controlled. The decision is a blow to the Navy , which has argued that it needs the flexibility to train its sonar operators without undue restrictions. In her decision, however, U.S. District Judge Florence-

Marie Cooper said the Navy could conduct productive training under the limitations, which she said were required under several environmental laws.

No internal link to a complete collapse of the State Secret Privilege Glenn Greenwald 9, Salon,“The 180-degree reversal of Obama’s State Secrets position”, 2-10-9, http://www.salon.com/2009/02/10/obama_88/, y2k

Nobody — not the ACLU or anyone else — argues that the State Secrets privilege is

inherently invalid . Nobody contests that there is such a thing as a legitimate state secret. Nobody believes that Obama should declassify every last secret and never classify anything else ever again. Nor does anyone even assert that this particular lawsuit clearly involves no specific documents or portions of documents that might be legitimately subject to the

privilege. Those are all transparent , moronic strawmen advanced by people who have no

idea what they’re talking about.

2NC A2: Legitimacy DACourt decision-making maintains legitimacy Sherry, 13 (Suzanne, Herman O. Loewenstein Professor of Law at Vanderbilt University Law School in

Nashville, Tennessee, Influence and Independence: Politics in Supreme Court Decisions, ://iipdigital.usembassy.gov/st/english/publication/2013/02/20130206142159.html#ixzz3etDg9HfT.MS)

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

term in October 2012, for example, the nine sitting justices were appointed by five different presidents — three Republicans and two Democrats. The diversity of political views on the Court and the periodic appointment of new justices guarantee that no single political faction will reliably prevail for long. ¶ Differences aside, all of the justices share a commitment to uphold the Constitution. Their fidelity to that goal makes the United States a country governed by the rule of law, rather than by the rule of men. The justices, in interpreting and applying the Constitution and laws, do not view themselves as Platonic guardians seeking to govern an imperfect society but, instead, as faithful agents of the law itself. The Supreme Court can, and does, decide

political questions, but does so using the same legal tools that it uses for any legal

question . If it were otherwise, the Court might jeopardize its own legitimacy: The public might

not regard it as an institution particularly worthy of respect.¶ Personal and Political Views¶ Nevertheless, justices do have personal views. They are appointed through a political process. Observers naturally must ask how great a role their political views actually play. Some scholars argue that the justices’ political preferences play a large role, essentially dictating their decisions in many cases. They point to the fact that justices appointed by conservative presidents tend to vote in a conservative fashion and those appointed by liberal presidents vote the opposite way. The confirmation battles over recently nominated justices certainly suggest that many people view the justices’ personal politics as an important factor in judicial decision making.¶ Dwight Eisenhower and William J. Brennan shaking hands (AP Images)¶ Republican President Dwight Eisenhower (left) selected William J. Brennan for the Supreme Court. Brennan became one of the most liberal justices of the 20th century.¶ But we should not so quickly conclude that Supreme Court justices, like politicians, merely try to institute their own policy preferences. A number of factors complicate the analysis. First, it is difficult to disentangle a justice’s political preferences from his or her judicial philosophy. Some justices believe that the Constitution should be interpreted according to what it meant when it was first adopted or that statutes should be interpreted by looking only to their texts. Others believe that the Constitution’s meaning can change over time or that documentary evidence surrounding a statute’s enactment can be useful in its interpretation.¶ Some justices are extremely reluctant to overturn laws enacted by state or federal legislatures, and others view careful oversight of the legislatures as an essential part of their role as guardians of the Constitution. A justice who believes that the Constitution ought to be interpreted according to its original meaning and who is reluctant to strike down laws will probably be

quite unsympathetic to claims that various laws violate individuals’ constitutional rights. If that justice also happens to be politically conservative, we might mistakenly attribute the lack of sympathy to politics rather than judicial philosophy.¶ A justice’s personal experiences and background also may influence how he or she approaches a case — although not always in predictable ways. A judge who

grew up poor may feel empathy for the poor or may, instead, believe that his or her own ability to overcome the hardships of poverty shows that the poor should bear responsibility for their own situation. A justice with firsthand experience with corporations or the military or government bodies (to choose just a few examples) may have a deeper understanding of both their strengths and their

weaknesses.¶ In the end, it seems difficult to support the conclusion that a justice’s politics are the

sole (or even the primary) influence on his or her decisions. There are simply too many instances in which justices surprise their appointing presidents, vote contrary to their own political views, or join with justices appointed by a president of a different party. Two of the

most famous liberal justices of the 20th century, Chief Justice Earl Warren and Justice William Brennan, were nominated by Republican President Dwight Eisenhower — and Warren was confirmed by a Republican-majority Senate. Between a quarter and a third of the cases decided by the Supreme Court are decided unanimously; all the justices, regardless of their political views, agree on the outcome.

One study has concluded that in almost half of non-unanimous cases, the justices’ votes do not accord with what one would

predict based on their personal political views . Moreover, some deeply important legal questions are not predictably political: We cannot

always identify the “conservative” or “liberal” position on cases involving, for example, conflicting constitutional rights or complex regulatory statutes.¶ Other Factors in Decision Making¶ The structure and functioning of the judiciary also temper any individual justice’s tendency toward imposing personal political preferences. The most important factor is that the Court must publicly explain and justify its decisions: Every case is accompanied by one or more written opinions that provide the reasoning behind the Court’s decision, and these opinions are available to anyone who wants to read them. They are widely discussed in the press (and on the Internet) and are often subject to careful critique by lawyers, judges, and scholars. This transparency ensures that justices cannot bend the law indiscriminately; their discretion is cabined by the pressures of public exposure. And any justice who does not want to be thought a fool or a knave will take care to craft persuasive opinions that show the reasonableness of his or her conclusions.¶ Deliberation also plays a role in moderating the influence of politics on justices’ decision-making. Before reaching a decision, each justice reads the parties’ briefs, listens to (and often asks questions of) the parties’ lawyers at oral argument, and converses with other justices. The justices may also discuss cases with their law clerks, recent law school graduates who may bring a somewhat different perspective. After an initial vote on the case, the justices exchange drafts of opinions. During this long deliberation process, the justices remain open to persuasion, and it is not unusual for a justice to change his or her mind about a case. Because the justices, the lawyers, the parties, and the clerks represent a diverse range of political views, this process helps to focus the justices on legal, rather than political, factors.¶ Finally, the concept of stare decisis, or adherence to the decisions made in prior cases, limits the range of the Court’s discretion. Absent extraordinary circumstances, the Supreme Court will follow precedent — the cases it has previously decided. Even justices who might disagree with a precedent (including those who dissented when the case was originally decided) will almost always feel bound to apply it to later cases. As decisions on a particular issue accumulate, the Court might clarify or modify its doctrines, but the earlier precedents will mark the starting point. History is full of examples of newly elected presidents vowing to change particular precedents of the Supreme Court, but failing despite the appointment of new justices. Stare decisis ensures that doctrinal changes are likely to be gradual rather than abrupt and that well-entrenched decisions are unlikely to be overturned. This gradual evolution of doctrine, in turn, fosters stability and predictability, both of which are necessary in a nation committed to the rule of law.¶ No system is perfect, of course. In a small number of cases, one likely explanation for particular justices’ votes seems to be their own political preferences. These cases are often the most controversial and usually involve political disputes that have divided the country along political lines. It is no surprise

that they similarly divide the justices. The existence of such cases, however, should not lead us to conclude that politics is a dominant

factor in most of the Court’s cases.¶ Many factors, therefore, influence the Supreme Court’s decisions. The justices’ political views play only a small role. Were it otherwise, the Court would be less able to serve as an independent check on the political branches, less able to protect the rights of individuals, and less secure in its legitimacy. The public would not have as much confidence in a Court seen as just another political body, rather than as an independent legal decision maker. The justices (and other judges) know this, and they safeguard the Court’s reputation by minimizing the role of politics in their own decisions.

Overruling is extremely common- ten examples prove the disad is empirically falseCalabresi 6 Steven G., Professor of Constitutional Law – Northwestern U., Alabama LR, 57 Ala. L. Rev. 635, Spring

Many other examples exist of the Court implicitly or explicitly overruling itself on the most major constitutional issues. These include the following:  [*684]  1) the Legal Tender Cases where Hepburn v.

Griswold, 313 banning the issuance of paper money, was explicitly overruled one year later by Knox v. Lee, 314 upholding the

constitutionality of the issuance of paper money; 2) the proper rule of decision under the Free Exercise Clause, where Employment Division, Department of Human Resources of Oregon v. Smith 315 in effect overruled a thirty-year-old line of Warren Court precedents first

announced in Sherbert v. Verner; 316 3) the Taney Court's departure from the broad Marshall Court reading of the

commerce power in Gibbons v. Ogden 317 in Mayor of the City of New York v. Miln; 318 4) the Taney Court's departure from the broad Marshall

Court reading of the Contracts Clause in Charles River Bridge v. Warren Bridge; 319 5) the Fuller Court's departure in Lochner v. New York 320 from the narrow reading of Section 1 of the Fourteenth Amendment adopted in the Slaughterhouse Cases; 321 and 6) the Rehnquist Court's rejection of twenty years of practice allowing upward departures by judges without aid of a jury in the Apprendi 322 line of cases, culminating with

United States v. Booker. 323 To these six additional instances of overruling, either explicit or implicit, might be added the four Supreme Court decisions in which "We the people" 324 have overruled directly by constitutional amendment:

Chisholm v. Georgia, 325 Dred Scott v. Sandford, 326 Pollock v. Farmers' Loan & Trust Co., 327 and Oregon v. Mitchell. 328 In all four cases, substantial numbers of those advocating the constitutional amendments thought that the decisions being overturned were not merely bad as a matter of policy but were also wrong as a matter of constitutional interpretation. The rejection of these four precedents involved to some degree an

effort to restore fundamental constitutional principles in the face of contrary Supreme Court precedent. I submit that the cases, overrulings, and

departures from practice discussed above suggest that it is common practice in the United States to appeal to the text of the Constitution or the principles that animate it to trump even long-established lines of precedent around which substantial reliance interests have formed. Contrary to the writings of Professors Strauss and Merrill, our actual practice is for the Supreme Court not to give important  [*685]  constitutional precedents all that much weight. 329 It might thus be said of the Burkean writings of Professors Strauss and Merrill that "a theory that leaves such a huge unexplained gulf with practice is suspect." 330

No spilloverHealy 1 Thomas, Associate – Sidley Austin Brown & Wood, Washington D.C.; J.D. – Columbia University Law School, West Virginia Law Review, Fall, Lexis

In Part III, I acknowledge that even if stare decisis is not dictated by the founding generation's assumptions or by the system of checks and

balances, it might nonetheless be essential to the legitimacy of the courts. By following the doctrine consistently for the better part of two centuries, the courts may have created an expectation that they will continue to do so. And to the extent that their legitimacy now rides on this

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

Link inevitable- 3 overrules per termHansford and Spriggs 2 James F. and Thomas G., UC Davis, Explaining the Overruling of U.S. Supreme Court Precedent, http://repositories.cdlib.org/cgi/viewcontent.cgi?article=1030&context=csls

As Justice Kennedy’s opinion suggests, the doctrine of stare decisis, by which courts follow the legal precedents articulated in previously decided

cases, does not preclude the Supreme Court from overruling a prior case. Yet, as Justice Kennedy also states in his opinion, stare decisis is “‘of fundamental importance to the rule of law’” (491 U.S. 164, at 172). Adherence to precedent reportedly serves such goals as clarity, stability, and predictability in the law (Douglas [1949] 1979; Powell 1990; Rasmusen 1994; Stevens 1983), efficiency (Landes and Posner 1976; Stevens 1983), legitimacy (Knight and Epstein 1996; Powell 1990, 286-87; Stevens 1983, 2), and fairness and impartiality (Freed 1996; Padden 1994).

Justices and scholars alike argue that for these reasons the Court is loathe to overrule past cases. Between 1946 and 1992, however, the Supreme Court overruled 154 of its prior decisions, for an average of about three overruled decisions each term (Brenner and Spaeth 1995). In this paper, we ask a simple yet important question: What explains why and when the Supreme Court chooses to overrule one of its precedents?

228 past overrulesCostello 5 George, Legislative Attorney – America Law Division, CRS Report to Congress, http://digital.library .unt.edu/govdocs/crs//data/2005/upl-meta-crs 8231/RL33172_2005Nov29.pdf?PHPSESSID=e4b2fcc19fb8f1222a 05b5ca4fe3f64b

The Supreme Court has overruled 228 of its own decisions over the years , and the most controversial of these decisions involved constitutional interpretation.1 How the Supreme Court explains its reversals of direction in constitutional  interpretation is the subject of this report.2  As a general rule, the Supreme Court adheres to precedent, citing the doctrine  of stare decisis (“to stand by a decision”). This means that, when the Court has laid  down a principle in deciding case, ordinarily it will apply

that same principle in  future cases with substantially similar facts.3 The general rule of stare decisis is not   an absolute rule, however; the Court recognizes the need on occasion to correct what   are perceived as erroneous decisions or to adapt to changed circumstances. In  deciding whether to overrule precedent the Court takes a variety of

approaches and  applies a number of different standards, many of them quite general and flexible in  application. As a result, the law of stare decisis in constitutional decision making   has been called amorphous and manipulable , and has been criticized as incoherent.4 

Legitimacy is resilient Gibson 7 James, Professor of Political Science – Washington University, “The Legitimacy of the United States Supreme Court in a Polarized Polity”, Journal of Empirical Legal Studies, 4(3), http://polisci.wustl.edu/media/download.php?page=faculty&paper=120

Conventional political science wisdom holds that contemporary American politics is characterized by deep and profound partisan and ideological divisions. Unanswered is the question of whether those divisions have spilled over into threats to the legitimacy of the United States Supreme Court. Since the Court is often intimately involved in making policy in many policy areas that divide Americans, including the contested 2000 presidential election, it is reasonable to hypothesize that loyalty toward the institution depends upon policy

and/or ideological agreement and partisanship. Using data stretching from 1987 through 2005, the analysis reveals that Court support has not declined . Nor is it connected to partisan and ideological identifications. Instead, support is embedded within a larger set of relatively stable democratic values . Institutional legitimacy may not be obdurate, but it does not seem to be caught up in the divisiveness that characterizes so much of American politics - at least not at present.

