Court Legitimacy DA

1NC

1NC – Court Legitimacy DACourt legitimacy is high right now.Bassock 16 (University of Nottingham - Faculty of Law and Social Sciences, Bassok, Or, The Supreme Court's New Source of Legitimacy (June 2013). 16 University of Pennsylvania Journal of Constitutional Law 153 (2013); NYU School of Law, Public Law Research Paper No. 13-30. Available at SSRN: https://ssrn.com/abstract=2258173)

The ability to track public support for the Court, the public record of this support (often published by popular media), and the scientific allure of opinion polls made public confidence in the Court more “real” in the public imagination. The introduction of a metric that measures public support for the Court, the same metric that is central to political players’ own understanding of their legitimacy, changed the balance of power between the branches. Now, there is an independent, reliable source of evidence, a public proof available to all, of public support for the Court.

At least since the 1970s, this public metric has shown that public support for the Court as an institution is “ stable and high .” Data also show that at least since 1987, the Court has enjoyed a significant bedrock of diffuse support. The public has consistently awarded the Court more approval than Congress or the executive branch. Thus, the political branches may capitulate to the Court not due to its designated function as the expert interpreter of the Constitution—as if they were the patient doing

as the doctor ordered—but due to public support of the Court. Indeed, even if the political elites lost their faith that the Court holds a relevant expertise for interpreting indeterminate constitutional norms, political resistance to its decisions seems infeasible as long as it holds public confidence. Public opinion is the drive wheel of American politics , and no politician wants to stand against it.Backed by survey results, the claim that the Court holds normative legitimacy based on public support was placed on almost the same empirical footing as the elected branches’ claim of normative legitimacy. Besides relying on the mandate they received in the elections, the President and Congress base many of their legitimacy claims, in the intervals between elections, on the outcome of public opinion polls. The Court’s inferiority in terms of democratic legitimacy was no longer an a priori structural premise, but an empirical question. A technological development created a new and distinct source of legitimacy for the Court which is not very different from the democratic support which makes representative institutions so confident in their source of legitimacy

Maintaining “Stare decisis” is key to preserve Court legitimacy—that solves democracy—empirics prove. Gentithes 9 (Michael Gentithes Research Attorney, Illinois Appellate Court, First District; J.D. DePaul University College of Law 2008; B.A. Colgate University 2005., 8-13-2009, “In Defense of Stare Decisis,” Williamette Law Review, accessed 7-14-2017)

II. WHY THE STRENGTH OF A COUNTRY’S HIGHEST COURT IS VITAL TO PRESERVING A DEMOCRATIC SYSTEM Below, I argue that stare decisis allows the Supreme Court to earn the respect of the people and the coordinate

branches of government. But a discussion of how the Court maintains popular respect is only relevant when framed by the significance of that respect itself. The judiciary’s strength , meaning its ability to render decisions that are respected throughout the country, is absolutely paramount to successful democracy . This point can be illustrated by a comparison of recent political history in the United States, Pakistan, and Kenya.

The 2000 presidential election cycle was unique in American history. As time pressed on and no official winner was declared, supporters of Democrat Al Gore and Republican George Bush grew more fervent in their determination to capture the White House. Ultimately, Bush turned to the Supreme Court in search of a definitive ruling on the recount procedures ordered by Florida’s Supreme Court.3 In a per curiam opinion that reflected deep division, the Court held

that Florida’s recount procedures violated the Equal Protection Clause.4 Despite the divided nature of the Court’s opinion, Al Gore quickly announced his respect for the Court’s ruling and his decision to concede the election to Bush.5 Although he disagreed with the decision, Gore “accepted the finality of [the] outcome” and offered his concession “ for the sake of our unity as a people and the strength of our democracy .” 6 Gore emphasized that this election was just another in America’s long history of fierce political contests, and noted that “each time, both the victor and the vanquished have accepted the result peacefully and in a spirit of reconciliation.”7

Compare this with recent political turmoil in Pakistan. In March of 2007, President Pervez Musharraf faced potential constitutional challenges to his bid for reelection given his desire to retain his position as army chief of staff.8 In a move he insisted was based on complaints of misconduct, Musharraf attempted to obtain the resignation of the Chief Justice of the Supreme Court of Pakistan, Iftikhar Muhammad Chaudhry, a long-time political opponent with a willingness to “take on cases challenging [Musharraf’s] government”9 and a likely vote against Musharraf. When Chaudhry refused to resign, Musharraf dismissed him.10 But the story did not end there; Chaudhry challenged his dismissal and won reinstatement in a case heard by the Pakistani Supreme Court’s remaining members.11 Although spokesmen for Musharraf initially signaled that he would respect the decision and pledged that

“any judgment the Supreme Court arrives at will be honoured, respected and adhered to,”12 a mere twenty days later Musharraf appeared on the brink of declaring a state of emergency in Pakistan which would allow him to “ curtail the activities of the courts ” and disobey its ruling.13 Despite heavy pressure from American and European governments,14 Musharraf declared a state of emergency in early November, ordered the justices of the supreme court to take an oath promising to abide by a “ provisional constitutional order ” in lieu of the existing constitution, and dismissed those justices, including Chaudhry, that failed to do so.15 Although

Musharraf would later step aside as Pakistan’s leader amidst threats of impeachment,16 the stains to the court’s legitimacy remain ; political leaders considered the court illegitimate after Musharraf’s replacement of the sitting justices with those of his own choosing.17 Many in Pakistan continued to view the supreme court as illegitimate into 2009, as political wrangling in the post- Musharraf era began.18 Chaudry was eventually reinstated in March 2009 after an extended campaign by Pakistan’s lawyers, but whether he can effectively stabilize the judiciary and restore faith in its decisions remains to be seen.19

Another example from sub-Saharan Africa demonstrates the inherent danger of a judiciary that lacks the confidence of the people and coordinate democratic branches. In late 2007, Kenyan president Mwai Kibaki declared victory over rival Raila Odinga in a closely contested election that Western observers believed was rigged.20 As political pressure mounted, Odinga insisted that the conflict could only be resolved by a recount of the votes and refused to seek relief from Kenya’s

court system because he believed it was “controlled by President Kibaki.”21 After an extended delay that saw violence sweep the countryside, and only after significant external political pressure was applied, Kibaki and Odinga agreed to form a coalition government that required amendments to the constitution to create new executive positions.22 Kenya’s high court was unable to play any role in resolving the turmoil.

Of course, the particular historical, political, and cultural background of these countries had a role in their leaders’ actions; indeed, these were likely the most influential factors. Correlation is not causation after all, and the lack of

respect that leaders in these countries harbored for the courts may not have directly caused political and social unrest. But the weakened structure of the judiciary at least played an enabling role . 23 Leaders in the highest levels of government sought more power by flouting the law in ways that simply would not have been possible with a strong, effective judiciary respected by the country’s citizens. When even leaders disregarded their country’s legal system, other actors with potential claims were unable or unwilling to turn to courts for which they and their opponents had little respect.

With this in mind, the authority with which decisions of the Supreme Court are viewed should not be taken lightly . If the integrity of the Court was openly questioned and its opinions disrespected, the same structure enabling leaders in other countries to flout their highest court’s rulings would be present in the United States: When we look at the problems of emerging democracies, we can see that two of the most important functions courts can perform are resolving legal disputes in an impartial manner, and assuring that executive officials adhere to the law. A restrained judiciary is in a much stronger position to perform these functions, because such a judiciary can claim to be doing no more or less than what it always does—

enforcing established legal principles.24 Thus, any doctrine that fosters respect for the Court itself, and allows the Court to resolve legal problems in a way that both the parties and coequal branches will respect as final , plays a vital role in maintaining a democratic system because it enables the Court to effectively curb abuses by coequal branches. Below, I contend that stare decisis can play precisely this role.

