Power and
influence of the Courts
·
The particular nature of the Rehnquist
Court
·
Good intersection of domestic &
legal—clearly this will be international as well
·
Educational benefits of understanding the
courts—lots of the kids go on to jobs in law & the legal sphere, not
everyone goes on to do public policy, and knowing the law also helps with that
·
Provides the ability for kids to debate things
relevant to their lives—many of the cases dealing with AFF. action,
abortion, women’s rights, etc. have more direct effects on people’s lives than
abstract foreign policy cases.
·
Provides for a list with coherence. I think one of the primary complaints about
this year’s topic is the lack of coherence and the question of whether we were
“forcing” a model that didn’t fit onto the rubric of the topic.
1) The
question of the agent:
a.
#1 concern about the topic—because I feel we risk not
debating the topic
b. We
could not specify—although that might be harder than you think given the nature
of the action that must be taken
c.
We could specify, and try to choose cases with relative
“immunity” or defense vs. the strategy
d. We
could specify, and realize that this will be a core negative strategy
2) The
question of the action (and are we covertly writing the agent back in)
a.
The question is what phrase is appropriate—overrule or
overturn
b. Additionally,
what does overrule mean (the holding?
Some teams were “overruling” Bowers on non-privacy grounds—while that
would overturn sodomy laws, it doesn’t overturn the holding of the
decision—that privacy doesn’t protect the right to sodomy).
c.
We need to make sure the overturn is relevant to the
decision—i.e. overturn Roe by doing
something not related to the decision.
d. Dunbar
chimes in on the concern of “overrule:”
“Also, I would think about more specific language than overrule-- I mean
what does it mean to overrule a case? Most cases have holdings that are overruled,
but cases will often make multiple holdings... all of them CAN'T BE OVERRULED
because that might deny jurisdiction to reach the merits.”
3) The
question of the active/passive nature of the action
a.
We need to make sure that someone can’t argue that the
case was “functionally overruled” by another case and then just uphold the
latter case.
b. We
need to think about the Camara case Semifinals of the
NDT—and whether we want to limit or allow such a
strategy.
4) The
cases—and how we can name them properly in the resolution
a.
We need to make sure it is a United States Supreme
Court Case
b. We
need to make sure someone can’t slide in a decision with the same name that
isn’t the intended decision—I recommend that we use the date of the decision as
a potential limiter, or its code
5) Side
bias—this is a huge problem facing the selection of cases
a.
Cases with immediate appeal might be the worst for side
bias reasons
b. Want
to make sure the cases we select still have relevance and can access the
pedagogical benefits of the topic
6) Themes:
a.
Do we need one?
Is it better to “thematize” the resolution or
better to put together an “all-star” list?
b. Protection
of individual liberty
c.
Curtailment of individual liberty
d. Powers
of the government
7) Timing:
a.
How recent do we want the cases to be? Are we looking for recency
over “landmark value?”
b. Do
we want a topic that is the equivalent of “big-name cases” despite what years
they come from: examples: Roe v. Wade, Miranda v. Arizona,
Korematsu v. United
States, Stanley v. US, etc. or are we
looking to limit the topic to recency
c.
If limited on a date parameter, what should the limit
be? Five years, Ten years? Arbitrary line but “recent?”
8) Early
case ideas:
*Some of the early discussion on
the subject is to create at least two, possibly three different lists. These cases are broken down into the
admittedly overlapping themes of “individual rights” and “governmental powers.” It might be possible to do an individual
rights list, a governmental powers list, and then a hodge-podge list. I would also like to look into ballot options
that allowed the voters to rank-order the cases and put the cases into the
topic via whichever cases get the highest rank-ordering.
*As per Mancuso and Smith’s
suggestions, I have attempted to get input from some alums
in the legal field. Kelly
Dunbar & Rebecca Tushnet
have responded to my request, and I’ve tried to indicate which cases they
recommended along with a short summary of their comments.
Individual Rights Cases
a. Grutter
v. Bollinger, 123 S. Ct. 2325 (2003);
& Gratz v. Bollinger, 123 S.
Ct. 2411 (2003)
(affirmative action).