Controversial decisions build legitimacyLaw 9 David S., Professor of Law and Political Science – Washington University, “A Theory of Judicial Power and Judicial Review”, Georgetown Law Journal, March, 97 Geo. L.J. 723, Lexis

Part IV of this Article discusses a counterintuitive implication of a coordination-based account of judicial power. Conventional wisdom suggests that courts secure compliance with their decisions by drawing upon their store of

legitimacy, which is undermined by decisions that are unpopular, controversial, or lack intellectual integrity.

25 Part IV argues that precisely the opposite is true: an unpopular or unpersuasive decision can, in fact, enhance a court's power in future cases, as long as it is obeyed. Widespread compliance with a decision that is controversial, unpopular, or unpersuasive serves only to strengthen the widely held expectation that others comply with judicial decisions. This expectation, in turn, is self-fulfilling:

those who expect others to comply with a court's decisions will find it strategically prudent to comply themselves, and the aggregate result will, in fact, be widespread compliance. Part IV illustrates these strategic insights--and the Supreme Court's apparent grasp of them--by contrasting  [*734]  Bush v. Gore 26 with Brown v. Board of Education 27 and Cooper v. Aaron. 28

2NC A2: Capital DACourt decision-making is unpredictable- not based on ideologySherry, 13 (Suzanne, Herman O. Loewenstein Professor of Law at Vanderbilt University Law School in

Nashville, Tennessee, Influence and Independence: Politics in Supreme Court Decisions, ://iipdigital.usembassy.gov/st/english/publication/2013/02/20130206142159.html#ixzz3etDg9HfT.MS)

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

term in October 2012, for example, the nine sitting justices were appointed by five different presidents — three Republicans and two Democrats. The diversity of political views on the Court and the periodic appointment of new justices guarantee that no single political faction will reliably prevail for long. ¶ Differences aside, all of the justices share a commitment to uphold the Constitution. Their fidelity to that goal makes the United States a country governed by the rule of law, rather than by the rule of men. The justices, in interpreting and applying the Constitution and laws, do not view themselves as Platonic guardians seeking to govern an imperfect society but, instead, as faithful agents of the law itself. The Supreme Court can, and does, decide

political questions, but does so using the same legal tools that it uses for any legal

question . If it were otherwise, the Court might jeopardize its own legitimacy: The public might

not regard it as an institution particularly worthy of respect.¶ Personal and Political Views¶ Nevertheless, justices do have personal views. They are appointed through a political process. Observers naturally must ask how great a role their political views actually play. Some scholars argue that the justices’ political preferences play a large role, essentially dictating their decisions in many cases. They point to the fact that justices appointed by conservative presidents tend to vote in a conservative fashion and those appointed by liberal presidents vote the opposite way. The confirmation battles over recently nominated justices certainly suggest that many people view the justices’ personal politics as an important factor in judicial decision making.¶ Dwight Eisenhower and William J. Brennan shaking hands (AP Images)¶ Republican President Dwight Eisenhower (left) selected William J. Brennan for the Supreme Court. Brennan became one of the most liberal justices of the 20th century.¶ But we should not so quickly conclude that Supreme Court justices, like politicians, merely try to institute their own policy preferences. A number of factors complicate the analysis. First, it is difficult to disentangle a justice’s political preferences from his or her judicial philosophy. Some justices believe that the Constitution should be interpreted according to what it meant when it was first adopted or that statutes should be interpreted by looking only to their texts. Others believe that the Constitution’s meaning can change over time or that documentary evidence surrounding a statute’s enactment can be useful in its interpretation.¶ Some justices are extremely reluctant to overturn laws enacted by state or federal legislatures, and others view careful oversight of the legislatures as an essential part of their role as guardians of the Constitution. A justice who believes that the Constitution ought to be interpreted according to its original meaning and who is reluctant to strike down laws will probably be

quite unsympathetic to claims that various laws violate individuals’ constitutional rights. If that justice also happens to be politically conservative, we might mistakenly attribute the lack of sympathy to politics rather than judicial philosophy.¶ A justice’s personal experiences and background also may influence how he or she approaches a case — although not always in predictable ways. A judge who

grew up poor may feel empathy for the poor or may, instead, believe that his or her own ability to overcome the hardships of poverty shows that the poor should bear responsibility for their own situation. A justice with firsthand experience with corporations or the military or government bodies (to choose just a few examples) may have a deeper understanding of both their strengths and their

weaknesses.¶ In the end, it seems difficult to support the conclusion that a justice’s politics are the

sole (or even the primary) influence on his or her decisions. There are simply too many instances in which justices surprise their appointing presidents, vote contrary to their own political views, or join with justices appointed by a president of a different party. Two of the

most famous liberal justices of the 20th century, Chief Justice Earl Warren and Justice William Brennan, were nominated by Republican President Dwight Eisenhower — and Warren was confirmed by a Republican-majority Senate. Between a quarter and a third of the cases decided by the Supreme Court are decided unanimously; all the justices, regardless of their political views, agree on the outcome.

One study has concluded that in almost half of non-unanimous cases, the justices’ votes do not accord with what one would

predict based on their personal political views . Moreover, some deeply important legal questions are not predictably political: We cannot

always identify the “conservative” or “liberal” position on cases involving, for example, conflicting constitutional rights or complex regulatory statutes.¶ Other Factors in Decision Making¶ The structure and functioning of the judiciary also temper any individual justice’s tendency toward imposing personal political preferences. The most important factor is that the Court must publicly explain and justify its decisions: Every case is accompanied by one or more written opinions that provide the reasoning behind the Court’s decision, and these opinions are available to anyone who wants to read them. They are widely discussed in the press (and on the Internet) and are often subject to careful critique by lawyers, judges, and scholars. This transparency ensures that justices cannot bend the law indiscriminately; their discretion is cabined by the pressures of public exposure. And any justice who does not want to be thought a fool or a knave will take care to craft persuasive opinions that show the reasonableness of his or her conclusions.¶ Deliberation also plays a role in moderating the influence of politics on justices’ decision-making. Before reaching a decision, each justice reads the parties’ briefs, listens to (and often asks questions of) the parties’ lawyers at oral argument, and converses with other justices. The justices may also discuss cases with their law clerks, recent law school graduates who may bring a somewhat different perspective. After an initial vote on the case, the justices exchange drafts of opinions. During this long deliberation process, the justices remain open to persuasion, and it is not unusual for a justice to change his or her mind about a case. Because the justices, the lawyers, the parties, and the clerks represent a diverse range of political views, this process helps to focus the justices on legal, rather than political, factors.¶ Finally, the concept of stare decisis, or adherence to the decisions made in prior cases, limits the range of the Court’s discretion. Absent extraordinary circumstances, the Supreme Court will follow precedent — the cases it has previously decided. Even justices who might disagree with a precedent (including those who dissented when the case was originally decided) will almost always feel bound to apply it to later cases. As decisions on a particular issue accumulate, the Court might clarify or modify its doctrines, but the earlier precedents will mark the starting point. History is full of examples of newly elected presidents vowing to change particular precedents of the Supreme Court, but failing despite the appointment of new justices. Stare decisis ensures that doctrinal changes are likely to be gradual rather than abrupt and that well-entrenched decisions are unlikely to be overturned. This gradual evolution of doctrine, in turn, fosters stability and predictability, both of which are necessary in a nation committed to the rule of law.¶ No system is perfect, of course. In a small number of cases, one likely explanation for particular justices’ votes seems to be their own political preferences. These cases are often the most controversial and usually involve political disputes that have divided the country along political lines. It is no surprise

that they similarly divide the justices. The existence of such cases, however, should not lead us to conclude that politics is a dominant

factor in most of the Court’s cases.¶ Many factors, therefore, influence the Supreme Court’s decisions. The justices’ political views play only a small role. Were it otherwise, the Court would be less able to serve as an independent check on the political branches, less able to protect the rights of individuals, and less secure in its legitimacy. The public would not have as much confidence in a Court seen as just another political body, rather than as an independent legal decision maker. The justices (and other judges) know this, and they safeguard the Court’s reputation by minimizing the role of politics in their own decisions.

Empirics prove the Court doesn’t consider capitalFrederick Schauer 4 is Professor of Law @ Harvard, “Judicial Supremacy and the Modest Constitution”, California Law Review, July, 92 Cal. L. Rev. 1045

Examples of the effects of judicial supremacy hardly occupy the entirety of constitutional law. As the proponents of popular constitutionalism properly claim, it is simply not plausible to argue that all of the Supreme Court's decisions are counter-majoritarian, nor that the Court is unaware of the

potential repercussions if a high percentage of its decisions diverges too dramatically from the popular or legislative will. Nevertheless, there is no indication that the Court

uses its vast repository of political capital only to accumulate more political capital , and in many areas judicial supremacy

has made not just a short-term difference, but a long-term difference as well. Perhaps most obvious is school prayer . For over forty years the Court has persisted in its view that organized prayer in public schools is impermissible under the Establishment Clause 59 despite the fact that public opinion is little more receptive to that view now than it was in 1962. 60 So too with flag burning, where the Court's

decisions from the late 1960s 61 to the present have remained dramatically divergent from

public and legislative opinion . 62 Or consider child pornography, where the Court's decision in Ashcroft v. Free Speech

Coalition 63 flew in the face of an overwhelming congressional majority approving the extension of existing child pornography laws to virtual child pornography. Similarly, in the regulation of "indecency," the Court has spent well over a decade repeatedly striking down

acts of Congress that enjoyed overwhelming public and [*1059] congressional support . 64 Most

dramatic of all, however, is criminal procedure , where the Supreme Court's decision in Dickerson v. United States, 65

invalidating a congressional attempt to overrule Miranda v. Arizona, 66 underscores the persistent gap in concern for defendants' rights between Congress and the public, on the one hand, and the Supreme Court, on the other.

Winner’s WinDavid Law 9 is Professor of Law & Pol. Sci, @ Washington University in St. Louis, GTown Law Journal, March 2009, 97 Geo. L.J. 723; “A Theory of Judicial Power and Judicial Review,” Lexis, DOA: y2k

Part IV of this Article discusses a counterintuitive implication of a coordination-based account of judicial power. Conventional wisdom suggests that courts secure compliance with their decisions by drawing upon their store of legitimacy, which is undermined

by decisions that are unpopular, controversial, or lack intellectual integrity. n25 Part IV argues that precisely the opposite is true : an

unpopular or unpersuasive decision can , in fact, enhance a court's power in future cases, as long as it is obeyed. Widespread

compliance with a decision that is controversial , unpopular, or unpersuasive serves only to strengthen the widely

held expectation that others comply with judicial decisions. This expectation , in turn, is self-

fulfilling : those who expect others to comply with a court's decisions will find it strategically prudent to comply

themselves, and the aggregate result will , in fact, be widespread compliance . Part IV illustrates these strategic insights--and the Supreme

Court's apparent grasp of them--by contrasting [*734] Bush v. Gore n26 with Brown v. Board of Education n27 and Cooper v. Aaron. n28

Controversy doesn’t risk capital---public is OVERWHELMINGLY in favor of the courtDavid Fontana 8 is GW Associate Law Professor, “The Supreme Court: Missing in Action” http://dissentmagazine.org/article/?article=1165, DOA: y2k

Second, when the Supreme Court presents this perspective, people listen . It is and has been for some time the most popular branch of American government.

