193 Bq Aff Answers To Courts Disads

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No Supreme Court Capital The Supreme Court’s unprecedented Hamdan ruling was extremely controversial. Andy Worthington, writer and historian, alternet, “A Closer Look at the Hamdan Trial,” 7/25/08 http://www.alternet.org/rights/92806/a_closer_look_at_the_hamdan_trial/ Last week, however, Hamdan's run of significant court victories came to an end, after a two-hour hearing with Judge Robertson in which both sides put their cases. Defending the process, and Hamdan's eligibility for the trial, lawyers for the government said, as the Christian Science Monitor explained, that the Commission process "was created by Congress and features an impartial judge and jury, as well as a 'full panoply' of trial rights." In a court filing, Justice Department lawyer Alexander Haas declared, "Such rights for an alien charged with war crimes are utterly unprecedented and far exceed the protections given to the defendants [in prior war crimes tribunals]."

The Supreme Court has been divided since the Hamdan decision. Andrew C. McCarthy, contributing editor to National Review Online, “The Hamdan Commission Will Go Forward,” 7/18/08, http://article.nationalreview.com/?q=MmE3YWViZTM3N zc0NDE5NjYyNmUwOWUxM2MyOWQ2YmQ= That ruling was later rejected by a three-judge panel of the D.C. Circuit Court of Appeals that included then-Circuit Judge John Roberts. When he was confirmed soon after as U.S. Chief Justice, Roberts recused himself from Hamdan’s appeal to the Supreme Court. Thus in Hamdan v. Rumsfeld (2006), the sharply divided high court ruled, 5-3, that the president’s commission system violated federal law. Though it did not fully adopt Judge Robertson’s reasoning, the majority found that enemy combatants were protected by the Geneva Conventions’ “Common Article 3,” at least to the extent it required any trials to be conducted by “a regularly constituted court.” (My analysis of the flaws in this ruling can be found here.)

Boumediene decision was unprecedented. Marissa Taylor, staff writer, McClatchy Newspapers, “Bush lawyers told to speed Guantanamo detention appeals,” 7/8/08, http://www.mcclatchydc.com/257/story/43481.html Assistant Attorney General Gregory Katsas told Hogan that the Supreme Court's ruling had raised an "unprecedented range of uncertainties," adding the department would not be able to comply with the deadline proposed by lawyers for the plaintiffs because of a lack of resources. Instead, he said the department could file records in about 50 cases a month — a prospect that he said would still "strain our resources almost to the breaking point."

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Supreme Court = Activist Supreme Court recently ignored precedent with the D.C. handgun ban. Erwin Chemerinsky, dean of the University of California, Irvine School of Law, originally appearing in the Los Angeles Times, “Judicial activism by conservatives,” 6/30/08, http://www.baltimoresun.com/news/opinion/oped/bal-op.antiguns30jun30,0,1020170.story The Supreme Court's invalidation of the District of Columbia's handgun ban powerfully shows that the conservative rhetoric about judicial restraint is a lie. In striking down the law, Justice Antonin Scalia's majority opinion, joined by the court's four other most conservative justices, is quite activist in pursuing the conservative political agenda of protecting gun owners. If the terms "judicial activism" and "judicial restraint" have any meaning, it is that a court is activist when it is invalidating laws and overruling precedent, and restrained when deferring to popularly elected legislatures and following prior decisions. Never before had the Supreme Court found that the Second Amendment bestows on individuals a right to have guns. In fact, in 1939 (and other occasions), the court rejected this view. In effectively overturning these prior decisions, the court both ignored precedent and invalidated a law adopted by a popularly elected government.

Activism is inevitable with conservative majority. Erwin Chemerinsky, dean of the University of California, Irvine School of Law, originally appearing in the Los Angeles Times, “Judicial activism by conservatives,” 6/30/08, http://www.baltimoresun.com/news/opinion/oped/bal-op.antiguns30jun30,0,1020170.story This should not be surprising. The conservative justices regularly jettison judicial restraint when it is at odds with conservative politics. They've done the same thing in cases involving affirmative action and desegregation programs. The irony is that the same conservative justices who were so eager last week to find an individual liberty under the Second Amendment are loath to do so when a right of a criminal defendant is at stake or when it is a matter of enforcing the religion clauses of the First Amendment. This decision is a powerful reminder that the conservative justices are activists when it serves their political agenda.

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Supreme Court = Activist The Court’s last two terms have seen multiple precedents shattered. Los Angeles Times, “The evolving Supreme Court,” 6/29/08, http://www.latimes.com/news/printedition/opinion/la-ed-court29-2008jun29,0,681992.story A year ago, when the U.S. Supreme Court finished its second term under Chief Justice John G. Roberts Jr., the court was criticized -including on this page -- for giving the lie to Roberts' paeans at his confirmation hearings to consensus and respect for precedent. Twenty-four cases were resolved by 5-4 votes, and on some key issues there was no majority at all. Far from respecting precedent, the Roberts court in its 2006-07 term executed unseemly U-turns on two issues, approving a federal ban on "partial-birth" abortions and overriding school districts that sought to achieve a modicum of racial integration in the classroom. Last week, the court ended its 2007-08 term, still reckless in its treatment of precedent but more in line with Roberts' comments about consensus. We say this even though three of the most significant cases were decided 5 to 4 on predictable ideological lines: the invalidation of the District of Columbia's gun-control law, turning decades of precedent upside down; a ruling that the death penalty may not be imposed on child rapists; and a rejection of the Bush administration's and Congress' view that detainees at Guantanamo Bay lack the protections of habeas corpus.

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Supreme Court = Divided Court divided now. AP, “Long quiet, justices end their term with a growl,” 6/28/08, http://ap.google.com/article/ALeqM5jqMTOgREK3tZZKxnLN0BErj7BqkwD91J60NG0 The court, in its three most important cases, declared a constitutional right to have guns at home for self-defense, granted some constitutional protections to foreign prisoners at Guantanamo Bay and outlawed the death penalty for people who rape children. Not only did the familiar ideological divisions return in these cases and several others, but the justices took turns hurling charges of "judicial activism" and worse at each other. Giving rights to the detainees "will almost certainly cause more Americans to be killed," Justice Antonin Scalia said in a scathing dissent he read from the bench. No one threw that line back at Scalia in the guns case. But Justice John Paul Stevens, also summarizing his dissent in court, said of Scalia's majority opinion on gun rights that "adherence to a policy of judicial restraint by this court is far wiser than the bold decision it announced today." Those were among nine 5-4 decisions handed down in the past two weeks. Until then, there had been only two all term, leading a former Supreme Court clerk, Robert Gordon, to remark that the era of good feelings at the court lasted about a month.

The last term concluded with sharp internal divisions. New York Times, “Supreme Court,” 7/28/08, http://topics.nytimes.com/top/reference/timestopics/organizations/s/supreme_court/index.html?8qa&scp=1spot&sq=&st=nyt The 2007-2008 term of the Supreme Court was marked by sharp 5-4 divisions in two of its signature cases: a decision overturning the District of Columbia’s ban on handguns and a ruling granting access to federal courts for detainees at Guantanamo who are suspected of terrorism. Chief Justice John G. Roberts, in his third year on the court, was in the majority on 90 percent of the decisions, more than any other justice. But the jurist who left the most definitive mark on the term was Justice Anthony M. Kennedy, who has been on the court for 20 years. He cast decisive votes with the conservative majority in the gun and Guantanamo cases, writing the majority opinion in the latter. He wrote the majority opinions siding with the liberal justices in a case ruling out the death penalty for child rape and in a decision providing more procedural rights to immigrants facing deportation. Read More... Overall, the court did not have as many 5-4 decisions as it did in its previous term. But it also had less unanimity, with fewer than 30 percent of the cases decided without dissent, compared with just over 40 percent in the previous term and just over half in 2005-2006.

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Supreme Court Unpopular The D.C. gun decision decreased Court popularity. Boston Phoenix, editorial, “Crackpot court,” 7/2/08, http://thephoenix.com/Boston/News/64181-Crackpotcourt/ “Gun rights” has been for the Republicans one of the most important, and most crass, of these foolish ideas. Most reasonable people agree that private ownership of weaponry should be carefully controlled and regulated — as a public issue, guns are not all that different from automobiles. Debate over the details properly belongs in the venue of local, state, and national legislatures, to be shaped through discussion, lobbying, public pressure, and ultimately elections. But that approach doesn’t get people riled up to pay membership dues to the National Rifle Association (NRA), or to vote Republican out of the belief that Democrats intend to take away one’s hunting rifle. So, since the early 1970s, the NRA and its ideological brethren have pushed the novel, and unjustified, theory that private gun ownership (for other than state-militia purposes) is an enshrined constitutional right. Republicans latched on, and won over millions of working-class voters. Now, five justices have turned this ludicrous idea into constitutional law, proving that years of nominations made to appease the far right have at last given us a crackpot Supreme Court.