“Today's U.S. Supreme Court rulings in the University
of Michigan affirmative action
cases support local school boards that use race as a factor to create diversity
and ensure opportunities for minority students, as long as the affirmative
action plans are narrowly tailored like the law school's plan, says Anne L.
Bryant, executive director of the National School Boards Association. The Court upheld the law school program,
stating that diversity is a compelling state interest and that the law school's
plan was narrowly tailored. The Court reversed the undergraduate affirmative
program that gave extra admission points to underrepresented minorities,
concluding that it was not narrowly tailored. In the decisions, the Court
emphasized the importance of making "individualized considerations"
and using race only as a plus when considering applicants. According to Anne
Bryant, NSBA is encouraged that the Court recognized in both cases the value of
diversity in public education.”
(U.S.
Newswire, June 23, 2003)
(Grutter is the law school case, Gratz is the undergraduate
admissions case)
*Both Dunbar & Tushnet
mentioned these cases. The real trick is
to figure out which one to include (or to include both and allow bidirectionality on aff. action)
b. Zelman v. Simmons-Harris 536 U.S.
639 (2002) (school vouchers)
“Zelman v. Simmons-Harris…resulted from a challenge to the
Pilot Project Scholarship Program, which the Ohio
legislature established in response to a federal court's determination that the
Cleveland school board had
mismanaged its school system. This program reimburses qualifying families for
tuition spent at any school satisfying certain requirements, such as
registration with the program…Before the Supreme Court considered Zelman, the
constitutionality of voucher programs like Cleveland's had been unclear…Chief
Justice Rehnquist…observed that both religious and non-religious private
schools are eligible to participate in the program. While this statement is literally true, it
disregards the existence of certain practical factors that potentially undermine
secular school participation in the program.
The Court apparently presumed, based on the program's facial neutrality
and the use of private intermediaries who exercise private choice in
distributing government aid, that whatever effects actually result are
permissible…The Court next emphasized that "participating private schools
must agree not to discriminate on the basis of race, religion, or ethnic
background, or to "advocate or foster unlawful behavior or teach hatred of
any person or group on the basis of race, ethnicity, national origin, or
religion.'" It is telling that the majority chose to highlight these
general requirements while disregarding the program's lack of specific
procedures for ensuring that government funds are not used for religious
purposes.”
*This case was on both Dunbar & Tushnet’s
list. Dunbar
adds, “I think the Vouchers case from last term would make for a nice debate on
education, race, and the establishment clause.”
c. Apprendi
v. New Jersey 530 U.S.
466 (2000) (hate crimes).
“In 2000, the Supreme Court, in Apprendi
v. New Jersey, again evaluated
the constitutionality of the penalty-enhancement provision of a hate crime
statute - this time focusing on the Due Process Clause of the Fourteenth
Amendment. The specific issue in the case focused on the procedure needed to
convict a criminal defendant charged with violating New Jersey's hate crime
law, and who makes that determination - judge or jury…Rejecting Apprendi's contention, the Appellate Division of the
Superior Court of New Jersey affirmed the penalty-enhancement, and held that it
was a valid exercise of New Jersey's Tenth Amendment States' Rights power. A divided New Jersey Supreme Court
affirmed. The United States Supreme Court
reversed, holding that New Jersey's
penalty-enhancement violates the Due Process Clause of the Fourteenth
Amendment. The Court noted that under New
Jersey's Penal Law - after a jury finds an individual
guilty beyond a reasonable doubt of a second-degree offense - the
penalty-enhancement provision allows a judge, by a preponderance of the
evidence, to impose an enhanced penalty with a punishment identical to
first-degree offenses.”
(Nearpass, Albany
Law Review, 66 Alb. L. Rev. 547, 2003)
*Both Dunbar & Tushnet
mentioned Apprendi.
d. Kyllo
v. United States 533
U.S.
27 (2001) (search & seizure/thermal imaging)
“On June 11, 2001,
the United States Supreme Court handed down its first opinion on whether the
warrantless use of a thermal imager against the home constitutes a search.