Although there is some debate about terminology and measurement, most scholars agree that the Court enjoys "diffuse" rather than "specific" support . Thus, even when

Americans don't like a specific decision , they still support the Court . By contrast, when the president or Congress does something Americans don't

like, their support drops substantially. AMERICANS BECOME more aware of the Court the more it involves itself in controversies. This is because of what political scientists call "positivity bias." The legitimating symbols

of the Court ( the robes, the appearance of detachment, the sophisticated legal opinions) help

to separate it from other political institutions —and in a good way for the Court. If the Justices had drawn attention to violations of individual rights, most of America would have listened

and possibly agreed. As it is, our politics has been devoid of a voice—and an authoritative voice—on individual rights. For most of the time since September 11, few major political figures have been willing to stand up and speak in support of these rights. Recall that the Patriot Act was passed in 2001 by a vote of ninety-eight to one in the Senate, with very little debate. Congress overwhelmingly passed the Detainee Treatment Act (DTA) of 2005, which barred many of those complaining of torture from access to 70 n DISSENT / Spring 2008 a U.S. court. Congress also overwhelmingly passed the Military Commissions Act (MCA) of 2006, which prevented aliens detained by the government from challenging their detention— and barred them from looking to the Geneva Conventions as a source of a legal claim. On all of these occasions, in part because there were no Supreme Court decisions addressing the critical issues, there was very little discussion of rights. And, when members of Congress did try to address the rights consequences of the DTA and MCA, they did so without the political cover of the Court. If members of Congress had been able to go to the floor to denounce these statutes and to quote recent Court decisions about what was at stake, they might have escaped being branded as "soft" on security, wimpish in

their defense of American lives. Beyond providing a rhetorical sword and drawing attention to and legitimating

certain issues, the Court can often shatter a stable political equilibrium and force us to

reexamine settled political and policy agreements . Consider the example of the United Kingdom. Many members of former prime minister Tony Blair's Labour Party were

unwilling to criticize his harsh anti-terrorism policies for several years after September 11. Then, in December of 2004, Britain's highest court (the House of Lords) found that some of his policies violated human rights norms. This decision had a political ripple effect. Suddenly, civil libertarian dissenters within the Labour Party had new political power and political cover, and there was a renewed debate within the party and the country about civil liberties—which ultimately resulted in the decision by members of Blair's Labour Party to block his 2005 proposal to hold detainees for up to ninety days without charge. This was Blair's first major defeat in the House of Commons during his time as prime minister. While the silence of the Court on individual rights has been unhelpful, its decision to focus on structure without a background discussion of rights has actually been harmful. By telling Congress that it could or should act, the Court energized certain political actors—but without providing decisions (or dissents) about the rights at stake that might have influenced or constrained their activity. Take, for instance, the situation after the Supreme Court decided Hamdan in 2006. The Court pointed its collective finger at Congress and said that it could act to create military commissions. In so doing, the Court changed the political dynamics of the country, in effect focusing the public eye on Congress to see if it was going to ratify the commissions as the justices seemed to say it could do. Rarely has Congress reacted so quickly to a Supreme Court decision as it did after Hamdan. The case was decided on June 29, 2006. With members of Congress standing up on the floors of the House and Senate, insisting that the Court had called and commanded them to act, Republicans and Democrats joined together to pass the MCA less than four months later, on October 17, 2006. Hamdan catalyzed American politics, serving as a sort of lightning bolt to generate political activity. But this political activity occurred without the rhetorical and political effects that rights-based decisions would have had. Members of Congress did not rise in the House and Senate, in the debate about the MCA, and quote what the Supreme Court had said about how a military commission would have to be fair and just—because the Supreme Court had very little to say about this. High Court in a Healthy Democracy There are other, larger reasons to be concerned about the Supreme Court shirking its responsibilities in the war on terror, extending beyond the Court's minimal role in this public debate. Simply put, when the Supreme Court decides not to act, it poses problems for our democratic system—for it is held accountable only for what it does. A decision to do nothing is a decision that remains largely free from sanction and accountability. It is hard to imagine a governmental system in which every branch of government weighs in on every major issue of the day. But it is also undesirable to live in a system in which one branch of government almost never weighs in on the major issues of the day and that is what we have had in the recent past. During the last few Supreme Court terms, the justices have decided about seventy cases per year. As recently as twenty years ago, they were deciding more than double that number. Even beyond the War on Terror, the important issues that the Court has not addressed are legion: the aftermath of Hurricane Katrina, tax cuts, health care, education policy, and so on. Our Constitution allows the three branches of government to set their own agenda in many ways. The president has to advise Congress on some matters, which has led to the annual State of the Union speech. Congress must meet with only a minimal degree of frequency. But when either the president or Congress does nothing, people still hold them accountable. Harry Truman won a presidential election in 1948 by running against a "do-nothing Congress." Many Americans hold the president and Congress accountable for not fixing our health care system or our educational system. Congress and the president are held accountable when they act and also when they do not. For most of its history, the Supreme Court did not have the same freedom to decide what to do. Its docket of cases was mainly prescribed by federal law. This changed in 1925, when Chief Justice William Howard Taft, Jr., convinced Congress to pass a law making most of the Supreme Court's docket discretionary. In 1988, Congress passed another law giving the Court even more control over what cases it wanted to hear. The Court, then, is accountable for what it does. When it makes a decision that people do not like, there is usually a response. Congress has considered thousands of bills over the years related to cases in which, so some members of Congress thought, the justices were going to make a bad decision or had made a bad decision. When the Court decided to reference foreign law in Lawrence v. Texas in 2003, Congress debated whether it could do this and held hearings on the question; some members talked of impeachment. Within its community of peers, the Court also faces sanction for its decisions. The New York Times might publish a story skeptical of a particular decision. Law professors and other judges and lawyers might 72 n DISSENT / Spring 2008 write articles in the legal journals about what a poor decision the Court has made. In the narrow, elite world within which the justices operate, these can be effective means of critique and constraint. But these systems of accountability do not work as well when, as has been the case since September 11, the Court decides not to hear cases. Members of Congress do not criticize the Court for declining jurisdiction. Only very rarely—and almost never in a full story—will newspapers cover a decision by the Court not to hear a case. And law professors cannot make their careers by writing about what the Court has not done. The Court has shirked its responsibility to be engaged in and accountable for the legal issues raised by the war. A Different Scenario The Supreme Court could have been involved in the main debates of the day without preventing us from effectively combating domestic and foreign enemies and without unduly interfering with decisions of the political branches about how to deal with terrorism. For proof of this, we need only look at the experiences of Canada and the United Kingdom. Both countries have political and legal traditions similar to the United States, and the Supreme Court in Canada and the House of Lords in the United Kingdom, like our Court, have effective control over the cases that they hear and decide. Although courts in both countries have been deferential to the authorities, they have still been engaged in discussions about rights issues in a way our own Court has not been. In Canada, the Supreme Court has addressed rights issues since the days shortly after September 11. It has been more of a major player in the Canadian debate, and Canada has been the better for it. In 2002, the Canadian Court heard its first post-9/11 case, Suresh v. Canada, deciding that, except in "extraordinary circumstances," the Canadian government could not deport nonresidents to countries where they might face torture (although it also decided that it would largely defer to the government about whether the minister of immigration was right in estimating the likelihood of torture after deportation). In 2004, the Court decided that certain investigative hearings were procedurally defective: the justices held that the hearings were not as open to the public and as fair as constitutional norms required— though they also said that the hearings could go forward in a modified form. In both cases, the justices discussed rights issues at length and so injected these issues into the public debate. But in both cases, the Canadian Parliament was still given room to decide what individuals could be deported and how investigative hearings could be held. Finally, in a landmark decision issued in February 2007, the Canadian Court decided in Charkaoui v. Canada a number of issues related to the constitutionality of the detention of a Moroccan-born permanent resident of Canada. The justices said that secret evidence could not be used against Charkaoui, that he could not be detained indefinitely, and that he needed to be given a chance to argue against his detention. A month after deciding this case, the Court agreed to hear a second case brought by Charkaoui (by contrast, our Supreme Court has declined to hear any further challenges by Hamdan) related to the destruction of evidence. So far, when the same issues have arisen in American courts, the courts have decided not to address them. The cumulative effect of these decisions has changed Canadian politics. Although many of the Canadian decisions were not as protective of rights as one might wish, and there are still civil liberties violations by Canadian authorities, the Canadian Parliament has discussed rights issues in the light of the Court decisions. In 2006, even before Charkaoui, the national Canadian election featured questions about the earlier decisions. Emboldened by Court decisions on these issues, a vocal Canadian political movement on the left has risen to challenge rights-restrictive policies of the government. By contrast, the 2004 elections in the United States featured no discussions of U.S. Supreme Court decisions about rights. A similar story can be told about the United Kingdom. After the highest British court intervened in December 2004 to criticize the way certain noncitizens were being detained, the British political situation changed immediately. As in Canada, the British Court proclaimed the importance of rights, but permitted Parliament to respond. The Law Lords decided that individuals could be detained at length, as Parliament desired, but that detainees needed to be afforded additional protections—and these lengthy detentions had to apply to citizens and noncitizens alike. The effects of this decision were instant. The legislation the Law Lords found to be problematic in December 2004 quickly became the subject of major political discussions. On February 22, 2005, the Blair Government introduced legislation to modify the old bill, but the new legislation was still found to be problematic. The Liberal Democrats, Britain's third major political party, have made a habit of quoting language from Lords' decisions to attack Blair (and now his successor, Gordon Brown) for what former Liberal Democrat leader Menzies Campbell has called Labour's "trampling on human rights." This past October, the House of Lords again intervened into these debates, noting the problems with substantial parts of the law passed as a result of its earlier decision. Again, its arguments addressed many of the catastrophic consequences for individual rights of current British modes of detention, and generated a political discussion about these matters. Britain has had a much more open and longer lasting debate about torture, in large part because of a decision issued by the House of Lords in December 2005 that evidence induced by torture was inadmissible in British courts. A glance at Canada and the United Kingdom, then, reveals a stark contrast. Their courts have addressed more cases that deal with the rights issues at the heart of the war on terror.

And, in important ways, their politics have been different as a result. What Role for the Court? Some leftists have questioned the desirability of looking to the Supreme Court as a guardian of individual liberties, but I believe these questions to be misguided—for reasons indicated by the Canadian and British experience. Many on the left, including Mark Tushnet and Jeremy Waldron in the pages of Dissent (Spring and Summer 2005), worry about the Court's intervening to decide these controversial issues. The left should support democracy, they argue, and judicial review is undemocratic. But that is not true of judicial review in the way I have described it, where the Court plays a greater role in shaping and influencing debate than in dictating outcomes. 0 THERS ON THE left worry that Supreme Court decisions can be ineffective or even counterproductive, and that the American Court has played it right by waiting until there is so much public outcry against what the Bush administration is doing that the American people will see Court action as desirable. The role for the Court, then, is to confirm a public consensus, not to jump in front of it. There are several problems with this overly passive view of the Supreme Court, particularly during the war on terror. First, the Court's decisions could be relevant even if they did not reverse Bush administration policies. As I argued earlier, they could change the way we talk about issues and empower different political coalitions. The Supreme Court is not always antidemocratic, because its role is not limited to overturning what other

branches of government do. Sometimes, the Court is just a megaphone, projecting certain critical considerations into the public sphere. Second, Court decisions do not necessarily create

the backlash that many on the left fear. If the Court had decided cases in favor of rights before the tide had turned against the Bush administration, its decisions might have elicited formulaic and near-

obligatory compliance. There is considerable evidence suggesting a strong presumption in

American public opinion that the Court's decisions should be widely accepted and then

complied with by the other branches of government . Even when citizens disagree with Supreme Court decisions,

an overwhelming majority of them are loyal to the Court and inclined to think that the less popular

branches of government should fall into line —even when the Court issues controversial decisions

such as Bush v. Gore.

Individual decisions don’t affect capital.Gibson et al 3, PoliSci @ Wash U in St. Louis and Ohio State, James L. Gibson, PoliSci @ Wash U in St. Louis, Gregory A. Caldeira, PoliSci @ Ohio State, Lester Kenyatta Spence, Poli Sci @ Wash U in St. Louis, Apr. 2003, “Measuring Attitudes toward the United States Supreme Court” American Journal of Political Science, Vol. 47, No. 2 (Apr., 2003), pp. 354-367

Perhaps more important is the rather limited rela- tionship between performance

evaluations and loyalty to the Supreme Court . These two types of attitudes are of course not entirely unrelated, but

commitments to the Supreme Court are not largely a function of whether one is pleased with how it

is doing its job. Even less influential are perceptions of decisions in individual cases . When

people have developed a "running tally" about an institution -a sort of historical summary of the good and bad things an

institution has done- it is difficult for any given decision to have much incremental influence on that

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

actions the Court takes at the moment.

2NC A2: Activism DAEmpirically denied- Citizens united, Health Care, Roe v. Wade etc.

Judicial Activism is key to protect liberty and the rule of lawBolick 7, CATO Institute Writer, 2007, Clint, A Cheer for Judicial Activism, CATO Institute, http://www.cato.org/pub_display.php?pub_id=8168

Judicial activism has become a universal pejorative, a rare point of agreement between red and blue America. Conservatives and liberals alike condemn courts for overturning policy decisions they support. Both sides would reduce the judiciary's constitutional scrutiny of the actions of other branches of government -- a role it exercises not too much but far too little. To be sure, courts deserve criticism when they exercise legislative or executive powers -- ordering taxes to be raised, assuming control over school systems or prisons, or as the Supreme Court did yesterday, giving regulatory agencies broad lawmaking

authority. But better to call this behavior what it really is, which is not "activism" but lawlessness. By contrast, judicial activism -- defined as courts holding the president, Congress, and state and local governments to their constitutional boundaries -- is essential to protecting individual liberty and the rule of law. Judicial review, the power to invalidate unconstitutional laws, was essential to the scheme of republican government established by our Constitution. The courts, declared James Madison, would

provide "an impenetrable bulwark against every assumption of power in the executive and legislative" branches, and "will naturally be led to resist every encroachment of rights expressly stipulated for in the constitution by the declaration of rights."

Rule of law solve nuclear conflictRhyne 58 Charles S, Video Prof Emeritus @ Reed College, “Law Day Speech for Voice of America” http://www.abanet.org/publiced/lawday/rhyne58.html

Law and courts exist to protect every citizen of the United States in his person and property and in his individual rights and privileges under the Constitution. The ultimate power to change or expand the law in our system remains with its source, the people. They can elect as lawmakers those who will vote for wise laws and vote out of office those who do not. They can also amend the Constitution as experience dictates the necessity of change. ¶ In these days of soul-searching and re-evaluation and inventorying of basic concepts and

principles brought on by the expansion of man’s vision to the new frontiers and horizons of outer space, we want the people of the world to know that we in America have an unshakable belief in the most essential ingredient of our way of life—the rule of law. The law we honor is the basis and foundation of our nation’s freedom and the freedom for the individual which exists here. And to Americans

our freedom is more important than our very lives. ¶ The rule of law has been the bulwark of our democracy . It has afforded protection to the weak, the oppressed, the minorities, the unpopular; it has made it possible to achieve responsiveness of the government to the will of people. It stands as the very antithesis of Communism and dictatorship . When we talk about “justice” under our rule of law, the absence of such justice behind the Iron Curtain is apparent to all. When we talk about “freedom” for the individual, Hungary is recalled to the minds of all men. And when we talk about peace under law—peace without the bloodbath of war—we are appealing to

the foremost desire of all peoples everywhere. The tremendous yearning of all peoples for peace can only be answered by the use of law to replace weapons in resolving international disputes. We in our

country sincerely believe that mankind’s best hope for preventing the tragic consequences of nuclear-

satellite-missile warfare is to persuade the nations of the entire world to submit all disputes to tribunals

of justice for all adjudication under the rule of law. We lawyers of America would like to join lawyers from every nation in the world in fashioning an international code of law so appealing that sentiment will compel its general acceptance. ¶ Man’s relation to man is the most neglected field of study, exploration and development in the world community. It is also the most critical. The most important basic fact of our generation is that the rapid advance of knowledge in science and technology has forced increased international relationships in a shrunken and indivisible world. Men must either live together in peace or in modern war we will surely

die together. History teaches that the rule of law has enabled mankind to live together peacefully within

nations and it is clear that this same rule of law offers our best hope as a mechanism to achieve and maintain peace between nations.