III. WHY A ROBUST FORM OF STARE DECISIS IS IMPERATIVE FOR AN EFFECTIVE, WELL-RESPECTED JUDICIARY CAPABLE OF ADEQUATELY SUPPORTING DEMOCRACY

The argument for at least some form of stare decisis is often tied to its relationship with the consistent rule of law,25 without which our government lacks both coherence and the respect of citizens . Commitment to precedent contributes to the respect, if not reverence, that the decisions of the U.S. Supreme Court enjoy.26 This vital role for stare decisis is the basis of the doctrine’s position as an inherent constitutional imperative . Justices often face a difficult problem in reviewing new challenges to precedent: Is it more important to allow the earlier decision to resolve the conflict definitively—even if the Justice suspects it misapplies the Constitution—or to reach conclusions the Justice honestly believes are constitutional? The perspectives of some political theorists shed light on the balance that Justices should seek. Thomas Hobbes believed that the force of law is derived solely from the authority of its author: I grant you that the knowledge of the Law is an Art, but not that any Art of one Man or of many how wise soever they be, or the work of one and more artificers, how perfect soever it be, is Law. It is not Wisdom, but Authority that makes a Law.27

Montesquieu argued that law derives its power from its precision, and from avoiding the perception that law is merely the opinion of the judge.28 To be effective, “judgments should be fixed to such a degree that they are never anything but a precise text of the law. If judgments were the individual opinion of a judge, one would live in this society without knowing precisely what engagements one has contracted.”29

But what makes the law appear to be more than the individual opinion of the judge, and instead seem authoritative and precise? A plausible argument can be made that the ultimate source of authority in constitutional jurisprudence is the Constitution itself, and any decision that deviates from that text must be eradicated to inspire the utmost confidence in the Court’s integrity . 30 Critics emphasize that the Constitution’s text contains no allusions to the necessity of stare decisis.31 Any form of the doctrine is therefore fundamentally corrupting because, under Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), the Constitution is the ultimate source of law, not the Court’s decisions: “If the Constitution is not alterable whenever the judiciary shall please to alter it, then ‘a [judicial precedent] contrary to the constitution is not law.’”32

However, such critiques assume that, in all cases, the Constitution provides clear answers. Professor Michael Stokes Paulsen asserts that the legitimacy of the Court “rests on its ability to render non-political legal judgment in accordance with principles of interpretation that stand outside the judges’ personal sense of what is expedient, practical or desirable as a policy matter.”33 But often, in cases where strong arguments exist on both sides and the nation’s attention is drawn, Justices must decide controversies whether or not there exist any clear legal conclusions based on principled constitutional interpretations. In the closest cases, it is likely that several Court members will reach opposite conclusions from their interpretive principles. In those cases—which often draw the most public attention and are the most

controversial—the key to legitimacy cannot be either side’s claim to a correct interpretive framework, for both sides can make such a claim. Instead , the

Court must derive legitimacy by resisting political pressure to change decisions already rendered, especially as its membership changes. To do otherwise suggests that the Court is a political football kicked by the other branches of government through the appointment process, since decisions are dictated only by the particular Justices sitting at a given time. As discussed above, such apparent malleability can have disastrous consequences . 34Another problem with Paulsen’s view is the assumption that Justices can rely on principles of interpretation devoid of their own policy preferences. To be sure, Justices should avoid relying on policy prerogatives; as Lewis F. Powell noted, “[t]he respect given the Court by the public and by the other branches of government rests in large part on the knowledge that the Court is not composed of unelected judges free to write their policy views into law.”35 However, it seems unlikely that in all cases, or even in a significant majority, Justices can wholly remove their personal policy preferences from their decisional calculus, especially in those cases where constitutional meaning is not abundantly

clear. Stare decisis , rather than acting as a corrupting influence on a Justice’s theory of interpretation, provides the Justice much needed humility and restraint in tough cases . Leaders of the other branches of government will find themselves much less inclined to follow the decisions of a Supreme Court that proves itself, over time, to shift with the preferences of a constantly changing bench . The rule of law would be undermined by such an “explicit endorsement of the idea that the Constitution is nothing more than what five Justices say it is.”36To the average citizen, and indeed even to most professors, the meaning of key provisions of the Constitution remain open to debate. If the opposite were true, there would be little reason for Justices to hear oral arguments or take any time in considering their opinions. Given the lack of clarity, a Court with Justices inclined to follow their own interpretations blindly, irrespective of precedent, is almost certain to appear driven by policy preferences, even if the Justices’ views are not. The powerful weapon of overruling a prior decision should be wielded infrequently.

Granted, the decisions on which the Justices of today rely may have been influenced by the policy preferences of those

that came before them. But in most cases it is better to rely on those decisions than to appear to allow present political

pressure to influence modern jurisprudence. Although many celebrated decisions have made marked breaks from past jurisprudence, the infrequency of such deviations from established precedent contributes to the reverence those decisions warrant, and it is only because the Court has refrained from creating fractures more often that its legitimacy has withstood the social unrest those rare breaks have triggered.

If rational citizens concluded that political pressure influenced the Court , they might seek relief from prior decisions simply because of its inconsistency with a new Justice’s approach. Such relief can be a destructive force.37 It implies that the Court can manipulate the Constitution at will, and therefore a rational citizen has little reason to respect the decisions of the Court interpreting the Constitution until they find the current interpretation agreeable. The citizen would be motivated to either ignore the Court’s edict or perpetually litigate their own interpretation until the Court is persuaded or new appointees adopt their

view. And the more the Court and its decisions appear arbitrary, the more real becomes the danger of not just a citizen ignoring it, but rather an entire branch of government. As noted by Thomas W. Merrill, “If judges are restrained, that is, if they adhere to the jurisprudence of no surprises, then the proponents of social change through law will have to look elsewhere in order

to achieve their reforms.”38 Thus, stare decisis holds great value in its ability to avoid the problems of perpetual litigation and afford a necessary finality to the Court’s decisions.

The advantages of stare decisis are also clear in cases that draw significant public scrutiny. In those cases, perpetual litigation is the norm and parties refuse to concede any perceived gains they have made towards their positions. Once a decision has been reached, that decision should be final, so as to avoid drawn-out uncertainties that have arisen in some political controversies.39

One might respond that the need for consistency is overblown; instead, and especially in those cases which are most hotly contested and fiercely debated, reaching a correct resolution should be even more important than in trivial

disputes.40 My response is simply that, were such clearly “correct” resolutions possible, it would certainly seem right to favor them. But both at the time of the original controversy and in later cases which present similar or identical issues, the correct outcome is seldom obvious . Further, each decision that can be described as a “correction” of earlier jurisprudence proclaims the Court’s fallibility, and alternatively suggests that the Court’s interpretation of the Constitution is driven by the personalities that happen to occupy its bench. A decision that “corrects” prior jurisprudence risks altering a holding that may not clearly be “wrong” or “right,” and does so with the potential cost of the Court’s legitimacy and the respect which citizens and other branches of government ascribe to the institution—a tremendous risk.

Democracy solves war, economic growth, and pluralism.Lagon'11Mark P. Lagon , Centennial Fellow and Distinguished Senior Scholar, Georgetown University School of Foreign Service, 2-11-2011, "The Whys and Hows of Promoting Democracy," Council on Foreign Relations, https://www.cfr.org/expert-brief/whys-and-hows-promoting-democracy

Furthering democracy is often dismissed as moralism distinct from U.S. interests or mere lip service to build support for strategic policies. Yet there are tangible stakes for the United States and indeed the world in the spread of democracy—namely, greater peace, prosperity, and pluralism. Controversial means for promoting democracy and frequent mismatches between deeds and words have clouded appreciation of this truth.

Democracies often have conflicting priorities, and democracy promotion is not a panacea. Yet one of the few truly robust findings in international relations is that established democracies never go to war with one another. Foreign policy “realists” advocate working with other governments on the basis of interests, irrespective of character, and suggest that this approach best preserves stability in the world. However, durable stability flows from a domestic politics built on consensus and peaceful competition, which more often than not promotes similar international conduct for governments.

There has long been controversy about whether democracy enhances economic development. The dramatic growth of China certainly challenges this notion. Still, history will likely show that democracy yields the most prosperity. Notwithstanding the global financial turbulence of the past three years, democracy’s elements facilitate long-term economic growth. These elements include, above all, freedom of expression and learning to promote

innovation, and rule of law to foster predictability for investors and stop corruption from stunting growth. It is for that reason that the UN Development Programme (UNDP) and the 2002 UN Financing for Development Conference in Monterrey, Mexico, embraced good governance as the enabler of development. These elements have unleashed new emerging powers such as India and Brazil, and raised the quality of life for impoverished peoples. Those who argue that economic development will eventually yield political freedoms may be reversing the order of influences—or at least discounting the reciprocal relationship between political and economic liberalization.