Contrary to most circuit court decisions and the predictions of experts, the
Court disallowed their use in Kyllo v. United
States. In an opinion written by Justice Scalia, the Court held that using a sense-enhancing device
that is not available for use by the general public constitutes a search. Rather than deciding Kyllo
on its particular facts and simply finding that the warrantless use of a
thermal imager against the home is unconstitutional, the Court tried to prevent
what it perceived as a future threat to the home. However, by hinging the protection the home
receives on whether the "sense-enhancing technology" is in
"general public use," the Court effectively weakened its own ruling,
and ensured that the bright-line protections created in Kyllo
are temporary rather than permanent.”
(Brill, Arkansas
Law Review; 56 Ark. L. Rev. 431,
2003)
e.
Vernonia School
District v. Acton
515 U.S.
646 (1995). (drug
testing)
“In 1995, the United States Supreme Court decided Vernonia School District
v. Acton. The Court concluded that
the school district's student athlete drug policy, which randomly tested
students who participated in athletics, did not violate the Fourth or
Fourteenth Amendments of the United States Constitution because the school's
drug testing regime was reasonably tailored to promote the school district's
interest in preventing drug use among students.
Based on such facts as the sharp increase in drug use in the 1980s, the
prominence of athletes among students who use drugs, and the effect of drugs on
coordination and performance, the Court determined that the government
interests in the health and safety of public school students outweighed any
privacy interests student
athletes asserted. The
Court used a three-part test to balance the interests of the government against
the interests of the individual students. First, the Court considered the
nature of the privacy interest intruded upon.
Second, it examined the character of the intrusion. Third, the Court considered the governmental
concern and the means used to address the concern.”
(Althea Izawa-Hayden, American
University Journal of Gender,
Social Policy & the Law, 2003, 11 Am. U.J. Gender Soc. Pol'y
& L. 1067)
f.
Washington
v. Glucksberg 521 U.S.
702 (1997); & Vacco v. Quill 521 U.S.
793 (1997) (right to die)
“Few Supreme Court decisions have the possibility of
touching as many lives, directly or indirectly, as those holding that there is
no constitutional right to physician-assisted suicide. Washington v. Glucksberg and Vacco v. Quill
effectively uphold laws in forty-nine states that prohibit aiding another in
committing suicide. However, although the decisions were rendered without a
single dissent, they leave open the possibility of legal protection for such a
right at the state level, either under state constitutions, such as Alaska's,
or state statutes, such as Oregon's
"Death With Dignity Act." In Glucksberg and Quill, the Court had before it two court of
appeals decisions that found a constitutional right to physician-assisted
suicide. The Ninth Circuit, in an en banc decision, found that terminally ill
individuals have a fundamental liberty interest to physician-assisted
suicide…The United States Supreme Court reversed both of these court of appeals
decisions. Chief Justice Rehnquist wrote for the majority in each case. In Washington
v. Glucksberg, the Court rejected the claim that the
Washington law prohibiting assisted suicide violated a fundamental right
protected under the Due Process Clause…Rehnquist noted that "in almost
every State - indeed, in almost every western democracy - it is a crime to
assist a suicide." After reviewing
the history of laws prohibiting suicide and assistance of suicide, Rehnquist
wrote, "Despite changes in medical technology and notwithstanding an
increased emphasis on the importance of end-of-life decisionmaking,
we have not retreated from this prohibition [of assisting suicide]." The
Court thus concluded that "to hold for respondents, we would have to
reverse centuries of legal doctrine and practice, and strike down the
considered policy choice of almost every state…” The Supreme Court's refusal to find a right
to physician-assisted suicide under the United States Constitution does not
prohibit states from protecting such a right. The Court has emphasized the
general absence of constitutional limits on state-assisted suicide laws. In other words, the issue of whether there is
a right to die is left to the political process and state constitutions; states
may prohibit or allow physician-assisted suicide largely unconstrained by the
Constitution. For example, in 1994, Oregon
enacted through a ballot initiative a "Death With
Dignity Act," which legalized physician-assisted suicide for competent,
terminally ill adults.”