Activism is key to enforcing limits on other branchesNeily 11 Clark, WSJ correspondent and leading attorney, “The Myth of Judicial Activism”, Wall Street Journal, http://search.proquest.com/docview/894290504

The explosive growth in the size and scope of government has been abetted by an ethic of judicial restraint that seems more concerned with rationalizing laws than judging their constitutionality. The Supreme Court's new term starts Monday and will include a number of high-profile cases, including whether police may install tracking devices on people's cars without a warrant and a property-rights case involving draconian efforts by the Environmental Protection Agency to enforce the Clean Water Act against homeowners in Idaho. The court may even take up the challenges to the Patient Protection and Affordable Care

Act, also known as ObamaCare. No matter where you come down on the political spectrum, the stakes are high, as always. Our Constitution imposes significant limits on government power -- limits that are not being properly enforced because too many judges have adopted an ethic of reflexive deference toward the other branches of government. What America needs instead is a properly engaged judiciary that understands the importance of constitutionally limited government and refuses to be cowed by empirically baseless accusations of judicial activism.

2NC A2: Stripping DADecisions over Gitmo prove no stripping Katz 9 [Martin J. Interim Dean and Associate Professor of Law, University of Denver College of Law; Yale Law School, J.D. 1991; Harvard College, A.B. 1987. GUANTANAMO, BOUMEDIENE, AND JURISDICTION-STRIPPING: THE IMPERIAL PRESIDENT MEETS THE IMPERIAL COURT CONSTITUTIONAL COMMENTARY [Vol. 25:377 2009] Pg.395-96 DMW]

As discussed above, Boumediene was a habeas case. Though habeas-stripping may conceptually be understood as a subset of jurisdiction-stripping, the Court did not characterize the case as a jurisdiction-stripping case. Rather, the Court addressed the case as a habeas case. However, as this Section will

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

Supreme Court appellate jurisdiction. The Section will show how Boumediene may limit those two sub-powers, in addition to li- miting Congress's ability to exercise those powers simultaneous- ly. Then, in the following Section, I will demonstrate that these limits are not limited to habeas cases; that they apply to all juris- diction-stripping cases.¶ 1. Preventing

Stripping of All Federal Jurisdiction.¶ Perhaps the most significant development in Boumediene is that it effectively answers the question of whether Congress can strip jurisdiction from all federal courts. Boumediene effectively says that Congress cannot do so, at least in cases involving con- stitutional

questions.**^¶ I am not claiming that the Boumediene majority necessarily saw itself as deciding this jurisdiction-stripping question. Rather, my point is that the Boumediene Court employed three powerful principles to decide whether the Suspension Clause extended to Guantanamo, and

that those principles can be applied to—and largely resolve —the question of whether Congress can preclude all federal court jurisdiction.

The case prevents any jurisdiction strippingKatz 9 [Martin J. Interim Dean and Associate Professor of Law, University of Denver College of Law; Yale Law School, J.D. 1991; Harvard College, A.B. 1987. GUANTANAMO, BOUMEDIENE, AND JURISDICTION-STRIPPING: THE IMPERIAL PRESIDENT MEETS THE IMPERIAL COURT CONSTITUTIONAL COMMENTARY [Vol. 25:377 2009] Pg.399-400 DMW]

Prior to Boumediene, these principles had been applied to establish the power of judicial review. But they had never been deployed by the Court to

address the power of Congress to cur- tail judicial review." Although Boumediene was not on its face a jurisdiction-stripping case, the Court

applied these principles in a way that had the effect of requiring jurisdiction in a case in which Congress had tried to restrict it. Congress had said that only the D.C. Circuit could hear the case and simultaneously li- mited the ability of that court to do so. Based

on the two Mar- bury principles, the Bournediene Court held that Congress could not impose such a limit . Boumediene's use of these two prin- ciples to ensure jurisdiction strengthens the argument that these principles preclude complete jurisdiction-stripping in constitu- tional cases.¶ But an additional argument against jurisdiction-stripping flows from Boumediene's anti-manipulation principle (that the political branches may not manipulate the scope of the Constitu- tion's limits on their own power). This principle, which the Court had not clearly articulated before,"" suggests

that Congress can- not strip jurisdiction where doing so serves to shield Congress or the President from judicial review in constitutional cases, giving the political branches the last word on the constitutionality of¶ their own actions.""

Threats of jurisdiction stripping are hollowDevins 6 Neal Devins, Goodrich Professor of Law and Professor of Government, College of William and Mary, May 2006, Minnesota Law Review, 90 Minn. L. Rev. 1337

Indeed, even if the social conservative agenda becomes the dominant agenda in Congress and the White

House, there is good reason to think that elected officials would steer away from jurisdiction- stripping measures. First, median voters have historically backed judicial independence. For

example, although most Americans are disappointed with individual Supreme Court decisions, there is a "reservoir of support" for the power of the Court to independently interpret the Constitution . Consequently, even though some Supreme Court decisions trigger a backlash by those who disagree with the Court's rulings, the American people nonetheless support judicial review and an independent judiciary . Indeed, even President George W. Bush and Senate majority leader Bill Frist backed "judicial independence" after the federal courts refused to challenge state court factfinding in the Terri Schiavo case.

No court strippingDevins 6 Neal Devins, Goodrich Professor of Law and Professor of Government, College of William and Mary, May 2006, Minnesota Law Review, 90 Minn. L. Rev. 1337

Second, there is an additional cost to lawmakers who want to countermand the courts through coercive court-curbing measures . Specifically, powerful interest groups sometimes see an independent judiciary as a way to protect the legislative deals they make . In particular,

interest groups who invest in the legislative process by securing legislation that favors their preferences may be at odds with the current legislature or executive (who may prefer judicial interpretations that undermine the

original intent of the law). Court-curbing measures "that impair the functioning of the judiciary" are therefore disfavored because they "impose costs on all who use the courts, including various politically effective groups and indeed the bene ficiaries of whatever legislation the current legislature has enacted."

***Aff

Solvency

2AC Delay Courts won’t enforce—causes massive delayPowers and Rothman 2—Stephen Powers is Research Associate for the Center for Social and Political Change at Smith College and Stanley Rothman is Professor of Government and Director of the Center for Social and Political Change at Smith College, “Least Dangerous? Consequences of Judicial Activism,” p179

A recurrent problem with the judiciary’s extension of fundamental rights to the institutions we have studied is that when

courts intervene , they do not merely point out a constitutional or statutory violation that must be corrected. They

typically dictate a detailed set of remedies to address the issue. This type of intervention has

generated a notoriously rigid approach to institutional reform . The judiciary was not

designed to legislate or to execute the laws, only to interpret their meaning. It lacks the accountability required of a

policy-making body. Judges are only accountable to the public under the most rare and extreme circumstances. Yet in the wake of elaborate court orders, prisons, mental hospitals, schools, police departments, and corporations must all continue to balance

individual rights against group or societal interests. Unfortunately, judges do not have the expertise, the time,

or the inclination to make the kind of long-term incremental adjustments that may be critical

to institutional stability and progress . That is why court-ordered remedies rarely work as

planned and have so many unanticipated consequences. Moreover, as we have seen, modification or reversal of court rulings adversely impacting social and political institutions generally takes years.

2AC Stripping Enforcement kills court’s legitimacy---triggers court stripping and turns enforcement.Bentley 7 (Curt, Constrained by the liberal tradition, Brigham Young University Law Review, p. lexis)

This institutional limitation theory focuses primarily on the constraints imposed on the Court because of its relationship with the other branches of government. The Supreme Court is not wholly dependent upon other branches of government; the unique legitimacy given its interpretations of the Constitution by the American people provides it with real influence of its own. n116

However, the institutional limitation theory posits that since the Court possesses neither the purse nor the sword, n117 it

relies upon its   [*1745]  legitimacy in the eyes of the American people in order to pressure the legislative

and executive branches to enforce its decrees : The Supreme Court ... possesses some bases of power of its own,

the most important of which is the unique legitimacy attributed to its interpretations of the Constitution. This legitimacy the Court jeopardizes if it flagrantly opposes the major policies of the dominant alliance; such a course

of action, as we have seen, is one in which the Court will not normally be tempted to engage. n118 Without legitimacy in

the eyes of the public, both Congress and the President might feel justified in resisting the ruling of the Court either through jurisdiction-stripping n119 or by simply refusing to enforce its decrees.

n120 There is precedent for both in American history . n121 The Court risks becoming substantially

weakened, or even irrelevant, when the political branches ignore judicial decrees and where it nonetheless doggedly pursues the counter-majoritarian course. n122

1AR Stripping Courts bad- Congress can strip judicial power Jeffrey Jamison, 04, American Constitution Society columnist, “Congress Attempts to Strip Federal Courts of Power”, http://www.acslaw.org/acsblog/congress-attempts-to-strip-federal-courts-of-power, 09-23-2004, 07-06-2015, GAO

Today, the House of Representatives voted 247-173 to approve the Pledge Protection Act (H.R. 2028). The bill "denies jurisdiction to any court (including the Supreme Court) established by Act of Congress to hear or determine any claim that the recitation of the Pledge of Allegiance violates the first amendment of the Constitution." Rev. Barry Lynn of Americans United for Separation of Church and State said of today's vote, "[t]he supporters of this bill have shown callous disregard for long-standing constitutional principles. The federal courts should be open to all Americans seeking protection of their constitutional rights." Rep. Todd Akin (R-Mo.), who introduced the Pledge Protection Act, argues, "[w]e tried to look for something we could do legislatively to restrict or in some way protect the Pledge of Allegiance but also restrict some of this activist mentality of...[some] judges." This is the

second court-stripping bill passed by House of Representatives this session . On July 22, 2004, the

House of Representatives passed the Marriage Protection Act of 2004 . This act , which has not

been considered by the Senate yet, would "deny Federal courts (including the Supreme Court) jurisdiction to hear or decide any question pertaining to the interpretation of: (1) the provision of the Defense of Marriage Act (DOMA) that provides that no State shall be required to give effect to any marriage between persons of the same sex under the laws of

any other State; or (2) this Act." One might wonder exactly how much power does

Congress have the power to block judicial consideration of the constitutionality of a law?

The Washington Post explains it is, "somewhat surprisingly, an open question -- because Congress wisely has chosen not to test the question. It has, rather, accepted judicial review -- the idea that the courts can strike down legislative enactments that offend the Constitution -- as integral to the system of checks and balances." Additionally, the Supreme Court has never explicitly ruled on the constitutionality of court-stripping legislation. In Calcano-Martinez et al v. INS, the Supreme Court, in striking down the Illegal Immigration Reform and Immigrant Responsibility Act, side stepped the questions relating to the court-stripping provisions of the act. The court, however, did write, "We agree with petitioners that leaving aliens without a forum for adjudicating claims such as those

raised in this case would raise serious constitutional questions." Joanna Grossman, of Findlaw, explains, "It is well-settled that under the Constitution, Congress can control lower federal court jurisdiction. And the Constitution says that Congress can make "exceptions" to even the Supreme Court's appellate jurisdiction." Professor Doug Kmiec, of Pepperdine University, adds "[i]t is clearly a constitutional exercise for Congress to assert its authority over the jurisdiction of both the lower federal courts [and the Supreme Court]." Kmiec indicates that

the "[t]he idea of removing federal court jurisdiction -- even though it is textually provided

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

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

Pledge Protection Act, warned that this measure, "threatens the separation of powers established

by the Constitution, and undermines the unique function of the federal courts to interpret

constitutional law. ..[and] would undermine the longstanding constitutional rights of religious minorities to seek redress in the federal courts in cases involving mandatory recitation of the Pledge. As a result, this legislation will seriously harm religious minorities and the constitutional free speech rights of countless individuals." Wade Henderson, the executive

director of the Leadership Conference on Civil Rights (LCCR) argued, "[f]or over 50 years, the federal courts

have played an indispensable role in the interpretation and enforcement of civil rights laws.

When Congress has sought to prevent the courts from exercising this role, such efforts

ultimately tend to do little more than enshrine discrimination in the law."