Finally, democracy affords all groups equal access to justice—and equal opportunity to shine as assets in a country’s economy. Democracy’s support for pluralism prevents human assets—including religious and ethnic minorities, women, and migrants—from being squandered. Indeed, a shortage of economic opportunities and outlets for grievances has contributed significantly to the ongoing upheaval in the Middle East. Pluralism is also precisely what is needed to stop violent extremism from wreaking havoc on the world.

UQ

AT: Gorsuch ThumpsGorsuch won't change court tendencies—that still preserves legitimacy. Pierce 17 Rich Pierce, Lyle T. Alverson Professor of Law at George Washington University. His work been cited in hundreds of judicial opinions, including more than a dozen opinions of the U.S. Supreme Court.3-19-2017, "What impact will Judge Gorsuch really have on the Supreme Court?," TheHill, http://thehill.com/blogs/pundits-blog/the-judiciary/324686-if-judge-gorsuch-is-confirmed-his-impact-wont-be-as-large-as

Judge Gorsuch’s general tendencies are not likely to have a major effect on the pattern of Supreme Court decisions in the near future, however, for three reasons. First, it is impossible to use any judge’s general tendencies as the basis to predict with confidence how the judge will vote in any specific case. Even the most conservative judges vote to uphold many agency decisions to regulate, and even the most liberal judges vote to reject some agency decisions to regulate.

Second, Judge Gorsuch’s voting patterns in regulatory cases are likely to be similar to those of Justice Scalia. Replacing one conservative justice with another conservative justice is likely to have little effect on the high court’s general pattern of decisions. By contrast, replacing Justice Ginsburg, Justice Breyer, or Justice Kennedy with a conservative almost certainly would produce major changes. Those changes would include rejection of a much higher proportion of agency decisions to regulate and announcement of new standards that lower courts must apply in regulatory cases that would produce a general increase in the proportion of agency decisions to regulate that lower courts reject.

AT: Trump ThumpsTrump fails to delegitimize the courts.Leonard 2-15, Associate Professor at Illinois State University with a PhD in Political Science from University of Arizona and an interest in Judicial Politics, 2-15-2017 (Meghan E. Leonard, "Despite Trump’s attempts to delegitimize them, the Courts are checking executive power exactly as they should.", No Publication, http://eprints.lse.ac.uk/69703/, accessed on 7-11-2017)

The quotes above highlight the narrative in President Trump’s seeming ‘war’ on the power of the federal courts. The President, disheartened by the district court’s temporary restraining order on his executive order, attacked both federal District Court Judge James L. Robart (“so-called judge”) and the power of the federal courts to make this decision. Of course, the federal courts do have the power to halt potentially unconstitutional executive orders and check the other two branches of government. The power of the Supreme Court and federal courts more generally to interpret the Constitution, or ‘say what the law is’ was given to the Court by its own Chief Justice John Marshall in 1803, in Marbury v. Madison. Not explicated in the Constitution itself, judicial review is the heart of judicial power in the United States. While Marbury gives the Court the legal authority to say what the law is; the legitimacy of the courts gives them the political capacity to have their decisions complied with. The legitimacy of the Supreme Court is best understood as a reservoir of goodwill toward the institution, whereby individuals accept the decisions of the Court because they trust the institution. While a debate exists on how ideology and agreement with individual Court decisions affects support for the Court, political scientists have generally concluded the support for the Supreme Court is high and enduring. And given that the courts have neither the ‘power of the purse nor the sword’ it is this diffuse support that leads the other branches of government to comply with and implement the decisions of the Court. Not doing so could lead to backlash from the public, which the elected branches, which are concerned centrally about reelection seek to avoid.

AT: Media ThumpsCourts will maintain public support despite partisanship in the media Linos and Twist 6-28, Katerina Linos is a professor at the University of California-Berkeley Law School. Kimberly Twist is an assistant professor of political science at San Diego State University. 6-28-2017 (Katerina Linos and Kimberly Twist, "Controversial Supreme Court Decisions Change Public Opinion — In Part Because The Media Mostly Report On Them Uncritically", Washington Post, https://www.washingtonpost.com/news/monkey-cage/wp/2017/06/28/controversial-supreme-court-decisions-change-public-opinion-in-part-because-the-media-mostly-report-on-them-uncritically/?utm_term=.e363c97f7fb3, accessed on 7-14-2017, AB)

This week the Supreme Court announced its most controversial decision of the year, allowing parts of President Trump’s immigration ban to go into effect and inviting oral arguments in the fall. How might this decision affect public support for the president’s ban, and for his immigration agenda?

In a recent article in the Journal of Legal Studies, we found that Supreme Court rulings can affect how ordinary Americans perceive the issues under consideration in those rulings. Why? Because of the news media.

Justices keep their distance from the public. The news media interpret for them.

Unlike presidents or members of Congress, justices do not speak directly to the public. Their decisions pass through

media outlets, which must decide how to explain them. Therefore, the messages used by media, and television news in particular, have tremendous ability to shape how Americans respond to the Supreme Court. And media outlets tend to be far more deferential in reporting on court decisions than when reporting on Congress or the presidency. They often treat a court decision as the final word, rather than the beginning of a debate.The ruling temporarily allows the administration to ban travelers from six mostly-Muslim countries from entering the country — unless those travelers have a “bona fide” connection to some person or entity in the United States, such as a family member or a job.

[Will Trump’s new rules make it harder to get asylum in the U.S.? That will vary dramatically from one judge to the next.]

The news media could cover this in many ways. For example, they could portray the ruling as a victory for the administration, as a win for families looking to be reunited, as a question of national security or as an issue of fundamental rights.Here’s how we did our research

To understand how the news media report on the Supreme Court, we examined how evening news programs covered aspects of two 2012 Supreme Court rulings: the Affordable Care Act’s individual mandate, under consideration in National Federation of Independent Business v. Sebelius, and the controversial “show your papers” provision of Arizona’s immigration law, Senate Bill 10170, under consideration in Arizona v. United States. The six networks in our study were ABC, CBS, CNN, Fox News, MSNBC, and NBC.

We coded the extent to which these programs included messages — whether from hosts, guests, or politicians — that supported or criticized the majority opinions. Support included discussion about, for example, how the individual

mandate would decrease the number of uninsured Americans or how the “show your papers” law could help keep the border secure. Criticism included discussion about the individual mandate as a tax or how the Arizona law could increase discriminatory racial profiling.

[Trump’s travel ban is built on a law meant to ‘protect’ the U.S. from Jews and communists]

Here’s what was striking: The networks largely — or almost exclusively — conveyed support for these court rulings. Of the 12 evening news programs in our study — two decisions, each reported on by six networks — nearly half covered the rulings with one-sided support, while the rest divided their coverage more evenly between support and criticism. Not once did we find one-sided negative coverage. Even when Fox covered the Obamacare decision, and when MSNBC covered the Arizona decision, each featured some arguments that supported the court majority.

Supportive coverage boosted public support for controversial decisions

To answer how coverage affected public opinion, we paired this media study with a two-wave nationally representative survey. A few weeks before each ruling and in the days afterward, we asked respondents how strongly they supported or opposed the ACA’s individual mandate or the Arizona “papers” provision. We also asked respondents which evening news programs they watched, to see how those outlets’ media coverage shifted public opinion. Because viewers choose their news outlets, we coupled this research with an experiment in which we randomly assigned supportive and critical messages.

