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9-0 Courts CP
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your $udge is. *ar 2tory timeF I ran this my $unior year in high school in the prelims of the
Barkley orum. *e thought #e #ere all hot shit because #e had 8ualified for the ":+ the
#eekend before, but the truth #as that #e #ere nervous #recks and #e #erent all that good.
*e hit eCingtons top team in the presets, a team that #as much better than us and if #e had
run anything else #e #ouldve been 8uickly crushed. Alas, unpredictable and 8uirky
strategies are the Achilles
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1NC
WE PRESENT THE FOLLOWING COUNTERPLANF
ohn arshall #orked so hard to eliminate. @ranted, too much concern #ith
consensus may paper over in public #hat are serious differences #ithin the institution. +onversely,ho#ever, too little concern #ith the coherence of institutional decisions in order to purchase tran8uility
and avoid hard negotiations #ithin the +ourt is conflict by another means, and it is far less helpful than a
careful compromise hammered out through intense negotiations. "he current spate of opinions in #hich
one $ustice concurs in parts A, +, =, and , and t#o other $ustices concur only in parts A and = is
reminiscent of AleCander
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lurality decisions inhibit transformative efforts, stop reform, and destroy the moral leadership that is
critical to the solving the institutional roots of the case harms.
OFFICE OF "E#A" PO"IC$ %%
!
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lurality decisions mar the +ourts institutional legitimacy and the rule of la#, inviting backlash and non-
compliance over issues of constitutional rights
BAN(S 99M+hristopher & assiprof polisci ? Akron & 7 Akron . 6ev. 77N
Associate >ustice 6obert ackson once suggested that rulings fromthe 2upreme +ourt of the ?nited 2tates have Oa mortality rate as high as their
authors.O n1 >acksonPs 8uip is significant since it is consistent #ith
the political reality that the +ourt often manipulates the la# to make social
policy. "he remark is also controversial since it raises the 8uestion of #hether
the 2upreme +ourt, led by +hief >ustice *illiam ustice "hurgood arshall denounced6ehn8uistPs plurality opinion on the grounds that the +ourt #as creating a novel
theory of stare decisis. ayne, in other #ords, held that the force of precedent
is at its acme in cases involving contract or property rightsK and, conversely,
that it is at its nadir either in opinions relating to procedural and
evidentiary rules, 4-5 decisions, or ma$ority opinions achieved over Ospirited
dissents.O "he +hief >ustice responded to arshall by saying that Ostare decisis
is not an ineCorable commandK rather, it Pis a principle of policy and not a
mechanical formula of adherence to the latest decision . . . .PO n5 As apolicy matter, therefore, prior la# did not prevent the MQ75N statements from
being admitted into evidence.
)
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?pholding the 6ule of a# is a !-6ule to uphold the fundamental rights of all humanity
RAW"S )1
M>ohn & prof
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B*o+,sE.TN/s
9
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2NC1NR OVERVIEW
"he only possible #ay to capture the affs advantages is to vote negative for the counterplan. *e fiat and
ensure that the 2upreme +ourt decision is a unanimous 3- #hile the plan offers no such certainty. "he
1+ evidence indicates that split decisions #hich are the norm in the status 8uo carry #ith them a lack of
leadership and inherent dissent #hich doom long term solvency.
*e also have the eCternal impact of the 6ule of a# #hich our 6a#ls evidence indicates should be a
decision rule for the debate.
inally, pluralities undermine $udicial efficiency and give the lo#er courts no guidance. Stare decisisis
ignored, dooming solvency.
t 456 +ou*7/t 8t r sorr;udicial olicies p1HN
+lear decisions not only minimi9e lee#ay, they also minimi9e distortion in the communication of thedecision to relevant groups. 6ichard >ohnson points out, for eCample, that 'behavior congruent #ith the
message depends in large measure upon #hether the ruling is received in a relatively undistorted state by
those #ho are affected.( "hus, for those #ho are largely indifferent to a courts policy, a clear statement
of eCpectations is more likely to be met #ith the acceptance and positive responses than is an ambiguous
one. And for those #ho are not inclined to obey a court policy, a clear policy statement provides a
standard against #hich nonacceptance or noncompliance can be evaluated and perhaps sanctioned.