(Chemerinsky, Alaska
Law Review, June, 2003, 20 Alaska
L. Rev. 29; Lexis)
*Tushnet recommended these
cases. Seems contemporary, debatable,
and the State Constitution Counterplan is all but written in even this card…
g. Sony v.
Universal City Studios
464 U.S.
417 (1984) (First Amendment v.
Intellectual Property Rights)
Public performances and television and radio broadcasts, for
example, give consumers less freedom to control when and how they consume
particular works. Yet even here, Congress and the courts have recognized an
interest in autonomy by permitting consumers to copy such broadcasts under
certain conditions. For example, the
U.S. Supreme Court's opinion in Sony v. Universal City Studios can be read as
implicitly recognizing an interest in consumer autonomy. In that case, the Court held that
time-shifting of television broadcasts, i.e., recording such broadcasts on VCRs
for later viewing, constituted fair use… the language employed by the Court
seemed to recognize implicitly a consumer interest in dictating when and where
to view that particular work and, correspondingly, a limit on the ability of
the copyright owner to dictate the circumstances of such consumption…Advances
in technology, however, are testing this existing recognition of the consumer
interest in autonomy. Digital technology makes it ever easier for individuals
to copy works and consume them autonomously. Text becomes easier to cut and
paste; music, once in digital form, becomes easier to move around (from
computer to MP3 player to burned CD), combine with other tracks, and even
alter. Similarly, movies and images become easier to manipulate for personal
consumption…At the same time, digital technology potentially gives copyright
owners greater ability to control how consumers interact with their copyrighted
works. In response to the concern that digital technology now makes copying and
distribution of copyrighted works much easier, copyright owners are
increasingly using technology to limit significantly the uses in which
consumers can engage, so that every use is metered and charged...Thus, digital
technology expands consumers' ability to engage in autonomous consumption,
while at the same time providing a mechanism for greatly reducing this type of
consumption.
*Tushnet recommended this
one. This is some cool stuff, especially
with Napster disputes and lawsuits vs. individuals copying MP3’s. The case itself is kind of old, so we might
want to look for an updated case if we’re interesting in exploring this
controversy.
h. City of Indianapolis
v. Edmond, 531 U.S.
32 (2000). (search
& seizure)
“In these cases, the Court found that "special needs,
beyond the normal need of law enforcement," might justify an otherwise
unconstitutional search. It specifically considered the recent Supreme Court
case of City of Indianapolis v. Edmond.
In that case, the Supreme Court held that "a highway checkpoint designed
to catch drug dealers did not fit within its special needs exception because
the government's 'primary purpose' was merely 'to uncover evidence of ordinary
criminal wrongdoing.'"
(O’Connor & Rumann, Fordham
International Law Journal, April, 2003, 26 Fordham Int'l L.J. 1234)
i. Davis v. Monroe
Country Board of Education 526 U.S.
629 (1999).: (Sexual Harrassment Laws)
“Following the 1999 United States Supreme Court decision in
Davis v. Monroe County Board of Education, Verna Williams, lead counsel for the
plaintiff, wrote that Davis "is a wake-up call to the nation's educational
institutions--elementary, secondary, and post-secondary alike--to make sure
that they take seriously complaints about a student's sexual harassment by a
peer." Ms. Williams succeeded in convincing the Court that educational
institutions should be required to pay damages under Title IX of the Education
Amendments of 1972 ‘if they turn their backs when students harass one another
sexually.’ While students were previously granted the right to seek damages
against educational institutions if sexually harassed by a teacher, Davis
was the first case in which the Court extended this right under Title IX to
students sexually harassed by their fellow classmates. Like Ms. Williams, many women's rights
advocates declared a victory for young women as Davis
appeared to finally acknowledge that students in federally funded educational
institutions deserve protection and relief from sexual harassment… However, the
majority opinion in Davis, written
by Justice O'Connor, sets forth a standard under which students have had
difficulty winning their Title IX peer sexual harassment claims. While
reiterating the Court's rejection of the use of agency principles, Justice
O'Connor concluded that federally funded educational institutions must have
actual notice of, and act deliberately indifferent to, sexual harassment
"that is so severe, pervasive, and objectively offensive that it can be
said to deprive the victims of access to the educational opportunities or
benefits provided by the school…" Distillations of the Davis standard vary
from circuit to circuit, and questions remain unanswered as to the level of
control required, the form of actual notice needed to trigger deliberate
indifference, and the extremity of post-notice harassment needed to show that
an educational institution has been deliberately indifferent.”