Viewers who watched networks that covered the decisions supportively were likely to increase their support of the provisions. Viewers who watched networks that offered mixed coverage did not change their minds.[This is why so many Republicans are ready to ignore public opinion on health care]

Those effects are significant. Immediately after the court’s ACA ruling, support for the individual mandate jumped from 29 to 35 percent among our respondents, who were representative of the U.S. population. That jump was even bigger among those who saw only supportive coverage.Spanish-language television coverage was critical

Media outlets treat Supreme Court decisions with far more deference than they give presidential and congressional

decisions. Had media coverage been more critical, public support might well have dropped. To examine that possibility, we looked at how two Spanish-language television programs, Univision and Telemundo, covered the immigration decision. Their extensive coverage was very critical. And that affected the Latinos who reported watching either Univision or Telemundo after the court’s “show your papers” decision, with support for the provision dropping from 43 to 25 percent.

Many news outlets have been quite critical of the Trump administration’s decisions. And so it is striking to see the media cover court decisions of Trump administration policies so deferentially. The original travel ban announcement and its revisions were widely criticized by liberal and mainstream media. But these same outlets offered much milder coverage of the court’s decision to uphold parts of the ban.

We will have to wait for the court’s final decision on the ban to see whether it affects public opinion on immigration. Our study suggests that there is little media coverage of cases early in judicial proceedings, such as when the court agrees to hear a case or when it hears oral arguments. Coverage is much more extensive when a final decision is announced. In this case, the court’s final decision could either uphold or strike the immigration ban.

Whatever the court does, the mainstream media are likely to continue reporting its decisions with great deference.

Most Americans will therefore end up agreeing with the court. But we should expect significant backlash among immigrant communities, especially those most directly affected by the ban.

L

L – Stare Decisis Maintaining “Stare decisis” is key to preserve Court legitimacy. Gentithes 9 (Michael Gentithes Research Attorney, Illinois Appellate Court, First District; J.D. DePaul University College of Law 2008; B.A. Colgate University 2005., 8-13-2009, “In Defense of Stare Decisis,” Williamette Law Review, accessed 7-14-2017)

II. WHY THE STRENGTH OF A COUNTRY’S HIGHEST COURT IS VITAL TO PRESERVING A DEMOCRATIC SYSTEM Below, I argue that stare decisis allows the Supreme Court to earn the respect of the people and the coordinate

branches of government. But a discussion of how the Court maintains popular respect is only relevant when framed by the significance of that respect itself. The judiciary’s strength , meaning its ability to render decisions that are respected throughout the country, is absolutely paramount to successful democracy . This point can be illustrated by a comparison of recent political history in the United States, Pakistan, and Kenya. The 2000 presidential election cycle was unique in American history. As time pressed on and no official winner was declared, supporters of Democrat Al Gore and Republican George Bush grew more fervent in their determination to capture the White House. Ultimately, Bush turned to the Supreme Court in search of a definitive ruling on the recount procedures ordered by Florida’s Supreme Court.3 In a per curiam opinion that reflected deep division, the Court held

that Florida’s recount procedures violated the Equal Protection Clause.4 Despite the divided nature of the Court’s opinion, Al Gore quickly announced his respect for the Court’s ruling and his decision to concede the election to Bush.5 Although he disagreed with the decision, Gore “accepted the finality of [the] outcome” and offered his concession “ for the sake of our unity as a people and the strength of our democracy .” 6 Gore emphasized that this election was just another in America’s long history of fierce political contests, and noted that “each time, both the victor and the vanquished have accepted the result peacefully and in a spirit of reconciliation.”7

Compare this with recent political turmoil in Pakistan. In March of 2007, President Pervez Musharraf faced potential constitutional challenges to his bid for reelection given his desire to retain his position as army chief of staff.8 In a move he insisted was based on complaints of misconduct, Musharraf attempted to obtain the resignation of the Chief Justice of the Supreme Court of Pakistan, Iftikhar Muhammad Chaudhry, a long-time political opponent with a willingness to “take on cases challenging [Musharraf’s] government”9 and a likely vote against Musharraf. When Chaudhry refused to resign, Musharraf dismissed him.10 But the story did not end there; Chaudhry challenged his dismissal and won reinstatement in a case heard by the Pakistani Supreme Court’s remaining members.11 Although spokesmen for Musharraf initially signaled that he would respect the decision and pledged that

“any judgment the Supreme Court arrives at will be honoured, respected and adhered to,”12 a mere twenty days later Musharraf appeared on the brink of declaring a state of emergency in Pakistan which would allow him to “ curtail the activities of the courts ” and disobey its ruling.13 Despite heavy pressure from American and European governments,14 Musharraf declared a state of emergency in early November, ordered the justices of the supreme court to take an oath promising to abide by a “ provisional constitutional order ” in lieu of the existing constitution, and dismissed those justices, including Chaudhry, that failed to do so.15 Although

Musharraf would later step aside as Pakistan’s leader amidst threats of impeachment,16 the stains to the court’s legitimacy remain ; political leaders considered the court

illegitimate after Musharraf’s replacement of the sitting justices with those of his own choosing.17 Many in Pakistan continued to view the supreme court as illegitimate into 2009, as political wrangling in the post- Musharraf era began.18 Chaudry was eventually reinstated in March 2009 after an extended campaign by Pakistan’s lawyers, but whether he can effectively stabilize the judiciary and restore faith in its decisions remains to be seen.19

Another example from sub-Saharan Africa demonstrates the inherent danger of a judiciary that lacks the confidence of the people and coordinate democratic branches. In late 2007, Kenyan president Mwai Kibaki declared victory over rival Raila Odinga in a closely contested election that Western observers believed was rigged.20 As political pressure mounted, Odinga insisted that the conflict could only be resolved by a recount of the votes and refused to seek relief from Kenya’s

court system because he believed it was “controlled by President Kibaki.”21 After an extended delay that saw violence sweep the countryside, and only after significant external political pressure was applied, Kibaki and Odinga agreed to form a coalition government that required amendments to the constitution to create new executive positions.22 Kenya’s high court was unable to play any role in resolving the turmoil. Of course, the particular historical, political, and cultural background of these countries had a role in their leaders’ actions; indeed, these were likely the most influential factors. Correlation is not causation after all, and the lack of

respect that leaders in these countries harbored for the courts may not have directly caused political and social unrest. But the weakened structure of the judiciary at least played an enabling role . 23 Leaders in the highest levels of government sought more power by flouting the law in ways that simply would not have been possible with a strong, effective judiciary respected by the country’s citizens. When even leaders disregarded their country’s legal system, other actors with potential claims were unable or unwilling to turn to courts for which they and their opponents had little respect.

With this in mind, the authority with which decisions of the Supreme Court are viewed should not be taken lightly . If the integrity of the Court was openly questioned and its opinions disrespected, the same structure enabling leaders in other countries to flout their highest court’s rulings would be present in the United States: When we look at the problems of emerging democracies, we can see that two of the most important functions courts can perform are resolving legal disputes in an impartial manner, and assuring that executive officials adhere to the law. A restrained judiciary is in a much stronger position to perform these functions, because such a judiciary can claim to be doing no more or less than what it always does—

enforcing established legal principles.24 Thus, any doctrine that fosters respect for the Court itself, and allows the Court to resolve legal problems in a way that both the parties and coequal branches will respect as final , plays a vital role in maintaining a democratic system because it enables the Court to effectively curb abuses by coequal branches. Below, I contend that stare decisis can play precisely this role.

III. WHY A ROBUST FORM OF STARE DECISIS IS IMPERATIVE FOR AN EFFECTIVE, WELL-RESPECTED JUDICIARY CAPABLE OF ADEQUATELY SUPPORTING DEMOCRACY

The argument for at least some form of stare decisis is often tied to its relationship with the consistent rule of law,25 without which our government lacks both coherence and the respect of citizens .