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Patent Overturns Before Supreme Court has overturned prior patent rulings. David Orange, joint J.D.-LL.M. candidate at the University of Washington School of Law, CASRIP Newsletter, Vol. 13, Iss. 1, Winter 2006, http://www.law.washington.edu/Casrip/Newsletter/Vol13/newsv13i1US1.html#_ftn1 The Supreme Court overturned its prior rulings, holding that the presumption of market power derives from the patent misuse doctrine, not antitrust law. The Court explained that Congress began unwinding these doctrines with the codification of 35 U.S.C. 271(d), and that this decision furthers this work. The Court also rejected Respondent's arguments for a rebuttable presumption of market power.

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Distinguishing Doesn’t Solve - Precedent Distinguishing doesn’t solve the precedent – it’s too ambiguous. Jill E. Fisch, Professor and Director, Center for Corporate, Securities and Financial Law, Fordham Law School, 13 Journal of Contemporary Legal SIssues, 2003, “LEGAL TRANSITIONS: IS THERE AN IDEAL WAY TO DEAL WITH THE NON-IDEAL WORLD OF LEGAL CHANGE?: The Implications of Transition Theory for Stare Decisis,” Lexis This second factor is important. Under any rule of stare decisis, courts are only incompletely bound by prior decisions. The second court has, at its disposal, a variety of mechanisms with which to evade the effect of the precedent, including distinguishing the precedent, characterizing components of the old rule as dicta, and so forth. n10 In principle, these tools offer courts expansive power to avoid prior decisions without overruling them. Nonetheless, and despite the easy availability of alternatives, courts do overrule precedents. The persistence of affirmative overrulings suggests that overruling a precedent has an independent lawmaking value that is imperfectly replicated through the alternative mechanisms. Although the alternatives may enable a court to reach its desired outcome, they do not have the same lawmaking effect. Indeed, for purposes of this essay, the distinction between overruling and its alternatives is key. The doctrine of stare decisis constrains [*98] overruling - a distinctive method of legal change - and requires, in those cases in which it applies, one of two alternatives. The first alternative, is incremental lawmaking through the traditional common law methodology. n11 In contrast to overruling, traditional adjudicative legal change is incremental. Specific decisions involve changes of smaller magnitude. In addition, the speed and direction of change is more ambiguous. A third court, taking at face value the second court's effort to distinguish the first court's legal rule, could continue to apply the initial rule. Even if the second court's decision serves as a signal that the legal rule is problematic, the rule's application need not be immediately and universally terminated. Accordingly, n12 some class of litigants may continue to governed by the old legal rule. Thus distinguishing and other incremental forms of legal change afford parties some degree of transition relief that is not available when the court explicitly overrules a precedent.

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Distinguishing Doesn’t Solve - Confusion Distinguishing causes confusion. Michael J. Gerhardt, Associate Professor, Marshall-Wythe School of Law, 60 George Washington Law Review 68, Nov. 1991, “The Role of Precedent in Constitutional Decisionmaking and Theory,” Lexis n119 Implicit overrulings or overrulings sub silentio occur when the Court suggests obliquely or by inference that some precedent(s) may no longer be viable. See, e.g., Webster v. Reproductive Health Servs., 492 U.S. 490, 532 (1989) (Scalia, J., concurring in part and concurring in the judgment) (suggesting that the Court can overrule precedents either explicitly or sub silentio). Implicit overrulings and distinguishing cases differ in their respective practical effects: an implicitly overruled precedent no longer controls even the fact situation it initially purported to resolve, while a distinguished precedent at least retains sufficient vitality to resolve a fact situation identical to that which it originally settled. Sometimes the Court can cause confusion when the Court does not make clear whether it is distinguishing or implicitly overruling a precedent. For example, the Court generated considerable confusion in a series of decisions involving whether private shopping centers could regulate political speech. See Marsh v. Alabama, 326 U.S. 501 (1946) (reversing the conviction of a Jehovah's Witness for distributing religious literature on the premises of a company-owned town); Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, 391 U.S. 308 (1968) (holding that the prohibition of peaceful labor picketing of a store within a shopping center violated the First Amendment); Lloyd Corp. v. Tanner, 407 U.S. 551 (1972) (upholding a privately owned shopping center's prohibition of union picketing of a store on the premises); Hudgens v. NLRB, 424 U.S. 507 (1976) (clarifying that Lloyd effectively had overruled Logan Valley).

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Distinguishing Doesn’t Solve – Lower Courts Even if the Supreme Court distinguishes, the lower courts will apply the old precedent. Christopher J. Peters, Assistant Professor of Law, Wayne State University Law School, 100 Columbia Law Review 1454, Oct. 2000, “ASSESSING THE NEW JUDICIAL MINIMALISM” This challenge to the accountability of adjudicative decisionmaking is a function of a lack of narrowness (that is, of width) in judicial decisionmaking. But it is worth noting that a lack of shallowness (depth) can compromise accountability in precisely the same way. Indeed, depth produces [*1516] width. It is difficult to imagine a court opinion that is deeply reasoned without, by virtue of the very depth of its reasoning, also setting out some sort of broad rule that will impact future cases. Suppose, for example, that a court strikes down as unconstitutional a particular government activity - say, the maintenance of a males-only public military college - but gives no reason for doing so other than simply saying, "This particular policy on these particular facts violates the Equal Protection Clause." Such a decision would be both very shallow and very narrow; it would have no necessary implications for any other case, unless another case arises bearing virtually identical facts to those at issue in the precedential case. But suppose, on the contrary, that the court invalidates the males-only policy in a deeply reasoned opinion elucidating first principles of gender equality under the Equal Protection Clause. (This is what the Supreme Court actually did in its VMI decision. n255) Even if the court purports to act narrowly in doing so - by expressly limiting the precedential force of its decision to the particular facts of the case, as the VMI Court did - the actual impact of the decision will be inescapably broader than those particular facts. This will hold true especially among lower federal and state courts, which will properly be reluctant to ignore the grounds upon which a Supreme Court decision has been rendered. The deep reasoning underlying the decision, precisely because it is deep reasoning, will have applications in other gender equality cases. In effect, the reasoning will operate as a sort of rule, influencing the decisions of future cases to which that reasoning is relevant. And that reasoning will be relevant in a broad spectrum of cases involving government-imposed distinctions between men and women, not just in cases with facts very similar to those of VMI.

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Distinguishing Kills Stare Decisis Distinguishing destroys stare decisis – it lacks flexibility and judgement. Richard B. Cappalli, Professor, James E. Beasley School of Law, Temple University, 72 Temple Law Review 303, Summer, 1999 “WHAT IS AUTHORITY? CREATION AND USE OF CASE LAW BY PENNSYLVANIA'S APPELLATE COURTS” In utilizing stare decisis, n75 the Pennsylvania courts commit themselves to deploying the full range of skills and methods necessary to execute the doctrine correctly. As the Pennsylvania Supreme Court has stated, "for the sake of certainty, n76 a conclusion reached in one case should be applied to those which follow, if the facts are substantially the same...." n77 The seemingly innocuous phrase, "if the facts are substantially the same," however, has provoked worlds of controversies. n78 The word "substantially" makes the matter more complicated than merely determining whether the facts in Case B are identical to those in Case A. It injects flexibility and, hence, judgment. If precedents were binding only upon their DNA clones, the doctrine of precedent would be of small value. Judges are allowed to discount some factual dissimilarities. But which?

Distinguishing kills stare decisis. Jason M. Waite, Associate, Grunfeld, Desiderio, Lebowitz & Silverman, LLP, 33 New England Law Review 81, Fall 1998, “Agostini v. Felton: Thickening the Establishment Clause Stew” In Agostini, the Court neglects this principle of the rule of law leaving even the most learned citizens guessing as to what the Constitution might tomorrow be held to have mandated. If Aguilar can be implicitly overruled by Zobrest and Witters, whose pronouncements are only analogously applicable, then any majority of Justices is able to recognize or effect a change in law without actually having to justify its decision to overrule the prior case on the merits. The Court can avoid the responsibility that comes with changing the law by simply saying that it has already changed. Competing interpretations of precedents in an area of law such as the Establishment Clause are understandable because in such a sensitive area of law it is impossible "to find any set of principles that reconciles all standing statutes and precedents." n245 However, because of the Rule 60(b)(5) context of the case, the Court in Agostini effectively is forced to assert that the "gravitational force" n246 of Aguilar silently disappeared. This silent disappearance is particularly disconcerting because, as Professor Ronald Dworkin has written, when recognizing mistakes in prior decisions, "consistency requires justification, not explanation, and the justification must be plausible and not a sham. If the justification . . . makes distinctions that are arbitrary and deploys principles that are unappealing, then it cannot count as justification at all." n247 Agostini, because of its procedural context, fails to provide an adequate justification for change in the law. After a careful [*112] and genuine reading of Zobrest and Witters, it remains difficult to understand how Aguilar ever lost the status of law without proper justification in the form of a fresh new case directly challenging its precepts.