(Gigi Rollini, Florida
State University Law Review, Summer, 2003)
*An interesting case, because the case itself is so positive
on its merits, but has been whittled away by interpretation. Might be possible to craft
a symbolic neg. position or counterplan position that
the decision itself shouldn’t be overruled.
j. Ashcroft
v. Free Speech Coalition 122 S. Ct. 1389
(2002). (child
pornography/first amendment)
“Computer technology has made it possible to create ‘virtual’
child pornography, i.e., material that depicts what appears to be children
involved in sexual activity but which in fact depicts computer-generated
simulacra. In Ashcroft v. Free Speech Coalition, the Supreme Court considered
the constitutionality of statutes that criminalize virtual child pornography. The Court held that two provisions of the Child
Pornography Protection Act…violated the First Amendment. After noting that child pornography involving
"real" children is banned because of the means used to produce it,
rather than its content, the Ashcroft Court
found that the concerns that support banning "real" child pornography
do not apply when no child is actually involved. Therefore, the Court held that the provisions
of the Child Pornography Protection Act at issue in the case "abridged the
freedom to engage in a substantial amount of lawful speech" and was
unconstitutional.”
(Brenner, Albany
Law Journal of Science & Technology, 2003, 13 Alb. L.J. Sci.
& Tech. 273)
*Tushnet recommended this
case—kind of a mixture of cybertechnology, the first
amendment, and pornography.
k. Turner
Broadcasting System, Inc. v. Federal Communciations
Commission 114 S. Ct. 2445 (1994).
(First Amendment/Cable Television)
“Cable television has been viewed through a different
constitutional prism than the broadcast media, but the picture has yet to come
into sharp focus. The leading case is Turner Broadcasting System, Inc. v.
Federal Communications Commission, in which cable operators challenged a
statute requiring them to carry local broadcast stations on their systems.
Because of the procedural posture of the case, the Court did not reach the
merits but instead re-manded for further
proceedings. However, the Court squarely
rejected the FCC's argument that cable television should be analyzed under the
same First Amendment standard applicable to broadcasters…Justice Kennedy said
in his opinion for the Court that "the justification for our distinct
approach to broadcast regulation rests upon the unique physical limitations of
the broadcast medium." However, the
Court did not, as the cable industry had urged, view cable in the same light as
newspapers and other print media. "When a newspaper asserts exclusive
control over its own news copy, it does not thereby prevent other newspapers
from being distributed to willing recipients in the same locale," Justice
Kennedy said. "The same is not true of cable. When an individual
subscribes to cable, ... the cable operator [has]
bottleneck, or gatekeeper, control over most (if not all) of the television
programming that is channeled into the subscriber's home."
(Watkins, Arkansas
Law Review, 49 Ark. L. Rev. 739;
1997)
l. Adarand Constructors, Inc. v. Pena, 515 U.S.
200 (1995) (Affirmative Action)
“In Adarand Constructors, Inc. v.
Pena, the Court…held that race-based classifications are constitutional only if
they are ‘narrowly tailored measures that further compelling governmental
interests.’ In other words, the Court's
holding in Adarand resolved all existing ambiguities
by making strict scrutiny the standard of review for race-based programs.
Hence, strict scrutiny applies to race-based programs regardless of whether the
programs are state or federal, or whether they benefit the racial majority or
the racial minority. In Adarand, Adarand Constructors,
Inc. sued the federal government when congressionally created preferences
resulted in the award of a guardrail subcontract to the minority-owned Gonzales
Construction Company. Gonzales was
awarded the project despite the fact that Adarand had
submitted the lowest bid for the project.