1&
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?nanimous decisions key to check congressional override
EPSTEIN& 9%
Mee, "he +hoices >ustices ake, prof *ash ?. p4N
ore broad-based support comes from a recent study by =pstein and 2egal that considered agenda-
setting behavior during the 1347 through the 1337 terms of the +ourt. "hese researchers begin #ith thebasic dispute-avoidance hypothesisF $ustices avoid placing policies on their agenda #hen they believe
that members of the other branches #ill move policy far from their ideal points. "o this hypothesis, they
add the follo#ingF $ustices behave in this #ay unless they also believe that they can insulate their
holdings from reversal by reaching consensual decisions. "his claim, =pstein and 2egal argue, flo#s
from the comments of scholars, legislators, and the $ustices themselves that suggest the more
authoritative a holding %for eCample, a unanimous decision) the less likely that +ongress #ill attempt tooverturn it.
1!
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!issenting opinions kill solvency & no long-term adherence to the decision
BAN(S 99M+hristopher & assiprof polisci ? Akron & 7 Akron . 6ev. 77N
ormer +hief >ustice +harles =van
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2plit decisions are more likely to be overturned
BAN(S 99M+hristopher & assiprof polisci ? Akron & 7 Akron . 6ev. 77N
"hat courts analy9e eCtantprecedent in light of the solidarity of thecourt issuing the underlying rule of la# is intuitive. "he more dissension in a
case cannot help but signal to prospective litigants and courts that adisfavored precedent is on #eak footing and ripe for an aggressive challenge in
court. "able 7, a summary of the percentage of unanimity or dissension in
overturned cases by the 6ehn8uist +ourt, partially belies this traditional
logic, ho#ever. :f the total number of overturned cases, t#elve, or 7G.5/,
#ere decided by a bare ma$ority %i.e. a 4-5 vote). In addition, in cases
featuring three dissents or more, the +ourt reversed them nearly one-half%5.4/) the time. "hese findings sho# that opinions resulting from
closely-divided +ourts are indeed more vulnerable to subse8uent attack.
evertheless, "able 7 also discloses that unanimity is not a guarantee that
precedent is sacrosanct. :f the thirty-four toppled decisions, eleven
precedents, or 77.7/, #ere unanimous. *hile unanimity or dissension is still a
conventional part of the +ourtPs approach to stare decisis, the eCpectation that
unanimity strengthens the force of precedent and dissension #eakens it is not,
therefore, completely met.
1)
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4-5 decisions reduce the value of the cases precedent & certainty and $ustice are at risk
PADDEN 9&MAmy & >! @eorgeto#n & @eo. .>. 1G3N
"he doctrine of stare decisis is #ell established in American$urisprudence. "he doctrine takes its name from the latin phrase stare decisis
et non 8uieta movere, #hich translates as Ostand by the thing decided and do notdisturb the calm.O n1 It represents the general proposition that a
precedent must be follo#ed unless there is a compelling reason to overrule it.
"his note criti8ues a ne# approach to stare decisis developed by +hief
>ustice 6ehn8uist and >ustice 2calia, #hich reduces the precedential effect of
decisions that #ere rendered by 4-5 votes that addressed constitutional issuesor #ere recently decided. "his approach to stare decisis is un#orkable
because it does not serve the important goals underlying the doctrine.
Although adherence to the doctrine of stare decisis has been the general rule
in 2upreme +ourt $urisprudence, it is often manipulated by liberals and
conservatives alike #hen precedents are vie#ed as unappealing. 2uch
manipulations have often caused the doctrine to be vie#ed as one of convenience.
!espite this perception, adherence to precedent serves many importantgoals in American $urisprudence, including certainty, e8uality, efficiency, and
the appearance of $ustice. "he ne# approach articulated by the+hief >ustice and >ustice 2calia fails to serve these goals.
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4-5 decisions arent likely to be enforced by lo#er courts
PADDEN 9&MAmy & >! @eorgeto#n & @eo. .>. 1G3N
"he +ourtPs eCplicit acceptance of limited precedential effect for 4-5decisions #ill also affect the application of precedent in the lo#er courts. A
doctrine called the Oprediction ruleO has gained acceptance among some courtsand commentators. ?nder this rule, a lo#er court need not follo#
precedent if it can predict that the 2upreme +ourt itself #ould not follo# that
precedent. o#er courts should not, ho#ever, consider personal
ideologies and eCtra$udicial intimations in reaching their decisions, but it
#ill be difficult for a lo#er court to predict the demise of a 4-5 2upreme +ourt
precedent #ithout improperly considering the personal ideologies of the current>ustices.