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Overruling Common The Supreme Court overturns an average of 3 precedents every year. James F. Spriggs and Thomas G. Hansford, Department of Political Science at University of California, Davis, Journal of Politics, April 1998, “Explaining the Overruling of U.S. Supreme Court Precedent,” http://www.law.berkeley.edu/institutes/csls/precjopfinal.pdf 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?

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Overruling Helps Credibility Overturning a recent precedent bolsters Supreme Court credibility. Christopher J. Peters, Assistant Professor of Law, Wayne State University Law School, 100 Columbia Law Review 1454, Oct. 2000, “ASSESSING THE NEW JUDICIAL MINIMALISM” Might there be some tension in extolling the connection between rights and the continuity of the common law method, as I did in Part III.C, while at the same time appealing to the adaptability of the common law method, as I have just done in responding to the inertia objection? In the context of overrulings of precedent, this tension may indeed exist. When the Court overrules its own precedent - at least when it does so in fairly short order, as in Adkins and West Coast Hotel - it acts like a legislature repealing a statute, and thus arguably forfeits some of its credibility as a trustworthy decisionmaker about rights. n303 Of course, it can also be argued that the Court bolsters its credibility by quickly repudiating decisions that are obviously wrong. n304

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Overruling Doesn’t Affect Stare Decisis Overruling decisions is inevitable and doesn’t hurt stare decisis. John Paul Stevens, Associate Justice, Supreme Court of the United States, New York University Law Review, Vol. 58, No. 1, April 1983 Numbers can be misleading. Two or three overrulings each Term are, indeed, significant. But it must be remembered that the Court disposes of literally thousands of cases every year; over and over again the Court’s action involves nothing more than the application of old precedent to a new controversy. Moreover, as the body of precedent continues to grow year after year, the likelihood that doctrinal inconsistency may force the Court to reject one precedent in favor of another must likewise increase. As the nation itself grows older – surviving and adjusting itself to changes in the economy and changes in the temper of its people – it is inevitable that judge-made rules that were fashioned in different periods of our dynamic history will be subjected to increasingly frequent reexamination. Quite clearly the mere number of overruling decisions is not sufficient to warrant the conclusion that the rule of stare decisis has passed away.

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***AT: LOWER COURTS CP***

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No Solvency Underruling the Supreme Court can’t solve – better benefits come from the Supreme Court alone. Charles H. Koch, Dudley W. Woodbridge Professor of Law, William and Mary School of Law, 56 Alabama Law Review, Spring 2005, “POLICYMAKING BY THE ADMINISTRATIVE JUDICIARY” Caminker posits a nonhierarchical system in which courts at all levels have equal lawmaking authority. n64 Interestingly, such a system is not merely hypothetical. As strange as such a system might feel to common-law lawyers, Caminker notes the error in dismissing the system as implausible because the system apparently works in civil-law countries. n65 Moreover, some administrative systems, especially in the states to be discussed in subpart V.A, are increasingly giving the administrative judges such autonomy. Caminker examines the possible gains accrued from disobedience by an inferior adjudicative authority, or "underruling." Disobedience may spur reform; indeed, some refusal to follow prior authority is a necessary element to reevaluation. Still, in the end, Caminker concludes that the benefits of disobedience are ambiguous, conceding that "one might identify discrete instances in which the benefits of forced rethinking likely outweigh the costs, but a flat prohibition of underruling might better balance benefits and costs over the entire range of cases." n66 These observations support a cabined opportunity for experimentation and even disobedience at the administrative judge level. n67

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No Solvency – State Courts Won’t Enforce State Courts won’t enforce the counterplan. Evan H. Caminker, Professor of Law at UCLA, “Why Must Inferior Courts Obey Superior Court Precedents,” 46 Stan. L. Rev. 817, 825, April 1994. The doctrine also applies to state and territorial courts. These courts are bound by precedent set by the United States Supreme Court, which has the authority to review their federal law decisions. But the state and territorial judges are not bound by precedents established by courts that do not have the authority to review those judges' decisions, since, as in the Article III regime, authority to establish precedent follows the path of appellate review. Thus a state court need not follow the holdings of any inferior federal court, including the court of appeals in whose geographical region the state court sits.

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No Solvency – SC Decisions = Better Supreme Court numbers and expertise means better decisions. Evan H. Caminker, Professor of Law at UCLA, “Why Must Inferior Courts Obey Superior Court Precedents,” 46 Stan. L. Rev. 817, 825, April 1994. Congress also created a structural distinction among the courts of various tiers by varying the courts' sizes. District court judges generally decide cases [*847] alone, 118 courts of appeals judges usually in panels of three, 119 and the nine Supreme Court Justices collectively. If "two heads are better than one," then higher courts will tend to make the best decisions. 120 Assuming (quite reasonably) that each individual judge has a greater than fifty percent chance of arriving at the "correct" answer in any given legal dispute, then the larger the panel the greater the likelihood that a majority of them will reach the correct result, 121 even if each judge decides independently without consulting the others. Further, multimember courts create the opportunity for collegial deliberation, which improves individual decisionmaking by adding perspectives 122 and ferreting out faulty reasoning. 123 Of course, beyond some point increased court size can frustrate collaboration and creativity. 124 But at current staffing levels, my sense is that collegial deliberation within larger courts marginally adds to the purely numerical argument that nine heads are better than three heads are better than one. Taken together, the functional and structural perspectives suggest that 3-judge courts of appeals panels are more proficient at resolving novel legal controversies than are single-judge district courts. While no salient functional difference distinguishes the courts of appeals and the Supreme Court, the structural argument suggests that nine heads are marginally better than three. Hence proficiency in resolving legal issues increases from district court to appellate panel to Supreme Court.

Supreme Court sets better precedents – more justices. Evan H. Caminker, Professor of Law at UCLA, 73 Texas Law Review 1, April 1994. Second, differences in court sizes across the tiers influence the quality of decisionmaking. District court judges almost always decide cases alone, 152 judges sitting on circuit courts of appeals generally decide cases in panels of three, 153 and the nine Justices on the Supreme Court always decide cases as a single group. 154 This numerical superiority of higher level courts by itself ensures better decisionmaking. 155 Moreover, the benefits of numerosity become magnified by the opportunity for collegial deliberation. Such deliberation among judges addressing the same legal issues helps to foster universal awareness of potential approaches and to ferret out faulty or incomplete reasoning. 156

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No Solvency – Corner Cutting Lower courts can’t solve – corner-cutting means no enforcement. Brannon P. Denning and Glenn H. Reynolds, Assistant Professor of Law at Southern Illinois University, Professor of Law at University of Tennessee, 55 Arkansas Law Review 1253, 2003 “RULINGS AND RESISTANCE: THE NEW COMMERCE CLAUSE JURISPRUDENCE ENCOUNTERS THE LOWER COURTS,” *1303 But if ideology is not the source of lower court resistance--or, if any sustained inquiry is likely to result in the old Scots verdict, "not proven"--is there an explanation for lower courts' behavior? Research by other scholars suggests that the problem here, to paraphrase former presidential candidate Michael Dukakis, is not ideology, but rather competence. What we are seeing in lower courts' Commerce Clause decisions may be only symptomatic of a larger problem in the federal judiciary: that of courts responding to an increasingly unmanageable caseload by resorting to corner-cutting, resulting in an overall reduction in the quality of courts' work product. In a provocative recent article, [FN254] William Richman and William Reynolds, two scholars of the federal judiciary, have argued that an increased federal judicial caseload has resulted in federal judges adopting "shortcuts to decision making," [FN255] such as the disposition of cases without oral argument, [FN256] the limitation of published opinions (including the use of per curiam opinions), [FN257] and an increased reliance on non-judicial decision makers--clerks, staff attorneys, and the like. [FN258] "Another way to cope with the burgeoning caseload," the authors noted, "is to propound decisional rules that either discourage litigation, particularly at the appellate level, or that make the cases easier to *1304 resolve." [FN259] The result, the authors argued, is that "the right to appeal" in many cases "is now only nominal." [FN260] A further result is a diminution in quality of the appellate court work product. [FN261] Moreover, they argued, this decline in quality is disproportionately borne by disfavored litigants bringing "trivial cases" that federal judges complain clog their dockets. [FN262]

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AT: Lower Courts Have Expertise Even if lower courts have expertise, it doesn’t justify overruling – there are alternate forums. Evan H. Caminker, Professor of Law at UCLA, “Why Must Inferior Courts Obey Superior Court Precedents,” 46 Stan. L. Rev. 817, 825, April 1994. The countervailing argument that a rigid rule of obedience stifles lower courts' potential to spur desirable law reform has some force to it. 215 But this argument fails to the extent that Article III itself designates the Supreme Court as the interpretive leader of the federal judiciary. Moreover, the argument is further undermined by the fact that lower courts can still contribute to an interpretive dialogue through critical opinion-writing short of actual underruling, 216 and a rule allowing underruling even under limited circumstances might easily be abused by lower court judges confronting disfavored precedents. 217 On balance, the premium placed on national interpretive uniformity and centralization of final judicial authority persuasively justifies a bright-line rule of obedience.