Adarand sought declaratory and injunctive
relief against use of race-based presumptions…Justice O'Connor, writing for the
majority, looked at whether race-based governmental actions should be subjected
to strict scrutiny when benefiting historically disadvantaged groups. While she
concluded that federal and state programs to benefit ‘disadvantaged businesses’
were not unconstitutional, she intimated that it may be difficult for those
programs to pass strict scrutiny. Past
and present discrimination against the minority group in question must be
proven, rather than assumed, and the proponent must show that its program
benefits only the victims of past discrimination.”
(Swink, Brigham
Young University
Education and Law Journal, 2003, 2003 BYU Educ. &
L. J. 211)
*This is probably the core AFF. action
decision in the 1990’s prior to Gratz & Grutter. Sets up a lot of the foundational arguments.
m. Capitol Square
Review and Advisory Board v. Pinette 515 U.S.
753 (1995) : (free speech vs. the Establishment Clause)
“In addition, Part III presents the Supreme Court's resolution
of the intra-First Amendment conflict spawned by displaying religious symbols
on public property, elucidated in Capitol Square Review and Advisory Board v. Pinette. Part IV
argues that the balance between establishment and free speech measured in Pinette spurs a sectarian competition for display space on
the public lawn that is played on a non-neutral, majority-dominated field in
violation of Establishment Clause principles. To readjust the First Amendment
scales, this paper concludes that permanent, unattended monuments carrying
religious messages should be barred from public property pursuant to the
government's authority to enact reasonable time, place, or manner restrictions
on speakers using public property.
(Lopez, Baylor Law Review, Winter,
2003, 55 Baylor L. Rev. 167)
Governmental Power
a. United
States v. Morrison,
529 U.S.
598 (2000) (federalism/women’s rights)
“In a dissent joined by Justices Souter,
Ginsburg and Breyer, Justice Stevens in Kimel expressed dismay at the Court's hubris in extolling
state immunity while dismissing the structural political safeguards argument
that once held sway in adjudicating federalism cases. Even so, United
States v. Morrison and Board of Trustees of
the University of Alabama
v. Garrett, indicate that the Court-centered anti-federalist philosophy is
firmly entrenched in the five-Justice plurality that often controls the outcome
of federalism cases. In Morrison, the Court held that Congress did not have
commerce or Section 5 authority to supply victims of gender-motivated violence
with civil remedies in federal court through the Violence Against Women Act of
1994 (VAWA). Relative to the Section 5 issue, the Chief Justice, in a
five-to-four ruling, acknowledged that a "voluminous congressional record"
was compiled to document the abuses suffered by victims of gender
discrimination in state courts. Yet in light of the language and purpose of the
Fourteenth Amendment and, in accordance with past precedent, Congress had
limited power to devise remedies against non-state (i.e. private) actors. Thus,
the Court ruled the Boerne test of proportionality was not satisfied because
the VAWA was not corrective enough in terms of combating discriminatory
violence from the operation of state laws or officers. Moreover, in dicta, Chief Justice Rehnquist
expressed Kimel's conviction that it is the duty of
the Court, and not Congress, to discern the Constitution's final meaning.”
(Banks, Akron
Law Review, 36 Akron L. Rev. 425,
2003).
*Dunbar says about this case: I would say Morrison (striking down VAWA)
would be a great case and a must. The CP
ground to do it on Equal Protection or Commerce Clause (whichever the aff. does
doesn't do) grounds would be great. Huge federalism debates and gender debates.
**This case also illustrates the danger of not including the
exact Supreme Court citation and date, United
States v. Morrison, 946 F2d 484 deals with
the sentences of drug offenders and the quantity of controlled substances in
the charged offense. Meanwhile, United
States v. Morrison, 546 F2d 319, states that
when a law enforcement officer signals a motorist to stop by the use of a siren
or a red light, there has been a seizure which must be justified under the
Fourth Amendment. Listing cases allows
for limitation but the potential for chaos if we are not very, very,
careful.