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?nanimous court decisions indicate an adherence to the rule of la# and sheath the s#ords of $udicial
activism
C=WR %9
M.on/ressional uarterly Weekly 1eport& 11S11N
"he absence of sharp rhetoric in unanimous decisions lessens the public controversy and the si9e of theheadlines. "he unanimity casts this ideologically diverse court in a gentler light as the 133-3 term
begins. "he cases also serve as a reminder that 2upreme +ourt decisions reflect la#s and precedents and
legal reasoning at least as much as ideology. re8uently the $ustices seem to have simply sheathed their
ideological s#ords.
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?nanimous decisions best for social change
(IM>RA 92M;en & HH +ornell . 6ev. 1437N
"hus, the single opinion in Bro#n v. Board of =duc., 75H ?.2. 57
%1345), incorporated both the ma$ority rule and the internal rule. :necommentator suggests that OMiNf the +ourt had further split into a ma$ority
divided against itself, if the $ustices had spoken as nine individuals rather
than as Pthe 2upreme +ourt,P the moral authority of Bro#n #ould perhaps have
been too diluted to have led to even the gradual social changes #hich it in fact
inspired.O
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?nanimity key to rule of la#
(IM>RA 92M;en & HH +ornell . 6ev. 1437N
A plurality decision, by its very nature, represents the most unstable form
of case la#. It is the resolution of a OhardO case by a nonunanimous +ourt.At least three opinions, resting upon diverse legal theories, are
present in a plurality decision. "he 2upreme +ourtPs failure to
articulate a single rule of la# creates confusion in the lo#er courts as ho# to
interpret and #eigh that decision.
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4-5 !ecisions T normal means
NPR )-'-01
":"=B=6@F ooking for#ard to neCt term0 !onPt eCpect a big change in the
4-to-5 voting pattern #ith 8uestions like affirmative action and the death
penalty on the docket. ina "otenberg, 6 e#s, *ashington.
=!*A6!2F "he time is 13 minutes past the hour.
2&
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4-5 !ecisions are business as usual for this court
NPR )-!-01M"otenbernTreporter, @oldsteinT2upreme +ourt AdvocateN
":"=B=6@F Indeed, @oldstein points out that if you eliminate from thee8uation the courtPs business cases, most of #hich #ere easily decided #ith
little or no dissent...
r. @:!2"=IF "he number of 4-5 cases goes through the roof. It becomes
about t#o-thirds or even three-8uarters of the cases.
2!
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>ustices deliberately #rite confusing opinions
(IRMAN 9!
MIgor & 34 +olum. . 6ev. 7N
In order to gain the support of a ma$ority, such opinions are often#ritten, to borro# a phrase from
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AT: P"AN DOESN/T INDICATE A SP"IT DECISION
1) lan indicates normal means#& our 1nc +ooper evidence indicates that split decisions are business
as usual for the +ourt.
) "heir inherency evidence proves & conflicts eCist that prevent grassroots mobili9ation, state
reforms, andSor a +ourt decision, #hich means the plan #ould have to be a split decision givenstatus 8uo attitudes
7) +ontroversy over the plan causes a split decisionF
A) ustices hold different premises, and even ifthese different premises are more general values, it is much more difficult for them to reach a consensus.
"he result is an increase in the number of plurality decisions.( !iffering values as a basis of $udicialdecisions create irreconcilable differences.
5) "his is a good interpretation of fiatF our interpretation of fiat and normal means allo#s running
real #orld congressional backlash !As, politics !As, etc. #hich are the heart of the topic. If the
neg can find evidence proving #hat normal means is, or the popular effects of the plan, they
should be able to run it. "he aff interpretation punishes hard #ork and research at the eCpense ofcreativity and neg ground.
4) "hey couldve specified & "hey had infinite prep time to craft the 1A+ and their plan teCt, they
couldve avoided this debate by specifying a 3- decision. "herefore, since they passed on the
opportunity, it should be our choice and this should be legitimate + ground.
G) Allo#s for moreaff ground. "hey get 4-5, -1, H-, and G-7.
H) Uinsert a sle# of normal means evidenceV
1if the plan doesnt say normal means, you should obviously not say this. you should instead say that the
1nc +ooper evidence indicates that split decisions are business as usual #hich means that if the plan
doesnt say #hich #ay the decision goes, you should assume its a split.