Benefits of lower courts are exaggerated – they aren’t “laboratories.” Evan H. Caminker, Professor of Law at UCLA, 73 Texas Law Review 1, April 1994. [*56] Defenders of inferior court dialogue typically describe lower courts as "laboratories" in which multitudes of judges independently evaluate and construct legal arguments. 196 Specifically, they independently interpret existing precedents, identify and flesh out various legal principles and their applications, and construct what they consider to be optimal and workable doctrinal rules. When a legal question reaches the Supreme Court, the Court can inform its own judgment by the processes and conclusions of these separate judicial laboratories as they grapple with pure questions of law. Ironically, I believe that this most-often-cited contribution of lower court percolation is also the most exaggerated. 197 In a mature legal system, there quite frequently exists a relatively small number of readily identifiable, plausible interpretations of precedent and sensible doctrinal constructs. In such cases, the independent judgment of inferior courts will not likely bring to the Supreme Court's attention arguments and approaches that would not otherwise present themselves either upon the Justices' (or their clerks') reflection, through briefing by litigants or amici curiae, or through scholarly commentary. 198 Moreover, the more a particular issue has already percolated its way up to the Supreme Court such that individual Justices have already issued dispositional rules or probative dicta on point, the less likely that an inferior court deciding the issue will have a novel approach to share.

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AT: Lower Courts Have Expertise Lower court action is overrated – Supreme Court has more expertise and makes more credible decisions. Evan H. Caminker, Professor of Law at UCLA, 73 Texas Law Review 1, April 1994. [*57] Of course, lower court judges might on some occasions devise unique analyses or doctrines that have and would otherwise continue to escape notice. Even then, such judges could bring their ideas to their superiors' attention without relying on those ideas for their disposition. For example, an inferior court judge who held a strong and apparently novel view on a legal issue might decide a case based on the Supreme Court's predicted ruling, but simultaneously include in her opinion an explanation of her preferred legal analysis. 199 In this way, the judge can both employ the proxy model and yet simultaneously provide the Court with the widest possible range of views. 200 Overall, the claim that inferior court percolation is essential to provide a comprehensive array of analyses and approaches available to the Supreme Court seems to inflate its contribution significantly. The proxy model does make it more difficult or awkward for a lower court judge to share with the Court her level of conviction concerning which approach is optimal. And perhaps this conviction ought to matter, at least for certain types of legal issues. On one hand, with respect to most straightforward questions of statutory construction, I doubt that the strength of an inferior court's conviction that a particular interpretation provides the best reading will -- or should-influence the Supreme Court's independent judgment. It is difficult to see what expertise the inferior court might bring to the problem that would outweigh the general presumption of greater proficiency in the Supreme Court. 201

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AT: Lower Courts Have Expertise Even if lower courts have expertise, Supreme Court won’t listen to their input. Evan H. Caminker, Professor of Law at UCLA, 73 Texas Law Review 1, April 1994. On the other hand, perhaps inferior courts, and particularly district courts, will have some special insights into legal questions arising in [*58] specific contexts. For example, district courts might be better situated to determine whether particular evidentiary exclusionary rules deter police misconduct, given their greater exposure to testimony by and about police officers. District or circuit courts might offer unique contributions when discussing region-sensitive areas of law such as environmental law and labor law, for which, perhaps, the needs and burdens of federal law would be felt quite differently in varying geographic regions. Finally, district court judges might gain, through close, personal exposure to litigants, important insights into people's thoughts, attitudes, and fears that arguably deserve attention and respect from our legal order. For example, Judge Terry Hatter's decision in Meinhold 202 is but one of a recent spate of district court opinions invalidating various military policies excluding homosexual persons from service on the ground that such policies are based on prejudice rather than rational argument. 203 These rulings might reflect an enlightenment about the character and quality of homosexual servicepersons 204 and the character and agenda of the armed services 205 obtainable best through direct and sustained interaction with both. 206 Even in such contexts, I question whether inferior court judgments significantly influence ultimate Supreme Court rulings very often. At present, the Court's decisional processes and methodologies often preclude any such influence. Justices frequently do not avail themselves of any potential inferior court contributions, 207 and they frequently employ [*59] interpretive methodologies, such as plain-language interpretation or originalism, for which contextual assessments concerning how a rule will play out in a given region or how it will affect particular persons have little if any relevance. Even if the Court were to employ interpretive methodologies more attentive to the real world context in which a legal rule is situated, 208 the number of occasions in which district (or appellate) courts' convictions about legal questions, as opposed to factfinding, would overshadow other sources of information and conviction available to the Justices might remain quite small. Hence, district courts revealing their independent convictions in the kinds of cases mentioned above might offer important contributions, but only in a few instances. Finally, some defenders of percolation suggest that divergent inferior court rulings are desirable because they create real-world experiments that can help Supreme Court Justices determine the workability and desirability of various legal rules governing a particular issue. 209 This appears more true in theory than in practice. It is already a stretch to assume today that Justices or their clerks carefully read lower court opinions. 210 It goes even further to assume that Justices actually monitor and compare the actual operation of divergent lower court rules, 211 particularly when the Court's interpretive methodologies frequently eschew the relevance of such empirical data. 212

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No Solvency - Supreme Court Sets Law No Solvency - only the Supreme Court can change the law

Michael C. Dorf, Associate Professor of Law at Rutgers University, JD from Harvard, 42 UCLA Law Review 651, 1995, “Prediction and the Rule of Law” [*677] Notwithstanding Judge Woodbury's points, the efficiency-based argument for prediction rests on the rather dubious assumption that a lower court prediction that an existing high court precedent will be overruled will in fact prevent the high court from having to take the case. If anything, such an approach would seem to have the opposite effect. When a federal appeals court judge predicts that the Supreme Court will likely renounce some existing precedent, for all courts outside the judge's circuit, the prediction does not actually change the law: Only the Supreme Court can do that. Even if the appellate judge accurately predicts the Supreme Court's inclination to change the law, the Court will still have to take the case to do so. On the other hand, if the appeals court mistakenly predicts that the Supreme Court would overrule a precedent, the Court would almost certainly have to take the case to resolve the split in authority. 88 Thus, regardless of the accuracy of the appeals court's prediction, it saves the Supreme Court no work.

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No Solvency – State Courts State courts don’t listen to circuit court precedent. Larry W. Yackle, Professor of Law at Boston University School of Law, 91 Cornell Law Review 541, 2006 [*554] Of course, the arrangements under which inferior federal courts take up their duties are complex. Those courts have original jurisdiction to resolve most civil disputes genuinely arising under federal law. 70 Yet state courts ordinarily have concurrent jurisdiction in the same cases. 71 By tradition, state courts and inferior federal courts are coordinate equals operating in a single judicial system. Inferior federal courts have no appellate jurisdiction to review state court judgments for error, 72 and the Full Faith and Credit Statute typically prevents them from considering issues that were or might have been adjudicated previously in civil proceedings in state court. 73 We have developed a host of other quasi-constitutional norms, statutes, rules, and common law doctrines to mitigate competition and friction between the two sets of courts contending, after a fashion, for the same business. 74 In all these ways, we prevent inferior federal courts from routinely superintending the work of their state counterparts in civil cases implicating federal law. 75

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Turn – Judicial Economy More discretion to lower courts overloads the Courts docket and hurts judicial economy Hugh Baxter, Associate Professor at Boston University, JD at Stanford, PhD at Yale, 46 UCLA Law Review 343, 1998 Speaking last and decisively, however, is apparently not enough for the Court. Rodriguez de Quijas's insistence on the Court's special "prerogative" may rest on three additional considerations. First, the Court may believe [*448] that reasons of judicial economy require limits on the lower courts' interpretive freedom. Second, the Court may believe that line-drawing problems counsel against recognizing even a small category of cases in which lower courts permissibly could refuse to enforce a Supreme Court precedent. Third, the Court likely prefers to retain maximum control over the timing of legal change and maximum control over its own docket. Allowing lower courts the opportunity to force a decision whether to overrule a precedent arguably would interfere with the Court's power to manage the process of legal change. 532 The judicial economy point is not wholly mistaken. Admittedly, allowing lower courts to determine that a Supreme Court precedent is no longer applicable might marginally increase the likelihood or scope of litigation in some cases. The reasons why are as follows. Under Rodriguez de Quijas, the only chance of ultimate victory for the party seeking an overruling decision lies in the Supreme Court. This still would be true if Rodriguez de Quijas's constraints were relaxed, because the losing party likely would seek Supreme Court review, and the Court likely would grant it, in most cases in which a federal court of appeals or state supreme court refused to apply a Supreme Court precedent. But the party seeking an overruling decision would have a better chance of getting Supreme Court review, and perhaps ultimately victory, if the lower courts could force the Court to take the case by declining to apply one of the Court's precedents. This improved chance of success might make parties more likely to challenge embattled Supreme Court precedents. Some suits likely would be filed that would not have been filed under Rodriguez de Quijas, and in some cases that would have been filed anyway, the additional issue whether to follow the Court's precedent would marginally burden the courts at each level.