2AC Non-ImplementationCourts fear non-implementation- means judicial review is weak Sayre, 2/23/15 (Mike, The Supreme Court is Constrained By Public Opinion In Cases Where The Justices Fear Nonimplementation of Their Decisions. http://ajps.org/2015/02/23/the-supreme-court-is-constrained-by-public-opinion-in-cases-where-the-justices-fear-nonimplementation-of-their-decisions/.MS)

With each controversial case they hear, questions arise about the influence of public opinion on the Supreme Court. Matthew Hall examines the types of cases where the Supreme

Court appears constrained , and finds when a ruling must be implemented by government actors outside the judicial hierarchy, external pressures exert a stronger influence on the Court . He argues that nonimplementation fears are only relevant to a small subset of cases in the Supreme Court docket, indicating that judicial scholars

should be attentive to different contexts rather than searching for universal tendencies of the Court’s behavior.¶ In June 2012, the U.S. Supreme Court issued its landmark decision in the Patient Protection and Affordable Care Act cases. In the months leading up to the ruling, President Obama and congressional Democrats “waged a not-so-subtle pressure campaign on the Supreme Court,” urging the justices to uphold the Act, yet despite these efforts, the justices insisted they were impervious to external pressure. When asked about the health care case, Justice Thomas dismissed the possibility of outside influence: “You stay focused on what you’re supposed to do. All that other stuff is just noise.” Three months later, Chief Justice Roberts unexpectedly joined the liberal wing of the Court and voted to uphold the health care law. ¶ Notwithstanding assurances from Justice Thomas, Court observers have long noted its tendency to, in the words of the famous Mr. Dooley, “follow th’ illiction returns” (follow the election returns). Scholars have amassed considerable evidence that public opinion constrains the justices’ decision making, and elite preferences constrain their exercise of judicial review. Yet, others raise doubts about the extent and nature of external influence, and scholars continue to debate the causal mechanism behind this phenomenon.¶ Credit: Will O'Neill (Creative Commons: BY 2.0) ¶ In this article, I evaluate an often mentioned, yet untested theory of Supreme Court constraint: I argue the Court is constrained, at least in part, because the justices fear nonimplementation of their decisions. Accordingly, the effect of external pressure is strongest when the threat of nonimplementation is most severe. When the justices can confidently assume implementation of their decisions, they are less constrained by external forces.¶ The Court has traditionally been viewed as holding “no influence

over either the purse or the sword.” In fact, many argue that the Court is severely limited in its ability to induce social or political change, and “[i]mplementation of the Court’s policies is far from perfect.” However, other studies suggest the Court may possess significant power to affect social change, at least in certain contexts.

The Court is especially successful at altering behavior when it issues rulings related to criminal law, civil liability, or judicial administration, regardless of public opinion. The Court tends to alter behavior in these “vertical” cases because implementation is controlled by lower courts in the judicial hierarchy, and these courtsoverwhelmingly adhere to Supreme Court precedent. Of course, lower-court compliance is not perfect; judges sometimes exercise considerable discretion when making decisions. Nonetheless, lower-court defiance is rare, and the Court’s “hierarchical control appears strong and

effective.”¶ The Court does not enjoy the same degree of policy control in cases unrelated to criminal law, civil liability, or judicial administration. Rulings in these “lateral” cases must be implemented by government actors outside the judicial hierarchy, usually elected officials or their agents. These elected officials must consider their constituents’ interests and generally respond to public opinion. Consequently,

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

employ logistic regression models to evaluate the influence of public mood and congressional ideology on the justices’ final votes on the merits in vertical versus lateral cases. Each of these analyses confirms that external pressures exert stronger influence when

nonimplementation is a concern .¶ I find that the fear of nonimplementation is a critical factor motivating the Supreme Court’s response to external pressure. Consequently, these external forces exert differential effects in different issue contexts. When deciding important lateral cases, the Court is highly constrained by external forces because it lacks the necessary implementation powers to give efficacy to its rulings in the absence of popular and/or elite support; however, when deciding vertical cases, the justices are relatively less constrained because their decisions tend

to be implemented by lower-court judges regardless of external pressure. When the Court considers unimportant cases, the chance of strong public opposition is low; therefore, nonimplementation is unlikely and the justices can disregard external pressure. Although numerous scholars have found that the Supreme Court is constrained, I find that constraint is a significant factor in only a small subset of its docket.¶ My findings suggest that the U.S. Supreme Court is relatively independent when deciding cases related to criminal prosecution, civil liability, or judicial administration; however, the Court is more constrained when trying to alter policy beyond the control of lower courts, at least when those cases may potentially attract public interest. As a result, studies of judicial independence should be conscious of the varying institutional contexts surrounding cases in different issue areas. Rather than search for universal tendencies of Supreme Court behavior, judicial scholars should be attentive to differences in judicial power and independence across different contexts.

1AR Non-Implementation Courts ability to enforce decisions is limited CNN, 6/1/15 (Kermit Roosevelt, Can Texas defy Supreme Court's same-sex marriage ruling? http://www.cnn.com/2015/07/01/opinions/roosevelt-same-sex-marriage-enforcement/MS)

Most people guessed how the Supreme Court was going to rule in Obergefell v. Hodges. And last Friday, the court made things official: It announced a nationwide right to same-sex marriage. What suspense remains centers on the reaction of same-sex marriage opponents. How much room do they have to resist the Supreme Court's decision?¶ The first point to make here, and the most important one, is that no one has the authority to reject or defy a

constitutional decision from the Supreme Court. That is how our system of government works and has worked for the whole of our history. For better or for worse, the Supreme Court has the last word

on the meaning of the Constitution.¶ The court's power to enforce its decisions is, of course, limited. Their practical efficacy may depend on how willing the other branches of the federal government are to support the court. In 1832, the Supreme Court decided Worcester v. Georgia, which recognized the rights of Native American tribes. President Andrew Jackson was supposed to have said

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

enforce the decision, and it ended up being of little practical effect .¶ By contrast, in 1957, President Eisenhower sent the 101st Airborne to Little Rock, Arkansas, to ensure that African-American children could attend the schools to which the Constitution and Brown v. Board of Education entitled them.¶ Will Obergefell meet explicit defiance? Justice Scalia's dissent gestured in this direction, warning that the court had moved "one step closer to being reminded of our impotence." But it seems unlikely. The court's desegregation decisions met massive resistance because they directly affected the objecting whites. Its interracial marriage decision, Loving v. Virginia, did not -- presumably in part because there was there was no similar tangible consequence for its opponents.¶ Obergefell is of course more like Loving than Brown. It is hard to imagine state governors directing county clerks to withhold same-sex marriage licenses, or calling out the National Guard to protect them from the contempt citations that would follow. (And if it came to that, I expect the Obama administration would back the Court.)¶ So outright defiance is neither legally justifiable nor plausible in practice. But there is a real question about what latitude states have to accept the Supreme Court's ruling while accommodating the sincere religious beliefs of their employees. Yesterday, Texas Attorney General Ken Paxton issued an opinion on this subject, concluding that some degree of accommodation was permissible. This is likely true, though not for

quite the reasons Paxton offered. Paxton invoked three sources of protection for government employees' religious liberty: the First Amendment to the Constitution, and state and federal Religious Freedom Restoration Acts (RFRAs). The Obergefell decision, he claimed, "stops at the door of the First Amendment and our laws protecting religious liberty."¶ If the claim is that those sources of law can limit the force of the decision, this is not true. If there were a conflict between Obergefell and the First Amendment, Obergefell would prevail. It interprets a constitutional amendment (the Fourteenth) which was enacted after the First and which could have repealed it, just as the Eighteenth Amendment enacted Prohibition and the Twenty-First repealed it.¶ But there is no conflict: According to the Supreme Court, the First Amendment offers no protection against generally applicable laws that regulate conduct rather than belief. The requirement to allow same-sex couples to marry is general and pertains to conduct; it cannot be resisted on First Amendment grounds.¶ The Federal Religious Freedom Restoration Act has no application at all; as construed by the Supreme Court, it is essentially a guide to interpreting federal statutes. Certainly it cannot limit the force of a Supreme Court constitutional decision.¶ That leaves Texas state law. State law cannot excuse a state from complying with a Supreme Court decision either, but it can affect the way in which a state complies. Texas has an obligation to allow same-sex couples to marry. It may be able to meet that obligation in a way that accommodates the religious beliefs of state employees.¶ If, for instance, there are two clerks in an office, only one of whom objects to same-sex marriage, it would be consistent with Obergefell to allow the non-objector to issue same-sex licenses -- as long as this practice neither stigmatized same-sex couples nor imposed significant burdens on them.¶ And in this sense, Paxton is right. The state of Texas

must issue same-sex marriage licenses, but in appropriate circumstances, individual clerks may be excused.

2AC National SecurityCourts shouldn’t intervene in national security mattersAshley Deeks, 13, “Courts Can Influence National Security Without Doing a Single Thing.”,

http://www.newrepublic.com/article/115270/courts-influence-national-security-merely-watching ,

10-21-2013, 07-08-2015

One of the most persistent fights in the national security arena since the September 11 attacks has

been about the proper allocation of power between two branches of government: the Executive

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

national security policies, and how much oversight can and should courts provide over these policies? People tend to divide into one of two schools of thought when answering these questions. The first school favors extensive deference to Executive branch national security decisions and celebrates what it sees as a limited role for courts. The Executive, this school contends, is constitutionally charged with such decisions and structurally better suited than the judiciary to make them. After all, Alexander Hamilton famously remarked that housing powers in a unitary executive provides the advantages of “[d]ecision, activity, secrecy, and dispatch”—qualities our federal courts simply don’t have.

2AC Drones Congressionally operated court’s solve more efficiently than the judicial branch and check power on the executive branchJeffrey Rosen, February 11, 2013 “Courting Disaster: A new idea to limit drone strikes could actually legitimize them” Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center, the first and only nonprofit, nonpartisan institution devoted to the most powerful vision of freedom ever expressed: the U.S. Constitution. He is a professor at The George Washington University Law School, where he has taught since 1997. He is a nonresident senior fellow at the Brookings Institution, where he explores issues involving the future of technology and the Constitution. He has recorded a lecture series for the Teaching Company’s Great Courses on Privacy, Property, and Free Speech: Law and the Constitution in the 21st Century. http://www.newrepublic.com/article/112392/drone-courts-congress-should-exercise-oversight-instead

On Sunday, Robert Gates, the former Pentagon chief for Presidents Obama and Bush, endorsed an idea that has been floated by

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

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

although senators at the Brennan hearings were rightly concerned about

targeted killings operating without any judicial or congressional

oversight , the proposed drone court would raise as many constitutional and legal questions as it resolved. And it would give a

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

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

better to hold hearings about whether targeted drone killings are, in

fact, morally, constitutionally, and pragmatically defensible in the first place. From the administration’s perspective, the appeal of a drone court is obvious: Despite the suggestion in the recently

released Department of Justice White Paper white paper that the president’s unilateral decisions about targeted killings can’t be

reviewed by judges, the administration cites Supreme Court cases that suggest the opposite: namely, that the president’s decision to designate Americans as enemy

combatants can only be justified when authorized by Congress, with the possibility of independent judicial review. Although the Supreme Court has been most

sympathetic to bold claims about executive power when they’re supported by Congress and reviewed by independent judges, a congressionally created drone court would be open to a series of practical and constitutional objections. On the practical side, there’s the question of what, precisely, the court would be reviewing. The administration claims

the power to order targeted assassinations when three conditions are met: 1) a high level U.S. officials

decides the target is a “senior operational leader of Al-Qaida” who

“poses an imminent threat of violent attack against the United States”;

2) “capture is infeasible”; and 3 ) the operation would be conducted

according to the laws of war. But it’s infeasible for judges to make split

second decisions about whether or not an attack is, in fact, imminent or capture is feasible. For that reason, the most likely focus of a drone court would be the administration’s decision to

put a suspect on the targeted killing list in the first place. But, as Steve Vladek of American University has argued, it’s not

clear that judges have the constitutional power to issue warrants that

can’t be challenged by the targets in a future judicial proceeding . And there

are also serious questions about whether or not Congress has the constitutional power to forbid the president from exercising his war powers without getting judicial approval in advance.

1AR Drones Congress has the ability to curtail drone useStepanovich, Senior Policy Counsel at Access, 12 (Amie, 7/19/12, “Hearing on ‘Using Unmanned Aerial Systems Within the Homeland: Security Game Changer?’”, Electronic Privacy Information Center, https://epic.org/privacy/testimony/EPIC-Drone-Testimony-7-12.pdf, accessed 7/1/15, EOT@GDI)

There are several strategies to provide meaningful privacy protections that address the increased use of drones in our domestic skies.