Commitment to precedent contributes to the respect, if not reverence, that the decisions of the U.S. Supreme Court enjoy.26 This vital role for stare decisis is the basis of the doctrine’s position as an inherent constitutional imperative . Justices often face a difficult problem in reviewing new challenges to precedent: Is it more important to allow the earlier decision to resolve the conflict definitively—even if the Justice suspects it misapplies the Constitution—or to reach conclusions the Justice honestly believes are constitutional? The perspectives of some political theorists shed light on the balance that Justices should seek. Thomas Hobbes believed that the force of law is derived solely from the authority of its author: I grant you that the knowledge of the Law is an Art, but not that any Art of one Man or of many how wise soever they be, or the work of one and more artificers, how perfect soever it be, is Law. It is not Wisdom, but Authority that makes a Law.27

Montesquieu argued that law derives its power from its precision, and from avoiding the perception that law is merely the opinion of the judge.28 To be effective, “judgments should be fixed to such a degree that they are never anything but a precise text of the law. If judgments were the individual opinion of a judge, one would live in this society without knowing precisely what engagements one has contracted.”29

But what makes the law appear to be more than the individual opinion of the judge, and instead seem authoritative and precise? A plausible argument can be made that the ultimate source of authority in constitutional jurisprudence is the Constitution itself, and any decision that deviates from that text must be eradicated to inspire the utmost confidence in the Court’s integrity . 30 Critics emphasize that the Constitution’s text contains no allusions to the necessity of stare decisis.31 Any form of the doctrine is therefore fundamentally corrupting because, under Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), the Constitution is the ultimate source of law, not the Court’s decisions: “If the Constitution is not alterable whenever the judiciary shall please to alter it, then ‘a [judicial precedent] contrary to the constitution is not law.’”32

However, such critiques assume that, in all cases, the Constitution provides clear answers. Professor Michael Stokes Paulsen asserts that the legitimacy of the Court “rests on its ability to render non-political legal judgment in accordance with principles of interpretation that stand outside the judges’ personal sense of what is expedient, practical or desirable as a policy matter.”33 But often, in cases where strong arguments exist on both sides and the nation’s attention is drawn, Justices must decide controversies whether or not there exist any clear legal conclusions based on principled constitutional interpretations. In the closest cases, it is likely that several Court members will reach opposite conclusions from their interpretive principles. In those cases—which often draw the most public attention and are the most

controversial—the key to legitimacy cannot be either side’s claim to a correct interpretive framework, for both sides can make such a claim. Instead , the Court must derive legitimacy by resisting political pressure to change decisions already rendered, especially as its membership changes. To do otherwise suggests that the Court is a political football kicked by the other branches of government through the appointment process, since decisions are dictated only by the particular Justices sitting at a given time. As discussed above, such apparent malleability can have disastrous consequences . 34Another problem with Paulsen’s view is the assumption that Justices can rely on principles of interpretation devoid of their own policy preferences. To be sure, Justices should avoid relying on policy prerogatives; as Lewis F. Powell noted, “[t]he respect given the Court by the public and by the other branches of government rests in large part on the knowledge that the Court is not composed of unelected judges free to write their policy views into law.”35 However, it seems unlikely that in all cases, or even in a significant majority, Justices can wholly remove their personal policy preferences from their decisional calculus, especially in those cases where constitutional meaning is not abundantly

clear. Stare decisis , rather than acting as a corrupting influence on a Justice’s theory of interpretation, provides the Justice much needed humility and restraint in tough cases . Leaders of the other branches of government will find themselves much less inclined to follow the decisions of a Supreme Court that proves itself, over time, to shift with the preferences of a constantly changing bench . The rule of law would be undermined by such an “explicit endorsement of the idea that the Constitution is nothing more than what five Justices say it is.”36To the average citizen, and indeed even to most professors, the meaning of key provisions of the Constitution remain open to debate. If the opposite were true, there would be little reason for Justices to hear oral arguments or take any time in considering their opinions. Given the lack of clarity, a Court with Justices inclined to follow their own interpretations blindly, irrespective of precedent, is almost certain to appear driven by policy preferences, even if the Justices’ views are not. The powerful weapon of overruling a prior decision should be wielded infrequently.

Granted, the decisions on which the Justices of today rely may have been influenced by the policy preferences of those

that came before them. But in most cases it is better to rely on those decisions than to appear to allow present political

pressure to influence modern jurisprudence. Although many celebrated decisions have made

marked breaks from past jurisprudence, the infrequency of such deviations from established precedent contributes to the reverence those decisions warrant, and it is only because the Court has refrained from creating fractures more often that its legitimacy has withstood the social unrest those rare breaks have triggered.

If rational citizens concluded that political pressure influenced the Court , they might seek relief from prior decisions simply because of its inconsistency with a new Justice’s approach. Such relief can be a destructive force.37 It implies that the Court can manipulate the Constitution at will, and therefore a rational citizen has little reason to respect the decisions of the Court interpreting the Constitution until they find the current interpretation agreeable. The citizen would be motivated to either ignore the Court’s edict or perpetually litigate their own interpretation until the Court is persuaded or new appointees adopt their

view. And the more the Court and its decisions appear arbitrary, the more real becomes the danger of not just a citizen ignoring it, but rather an entire branch of government. As noted by Thomas W. Merrill, “If judges are restrained, that is, if they adhere to the jurisprudence of no surprises, then the proponents of social change through law will have to look elsewhere in order

to achieve their reforms.”38 Thus, stare decisis holds great value in its ability to avoid the problems of perpetual litigation and afford a necessary finality to the Court’s decisions.

The advantages of stare decisis are also clear in cases that draw significant public scrutiny. In those cases, perpetual litigation is the norm and parties refuse to concede any perceived gains they have made towards their positions. Once a decision has been reached, that decision should be final, so as to avoid drawn-out uncertainties that have arisen in some political controversies.39

One might respond that the need for consistency is overblown; instead, and especially in those cases which are most hotly contested and fiercely debated, reaching a correct resolution should be even more important than in trivial

disputes.40 My response is simply that, were such clearly “correct” resolutions possible, it would certainly seem right to favor them. But both at the time of the original controversy and in later cases which present similar or identical issues, the correct outcome is seldom obvious . Further, each decision that can be described as a “correction” of earlier jurisprudence proclaims the Court’s fallibility, and alternatively suggests that the Court’s interpretation of the Constitution is driven by the personalities that happen to occupy its bench. A decision that “corrects” prior jurisprudence risks altering a holding that may not clearly be “wrong” or “right,” and does so with the potential cost of the Court’s legitimacy and the respect which citizens and other branches of government ascribe to the institution—a tremendous risk.

Stare Decisis key to legitimacyLegal Information institute' 17 Things Decided.”, March 2017, "Stare decisis," LII / Legal Information Institute, https://www.law.cornell.edu/wex/stare_decisis accessed 7/14/17

Stare decisis is Latin for “to stand by things decided.” In short, it is the doctrine of precedent.

Courts cite to stare decisis when an issue has been previously brought to the court and a ruling already issued. According to the Supreme Court, stare decisis “ promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process. ” In practice, the Supreme Court will usually defer to its previous decisions even if the soundness of the decision is in doubt. A benefit of this rigidity is that a court need not continuously reevaluate the legal underpinnings of past decisions and accepted doctrines. Moreover, proponents argue that the predictability afforded by the doctrine helps clarify constitutional rights for the public. Other commentators point out that courts and society only realize these benefits when decisions are published and made available. Thus, some scholars assert that stare decisis is harder to justify in cases involving secret opinions.

The doctrine operates both horizontally and vertically. Horizontal stare decisis refers to a court adhering to its own precedent. A court engages in vertical stare decisis when it applies precedent from a higher court. Consequently, stare decisis discourages litigating established precedents, and thus, reduces spending .

The effect of court rulings are dependent on court legitimacyGibson and Nelson'14 James .L Gibson, Fellow, Centre for Comparative and International Politics, Professor Extraordinary in Political Science. Michael J. Nelson Ph.D. Candidate, Department of Political Science. "The Legitimacy of the U.S. Supreme Court: Conventional Wisdoms, and Recent Challenges Thereto " http://mjnelson.wustl.edu/papers/AnnualReview.pdf

The particular problem of the U.S. Supreme Courts that it is heavily dependent upon legitimacy for its efficacy and survival. As all undergraduates learn, the federal courts have neither the power of the purse (carrots) nor the sword (sticks) and are therefore uncommonly dependent upon voluntary compliance from their constituents.4 Moreover, and perhaps even more important, the U.S. Supreme Court is particularly vulnerable to backlashes against its decisions because it often rules against the preferences of the majority,5 and because, as an institution, it is unusually dependent upon the actions of other actors and institutions. The Supreme Court has little meaningful inherent or constitutional jurisdiction; instead, it gets its power to decide issues from ordinary legislation. What Congress giveth, Congress can taketh away. Even the fundamental structure of the institution – e.g., the number of justices on the Court – can change (and has throughout American history). Without legitimacy, the Supreme Court can be punished for the disagreeable decisions it makes, and/or those

decisions can be ignored (for an important analysis of the Court/Congressional relations, see Clark 2011).