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AT: Judicial Economy Net Benefit No Net Benefit – The CP doesn’t increase efficiency, the Supreme Court will eventually have to hear the case.

Michael C. Dorf, Associate Professor of Law at Rutgers University, JD from Harvard, 42 UCLA Law Review 651, 1995, “Prediction and the Rule of Law” [*677] Notwithstanding Judge Woodbury's points, the efficiency-based argument for prediction rests on the rather dubious assumption that a lower court prediction that an existing high court precedent will be overruled will in fact prevent the high court from having to take the case. If anything, such an approach would seem to have the opposite effect. When a federal appeals court judge predicts that the Supreme Court will likely renounce some existing precedent, for all courts outside the judge's circuit, the prediction does not actually change the law: Only the Supreme Court can do that. Even if the appellate judge accurately predicts the Supreme Court's inclination to change the law, the Court will still have to take the case to do so. On the other hand, if the appeals court mistakenly predicts that the Supreme Court would overrule a precedent, the Court would almost certainly have to take the case to resolve the split in authority. 88 Thus, regardless of the accuracy of the appeals court's prediction, it saves the Supreme Court no work.

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No Solvency - Supreme Court Will Reverse No Solvency – the Supreme Court is actively opposed to lower courts not following precedent and will strike down the counterplan. Ashutosh Bhagwat, Professor of Law at University of California, Hastings College of Law, JD from University of Chicago, 80 Boston University Law Review 967, 2000 The Khan litigation represents a relatively extreme version of an [*970] increasingly common phenomenon: the Supreme Court's insistence that lower courts must apply and follow an extant, on-point precedent of the Court no matter how outdated that precedent, and no matter how much later decisions may have undermined the reasoning of that precedent. This rule, at least in its modern, implacable form, is of relatively recent vintage. 16 Though in various opinions the Court has hinted at such a principle for many years, 17 it was only in 1989 in Rodriguez de Quijas v. Shearson/American Express, Inc. 18 that the Court unequivocally stated: "If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions." 19 Rodriguez de Quijas also involved application of a moribund and seemingly undermined Supreme Court precedent, but in that case, unlike Khan, the Court of Appeals chose to treat the precedent as not binding. For this impudence, the Supreme Court scolded the lower court (despite the majority's agreement with and affirmance of the Appeals Court on the merits of the case), with the dissent in the Court accusing the Court of Appeals of "engaging in an indefensible brand of judicial activism." 20 As in Khan, however, the Court offered no justification for its adoption of this rule. Since Rodriguez de Quijas, as Judge Posner notes, the Supreme Court has become "increasingly emphatic, even strident" n21in its insistence that lower courts follow all extat Supreme Court precedent until and unless it has been expressly overruled. Another recent, prominent example of this trend is Agostini v. Felton, a case which because of its unusual procedural posture presented a particularly striking application of the Court's approach. 22 In this [*971] paper, I do not mean to debate the merits and demerits of this approach in detail. Other scholars have discussed the evolution of the rule of Rodriguez de Quijas, and have ably (as well as almost unanimously) critiqued it. 23 Instead, I wish to look at this rule in a broader context, to seek out its institutional roots and purposes, and through this to try and cast light on the broader question of the role of the Supreme Court in the federal judiciary.

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No Solvency – Supreme Court Will Reverse The Court has already shown its hand – they will overrule any lower court violation of precedent. Ashutosh Bhagwat, Professor of Law at University of California, Hastings College of Law, JD from University of Chicago, 80 Boston University Law Review 967, 2000 Further explanation for the Court's approach towards undermined precedents seems necessary, and the only one that comes to mind is distrust of the lower courts - and in particular, distrust of the lower federal courts since they are most likely to be in the position to "underrule" the Court's decisions. The Court seems willing to tolerate the inefficiency, delay, and occasional injustice generated by its approach because it does not wish to grant lower courts the authority to decide when a precedent of the Court has been so undermined as to be no longer binding. In light of the above criticisms, other justifications for the rule, such as minimizing conflict, or maintaining an orderly system of justice, vanish. A strict application of the doctrine of Rodriguez de Quijas seems more likely to breed confusion and conflict (albeit internal conflict within the judiciary as a whole, rather than inter-circuit conflict) than to reduce it. Therefore, whether justified as a form of respect or as a necessary consequence of stare decisis principles, the doctrine of Rodriguez de Quijas ultimately must be understood as a mode of control, of exercising power over the other courts in the federal judicial hierarchy. When the Court insists on retaining its "prerogative... to overrule one of its precedents" 56 - note the royal connotations 57 it is attempting to exercise a strict form of supervision over lower courts, thereby denying them a substantial area of discretion. 58

The Supreme Court will reject down the counterplan. Ashutosh Bhagwat, Professor of Law at University of California, Hastings College of Law, JD from University of Chicago, 80 Boston University Law Review 967, 2000 Whatever its causes, evidence of such a change in the Court's attitude abounds. In addition to the "underruling" rule of Rodriguez de Quijas, there are the recent, highly publicized disputes between the Supreme Court and the Ninth Circuit over implementation of the death penalty. On two separate occasions in recent years the Court has chastised the Ninth Circuit Court of Appeals for obstructing state efforts to carry out a death sentence. 63 In the first incident, involving the execution of Robert Alton Harris in 1992, the Court took the extraordinary step of issuing an order to the Ninth Circuit stating that "no further stays of Robert Alton Harris' execution shall be entered by the federal courts except upon order of this Court." 64 In the second case, involving Thomas Thompson, the Court severely criticized the Ninth Circuit's unusual procedural actions, accusing the lower court of negligence, coming close [*979] to accusing it of bad faith, and concluding that the Ninth Circuit had committed a grave abuse of discretion. 65 The dispute between the Supreme Court and the Ninth Circuit might simply be attributed to politics; but that is not a complete explanation. In recent years, the Court has made it a priority to severely limit judicial, especially federal judicial, interference in the death penalty process, and thereby to speed up the execution process in this country. The Court's substantive Eighth Amendment jurisprudence, as well as its decisions limiting federal habeas corpus relief, reflect this policy. 66 In Harris and Thompson the Ninth Circuit demonstrated a willingness to ignore the Court's policy preferences. This was unacceptable to the Court, and in response in Harris, it took the extreme, and arguably illegitimate, step of stripping the Ninth Circuit of the judicial power conferred on it by Congress.

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No Solvency – Supreme Court Will Reverse No Solvency – Supreme Court will overrule the counterplan. C. Steven Bradford, Assitant Professor of Law at University of Nebraska College of Law, JD from Harvard Law, 59 Fordham Law Review 39, 1990 In Rodriguez, the court expressly overruled Wilko and extended the McMahon holding to 1933 Act claims, in effect confirming the prediction of those courts that viewed McMahon as overruling Wilko. Both the majority and the dissent in Rodriguez, however, lashed out at the lower courts for what the Justices saw as a premature rejection of Wilko. According to the Supreme Court, lower courts owe absolute allegiance to Supreme Court opinions, doubtful or not, until the Supreme Court expressly overrules them. "If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions," the Rodriguez majority wrote, "the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions." 17 With no further discussion of the issue, the Supreme Court rejected anticipatory overruling.

The Court would feel extra pressure to reverse the counterplan. Hugh Baxter, Associate Professor at Boston University, JD at Stanford, PhD at Yale, 46 UCLA Law Review 343, 1998 A more weighty argument in favor of Rodriguez de Quijas, I think, concerns the Court's interest in managing the process and timing of legal change, by maintaining full control over its own docket. The Court may have determined to overrule one of its precedents, but only in the right sort of case. It may be interested, for example, in taking a case with a particular kind of fact-situation, in ensuring that both sides are represented by good counsel, in avoiding procedural quirks in the case under review, or in taking a case in which the issue has adequately "percolated" in lower courts. Such considerations, important in any decision to grant certiorari, 534 are perhaps more important in cases in which the Court is considering whether to announce the overruling of one of its own precedents. Yet the Court would feel strong pressure to take any case in which the lower court held a directly relevant Court precedent unenforceable in light of more recent Court authority. Relaxing the constraints of Rodriguez de Quijas, then, arguably would interfere with the Court's management of legal change.