First, Congress should pass targeted legislation, based on principles of transparency and accountability. A first step would be the consideration and passage of Congressman Scott’s bill to limit the use of drone surveillance in criminal investigations without a warrant. State and local governments have also considered laws and regulations to further prevent abuses of drone technology.42 These proposals

would serve as a good basis for federal legislation. Drone legislation should include: Use Limitations – Prohibitions on general surveillance that limit drone surveillance to specific, enumerated circumstances, such as in the case of criminal surveillance subject to a warrant, a geographically-confined emergency, or for

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

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

within the United States. Finally, Congress must clarify the circumstances under which the drones purchased by the CBP in pursuit of its mission may be deployed by other agencies for other purposes. The failure to make clear the circumstances when federal and state agencies may deploy drones for aerial surveillance has already raised significant concerns about the agency’s program.45

2AC StandingCourts can’t curtail mass surveillance- standing precedentPrupis, staff writer, 15 (Nadia, 2/11/15, “NSA Spy Program So Secret Judge Can't Explain Why It Can't Be Challenged”, Common Dreams, http://www.commondreams.org/news/2015/02/11/nsa-spy-program-so-secret-judge-cant-explain-why-it-cant-be-challenged, accessed 7/2/15, EOT@GDI)

A federal judge ruled in favor of the National Security Agency in a key surveillance case on

Tuesday, dismissing a challenge which claimed the government's spying operations were groundless and unconstitutional. Filed in 2008 by the Electronic Frontier Foundation, the lawsuit, Jewel v. NSA, aimed to end the agency's unwarranted surveillance of U.S. citizens, which the consumer advocacy group said violated the 4th Amendment. The lawsuit also implicated AT&T in the operations, alleging that the phone company "routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA." That charge was based off of a 2006 document leak by former AT&T technician and whistleblower Mark Klein, who disclosed a collection program between

the company and the NSA that sent AT&T user metadata to the intelligence agency. US District Judge Jeffrey White on Tuesday denied a partial summary judgment motion to the EFF and granted a cross-motion to the government, dismissing the case without a trial. In his order, White said the plaintiff, Carolyn Jewel, an AT&T customer, was unable to prove she was being targeted for surveillance—and that if she could, "any possible defenses would require impermissible disclosure of state secret information." Offering his interpretation of the decision, EFF senior staff attorney David Greene

explained in a blog post: Agreeing with the government, the court found that the plaintiffs lacked “standing” to challenge the constitutionality of the program because they could not prove that the surveillance occurred as plaintiffs’ alleged. Despite the judge’s finding that he could not adjudicate the standing issue without “risking exceptionally grave damage to national security,” he expressed frustration that he could not fully explain his analysis and reasoning because of the state secrets issue. The EFF later Tweeted: Calling the ruling "frustrating," Greene said the EFF "disagree[s] with the court’s decision and it will not be the last word on the constitutionality of the government’s mass surveillance of the communications of ordinary Americans."Jewel v. NSA is the EFF's longest-running case. Despite the decision, the EFF said it would not back down from its pursuit of justice and was careful to note that the ruling did not mean that the NSA's operations were legal. "Judge White’s ruling does not end our case. The judge's ruling only concerned Upstream Internet surveillance, not the telephone records collection nor other mass surveillance processes that are also at issue in Jewel," said Kurt Opsahl, deputy

legal council at EFF. "We will continue to fight to end NSA mass surveillance." The issue is similar to the 2013 Supreme Court decision in Clapper v. Amnesty International, which found that plaintiffs who had reason to believe they were being spied on could not provide substantial proof of surveillance, and thus could not bring their case. Jewel v. NSA stems from the EFF's 2006 case, Hepting v. AT&T, which was dismissed in 2009 after Congress, including then-Senator Barack Obama, voted to give telecommunications companies immunity from such lawsuits. "It would be a travesty of justice if our clients are denied their day in court over the 'secrecy' of a program that has been front-page news for nearly a decade," Opsahl added.

2AC Surveillance Congress solves mass surveillance Hattem, staff writer, 15 (Julian, 3/24/15, “House effort would completely dismantle Patriot Act”, The Hill, http://thehill.com/policy/technology/236769-house-effort-would-completely-dismantle-patriot-act, accessed 7/2/15, EOT@GDI)

A pair of House lawmakers wants to completely repeal the Patriot Act and other legal provisions to dramatically rein in American spying. Reps. Mark

Pocan (D-Wis.) and Thomas Massie (R-Ky.) on Tuesday unveiled their Surveillance State Repeal Act, which would overhaul American spying powers unlike any other effort to reform the National Security Agency. “This isn’t just tinkering around the edges,” Pocan said during a Capitol Hill briefing on the legislation. “This is a meaningful overhaul of the system, getting rid of essentially all parameters of the Patriot Act.” The bill would completely repeal the Patriot Act, the sweeping national security law passed in the days after Sept. 11, 2001, as well as the 2008 FISA Amendments Act, another spying law that the NSA has used to justify collecting vast swaths of people's communications through the

Internet. It would also reform the secretive court that oversees the nation’s spying powers, prevent the government from forcing tech companies to create “backdoors” into their devices and create additional protections for whistleblowers. “Really, what we need are new whistleblower protections so that the next Edward Snowden doesn’t have to go to Russia or Hong Kong or whatever the case may be just for disclosing this,” Massie said. The bill is likely to be a nonstarter for leaders in Congress, who have been worried that even much milder reforms to the nation’s spying laws would tragically handicap the nation’s ability to fight terrorists. A similar bill was introduced in 2013 but failed to gain any movement in the House. Yet advocates might be hoping that their firm opposition to government spying will seem more attractive in coming weeks, as lawmakers race to beat a June 1 deadline for reauthorizing portions of the Patriot Act. Reformers have eyed that deadline as their last best chance for reforming some controversial NSA programs, after an effort failed in the Senate last year

1AR Surveillance The future of the NSA is in the hands of congress. Timm, 2015 (http://www.theguardian.com/commentisfree/2015/apr/08/congress-must-end-mass-nsa-surveillance-with-next-patriot-act-vote) Timm, Trevor April/8/2015

In less than 60 days, Congress - whether they like it or not - will be forced to decide if the NSA’s most notorious mass surveillance program lives or dies. And today, over 30 civil liberties organizations launched a

nationwide call-in campaign urging them to kill it. Despite doing almost everything in their power to avoid voting for substantive NSA reform, Congress now has no choice: On 1 June, one of the most controversial

parts of the Patriot Act - known as Section 215 - will expire unless both houses of Congress affirmatively vote for it to be reauthorized. Section 215 of the Patriot Act was the subject of the very first Snowden story, when the Guardian reported that the US government had reinterpreted the law in complete secrecy, allowing the NSA to vacuum up every single American’s telephone records - who they called, who called them, when, and for how long - regardless of whether they had been accused of a crime or not. (The NSA’s warped interpretation of Section 215 was also the subject of John Oliver’s entire show on Sunday night. It is a must-watch.) The massive phone dragnet is not the only thing Section 215 is used for though. As independent journalist Marcy Wheeler has meticulously documented, Section 215 is likely being used for all sorts of surveillance that the public has no idea about. There are an estimated 180 orders from the secret Fisa court that involve Section 215, but we know only five of them are directed at telecom companies for the NSA phone program. To give you a sense of the scale: the one Fisa order published by the Guardian from the Snowden trove compelled Verizon to hand over every phone record that it had on all its millions of customers. Every single one. While the government claims that its other uses of Section 215 are “critical” to national security, it’s extremely hard to take their word for it. After all, the government lied about collecting information on millions of Americans under Section 215 to begin with. Then they claimed the phone surveillance program was “critical” to national security after it was exposed. That wasn’t true

either: they later had to admit it has never stopped a single terrorist attack . Advertisement We also just

learned two weeks ago that the NSA knew the program was largely pointless before the Snowden leaks and debated shutting it down altogether. Suddenly, after the Snowden documents became public, NSA officials defended it as “critical” again when they had to go before an increasingly skeptical Congress. Is Section 215 being used to collect massive amounts of other data on Americans? Well, the New York Timesreported last year that there are multiple different bulk collection programs under different authorities that are still secret. And Ron Wyden, while not specifying which law was being used, indicated in an interview last month that there were several spying programs directly affecting Americans that were still secret. And there’s evidence to suggest they’re doing so for supposed “cyber” crime investigations. Whatever else they’re doing with Section 215 behind closed

doors, the phone surveillance program is illegal. As the author of the Patriot Act, Republican Congressman Jim

Sensenbrenner has said: “I can say that without qualification that Congress never did intend to allow bulk collection when it passed Section 215, and no fair reading of the text would allow for this [mass phone surveillance]

program”. It’s also likely unconstitutional , as the first federal judge to look at the program ruled almost a year ago. Judge Richard Leon wrote at the time in his landmark opinion: “I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every citizen for purposes of querying and analyzing it without prior judicial approval”. These days, Congress can barely get post office names passed, let alone comprehensive reform on any subject affecting the American people. So the fact that they haven’t passed NSA reform yet says more about their near-total dysfunction than the American public’s views about privacy. But now they have no choice. A year and a half ago, the House came within a few votes of cutting off funding for Section 215 in an unorthodox appropriations vote and, since then, opposition to the NSA’s massive spying operation on Americans has remained strong. Only time will tell if Congress will actually receive this message. But if citizenscall their representatives, they might just get it. Then, come June, the NSA will have a lot less of our private data at their fingertips.

Congress can and should end warrantless data collectionNichols, 2013(http://grayson.house.gov/index.php/newsroom/in-the-news/227-judge-rules-against-nsa-spying-congress-should-do-the-same) Nichols john, December 16, 2013 CL

Judge Leon’s decision, which will surely be appealed, focuses attention on legal challenges to the spying program. But it also serves as a reminder that Congress can and should act to defend privacy rights. “The ruling underscores what I have argued for years: The bulk collection of Americans’ phone records conflicts with Americans’ privacy rights under the U.S. Constitution and has failed to make us safer,” says Senator Mark Udall, D-Colorado, a supporter of

legislation to end the bulk collection program. “We can protect our national security without trampling our constitutional liberties.” Senator Ron Wyden, D-Oregon, said: “Judge Leon’s ruling hits the nail on the head. It makes clear that bulk

phone records collection is intrusive digital surveillance and not simply inoffensive data collection as some have said. The court noted that this metadata can be used for ‘repetitive, surreptitious surveillance of a citizen’s private goings on,’ that creates a mosaic of personal information and is likely unconstitutional. This ruling dismisses the use of an outdated Supreme Court decision affecting rotary phones as a defense for the technologically advanced collection of millions of Americans’ records. It clearly underscores the need to adopt meaningful surveillance reforms that prohibit the bulk collection of Americans’ records.” The senators had reason to be enthusiastic about Judge Leon determination that legal challenges to the massive surveillance program are valid. So valid, in fact, that he issued a preliminary injunction against the program. The judge suspended the order, however, in order to allow a Justice Department appeal. But Judge Leon was blunt regarding the strength of the challenge that was brought after Snowden revealed details of the agency’s spying in The Guardian. "I have little doubt that the author of our Constitution, James Madison... would be aghast," the judge wrote with regard to the NSA program for surveillance of cell phone records, “The court concludes that plaintiffs have standing to challenge the constitutionality of the government’s bulk collection and querying of phone record metadata, that they have demonstrated a substantial likelihood of success on the merits of their Fourth Amendment claim and that they will suffer irreparable harm absent…relief,” Judge Leon wrote in response to a lawsuit brought by Larry Klayman, a former Reagan administration lawyer who now leads the conservative Freedom Watch group. The case is one of several that have been working their way through the federal courts since Snowden disclosed details of the NSA program. Legal challenges to NSA spying are not new, and they have failed in the past. Challenging the FISA Amendments Act (FAA)—the law that permits the government to wiretap US citizens communicating with people overseas—Amnesty International and other human rights advocates, lawyers and journalists fought a case all the way to the US Supreme Court in 2012. In February 2013, however, the Justices ruled 5-4 that the challengers lacked standing because they could not prove they had been the victims of wiretapping and other privacy violations. The Justice Department has continued to argue that plaintiffs in lawsuits against the spying program lack standing because they cannot prove their records were examined. But Judge Leon suggested that the old calculus that afforded police agencies great leeway when it came to monitoring communications has clearly changed. Suggesting that the NSA has relied on “almost-Orwellian technology,” wrote Judge Leon, who was appointed by former President George W. Bush to the United States District Court for the District of Columbia bench. “The relationship between the police and the phone company (as imagined by the courts decades ago)…is nothing compared to the relationship that has apparently evolved over the last seven years between the government and telecom companies.” The judge concluded, “It’s one thing to say that people expect phone companies to occasionally provide information to law enforcement; it is quite another to suggest that our citizens expect all phone companies to operate what is effectively a joint intelligence-gathering operation with the government.” This case will continue in the courts, as will others. But it is also in Congress. A left-right coalition that extends from Congressmen Justin Amash, a libertarian-leaning Republican, to Congressman John Conyers, a progressive Democrat, has

raised repeated challenges to the NSA spying regimen. Now, Congress needs to step up to what Congressman Alan Grayson, D-Florida, refers to as “the spying-industrial complex.” A number of members are ready. Vermont Senator Bernie Sanders responded to Judge Leon's ruling by saying: “In my view, the NSA is out of control and operating in an unconstitutional manner. Today’s ruling is

an important first step toward reining in this agency but we must go further. I will be working as hard as I can to pass the strongest legislation possible to end the abuses by the NSA and other intelligence agencies.” The outlines for legislative action have already been presented by the American Civil Liberties Union and other groups that work on privacy issues.

“Congress should not be indifferent to the government’s accumulation of vast quantities of sensitive information about American’s lives,” Jameel Jaffer, the ACLU’s deputy legal counsel told the House Judiciary Committee in July. “This Committee in particular has a crucial role to play in ensuring that the government’s efforts to protect the country do not

compromise the freedoms that make the country worth protecting.” Jaffer told the committee, Because the problem Congress confronts today has many roots, there is no single solution to it. But there are a number of things that Congress should do right away: • It should amend Sections 215 and 702 to expressly prohibit suspicionless or “dragnet” monitoring or tracking of Americans’ communications.

Congress should end NSA phone dragnet program. Gross, 15 (http://www.pcworld.com/article/2917992/aclu-nsa-phone-dragnet-should-be-killed-not-amended.html) Gross, Grant. May, 1 2015 CL

The U.S. Congress should kill the section of the Patriot Act that has allowed the National Security Agency to collect millions of phone records from the nation’s residents, instead of trying to amend

it, a civil liberties advocate said Friday. Section 215 of the Patriot Act, which allows the NSA to collect phone records, business records and any other “tangible things” related to an anti-terrorism investigation, expires in June, and lawmakers should let it die, said Neema Singh Guliani, legislative counsel for the American Civil Liberties Union. The House of Representatives Judiciary Committee on Thursday voted to approve a bill to amend that section of the anti-terrorism law. The USA Freedom Act would end the NSA’s

bulk collection of U.S. phone records by narrowing the scope of the agency’s searches, backers of the bill said. The USA Freedom Act “does not go far enough” to protect U.S. residents from surveillance, Guliani said during a debate about section

215 hosted by the Congressional Internet Caucus. While the bill doesn’t allow NSA searches by state or even zip codes, it would still allow the search of the records of “several hundred people who might share an IP address” over a wireless network, or records on an entire company, she said.