Stare Decisis key to legitimacyLegal Information institute' 17 Things Decided.”, March 2017, "Stare decisis," LII / Legal Information Institute, https://www.law.cornell.edu/wex/stare_decisis accessed 7/14/17

Stare decisis is Latin for “to stand by things decided.” In short, it is the doctrine of precedent.

Courts cite to stare decisis when an issue has been previously brought to the court and a ruling already issued. According to the Supreme Court, stare decisis “ promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process. ” In practice, the Supreme Court will usually defer to its previous decisions even if the soundness of the decision is in doubt. A benefit of this rigidity is that a court need not continuously reevaluate the legal underpinnings of past decisions and accepted doctrines. Moreover, proponents argue that the predictability afforded by the doctrine helps clarify constitutional rights for the public. Other commentators point out that courts and society only realize these benefits when decisions are published and made available. Thus, some scholars assert that stare decisis is harder to justify in cases involving secret opinions.

The doctrine operates both horizontally and vertically. Horizontal stare decisis refers to a court adhering to its own precedent. A court engages in vertical stare decisis when it applies precedent from a higher court. Consequently, stare decisis discourages litigating established precedents, and thus, reduces spending .

L – Turns CaseOverruling precedence especially for constitutional issues like Brown v Board and Rodriguez vs SAISD guts public support, kills court legitimacy, and means less courts and legislators follow that ruling. McGinnis and Rappaport 09 (John O. McGinnis Professor of law at Northwestern and Michael B. Rappaport Professor of law at the San Diego School of Law. "Reconciling Originalism and Precedent." Heinonline. Northwestern Law Review, 2009. Web. 12 July 2017. <http://heinonline.org/HOL/Page?handle=hein.journals/illlr103&div=27&g_sent=1&collection=journals>.)

Precedent, Which, if Overruled, Would Result in Enormous Costs.-Precedent should be respected when overruling it would result in enormous costs. Extremely important institutions are sometimes based on judicial interpretations of the Constitution. Two obvious examples are Social Security and paper money. While some originalists believe that the Supreme Court decisions interpreting the Constitution to allow Social Security ' 2 and legal tender laws for paper money ' were wrongly decided, overruling those cases would result in

enormous costs. The fear, uncertainty, and chaos that overruling these decisions would cause to the nation's public pensions and monetary system are so tremendous that they would far exceed any benefits from returning to the original meaning. But this

category of enormous costs is broader than simply these two extreme cases. Where a decision would require a large number of programs to be struck down, a strong case exists for concluding that the costs are simply too large to allow it to be overruled. For example, while there is a strong case for concluding that the original meaning of the Commerce Clause was much narrower than the New Deal interpretations,12 2 returning to that original meaning would require the immediate elimination of a vast number of government programs from securities regulation to environmental protection. The benefits of returning to the original meaning now do not compare with these costs. By contrast, many important precedents do not rise to this level. Even if overruling a decision would cause a large number of statutory provisions to become unconstitutional, that would not necessarily mean it would fall into this category. As an example, consider INS v. Chadha,"' which in effect held more than 300 legislative veto provisions in 200 statutes to be unconstitutional. Assume, contrary to the actual case, that Chadha overruled a Supreme Court precedent that had upheld the legislative veto. Such an overruling would not have created significant disruption because the invalidated statutory provisions could in the main continue to operate and in other cases were relatively easy to correct.1 24 2. Entrenched Precedent.-The second

precedent rule involves entrenched precedent. First, we describe why the Court should confer great weight on entrenched precedents. Second, we consider how to assess whether a precedent is entrenched. Finally, we discuss similar theories of precedent for which entrenched precedent supplies a more precise

justification. Entrenched precedents are decisions that are so strongly supported that they would be enacted by constitutional amendment if they were overturned by the courts. For instance, if the Supreme Court were to hold that sex discrimination was not significantly restricted by the Equal Protection Clause, then it is quite likely that the nation would quickly act to place

this protection back into the Constitution. A similar point applies if the Supreme Court were to reverse Brown v. Board of Education ' based on the mistaken view that separate but equal stated the original meaning of the Fourteenth Amendment. Under our approach, it is straightforward that entrenched precedent should take priority over the original meaning. For entrenched precedents, the benefits of following originalism are small and the benefits of following precedent are large. The benefits of following the original

meaning are small because there is strong support for the new constitutional rule announced in the precedent. It is the precedent rather than the original meaning that currently has consensus support and thus a presumption of beneficence. The benefits of following the precedent are large, not only because of its presumed desirability, but also

because it does not involve a change in the law. Now, it might be argued that the consensus represented by the entrenched precedent is in important ways inferior to that forged by a constitutional amendment. The advantage of the amendment process is that it creates not only a consensus but also one visible to the polity, thus

muting disagreement. Moreover, it may be difficult for Justices to determine what decisions would have attained the requisite consensus and to identify the actual underlying principles of those decisions. Consequently, one might argue that the Judiciary should be required to overrule the precedent in favor of the original meaning to ensure that the consensus exists, which would be proved by a subsequent amendment. Such a requirement, however, would have great costs. First,

because this approach would require the overruling of all precedents that conflict with original meaning, including those that are genuinely entrenched, it would cause great harm to the nation's attachment to widely accepted opinions. These opinions have now come to be valued; overruling them would harm people's attachment to their understanding of the Constitution-an attachment which helps unify the nation. 26 Second, a practical and rationally ignorant public is unlikely to understand or sympathize with such overrulings. 27 They might regard it as extremely burdensome to have to pass a constitutional amendment merely to confirm what they believe everyone already knows-that the Constitution authorizes the precedent and a consensus supports that precedent. Moreover, the public might be suspicious of such

overrulings, believing that the Justices did not actually support the entrenched decision. This public opposition might also make it more difficult for the Justices to reach originalist decisions on other difficult issues because the public would be more likely to doubt the Court's legitimacy. Finally, fearing the reactions of the public,

the Justices might be reluctant to overrule the decision and be led to engage in dishonest evasions, thus undermining the goal of making the law clear and accessible.

Overruling in instances where the constitution is unclear and when people rely on the original precedence as a way of establishing programs and real estate is exponentially more detrimental to the effectiveness of the ruling and cost to society.McGinnis and Rappaport 09 (John O. McGinnis Professor of law at Northwestern and Michael B. Rappaport Professor of law at the San Diego School of Law. "Reconciling Originalism and Precedent." Heinonline. Northwestern Law Review, 2009. Web. 12 July 2017. <http://heinonline.org/HOL/Page?handle=hein.journals/illlr103&div=27&g_sent=1&collection=journals>.)