b. Bush
v Gore 531 US 98 (2000) (Election Laws/Equal Protection)
“The per curiam
opinion of the Court held that the manual ballot tabulation did not satisfy the
minimum requirements set forth by the Equal Protection Clause. The Court answered each of these questions
by stating, ‘with respect to the equal protection question, we find a violation
of the Equal Protection Clause…’ The
Court then entered into its discussion of the constitutional rights involved by
making the seemingly shocking assertion that "the individual citizen has
no federal constitutional right to vote" unless granted the privilege by
his or her state legislature… To this end, the Court explained that having
various standards among the different Florida
counties, even among different vote-counters in each county, was an unfair and
disparate treatment of the rights of the voters. The final and critical rule of
Bush v. Gore is that, "having once granted the right to vote on equal
terms, the State may not, by later arbitrary and disparate treatment, value one
person's vote over that of another." The Court therefore accuses the vote
counters in Florida of being
inherently biased in their counting, or at best, incapable of committing to a
fair and equal treatment of each ballot under one per se rule. The Court
especially points to the inherent unfairness of counting the "undervotes," or ballots on which a
machine tabulation recorded no vote for president, but not counting the
"overvotes," or ballots on which a machine
tabulation recorded more than one vote for President. The Court concludes its remarkable opinion
in a remarkable case with a fittingly remarkable limitation of its decision when
it stated that its "consideration is limited to the present circumstances,
for the problem of equal protection in election processes generally presents
many complexities." The Court
seems to worry about an application of the principles it espoused in its Equal
Protection discussion to other cases, even ones involving factually similar
disputes, despite its cryptic urging earlier in the decision that pushes for a
nationwide review of the voting system: "After the current counting, it is
likely legislative bodies nationwide will examine ways to improve the
mechanisms and machinery for voting."
(Newman, Journal of The National
Association of Administrative Law Judges, Spring 2002)
*Another “touchstone” case if we delve into governmental
powers or federalism. Even though the
Court limited its precedent, that in itself may lead to a case (Court shouldn’t
have power to limit precedents—leads to partisan political judgments).
c. Clinton
v Jones, 520 US
681 (1997) (executive
power/immunity)
“Since Clinton v Jones has been largely eclipsed by later events,
let me remind readers that in that case the Supreme Court held unanimously that
a sitting President is subject to a civil action brought by a private person
and accordingly to the associated arsenal of compulsory process…I find both
broadly structural and narrowly technical reasons for doubt on Clinton v Jones,
which seems to me weakly grounded both in law and common sense. What is more,
the decision is as good an illustration of judicial overreaching as I
know. First, the entire executive power
of the United States
resides in the President. To expose the President personally to judicial
compulsion (particularly at the instance of a private person) might prove a
serious impairment of that power. Unlike any other executive officer, or a
minister (even a premier) in a parliamentary system, the President cannot be
replaced if subject to constraint by a court.
A narrower focus on the question adds force to this broad point. It is
hard to see how a civil action can proceed against the President, ultimately,
without the possibility of arrest and detention in the event the President
refuses to submit. If we assume to the contrary that a sitting President cannot
be arrested or indicted--and that is the common view of the matter--then a
civil judgment and possible contempt citation are essentially hortatory. Or at
least they are unless Congress impeaches…If, on the other hand, we accept the
possibility implicit in Clinton v
Jones that the President is subject to arrest, indictment, and imprisonment,
the consequences are more unnerving. Even if indicted or imprisoned, the
President is still the President, holding the full battery of powers including
the pardon power. On this branch as well, therefore, lest the [*164]
President spring himself from jail, Congress must impeach. All this to
make sure that some civil plaintiff--who in Clinton v Jones turned out to be
dangling on strings pulled by a cadre of ideologues--doesn't have to wait until
the end of the President's term to obtain satisfaction.”
(Isenbergh, University
of Chicago Law Review, Winter 2003; 70 U. Chi. L. Rev. 159)
*Dunbar says of this case: “I think Clinton
v. Jones would be a nice case debate. A pretty cool affirmative advantage of executive power-- i.e.,
suits against sitting presidents undermine energy in the executive. With lots of CP ground…”
d. McConnell v. Federal Election
Commission No. 02-1674 (campaign
finance)
“Of course, the campaign finance cases collectively known as
McConnell v. Federal Election Commission, No. 02-1674, could alter the
political landscape by deciding whether any of the multiple parts of the
McCain-Feingold campaign reform law violate the First Amendment. The cases were
argued in a special session Sept. 8, technically part of last term, but as of
Oct. 6, the rulings that result will be counted as decisions in the new
term.”