Ptx NB

2AC LinksSurveillance rulings link Ellen Nakashima, May 7, 2015. “NSA program on phone records is illegal, court rules” Ellen Nakashima is a national security reporter for The Washington Post. She focuses on issues relating to intelligence, technology and civil liberties.

https://www.washingtonpost.com/world/national-security/appeals-court-rules-nsa-record-collection-violates-patriot-act/2015/05/07/c4fabfb8-f4bf-11e4-bcc4-e8141e5eb0c9_story.html

A federal appeals court ruled Thursday that the National Security

Agency’s collection of millions of Americans’ phone records violates the

USA Patriot Act, marking the first time an appellate panel has weighed

in on a controversial surveillance program that has divided Congress

and ignited a national debate over the proper scope of the government’s

spy powers. In a blistering 97-page opinion, a unanimous three-judge panel of the U.S. Court of Appeals for the 2nd

Circuit overturned a lower court and determined that the government had stretched the meaning of the statute to enable “sweeping

surveillance” of Americans’ data in “staggering” volumes. The ruling comes as Congress begins a

contentious debate over whether to reauthorize the statute that

underpins the NSA program or let it lapse . The court did not issue an injunction ordering the program to stop. With the statute scheduled to expire June 1, a bipartisan coalition of lawmakers in the House and

Senate is seeking to renew it with modifications that sponsors say will

enable the NSA to get access to the records it needs while protecting

Americans’ privacy . The bill, the USA Freedom Act, is poised to pass the House next week.

1AR LinksCourts are subject to external political pressure- studies prove Sayre, 2/23/15 (Mike, The Supreme Court is Constrained By Public Opinion In Cases Where The Justices Fear Nonimplementation of Their Decisions. http://ajps.org/2015/02/23/the-supreme-court-is-constrained-by-public-opinion-in-cases-where-the-justices-fear-nonimplementation-of-their-decisions/.MS)

With each controversial case they hear, questions arise about the influence of public opinion on the Supreme Court. Matthew Hall examines the types of cases where the Supreme

Court appears constrained , and finds when a ruling must be implemented by government actors outside the judicial hierarchy, external pressures exert a stronger influence on the Court . He argues that nonimplementation fears are only relevant to a small subset of cases in the Supreme Court docket, indicating that judicial scholars

should be attentive to different contexts rather than searching for universal tendencies of the Court’s behavior.¶ In June 2012, the U.S. Supreme Court issued its landmark decision in the Patient Protection and Affordable Care Act cases. In the months leading up to the ruling, President Obama and congressional Democrats “waged a not-so-subtle pressure campaign on the Supreme Court,” urging the justices to uphold the Act, yet despite these efforts, the justices insisted they were impervious to external pressure. When asked about the health care case, Justice Thomas dismissed the possibility of outside influence: “You stay focused on what you’re supposed to do. All that other stuff is just noise.” Three months later, Chief Justice Roberts unexpectedly joined the liberal wing of the Court and voted to uphold the health care law. ¶ Notwithstanding assurances from Justice Thomas, Court observers have long noted its tendency to, in the words of the famous Mr. Dooley, “follow th’ illiction returns” (follow the election returns). Scholars have amassed considerable evidence that public opinion constrains the justices’ decision making, and elite preferences constrain their exercise of judicial review. Yet, others raise doubts about the extent and nature of external influence, and scholars continue to debate the causal mechanism behind this phenomenon.¶ Credit: Will O'Neill (Creative Commons: BY 2.0) ¶ In this article, I evaluate an often mentioned, yet untested theory of Supreme Court constraint: I argue the Court is constrained, at least in part, because the justices fear nonimplementation of their decisions. Accordingly, the effect of external pressure is strongest when the threat of nonimplementation is most severe. When the justices can confidently assume implementation of their decisions, they are less constrained by external forces.¶ The Court has traditionally been viewed as holding “no influence

over either the purse or the sword.” In fact, many argue that the Court is severely limited in its ability to induce social or political change, and “[i]mplementation of the Court’s policies is far from perfect.” However, other studies suggest the Court may possess significant power to affect social change, at least in certain contexts.

The Court is especially successful at altering behavior when it issues rulings related to criminal law, civil liability, or judicial administration, regardless of public opinion. The Court tends to alter behavior in these “vertical” cases because implementation is controlled by lower courts in the judicial hierarchy, and these courtsoverwhelmingly adhere to Supreme Court precedent. Of course, lower-court compliance is not perfect; judges sometimes exercise considerable discretion when making decisions. Nonetheless, lower-court defiance is rare, and the Court’s “hierarchical control appears strong and

effective.”¶ The Court does not enjoy the same degree of policy control in cases unrelated to criminal law, civil liability, or judicial administration. Rulings in these “lateral” cases must be implemented by government actors outside the judicial hierarchy, usually elected officials or their agents. These elected officials must consider their constituents’ interests and generally respond to public opinion. Consequently,

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

employ logistic regression models to evaluate the influence of public mood and congressional ideology on the justices’ final votes on the merits in vertical versus lateral cases. Each of these analyses confirms that external pressures exert stronger influence when

nonimplementation is a concern .¶ I find that the fear of nonimplementation is a critical factor motivating the Supreme Court’s response to external pressure. Consequently, these external forces exert differential effects in different issue contexts. When deciding important lateral cases, the Court is highly constrained by external forces because it lacks the necessary implementation powers to give efficacy to its rulings in the absence of popular and/or elite support; however, when deciding vertical cases, the justices are relatively less constrained because their decisions tend

to be implemented by lower-court judges regardless of external pressure. When the Court considers unimportant cases, the chance of strong public opposition is low; therefore, nonimplementation is unlikely and the justices can disregard external pressure. Although numerous scholars have found that the Supreme Court is constrained, I find that constraint is a significant factor in only a small subset of its docket.¶ My findings suggest that the U.S. Supreme Court is relatively independent when deciding cases related to criminal prosecution, civil liability, or judicial administration; however, the Court is more constrained when trying to alter policy beyond the control of lower courts, at least when those cases may potentially attract public interest. As a result, studies of judicial independence should be conscious of the varying institutional contexts surrounding cases in different issue areas. Rather than search for universal tendencies of Supreme Court behavior, judicial scholars should be attentive to differences in judicial power and independence across different contexts.

Media spin ensures that courts are politicized

Hamilton, 12(Eric, J.D. Candidate from Stanford, “Politicizing the Supreme Court,” 65 Stanford Law Review 35, http://www.stanfordlawreview.org/online/politicizing-supreme-court. MS)

¶ To state the obvious, Americans do not trust the federal government, and that includes the Supreme Court. Americans believe politics played “too great a role” in the recent health care cases by a greater than two-to-one margin.[1] Only thirty-seven percent of Americans express more than some confidence in the Supreme Court.[2] Academics continue to debate how much

politics actually influences the Court, but Americans are excessively skeptical. They do not

know that almost half of the cases this Term were decided unanimously, and the

Justices’ voting pattern split by the political party of the president to whom they owe

their appointment in fewer than seven percent of cases.[3] Why the mistrust? When the Court is front-page, above-the-fold news after the rare landmark decision or during infrequent U.S. Senate confirmation proceedings, political rhetoric from the President and Congress drowns out the Court. Public perceptions of the Court are shaped by politicians’ arguments “for” or “against” the ruling or the nominee, which usually fall along partisan lines and sometimes are based on misleading premises that ignore the Court’s special, nonpolitical responsibilities.¶ The Framers of the Constitution designed a uniquely independent Supreme

Court that would safeguard the Constitution. They feared that the political branches might be able to overwhelm the Court by turning the public against the Court and that the Constitution’s strict boundaries on congressional power would give way. As evidenced in the health care cases, politicians across the ideological spectrum have played into some of the Framers’ fears for the Constitution by politicizing the decision and erasing the distinction between the Court’s holding and the policy merits of the heath care law. Paradoxically, many of the elected officials who proudly campaign under the battle cry of “saving our Constitution” endanger the Court and the Constitution with their bombast. Politicization of the Supreme Court causes the American public to lose faith in the Court, and when public confidence in the Court is low, the political branches are well positioned to disrupt the constitutional balance of power between the judiciary and the political branches.¶ THE FRAMERS’ SUPREME COURT¶ It would have been unsurprising had the Constitutional Convention granted Congress the power to take a vote to change Supreme Court decisions. In fact, the antifederalists’ chief argument against the judiciary was that it was too powerful without a congressional revisionary power on Court opinions.[4] Many of the early state constitutions that were enacted between the Revolution and the ratification of the U.S. Constitution permitted the state executive and legislature to remove, override, or influence judges. Rhode Island judges were called before the legislature to testify when they inv

alidated legislative acts.[5] The New Hampshire legislature vacated judicial proceedings, modified judgments, authorized appeals, and decided the merits of some disputes.[6]¶ Instead,

the Framers created a Supreme Court that was independent from the political

branches and insulated from public opinion . The Supreme Court would be the intermediary between the people and the legislature to

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

other departments that was consistent with republican principles.[10]¶ Delegates ultimately decided that politicizing the Court would undercut its legitimacy. Luther Martin, a delegate who later became Maryland’s longest-serving attorney general, offered the most prescient comment on the subject: “It is necessary that the Supreme Judiciary should have the confidence of the people. This will soon be lost, if they are employed in the task of remonstrating [against] popular measures of the Legislature.”[11] “It was making the Expositors of the Laws, the Legislators which ought never to be done,” added Elbridge Gerry, a Massachusetts delegate.[12]¶ “SAVING THE CONSTITUTION FROM THE COURT”¶ The Framers

correctly connected loss of public confidence in the Court with judicial policymaking. Of course, the Constitution does not force judges to “remonstrate” against legislation, but experience proves Martin

to be correct. Too often that becomes the public perception when Congress and the

President politicize the Supreme Court . Chief Justice Roberts started and ended his health care opinion with the basics—the important distinction

between whether the Affordable Care Act is good policy from whether it is a constitutional law. Within two hours, President Obama and Mitt Romney, both Harvard Law School graduates, looked into

television cameras and told Americans the opposite. “Today, the Supreme Court also upheld the principle that people who can afford health insurance should take the responsibility to buy health insurance,” said Obama.[13] Romney criticized the majority for deciding not to “repeal Obamacare.” “What the Court did not do on

its last day in session, I will do on my first day if elected President,” said Romney.[14]¶ Congress

and the President have belittled the Court. President Obama told the public at the 2010 State of the Union address that “the Supreme Court reversed a century of law” with its Citizens United decision and suggested that the Court opposed honest elections. The ensuing image was even more damaging. With 48 million Americans watching, the camera panned to a cadre of expressionless Supreme Court Justices sitting in the front row while lawmakers sitting next to them rose to their feet and applauded.[15] Presidents Obama and Bush and members of Congress have derided the Court for its “unelected” nature, with President Obama publicly wondering before the health care decision whether “an unelected group of people would somehow overturn a duly constituted and passed law.”[16]¶ Judges lack clear defenses. Judges would risk their credibility if they shouted back at the President, appeared on the Sunday morning talk shows, or held a press conference after a decision. Unlike speeches from members of Congress and the President, Supreme Court proceedings

are difficult to follow without legal training. The media coverage of the Supreme Court can

be incomplete or inaccurate . FOX News and CNN famously misunderstood Chief Justice Roberts’ oral opinion and misreported that the individual mandate had been invalidated. The publicly available audio recordings of oral arguments contribute little to public understanding of the Court. Even before the decision, the Republican Party doctored audio clips of Solicitor General Don Verrilli coughing and pausing during oral

argument to suggest in an ad suggesting that the health care law was indefensible.[17]¶ Politicization of the Court is dangerous because it primes the public for a power grab by the political branches. If the Court loses authority to check political power and make unpopular decisions, it cannot enforce the Constitution with the same effectiveness. Without enforcement of the Constitution, Congress is free to invade constitutional rights and exceed its lawful powers.¶ The Supreme Court came frighteningly close to losing some of its independence when the Court made politically significant decisions striking down parts of the New Deal, and President Franklin D. Roosevelt responded with the Court-packing plan. His arguments alleged misconduct by the Court.¶ The Courts, however, have cast doubts on the ability of the elected Congress to protect us against catastrophe by meeting squarely our modern social and economic conditions. . . . The Court has been acting not as a judicial body, but as a policy-making body. . . . We have, therefore, reached the point as a nation where we must take action to save the Constitution from the Court and the Court from itself. We must find a way to take an appeal from the Supreme Court to the Constitution itself.[18]¶ Roosevelt’s words from seventy-five years ago could be repeated today by Court opponents. In his recent presidential primary campaign, Newt Gingrich promised to employ the tactics of early state constitutions by ignoring disagreeable Court decisions and ordering Justices to testify to congressional committees.[18] Proposals to invade the Court’s independence ignore the Framers’ fears for enforcement of the Constitution without the Supreme Court. Madison believed if the legislature and executive united behind a law and convinced the public that it was in their interest, the people could not properly judge its constitutionality, even if it was patently unconstitutional. The “passions” of the people on the particular issues would prevail over well-reasoned constitutional judgment.[20]¶ ***¶ The health care law’s closely watched journey through the three branches of government concluded in the Supreme Court, a rare opportunity in the sun for the Court. What would have been a shining moment for the Constitution in a vacuum was instead validation of the Framers’ apprehensions. Our Constitution is the longest-lasting in the world because of Americans’

enduring reverence for it. But when elected officials exploit Americans’ patriotism to score political points, they jeopardize the Framers’ carefully constructed balance of power. Instead, honest public discourse on the Constitution and the Court is the surest security for our government.