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Supreme Court Solves Lower Courts Lower courts follow Supreme Court precedent. Tajuana Massie, Department of Political Science at University of South Carolina, American Political Science Association, Sept. 2004, “Precedent or Ideology?” Several recent studies have analyzed the impact of Supreme Court doctrine on the decisions of the U.S. Courts of Appeals, finding empirical support for the proposition that appeals courts follow precedents established by the Court. In the policy areas of antitrust and labor, criminal rights, economic regulations, libel, and patents, scholars have found no clearly defiant or overtly noncompliant decisions by the courts of appeals with precedents established by the Court. For example, in his study, Gruhl (1980) examined appeals court libel decisions in the decade following the Supreme Court’s decision in New York Times v. Sullivan (1964), to determine whether these lower courts faithfully applied the new actual malice test mandated by the Supreme Court. He found that the appeals courts consistently followed the new precedent, and in fact, accepted the basic principle of the Supreme Court’s decision. Additionally, Gruhl found that appeals courts often extended the Court’s decision in New York Times, in anticipation of the direction that the Court appeared to be moving. In his study, Johnson (1987) found that appeals court judges tend to follow the Supreme Court in decisions they cite as precedent. In another study, Pacelle and Baum (1992) found compliance of appeals courts with Supreme Court remands. Songer and Haire (1992) using an integrated model of judicial attitudes, case characteristics, defenses raised by litigants, and changing Supreme Court precedent found that appeals courts obscenity decisions became more conservative after the Court’s decision in Miller v. California. Furthermore, Songer, Davis, and Haire (1994) found appeals court judges to respond positive to Supreme Court job discrimination decisions. While more recently, Benesh (2002) found that courts of appeals judges tend to comply with the Court’s decision in confession cases. Although these studies find courts of appeals decisions to be following precedents established by the Supreme Court, other empirical evidence suggests that these courts are instead responding to shifts in Supreme Court ideology.

Supreme Court has declared its authority over lower courts Amy Coney Barrett, Assistant Professor of Law at Notre Dame Law School, 106 Columbia Law Review 324, March 2006 The Supreme Court's relationship to inferior federal courts is not a matter on which the Court typically reflects in any depth. Nevertheless, the Court in Dickerson recently expressed great confidence in at least one aspect of that relationship: its authority over inferior federal court procedure, even outside the confines of the statutorily authorized federal rulemaking process. As Dickerson suggests, the idea that the Supreme [*325] Court possesses supervisory authority over inferior court procedure is well entrenched in its cases. The Court claimed such authority for the first time in 1943, 2 and since then, it has invoked that authority to announce, through adjudication, a wide range of procedures binding in inferior courts.

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Supreme Court Will Reverse – State Court Conflict The couterplan leads to inconsistency between state courts and circuit courts – this guarantees Supreme Court review. Frank Pommersheim, Professor of Law at University of South Dakota School of Law, 71 University of Colorado Law Review 123, 2000 Two recent cases neatly illustrate this state-created means to end run the doctrine of comity, 34 the Supremacy Clause 35 and principles of collateral estoppel. 36 These cases are Hagen v. [*138] Utah 37 and South Dakota v. Yankton Sioux Tribe. 38 In each of these cases, the Supreme Court decided that an Indian reservation - the Uintah Indian Reservation in Hagen and the Yankton Sioux Reservation in Yankton Sioux Tribe - had been diminished by congressional actions taken in 1905 and 1894, respectively. 39 Both of these cases overruled circuit court decisions to the contrary. 40 Both of these cases also involved state supreme court decisions made in derogation of circuit court precedent directly on point. 41 The state supreme court decisions created the necessary conflict with circuit court case law to guarantee Supreme Court review. 42 This approach achieved the desired Supreme Court review and the Supreme Court, in its current states' rights and anti-tribal sovereignty mode, provided the necessary ad hoc reasoning to conclude that the reservations were necessarily diminished. 43

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Supreme Court Will Reverse – Ninth Circuit Involvement Ninth Circuit involvement slaughters CP solvency – the Supreme Court will reverse. Kevin M. Scott, PhD Assistant Professor of Political Science at Texas Tech University, 48 Arizona Law Review 341, 2006 Over the past fifty years, the Ninth Circuit, the largest circuit court in the country, has been reversed by the U.S. Supreme Court an average of 10.78 times per term. The next closest circuit, the Fifth Circuit, which is also the second largest circuit, was reversed an average of 7.42 times. The frequency of the Ninth Circuit's reversals has been even greater in recent times: over the past twenty-one Supreme Court terms (since the Fifth Circuit was split), the Ninth Circuit has been reversed an average of 14.48 times, with the next closest circuit (the "new" Fifth) reversed 5.14 times per term over the same time period. This disparity grows even greater if one considers that the Supreme Court's caseload has been decreasing steadily since the late 1980s. Figure 1 plots the number of reversals per term for the Ninth Circuit (a three-year moving average), as well as the proportion of [*342] Supreme Court reversals that come from Ninth Circuit decisions. Even using a moving average, one can observe the familiar "spikes" in Ninth Circuit reversal frequencies in the 1983 and 1996 terms. While the reversal rate itself may be sufficient cause for concern, criticism of the Ninth Circuit also focuses on the frequency with which the reversal by the Supreme Court is unanimous. Taking the subset of cases used to calculate Figure 1 that were decided by eight-to-zero, eight-to-one, and nine-to-zero votes (allowing for lone dissents), it is also clear that the number of unanimous and nearly unanimous reversals for the Ninth Circuit is astonishingly high; the Ninth Circuit's proportion of lopsided reversals is greater than its proportion of reversals decided by a closer vote. [*343] Even if one accounts for the workload of the Ninth Circuit, the frequency with which the Ninth is reversed is a statistical anomaly. 2 Recent congressional reviews of the Ninth Circuit effectively highlight the different possible explanations of the frequency of reversals of Ninth Circuit cases. The first attempt, which culminated in the report of the Commission on Structural Alternatives for the Federal Courts of Appeals, 3 focused on the impact of the circuit's size on its ability to maintain uniform law within the circuit. 4 The Ninth Circuit, with twenty-eight authorized judgeships, has eleven more judgeships than the next largest circuit (the Fifth) and has two more judgeships than the Fifth Circuit did at the time it was split into two circuits. 5

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AT: Lower Courts Check Judicial Activism Lower Courts can’t check the power of the judiciary. Ashutosh Bhagwat, Professor of Law at University of California, Hastings College of Law, JD from University of Chicago, 80 Boston University Law Review 967, 2000 Of course, none of these checks resemble the blunt limits on power available against the political branches. It should be noted in this regard that the changes that I propose here do not require any tangible modifications to existing procedures and doctrines (other than, perhaps, overruling the doctrine of Rodriguez de Quijas and Agostini). 247 They instead require some evolution in the institutional culture and attitudes of the federal judiciary, a far more subtle and difficult thing. At bottom, I suggest that the Court would do a better job, and would better serve its constitutional role, if it treated the lower federal courts as collaborators, rather than as employees. Of course, all collaborators are not created equal, and nothing I propose would deny the Court the power to have the final word on cases or issues; but it would change the extent to which the Court tries to micromanage the activities of the lower courts. Realistically, therefore, the possibility of such change is probably slight because the Court is composed of human beings, and human beings are notoriously unwilling to yield power for the sake of abstract benefits. It may also be in vain to hope for such limited resistance from the lower courts. Such a reaction against the leaders of their own branch of government would be difficult, especially because as noted the Supreme Court seems unlikely to cooperate in a project which would curtail its own power. Any assertion of independence on the part of the lower judiciary will necessarily be in the face of opposition, active resistance, and criticism by the Supreme Court, a force which in truth most federal judges are likely to find irresistible. And in fact, lower courts show only a limited willingness to express their dissatisfaction, or to try and nudge [*1014] the Court towards a more collaborative approach.

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AT: Lower Courts Check Judicial Activism – Timeframe A lower court check on Supreme Court activism would take a long time. Ashutosh Bhagwat, Professor of Law at University of California, Hastings College of Law, JD from University of Chicago, 80 Boston University Law Review 967, 2000 Moreover, even if the Court is willing to contemplate a loss of power, such changes in the Court's culture and practices will take some time to become useful, because of the effects that the modern Court's approach of stripping independence and authority has had on the culture of the lower federal courts. Many if not most lower court judges no longer think of themselves as participants in the joint process of formulating legal rules, and the consequent loss of intellectual independence and curiosity makes those courts ill-suited to (and apparently uninterested in) the collaborative process which I espouse. None of this, however, is irreversible, and such resistance, if it were to emerge, would provide at least some check on the Court's power. That can only be an improvement on the current situation: a Court which faces essentially no external restraints on its power, and has largely abandoned any internal ones.