(Mauro, New
Jersey Law Journal, October 6, 2003)
*This case was also on both Dunbar & Tushnet’s
list. It seems the case would be
debatable either way the Court went.
**We need to be careful about how to identify this case, as
it has not been decided yet.
e. U.S.
v. Lopez, 514 U.S.
549 (1995). United States
v. Lopez (Federalism)
“In United States
v. Lopez, invalidating the Gun Free School Zone Act, and in United
States v. Morrison, holding unconstitutional
the Violence Against Women Act, the United States
Supreme Court found limitations on Congress's commerce power that would not
have been found in years past. In a series of cases, the court, relying on a
newly invigorated interpretation of the Tenth and Eleventh Amendments, has
elevated the states' sovereign immunity to constitutional stature. It has held
that Congress cannot abrogate that immunity in legislation under the Commerce
Clause. Subsequent cases have held that
Congress's sole remaining authority for abrogating sovereign immunity, section
five of the Fourteenth Amendment, is subject to severe and amorphous
restrictions. As a result of these
developments, substantial power and responsibility of addressing social issues
has shifted from the federal government to the states. Moreover, these
restrictions on federal power make the interpretations of state constitutional
provisions, which have always been important, even more critical than ever.”
(Charles Ares, Albany
Law Review, 2003, 66 Alb. L. Rev. 589)
*Clearly huge if we want to have a federalism debate. If we bifurcate the
topics into governmental power/individual rights, I think Lopez fits into the
governmental power area.
f. Michigan
v Long 463 US 1032 (1983) (Federalism)
“But even taken on its own terms,
the Rehnquist Court's
federalism is a false and incomplete federalism. Under this federalism, state
legislatures and executives receive limited protection from Congress but not
from the Supreme Court. In Michigan
v. Long, the Supreme Court changed the methodology used to determine whether a
state court decision rested on adequate and independent state grounds. Under the new methodology, the Supreme Court
will assume jurisdiction whenever a "state court decision fairly appears
to rest primarily on federal law, or to be interwoven with the federal law, and
when the adequacy and independence of
any possible state law ground is not clear from the face of the opinion." While claiming that the decision in Long respects
the integrity of state courts, the majority nevertheless departs from the older
approaches, such as that of Herb v. Pitcairn, in which the Supreme Court asked
the state court to clarify or amend the grounds for its decision. According to Justice Jackson, the Herb
approach "seems consistent with the respect due the highest courts of
states of the Union that they be asked rather than told
what they have intended." The Long majority claimed that the new
methodology would "obviate in most instances the need to examine state
law," yet three pages later, the majority proceeded to delve into the
question of the circumstances under which the Michigan Constitution's
protections are more generous than the Fourth Amendment and whether the
definition of "narcotic" is dependent on state statutes. For some, Long
represents an expansion of federal judicial power to review any state court
decision not in conformity with federal doctrine and the potential for erosion
of state constitution-based civil rights and liberties.”
(Fino, Albany
Law Review, 2003, 66 Alb. L. Rev. 765)
*Older, but really good.
Might be trumped by just including Lopez, which would
address most of the issues.
9) Negative
Ground: Some of the generics are
well-known to us all
a. Disads
1.
Supreme Court Legitimacy: Specifying the overrule helps a bit with the
link
2.
Hollow Hope
3.
“Evil Court”—Legitimacy
is Bad because the Rehnquist Court
is evil
4.
Critical Legal Studies/Indeterminacy
5.
Modelling Disads
6.
Politics will obviously be run in some way, shape or
form
7.
Biz Con—some of the cases have economic implications
b. Counterplans
1.
Legislative CP
2.
Executive Order
3.
Morgan Doctrine CP
4.
State Constitutionalism CP
5.
“Set aside/Don’t overrule” CPs
6.
States/Lopez CP
7.
Lower Courts/District Court
CP
c.
Kritiks
1.
Critical Legal Studies
2.
Feminist K’s of the Law
3.
Racial K’s of the Law
4.
Local/Global Activism style arguments