Same-sex marriage proves VICE NEWS, 7/29/15 (Tess Owen, freelance writer and reporter, Conservative Backlash Follows US Supreme Court's Same-Sex Marriage Decision, https://news.vice.com/article/conservative-backlash-follows-us-supreme-courts-same-sex-marriage-decision. MS)

As landmarks and businesses across the country were emblazoned in rainbows celebrating the historic Supreme Court ruling last Friday that made same-sex marriage legal in all 50 states, some conservatives began plotting their backlash.¶ The 5-4 ruling in favor for same-sex marriage sparked an outcry from some members of the GOP and conservative leaders who claim that religious beliefs are under attack.¶ Republican presidential contender Sen. Ted Cruz of Texas described the stretch from Thursday to Friday, which included a Supreme Court ruling favorable to President Obama's Affordable Care Act, as "some of the darkest 24

hours in our nation's history."¶ Cruz said that the rulings on Obamacare, as the ACA is popularly known, and

against state bans on same-sex marriage constituted "naked and shameless judicial activism" that has "undermined the fundamental legitimacy of the United States Supreme Court." He also announced a plan to introduce a constitutional amendment that would subject "lawless" Supreme Court justices to intermittent re-election.¶ In order to provide the people themselves with a constitutional remedy to the problem of judicial activism and the means for throwing off judicial tyrants, I am proposing an amendment to the United States Constitution that would subject the justices of the Supreme Court to periodic judicial-retention elections," Cruz wrote in the National Review. "Every justice, beginning with the second national election after his or her appointment, will answer to the American people and the states in a retention election every eight years. Those justices deemed unfit for retention by both a majority of the American people as a whole and by majorities of the electorates in at least half of the 50 states will be removed from office and disqualified from

future service on the Court."¶ Wisconsin Gov. Scott Walker, who is expected to soon declare his candidacy for the Republican presidential nomination, also slammed the ruling and called for the

passage of a constitutional amendment that would allow states to define marriage.¶ Walker urged Obama and political leaders across the country "to join me in in reassuring millions of Americans that the government will not force them to participate in activities that violate their deeply held religious beliefs." Following Friday's decision, former Arkansas governor and Republican presidential candidate Mike Huckabee's campaign posted a video of his infant grandson that compares his soiled diapers to the recent rulings. Huckabee released a statement calling the SCOTUS ruling on gay marriage "judicial tyranny."¶ "I will not acquiesce to an imperial court any more than our Founders acquiesced to an imperial British monarch," he said. "The Supreme Court can no more repeal the laws of nature and nature's God on marriage than it can the law of gravity."¶ Huckabee also suggested that Christians will resist the court's decision with widespread civil disobedience, comparing the effort to Dr. Martin Luther King's fight against racial discrimination.¶ "They will go the path of Dr. Martin Luther King, who in his brilliant essay the letters from a Birmingham jail reminded us, based on what St. Augustine said, that an unjust law is no law at all," he said. "And I do think that we're going to see a lot of pastors who will have to make this tough decision."¶

Rick Santorum, a former Republican senator of Pennsylvania who is running for the presidency, also struggled to come to terms with the ruling.¶ "What this court said is that anybody who does not toe the line is going to be viewed the same way as someone who doesn't support

other civil rights, which is you will be a bigot," he told the Washington Examiner. "Every institution that stands by any type of biblical world view is going to have to deal with the reality that the government is going to tell you that you can no longer believe this and get

any accommodation from the government."¶ "We're losing," he added, "because we're not trying to win." Jeb Bush, former Republican governor of Florida, and the Sunshine State's junior Republican Sen. Marco Rubio both took more measured

approaches, coming short of calling for constitutional amendments, but they upheld the value of "traditional marriage."¶ "I believe the Supreme Court should have allowed the states to make this decision," Bush said. "In a country as diverse as ours, good people who have opposing views should be able to live side by side. It is now crucial that as a country we protect religious freedom and the right of conscience and also not discriminate."¶ Rubio echoed this relatively moderate spirit.¶ "While I disagree with this decision, we live in a republic and must abide by the law," Rubio declared. "A large number of Americans will continue to believe in traditional marriage, and a large number of Americans will be pleased with the Court's decision today. In the years ahead, it is my hope that each side will respect the dignity of the other."¶ Campaign watchdogs had earlier speculated that Bush might possibly emerge as the first serious pro-gay Republican candidate after he appointed a number of Republican advocates for gay rights to his inner advisory circle.¶ In some states, political leaders have suggested that Friday's historic ruling could be circumvented or obstructed, at least for a time.¶ Texas Gov. Greg Abbott released a

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

2AC Elections Courts link to elections- public doesn’t trust them

Hamilton, 12(Eric, J.D. Candidate from Stanford, “Politicizing the Supreme Court,” 65 Stanford Law Review 35, http://www.stanfordlawreview.org/online/politicizing-supreme-court. MS)

¶ To state the obvious, Americans do not trust the federal government, and that includes the Supreme Court. Americans believe politics played “too great a role” in the recent health care cases by a greater than two-to-one margin.[1] Only thirty-seven percent of Americans express more than some confidence in the Supreme Court.[2] Academics continue to debate how much

politics actually influences the Court, but Americans are excessively skeptical. They do not

know that almost half of the cases this Term were decided unanimously, and the

Justices’ voting pattern split by the political party of the president to whom they owe

their appointment in fewer than seven percent of cases.[3] Why the mistrust? When the Court is front-page, above-the-fold news after the rare landmark decision or during infrequent U.S. Senate confirmation proceedings, political rhetoric from the President and Congress drowns out the Court. Public perceptions of the Court are shaped by politicians’ arguments “for” or “against” the ruling or the nominee, which usually fall along partisan lines and sometimes are based on misleading premises that ignore the Court’s special, nonpolitical responsibilities.¶ The Framers of the Constitution designed a uniquely independent Supreme

Court that would safeguard the Constitution. They feared that the political branches might be able to overwhelm the Court by turning the public against the Court and that the Constitution’s strict boundaries on congressional power would give way. As evidenced in the health care cases, politicians across the ideological spectrum have played into some of the Framers’ fears for the Constitution by politicizing the decision and erasing the distinction between the Court’s holding and the policy merits of the heath care law. Paradoxically, many of the elected officials who proudly campaign under the battle cry of “saving our Constitution” endanger the Court and the Constitution with their bombast. Politicization of the Supreme Court causes the American public to lose faith in the Court, and when public confidence in the Court is low, the political branches are well positioned to disrupt the constitutional balance of power between the judiciary and the political branches.¶ THE FRAMERS’ SUPREME COURT¶ It would have been unsurprising had the Constitutional Convention granted Congress the power to take a vote to change Supreme Court decisions. In fact, the antifederalists’ chief argument against the judiciary was that it was too powerful without a congressional revisionary power on Court opinions.[4] Many of the early state constitutions that were enacted between the Revolution and the ratification of the U.S. Constitution permitted the state executive and legislature to remove, override, or influence judges. Rhode Island judges were called before the legislature to testify when they inv

alidated legislative acts.[5] The New Hampshire legislature vacated judicial proceedings, modified judgments, authorized appeals, and decided the merits of some disputes.[6]¶ Instead,

the Framers created a Supreme Court that was independent from the political

branches and insulated from public opinion . The Supreme Court would be the intermediary between the people and the legislature to

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

other departments that was consistent with republican principles.[10]¶ Delegates ultimately decided that politicizing the Court would undercut its legitimacy. Luther Martin, a delegate who later became Maryland’s longest-serving attorney general, offered the most prescient comment on the subject: “It is necessary that the Supreme Judiciary should have the confidence of the people. This will soon be lost, if they are employed in the task of remonstrating [against] popular measures of the Legislature.”[11] “It was making the Expositors of the Laws, the Legislators which ought never to be done,” added Elbridge Gerry, a Massachusetts delegate.[12]¶ “SAVING THE CONSTITUTION FROM THE COURT”¶ The Framers correctly connected loss of public confidence in the Court with judicial policymaking. Of course, the Constitution does not force judges to “remonstrate” against legislation, but experience proves Martin

to be correct. Too often that becomes the public perception when Congress and the

President politicize the Supreme Court . Chief Justice Roberts started and ended his health care opinion with the basics—the important distinction

between whether the Affordable Care Act is good policy from whether it is a constitutional law. Within two hours, President Obama and Mitt Romney, both Harvard Law School graduates, looked into

television cameras and told Americans the opposite. “Today, the Supreme Court also upheld the principle that people who can afford health insurance should take the responsibility to buy health insurance,” said Obama.[13] Romney criticized the majority for deciding not to “repeal Obamacare.” “What the Court did not do on

its last day in session, I will do on my first day if elected President,” said Romney.[14]¶ Congress

and the President have belittled the Court. President Obama told the public at the 2010 State of the Union address that “the Supreme Court reversed a century of law” with its Citizens United decision and suggested that the Court opposed honest elections. The ensuing image was even more damaging. With 48 million Americans watching, the camera panned to a cadre of expressionless Supreme Court Justices sitting in the front row while lawmakers sitting next to them rose to their feet and applauded.[15] Presidents Obama and Bush and members of Congress have derided the Court for its “unelected” nature, with President Obama publicly wondering before the health care decision whether “an unelected group of people would somehow overturn a duly constituted and passed law.”[16]¶ Judges lack clear defenses. Judges would risk their credibility if they shouted back at the President, appeared on the Sunday morning talk shows, or held a press conference after a decision. Unlike speeches from members of Congress and the President, Supreme Court proceedings

are difficult to follow without legal training. The media coverage of the Supreme Court can

be incomplete or inaccurate . FOX News and CNN famously misunderstood Chief Justice Roberts’ oral opinion and misreported that the individual mandate had been invalidated. The publicly available audio recordings of oral arguments contribute little to public understanding of the Court. Even before the decision, the Republican Party doctored audio clips of Solicitor General Don Verrilli coughing and pausing during oral

argument to suggest in an ad suggesting that the health care law was indefensible.[17]¶ Politicization of the Court is dangerous because it primes the public for a power grab by the political branches. If the Court loses authority to check political power and make unpopular decisions, it cannot enforce the Constitution with the same effectiveness. Without enforcement of the Constitution, Congress is free to invade constitutional rights and exceed its lawful powers.¶ The Supreme Court came frighteningly close to losing some of its independence when the Court made politically significant decisions striking down parts of the New Deal, and President Franklin D. Roosevelt responded with the Court-packing plan. His arguments alleged misconduct by the Court.¶ The Courts, however, have cast doubts on the ability of the elected Congress to protect us against catastrophe by meeting squarely our modern social and economic conditions. . . . The Court has been acting not as a judicial body, but as a policy-making body. . . . We have, therefore, reached the point as a nation where we must take action to save the Constitution from the Court and the Court from itself. We must find a way to take an appeal from the Supreme Court to the Constitution itself.[18]¶ Roosevelt’s words from seventy-five years ago could be repeated today by Court opponents. In his recent presidential primary campaign, Newt Gingrich promised to employ the tactics of early state constitutions by ignoring disagreeable Court decisions and ordering Justices to testify to congressional committees.[18] Proposals to invade the Court’s independence ignore the Framers’ fears for enforcement of the Constitution without the Supreme Court. Madison believed if the legislature and executive united behind a law and convinced the public that it was in their interest, the people could not properly judge its constitutionality, even if it was patently unconstitutional. The “passions” of the people on the particular issues would prevail over well-reasoned constitutional judgment.[20]¶ ***¶ The health care law’s closely watched journey through the three branches of government concluded in the Supreme Court, a rare opportunity in the sun for the Court. What would have been a shining moment for the Constitution in a vacuum was instead validation of the Framers’ apprehensions. Our Constitution is the longest-lasting in the world because of Americans’

enduring reverence for it. But when elected officials exploit Americans’ patriotism to score political points, they jeopardize the Framers’ carefully constructed balance of power. Instead, honest public discourse on the Constitution and the Court is the surest security for our government.

Deference NB

2AC Congress Solves Congress curtails survaillence- checks power executive Eli Lake, 15, Bloomberg columnist on foreign affairs and politics, “Congress Falls Out of Love With the Surveillance State.”, http://www.bloombergview.com/articles/2015-05-20/congress-falls-out-of-love-with-the-surveillance-state, 05-20-2015, 7-1-2015, GAO

Congress is poised for the first time since 9/11 to take back some of the extraordinary powers it granted to the executive branch. The courts have scrapped military tribunals for detainees and President

Obama has ended water boarding. But Congress has pretty much been a rubber stamp during the war on terror. Not anymore. After resisting efforts from some in his own party and the House of Representatives to revoke the NSA's authority to collect telephone records in bulk, Senate Majority Leader Mitch McConnell said Tuesday he will allow a vote this week on the USA Freedom Act. That bill would end the NSA's bulk collection of telephone metadata, but allow the NSA and FBI to query this

data stored by the phone companies. The closest Congress has come to doing anything like this was in 2008 and 2012 with the passage and reauthorization of amendments to the Foreign Intelligence Surveillance Act. But in those cases, Congress codified government programs to monitor Internet

communications and required more oversight of them. This time around -- if the Senate passes the USA Freedom Act -- Congress will be ending a government program altogether. "This is not just instituting layers of oversight on a collection program," Mieke Eoyang, the director of the national security program at Third Way, told me. "This is taking away from the NSA's custody a bunch of data that they gathered on every American and had unfettered access to."