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No Solvency - Doesn’t Set Precedent Lower court action can’t set a precedent like a Supreme Court decision. Hugh Baxter, Associate Professor at Boston University, JD at Stanford, PhD at Yale, 46 UCLA Law Review 343, 1998 The terms "overruling" and "underruling," sometimes used to include any lower court decision that refuses to enforce a Supreme Court precedent, obscure one further limitation on the present theory. A lower court's determination that the Supreme Court has abandoned or implicitly overruled an earlier precedent would not have the same legal impact as a similar decision by the Supreme Court itself. The lower court's decision in such a case would have no more authority than any other lower court decision - that is, it would not bind higher courts in the same jurisdiction, nor would it bind courts from other jurisdictions. Further, if the decision were rendered by a federal district court, it would be subject to a contrary determination by a court of appeals panel, and that decision itself would be subject to possible en banc review. Similar checks on lower-court interpretation are in place in the state courts. These layers of pre-Supreme Court review likely would insulate the Court from most "rogue" decisions - decisions that are, in any event, always possible, with or without Rodriguez de Quijas's teaching. 530 And finally, of course, the Supreme Court would have in these matters the last and decisive word. 531

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AT: CP Leads to Plan Lower Court action doesn’t lead to Supreme Court modeling Ashutosh Bhagwat, Professor of Law at University of California, Hastings College of Law, JD from University of Chicago, 80 Boston University Law Review 967, 2000 The concept of "percolation" provides another example of the Court's changing attitudes towards the rest of the judiciary. It has long been a predicate of Supreme Court decision-making that before the Court grants certiorari to finally resolve an issue, it will often choose to allow the issue to "percolate" in the courts of appeals, so that the Court has the benefit of multiple perspectives. 67 In recent years, however, no less a figure than Chief Justice Rehnquist has questioned the value of percolation, n68ad a number of academic commentators have agreed, suggesting implicitly (or explicitly) that the lower courts have little to contribute to the Supreme Court's decision-making. 69 Furthermore, Evan Caminker has made the argument, with which I agree, that Supreme Court Justices rarely even read lower court opinions anymore (if they ever did), thereby reducing the value of any percolation. 70 [*980] And even after the Court has resolved a problem, and adopted a doctrinal rule, the Justices also seem to completely lack the institutional capacity to observe the actual operation of various doctrinal formulations in the lower courts, and so to make practical assessments of their "workability and desirability." 71 There are many complex reasons for these developments, including growing caseloads in the lower courts, which limit the Court's ability to keep track of lower court decisions, and the explosion in the filing of amicus briefs that makes lower court opinions a less important source of data and legal arguments. 72 The results are nevertheless clear - a growing isolation of the Supreme Court from the rest of the judiciary.

Lower Court action will never change the Supreme Court’s mind. Evan H. Caminker, Professor of Law at UCLA, 73 Texas Law Review 1, April 1994. In addition, it is highly unlikely that an inferior court exercising independent judgment would benefit the Court's ultimate decisionmaking to all appreciable extent. Whatever the percolation value generally of inferior court input, 235 the fact that some or all of the Supreme Court Justices would have already addressed the issue would make the marginal value of more input close to if not zero. First, the issue likely would have percolated among the lower courts prior to the Supreme Court's addressing it, at which time the proxy model, like the precedent model, would have revealed the inferior courts' independent reasoning. Second, now that various Justices would have taken a firm position in writing, it is doubtful that they would change their mind simply on the basis of a contrary lower court opinion. The likely percolation value of independent judgment is therefore quite specious when predictive data falling into the first two categories are available.

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AT: CP Leads to Plan – Links to NB If the counterplan leads to Supreme Court action, it links to all of their legitimacy net benefits. An overrule is an overrule, regardless of who initiates it Evan H. Caminker, Professor of Law at UCLA, 73 Texas Law Review 1, April 1994. But the desire to maintain national uniformity cuts the other way. In this context, uniformity has both a temporal and a geographical dimension. With respect to temporal uniformity, if the Supreme Court did in fact overrule itself, there would be an abrupt break in the law either way, whether initiated by the inferior court through anticipatory overruling or initiated later by the Supreme Court's reversing the inferior court's reliance on precedent. If the Supreme Court perchance decided in the end not to overrule itself, then in hindsight a proxy court would have created a momentary instability in the law, but a precedent court would have maintained continuity. 248 With respect to geographical uniformity, the precedent model's requirement that all courts stick with the old precedent ensures perfect consistency. The proxy model at best might do the same, but could possibly generate conflicts. Thus, both dimensions of uniformity counsel rejection of prediction. The interest in taking advantage of the Supreme Court's special proficiency is equivocal at best. The old rule reflected, at the time it was decided, the Court's functional and structural advantages. The probative data suggesting a new position might or might not do the same, depending on whether the relevant predictive data fall into the first two categories of previously endorsed dispositional rules or strong dicta. Thus, even with a high correspondence probability, the proxy model does not clearly advance the hierarchy values. 249 [*72] Finally, a bar on anticipatory overruling would assuage any concerns that inferior courts might abuse the proxy model by stretching to circumvent disfavored Supreme Court precedents based on relatively flimsy evidence that the Court might overrule them itself. 250 Because the cost of such behavior to uniformity values is quite high, a prophylactic rule against anticipatory overruling seems sensible. 251

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Legitimacy DA

The counterplan devastates Supreme Court legitimacy. Lindsay Harrison, lecturer in law at University of Miami, JD from Harvard Law School, 2005, http://legaldebate.blogspot.com/2005/11/courts-of-appeal-cp.html If the Courts of Appeal were to uniformly ignore and in fact contradict binding Supreme Court precedent, it would undermine the Court's legitimacy and would call into question our entire judicial system. As Professor Stephen Presser has stated, "There is no more basic principle of our federal judicial system than the binding nature of Supreme Court precedent on the courts of appeals and the district courts." (Professor of Legal History, Northwestern University School of Law, Should Ideology of Judicial Nominees Matter? 6 Tex. Rev. L. & Pol. 245 (2001)). Part of the reason the U.S. judicial system is so well-respected is the adherence to precedent by the intermediate appellate courts. If those courts were to abandon that principle and then the Supreme Court denied cert, it would be an unprecedented (no pun intended) blow to the Court's legitimacy, both in the domestic legal world and abroad. Not only would the discretion of the Courts of Appeal be called into question, but the Supreme Court would be taken to task for shirking its responsibility - nothing could make the Court appear weaker than to be told by its literal inferiors that it got it wrong on a question of constitutional law and then to functionally concede the point by denying cert.

Inconsistency between the lower courts and Supreme Court drains public respect for the judicial system and the rule of law. Evan H. Caminker, Professor of Law at UCLA, “Why Must Inferior Courts Obey Superior Court Precedents,” 46 Stan. L. Rev. 817, 825, April 1994. Uniformity of federal law interpretation across the nation ought to be considered equally important in preserving courts' perceived legitimacy. If federal law means one thing to one court but something else to another, the public might think either or both courts unprincipled or incompetent, or that the process of interpretation necessarily is indeterminate. Each of these alternatives subverts the courts' efforts to make their legal rulings appear objective and principled. 152 Of course, perceived legitimacy is not measurable and is likely affected by a number of variables besides divergent interpretations by autonomous courts. 153 But at the margin, respect for judicial authority would likely suffer if persistent interpretive conflicts among the federal courts led the public [*854] to believe that interpretation is inherently arbitrary and unprincipled. Put succinctly, internal consistency strengthens external credibility. 154 Cultural desire for a single authoritative voice. Given the Supreme Court's plenary jurisdiction over federal questions, the present hierarchical judiciary vests in a single court the opportunity to provide a final, authoritative voice on the meaning of federal law. One result of this arrangement is nationwide uniformity of interpretation. Yet the presence of a final arbiter may also serve psychological as well as instrumental purposes. In an uncertain world of indeterminate and shifting norms, having a single oracle to provide us answers is comforting. To a great degree, this is how today's public perceives the Supreme Court. 155 Arguably, we need the Court to play this role to maintain a sense of community in our diverse society. 156 Thus the Court's status as the final authority on the meaning of federal law, which assures a measure of uniformity, may also reinforce our need to believe that we live under the rule of law. 157 In sum, consistent interpretation and application of law can secure several important values undergirding a government dedicated to the rule of law. To the extent the doctrine o hierarchical precedent promotes these values, the doctrine has a plausible normative foundation.