2)
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AT: PERM DO BOTH
1) "heyre mutually eCclusive & the +ourt cant take actions to decide one case t#o different #ays
at the same time & violates the la#s of physics and makes no sense.
) Its an intrinsicness perm & in order for the perm to function an additional action that isnt in the
advocacy of the plan or the + & such as a second test case or striking do#n one of the decisions ould have to take place. "his is illegitimate and a voting issue because the infinite amount of
plan amendments that occur half#ay through the debate make it impossible to be negative and it
kills our ground because it makes all counterplans non-competitive and net benefits irrelevant.
7) o net benefit & "hey still enact a split decision, meaning theyll al#ays link to the 6ule of a#
net benefit and risk not solving because of all the reasons split decisions dont solve articulated in
the 1+
5) erm links #orse & t#o decisions on the same case going t#o different #ays0 If the lo#er courts
and society-at-large #erent going to muddle up the plan, theyre sure going to be unable to handle
the perm.
2%
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AT: PERM DO THE CO>NTERP"AN
1) Its a severance perm & it severs out of the part of the plan that is a split decision. 2everance perms
are a voting issue because plan alterations that make all negative offense irrelevant mid-#ay
through the debate make it impossible to be negative.
) "eCtual +ompetition is a bad standard &
a) it makes all counterplans non-competitive via stupid #ordplay and grammar magic. A
counterplan to 'ot !o "he lan( #ould be non-competitive even though its theopposite of the plan, all conditioning and consultation counterplans #ould be non-
competitive even though they are functionally eCtremely different, it makes stupid and
non-sensical acronyms and 're-arrange the letters( counterplans legitimate, etc.
b) provides for better debate & functional competitive means you have to make arguments
about #hat the plan and the counterplan actually do& #hich is al#ays better for
education and in-depth debate
c) $ust as arbitrary & grammar and plan #ordings are al#ays imprecise & $udges are smart
enough to figure out the debate, #hich means theyre smart enough to resolve #hether ornot a counterplan functionally competes
7) Its our idea & they have conceeded that the negative advocacy is better than the aff. 6e#ard us.
5) 2ets a bad precedent & if they can $ustify stealing the negative advocacy in this round, thats a
slippery slope to making all counterplans and criti8ue alternatives $ust A+ plan clarifications,unfairly privileging the affirmative #hich already has first and last speeches, infinite prep time,
choice of topic, and #ins most debates. If a contrived theory debate that the aff started is close,you should al#ays err negative due to massive side bias.
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AT: ATTIT>DE FIAT BAD
1) All fiat is attitude fiat & inherency al#ays means opposition to the plan eCists in the status 8uo,
#hich means that in order for anything to pass the attitudes of la#makers have to temporarily
change. "his is inevitable #ith all instances of fiat in debate.
) o inround abuse & "heir #orst case scenario are counterplans that #ish a#ay violence or racismor other things at the grassroots level & #e can agree that attitude fiat of 'the #orld( or individual
citi9ens is bad #hile limiting ourselves to fiating #hat the government does & that ensures a good
debate over process and ho# politics happens in the real #orld rather than $ust fiating a#ay theharms.
7) +ompetition checks abuse & #e still have to #in #ere competitive & '*orld eace( counterplans
can never do that
5) 2olvency evidence checks abuse & #e still have to #in a substantive debate over ho# the
decisions are perceived & #e are reading cards about ho# 3- decisions are perceived #hich
means a fair debate is possible
4) =rr neg on theory & aff gets first and last speech, choice of topic, #ins most of the time, and hasinfinite prep time & give us lee#ay on contrived theory ob$ections
G) unishment doesnt fit the crime & at #orst you $ust re$ect the counterplan not the team.
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9-0 C*5r8+5to t 4*5 tt s Etr5-to4+5*
A? VIO"ATION
plan goes beyond the boundaries of the resolution and fiats that the vote count of the +ourt is a 3-
B? THIS IS A VOTIN# ISS>E
1- ground & they prevent us from running specific backlash !As and political process !As by
performing unpredictable god-like manipulation of their agent in a #ay that is inconsistent #iththe literature base
- infinite regression & they use attitudinal fiat #hich can sno#ball into fiating a#ay racism or
homophobia or any terminal impact to their affirmative
7- education & they shift the focus off of the real #orld effects of the plan by using eCtra fiat to spike
out of substantive offense
5- de$ustifies the resolution by illustrating that it is insufficient by itself to solve the harms
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