Here we explore various factors that indicate when it makes more or less sense to follow precedent. These factors are not intended as precedent rules to be applied by judges. Rather, they provide information about the desirability of precedent in different circumstances and are useful as a means of developing precedent rules. 1. Uncertainty in the Constitution's Original Meaning.-One key factor in determining whether to follow a precedent is the clarity of the

original meaning of the Constitution. When the original meaning is uncertain, there is a far stronger argument for following precedent-provided that it is within the range of uncertainty regarding the original meaning-than there is if the precedent clearly conflicts with the original meaning. In a superb article, Caleb Nelson argues that courts in the early years of the Republic generally used an approach under which they would follow

precedent if it reasonably resolved an ambiguity, but not if it was demonstrably erroneous.'44 This factor follows from

our tradeoff between originalism and precedent. When the Constitution is itself unclear, the virtues of following the original meaning are not as strong. One justification for originalism is that it promotes clarity in the law. But if the original meaning is unclear, then there is less reason to follow

it. Instead, a precedent that reasonably re solves the uncertainty will better promote clarity, even though later a judge may believe it resolved the matter incorrectly.'45 A second justification for originalism-the one we emphasize most-is that it enforces provisions with desirable consequences. But here, as well, constitutional ambiguity militates against originalism because we cannot be sure of what the original meaning is. Thus, there is a diminished value in following the original meaning. 146 2. Reliance Costs.-Another important factor in determining whether to follow a precedent is the degree of reliance on that

precedent. Reliance occurs when someone takes an action he would not otherwise have taken based on the assumption that a precedent will be followed. The degree of reliance on precedents varies with the number of people who have relied on it and with the costs that they would incur if the precedent was overturned. Traditionally, precedent rules were significantly influenced by reliance

interests. In particular, stronger precedent rules were applied to propertyand, sometimes, commercial interests-based on the view that reliance in this area was greater. One way to think of the reliance factor is that it is a variation on the huge costs rule discussed

earlier.'47 The costs of overruling a precedent on which there has been substantial reliance are higher than the costs of overruling a precedent on which there has been no

reliance. Not only does overturning a precedent that has been relied upon upset expectations and impose costs, it also weakens people's willingness to rely on future precedent and thus to plan for the future. The greater the reliance costs, the stronger the argument for not overturning a precedent. Reliance costs can be especially significant in at least two situations. First, they

will be great when the government establishes a program that people significantly rely upon, such as Social Security. Second, these reliance costs can be great when people make significant private investments based on assumptions about the law. 3. Precedent Established in Violation of the Precedent Rules.-Our consequentialist approach would also suggest that precedent should be fol- owed less, other things being equal, if the precedent was not decided according to the proper rules of precedent. The important benefit from such a rule is that it

creates a disciplining effect. If judges know that decisions that violate precedent rules will not be treated as authoritative precedent, they will have better incentives to comply with the rules of precedent. Such incentives are most beneficial if the precedent rules themselves reflect the optimal tradeoffs that we are outlining here. 4.

L – Rule of LawOverturning rule of law ruins court legitimacy and eventually collapses the system in of itself Waldorn 12 – Jeremy Waldron, New York University, University Professor and Professor of Law, New York University, and Chichele Professor of Social and Political Theory, Oxford University. 2012, “Stare Decisis and the Rule of Law: A Layered Approach, Michigan law Review, vol. 111 issue. 1 http://repository.law.umich.edu/cgi/viewcontent.cgi?article=1095&context=mlr KKCJs = judges; justice.

V. OVERRULING AND STABILITY

I want to devote a separate Part to the third of the complications I mentioned: the possibility that Js might overturn the rule laid down by Jp in the precedent case. I do so because I want to emphasize as strongly as I can that the issue of constancy, of not lightly overturning the rule laid down in an earlier case, is an additional layer in our understanding of precedent. It is an additional way in which the rule of law bears on stare decisis. The argument from generality-and the duty of a subsequent judge to keep faith with the generality of a precedent judge's decision-is what gets precedent going, so far as the rule of law is concerned. But all law is changeable: in no context does the rule of law dictate immutability. But the rule of law does counsel against too-frequent changes in the law, and this applies as much to precedent as to other sources of law.

So Js may become convinced that the rule laid down by Jp is misconceived or harmful. This conviction may be rooted in a number of considerations. Js may have come to believe that the rule, Rp, laid down by the earlier judge did not really reflect the background legal materials that were in existence at the time; in a strongly felt case of this kind, he may claim that Jp's decision was an error per incuriam. Or the background legal materials might have changed, leaving Rp stranded as it were."8 Or it might just be that Rp has worked out badly, leading to considerable injustice, inefficiency, and difficulty in the law. These are all cases for countenancing the prospect of overturning Rp and setting about figuring a new legal solution for cases of this kind. Most systems of precedent permit this, at least where Jp and Js are judges on the same bench.

One may ask, "Well, why bother formally overturning Rp? Why not just distinguish it for all future cases? There is enough flexibility, not to say indeterminacy, in the system of precedent as it is to allow future judges to get out from under misconceived precedents." But frankly, acknowledging the possibility of formally overturning a precedent has its advantages. The British House of Lords drew attention to these advantages when it issued its famous Practice Statement of 1966:

Their lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.

Their lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose therefore to modify their present practice and, while treating formal decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.79

The official acknowledgment that precedents could be overturned made it possible for lawyers in Britain to advance explicit arguments that a precedent should be overturned, and it allowed such arguments to be candidly considered by the court so that it could give public reasons for and against a change. No doubt judges continued the practice of sometimes distinguishing cases disingenuously or in bad faith. But there was a considerable advantage in terms of transparency with the new approach.

In some cases, it may be a matter of judgment as to whether full-scale overturning is appropriate. Rp may need tweaking or amending rather than repudiation. Something akin to distinguishing may be proper in a

case of this kind.80 Analogies to legislation are not always appropriate, but in that domain one sees a variety of possible measures taken with regard to statutes that have come to seem unsatisfactory. Some, like enacting a new statute to supersede an old, are analogous to full-scale overturning. Others, like smallscale amendment, are more like this latter kind of distinguishing.

So far as full-scale overturning is concerned, the 1966 Practice Statement is quite clear about the need for caution. The House of Lords' decisions are to be treated as normally binding, and the power to overturn is not to be used lightly, and it is to be used more cautiously in some areas than others. 81 This again is what the rule of law requires: the laws should be relatively stable. If they are changed too often "people will find it difficult to find out what the law is at any given moment and will be constantly in fear that the law has been changed since they last learnt what it was. '82 The need for constancy is perhaps particularly important in regard to judge-made law. So far as legislation is concerned, the processes are cumbersome and hard to mobilize (though this is more true in the United States than in parliamentary systems). But judicial decisions are made every day, each one with the potential to change the law. In the case of legislation, one usually has notice that change is in the offing. This is apparent from the beginning of a bill's passage until the end. But in judicial decisionmaking, one might not know that the law has changed until one scrutinizes a myriad of opinions.

Many of the rule-of-law arguments for constancy involve the values of certainty, predictability, and respecting established expectations that I mentioned in Part II. But it is not just about calculability. It is about people having time to take a norm on board and internalize it as a basis for their decisionmaking. Aristotle argued that "the habit of lightly changing the laws is an evil" and based this claim on the proposition that "the law has no power to command obedience except that of habit, which can only be given by time."83 The vastly increased coercive apparatus of the modern state means that this is less the case now than it was in Athens 2,300 years ago. If we want to, we can enforce laws that the citizenry have not yet gotten used to. But, in doing so, we show contempt for the dignity of ordinary agency and the ability of people to be guided by the law, to internalize it, and to selfapply it to their conduct. Upholding dignity in this sense is one of the things that the rule of law requires.84

I have emphasized that refraining from overruling is not the same as the basic respect for the principle of a previous decision, which is the essence of following a precedent.85 It is an additional layer, with its own distinctive rule-of-law rationale. It is possible, however, for the two layers to collapse into one another. A court whose members overturn a precedent almost as soon as it is recognized not only fail in the rule-of-law discipline of constancy, but come close to making it impossible for there to be anything to be constant to. The subsequent judge, Js, may say that he respects the idea of precedent and that he is just trying to get the right principle established. But if every subsequent judge responds as he does--overturning the principle that a precedent judge has acted on and purporting to replace it even before it has gotten established-then there will be no precedents whatsoever. And the rule-of-law defect here will switch from inconstancy to a failure to establish and act on general principles at all. However, the possibility of this sort of collapse should not lead us to ignore the distinction between the two layers and the distinct ways in which rule-of-law principles are engaged.