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Legitimacy DA No Solvency and Turn - Lower court action will limit the legitimacy of the courts and be struck down. Evan H. Caminker, Professor of Law at UCLA, “Why Must Inferior Courts Obey Superior Court Precedents,” 46 Stan. L. Rev. 817, 825, April 1994. This speculative benefit of improved decisionmaking must be weighed against the process costs of underruling. Suppose an inferior court explicitly underrules a Supreme Court precedent. Unless and until the Supreme Court entertains an appeal and resolves the intramural squabble, the inferior court's defiance will thwart uniform federal law interpretation and its attendant values. 192 If the Supreme Court reviews and reverses (reaffirming its precedent), the inferior court's disobedience will have raised the costs of adjudication 193 and tarnished the Court's stature by challenging its competence 194 for nothing. Only if the Supreme Court actually reviews and affirms the inferior court decision (thus overruling its precedent) will these process costs be justifiable. 195 Paulsen acknowledges that "were judges to [underrule] on every issue on which they disagreed with higher courts, the smooth functioning of the judicial system might rapidly break down." 196 The difficult question is whether, given the potential benefits and costs outlined above, lower court judges should ever do so. I myself agree that a category of cases exists for which, given the Supreme Court's fallibility, the benefit of forced rethinking outweighs its cost, though the category might be quite small, and people might reasonably disagree over its contours. But this conclusion does not necessarily justify the practice of underruling. First, an inferior court could try to stimulate rethinking without resort to underruling by instead issuing a "critical concurrence" - an opinion that follows precedent but simultaneously criticizes it and urges the Supreme Court to review and reverse. 198 By issuing a critical concurrence, the inferior court can encourage reconsideration without threatening the values served by adherence to hierarchical precedent. Perhaps outright disobedience, given its unique emotive force, is more likely to attract the Supreme Court's attention and encourage discretionary review than is the more subtle critical concurrence. 199 This comparison is most likely true, however, in cases where the Court would find disobedience irksome because the Court is strongly wedded to its precedent, and hence review would more likely spur a rebuff than careful reconsideration. In any event, any marginal advantage underruling holds over critical concurrences must be offset by its greater frustration of values secured by hierarchical precedent. 200

The counterplan introduces chaos into the legal system and undermines the Supreme Court Judge Bork, John M. Olin Scholar in Legal Studies at the American Enterprise Institute, National Review, “The Case Against Political Judging,” 12/8/89, http://www.highbeam.com/library/docFree.asp?DOCID=1G1:8185767 The practice of overruling precedent is particularly common in constitutional law, the rationale being that it is extremely difficult for an incorrect constitutional ruling to be corrected through the amendment process. Almost all Justices have agreed with Felix Frankfurter's observation that "the ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it." But that, of course, is only a partial truth. It is clear, first, that Frankfurter was talking about the Supreme Court's obligations with respect to its own prior decisions. Lower courts are not free to ignore what the Supreme Court has said about the Constitution, for that would introduce chaos into the legal system as courts of appeal refused to follow Supreme Court rulings and district courts disobeyed their appellate courts' orders. Second, what "the Constitution itself" says may, as in the case of paper money, be irretrievable, not simply because of "what [the Justices] have said about it," but because of what the nation has done or become on the strength of what the Court said.

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Legitimacy DA - Link Lower Court disregard for Supreme Court precedent collapses legitimacy C. Steven Bradford, Assitant Professor of Law at University of Nebraska College of Law, JD from Harvard Law, 59 Fordham Law Review 39, 1990 Disregarding a standing, but doubtful, Supreme Court precedent arguably violates a lower court's duty of loyalty to the Supreme Court. 234 Our multi-tiered judicial system is premised on respect for, and allegiance to, higher court pronouncements; disregarding standing precedent upsets that system. The duty of obedience to the Supreme Court focuses not only on notions of judicial economy, but also on the unique leadership role of the higher court. We entrust the Supreme Court with the ultimate judicial decision-making power. Disregarding live Supreme Court precedent would arguably be a blatant usurpation of that power.

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Legitimacy DA – AT: “We Only Do It Once” Even if underruling is good in rare circumstances, it’s better to not do it – avoids a slippery slope. Evan H. Caminker, Professor of Law at UCLA, “Why Must Inferior Courts Obey Superior Court Precedents,” 46 Stan. L. Rev. 817, 825, April 1994. Second, even assuming a category of rare cases exists for which underruling's benefits outweigh its costs, a rigid duty to obey might still be desirable to prevent abuses of discretion. Suppose doctrine allowed inferior court judges to underrule superior court precedents whenever they believed those precedents to [*864] be "outside the range of allowable judicial interpretation," or "lawless," or "clearly wrong," or "not fully informed." Any such criterion would necessarily be somewhat elastic, and judges might (even in good faith) stretch the criterion to justify underruling precedents with which they strongly disagree. 201 Thus, permission to underrule in rare cases could easily lead to its overuse, meaning judges will underrule even when the costs of underruling a particular precedent outweigh the benefits. At some point, underrulings in the aggregate will do more harm than good. It would then make sense to withhold permission to underrule entirely. 202 In short, a bright-line doctrinal prohibition against underruling might reflect a reasonable judgment that overdeterrence is better than the alternative.

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Supreme Court Reversal Good - Policymaking Ignoring the potential for Supreme Court reversal amounts to the worst form of policymaking – thinking ahead and modifying policies to avoid overrule is key. Barry Friedman, Professor of Law at New York University School of Law, 84 Texas Law Review 257, 2005 1. Testing Interbranch Constraint: The Separation of Powers Game. - Positive scholars analyze the extent to which the judiciary is constrained by other branch actors by using "spatial" models - what some refer to as the "separation of powers game." 300 Although the modeling can be quite complicated and the empiricism poses difficult challenges, the intuition is really quite simple. All institutions (including the Supreme Court) have preferences as to policy outcomes, but in acting they also must take into account the preferences of other branches that play a role in the ultimate policy choice. 301 To choose a familiar example, when Congress passes a bill, it obviously has to consider the possibility of a presidential veto, and it probably also should think about whether the Supreme Court is likely to overturn the statute on constitutional grounds. Central to the operation of these models is the notion of "anticipated reaction," 302 which can make the play of the "game" difficult to observe. [*312] Branch actors do not actually have to take action and then sit back and wait to see what happens. Congress need not pass a statute and then wait for the President to veto it. Rather, institutional actors think ahead to what response their action will engender and then modify their positions in light of the anticipated reaction in a way that moves policy closest to the preferred outcome, while avoiding trumping action by another branch. Thus, Congress - anticipating a veto of legislation that is too liberal will pass a bill that is just conservative enough for the President to accept it or that ensures a two-thirds vote on congressional override of any veto. The implication of anticipated reaction is that institutions may be responding to constraint, even if this is unobservable.

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AT: Congress CP Judicial review is the best forum for promoting societal debate about the constitution Barry Friedman, Professor of Law at New York University School of Law, 84 Texas Law Review 257, 2005 Judicial review can be understood as attractive precisely because it is embedded in politics, but is not quite of it. Politics and law are not separate, they are symbiotic. It would be remarkable to believe judicial review could operate entirely independent of politics or would be tolerated as such. Nor is it clear that this would be desirable given social and constitutional commitments to accountability and checks and balances. The practice of judicial review is valuable

in that it serves as one more counterweight, like many others in our constitutional system. Moreover, because judicial decisions about constitutional law are sticky - they cannot be overturned at [*334] the drop of a hat 415 - judicial review serves to channel and foster societal debate about constitutional meaning. 416 Relatively insulated judges may go off on their own, but, in the face of extended debate, Supreme Court decisions and public opinion ultimately come into some rough accommodation with one another. It could not be otherwise. The system is dialogic and selfenforcing. 417 It creates continual exchange between constitutional meaning and popular opinion, though systemically and at a remove.

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CP Links to Politics Lower court decisions can elicit strong negative reactions Carlos E. Gonzalez, Associate Professor of Law, Rutgers School of Law – Newark, 45 Santa Clara Law Review 223, 2005 [*335] Most of the alternative systems, in contrast, would encourage courts to publicly justify their decisions by explaining the democratic legitimacy related factors that actually influence their decisions. In cases where courts see special interest statutes of dubious democratic legitimacy in conflict with more public regarding regulations, for example, the alternative systems would require courts to discuss and explain how this circumstance influences whether the court decides to nullify the public regarding regulation. Return to the Tenth Circuit's treatment of the "do not call" regulations discussed in the Introduction. 203 Though we can never know for sure, it is very possible that the strong negative public reaction against lower court opinions nullifying the "do not call" regulations was a key factor motivating the Tenth Circuit to uphold the regulations. The extant system governing conflicts between legal norms did not give the Tenth Circuit a legitimate way to admit and discuss how the strong democratic legitimacy of the regulations might have factored into its ruling. Most of the alternative systems, in contrast, would have required that the Tenth Circuit directly and publicly grapple with this issue. At the very least, we are left with the question of whether the popularity of the "do not call" regulation influenced the Tenth Circuit's decision. We are probably better off with systems that would allow courts to directly, openly, and publicly discuss the factors that influence outcomes, than a system which forces courts into interpretive gamesmanship and leaves one wondering what really drives outcomes.

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