Changing precedent weakens the overall court’s legitimacyLash, 14 – Kurt T. Lash, Guy Raymond Jones Chair in Law, University of Illinois College of Law, “The Cost of Judicial error: stare decisis and the role

of normative theory” Notre Dame Law Review. Vol., 89:5. http://ndlawreview.org/wp-content/uploads/2014/06/NDL508.pdf KKCWhen considering whether to reexamine a prior erroneous holding, we must balance the importance of having constitutional questions decided against the importance of having them decided right. . . . It follows that in the unusual circumstance when fidelity to any particular precedent does more to damage this constitutional ideal than to advance it, we must be more willing to depart from that precedent.112 Factors affecting that balance included (1) situations in which “the precedent under consideration itself departed from the Court’s jurisprudence,” (2) “when [the precedent’s] rationale threatens to upend our settled jurisprudence in related areas of law,” and (3) cases “when the precedent’s underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new and different justifications to shore up the original mistake.”113 In this case, Austin was an “‘aberration’ insofar as it departed from the robust protections we had granted political speech in our earlier cases,”114 and it was “uniquely destabilizing” in its potential application to political speech by a variety of individuals and entities, including “newspapers and other media corporations.”115 The costs of on-going constitutional harm in such a situation were simply too much. According to Chief Justice Roberts,

Overruling undermines the legitimacy of current law. Lash, 14 – Kurt T. Lash, Guy Raymond Jones Chair in Law, University of Illinois College of Law, “The Cost of Judicial error: stare decisis and the role of normative theory” Notre Dame Law Review. Vol., 89:5. http://ndlawreview.org/wp-content/uploads/2014/06/NDL508.pdf KKC

Changes in constitutional doctrine impose costs in terms of the values traditionally associated with the rule of law. Stability, predictability, and public confidence in the presumptive legitimacy of current law all can be undermined by departures from, or formal overruling of, prior precedent. The prudential doctrine of stare decisis is meant to ameliorate these costs by counseling judicial adherence to precedent even in those cases where a judge believes the prior decision was wrong.1 Although consistently described as a discretionary policy, as opposed to an “inexorable command,” the Supreme Court of the United States has long embraced the doctrine of stare decisis as an appropriate consideration any time the Court considers overruling past precedent. However , because the Court’s actual application of the doctrine has been both sporadic and seemingly inconsistent, some scholars (and Justices) have accused the Court of methodological hypocrisy and bad faith.2

Much of this criticism assumes that, if members of the Supreme Court find certain rule of law values dispositive in one case, they should find those same considerations dispositive in all cases. Failure to do so suggests either incompetence or insincerity. This Article argues that, on the contrary, stare decisis ought not be applied in the same manner in all cases. In fact, occasionally stare decisis should not apply at all.

Before the Court considers whether and how to apply stare decisis in a constitutional case, it must first determine whether the application of the doctrine is appropriate. This initial determination requires an application of normative interpretive theory. When viewed through the lens of theory, some judicial errors

impose such high costs that application of the doctrine of stare decisis is inappropriate, and those errors should simply be rectified. Even in those constitutional cases where theory allows the maintenance of judicial error to be a legitimate option, considerations of normative theory affect how the Court ought to balance the costs of upholding against the costs of overruling erroneous precedent. In cases where theory suggests the costs of judicial error are relatively low, avoiding substantial harm to the rule of law might reasonably suggest that the Court should “stand by” the flawed decision. Where theory suggests the costs of error are high, however, only the most severe disruption to the rule of law can justify maintaining a flawed precedent.

L – Judicial RestraintMaintaining Judicial Restraint is essential to court legitimacy Powell 90 – Lewis F. Powell, Jr. 3-1-1990, “Stare Decisis And Judicial Restraint”, Vol. 47-Issue. 2-Article. 2- pg. 288 KKC

Looking to the decades ahead, several conditions are important to the future long term health of stare decisis. Speaking broadly, these conditions all involve judicial restraint. This means recognition that the Court's function is to decide cases involving specific issues and particular parties. The Court does not sit to make announcements of abstract principles or to give advisory opinions. Unnecessary resolution of broad questions always raises the stakes. It creates incentives for future attacks on the Court's opinions. In each case the Court should focus specifically on the particular facts of the case and the questions properly presented. Too often, Justices write more broadly than necessary to decide the case before the Court. Law clerks do not make the decisions, but they often add expansive footnotes that a Justice may accept uncritically. In a subsequent case, the footnote will be cited as the law.

L – 14 th /Equal Protection 14th amendments rulings of equal protection empirically tank court legitimacy and is against stare decisis – Cleburne and RomorWinter 2k – The College of William and Mary William and Mary Journal of Women and the Law Winter, 2000 6 Wm. & Mary J. of Women & L. 323 KKC

B. Overcoming Case Law To Reach and Surmount Non-Suspect Class Status

The doctrine of stare decisis requires courts to abide by, and adhere to, decided cases . n278 Stare decisis is essential to the continued respect for, and legitimacy of, the decisions of the judiciary. The Supreme Court and every court below it are bound by this doctrine, and the Supreme Court defers to the doctrine by seldom overturning its own cases. It is the principle of stare decisis that led most lower courts to adhere to Bowers and Cleburne in holding that lesbians and gay men, as well as persons with disabilities, are non-suspect classes. Therefore, Supreme Court decisions expressly overturning these two cases, though unlikely, [*361] seem to be the only way these two groups will ever attain heightened scrutiny.

An argument may be made, however, that a Supreme Court holding that lesbians and gay men constitute a suspect class is not governed by any stare decisis principles. None of the Court's prior decisions have addressed the issue of the appropriate level of equal protection scrutiny to be applied to legislation implicating lesbians and gay men as a class. Even the Court's decision in Romer, hailed as a victory by many lesbians and gay men, n279 though criticized by many legal scholars, n280 does not present a stare decisis problem. Romer did not go so far as to address the issue of suspect classification squarely, for such an inquiry was deemed unnecessary to resolve that case. Although it is true that the Court applied rational basis scrutiny to the amendment in Romer, a subsequent inference that Romer held that lesbians and gay men do not constitute a quasi-suspect or suspect class, however, is unfounded. Romer stated that Amendment 2 "defie[d] even this conventional [rational basis] inquiry" n281 and "confound[ed] this normal process of judicial review." n282

The proper reading of Romer, therefore, is that the Court utilized the rational basis standard of review not because the targeted group-lesbians and gay men-was undeserving of quasi-suspect or suspect classification, but because the sweeping nature of the amendment in that case failed even the most deferential standard of equal protection review. As a result, the Court did not need to reach the question of suspect classification for lesbians and gay men. Similar to the Court's decision in Cleburne, the holding in Romer has been criticized for injecting power into the rational basis test n283-a test without any vitality before the Cleburne and Romer decisions. In this way, Romer has shaken equal protection jurisprudence at its roots by taking the rational basis test, under which all

previous classifications based on sexual orientation were upheld, and reaching the completely unpredictable result of striking down the amendment. Such an application of the rational basis test-in both Cleburne and Romer-left lower courts confused and without much concrete direction or guidance . n284

In Bowers, the Court merely held that there is no fundamental, due process right under the Fourteenth Amendment to engage in private, consensual, homosexual sodomy. Due process and equal protection are distinguishable, and as a result, so too are decisions regarding those concepts. Historically, the Due Process Clause has been interpreted to "protect traditionally recognized rights from state and federal power" n285 and, in that regard, the clause "has an important backward looking dimension." n286 However, the Equal Protection Clause protects a different set of purposes in that it "is emphatically not an effort to protect traditionally held values." n287 Instead, the Equal Protection Clause functions to protect oppressed groups from past and future discrimination by political majorities. n288 In sum, the Equal Protection Clause is rooted in a "principle of equality that operates as a criticism of existing practice. The clause does not safeguard traditions; it protects against traditions, however long-standing and deeply rooted." n289

Thus, an argument exists that Bowers, when confined to its facts and its holding, does not implicate equal protection in any way, and thus, there never has been a Supreme Court ruling addressing the equal protection status of lesbians and gay men. Since many courts have

interpreted Bowers as precluding heightened scrutiny for lesbians and gay men , n290 however, it is unlikely that the Court will agree that stare decisis is not triggered.

L – Roe V. WadeRoe v Wade change subverts court legitimacy and spills over to tank Casey Liptak 5 – ADAM LIPTAK, The New York Times September 18, 2005 Sunday Late Edition – Final “Roberts Drops Hints in 'Precedent' Remarks” Section 1; Column 4; National Desk; Pg. 30

Last week, Judge Roberts was more cautious. He acknowledged that Casey ''reaffirmed the central holding in Roe.'' But he gave no indication that this fact by itself made Roe inviolate.

Indeed, in the first minutes of the hearings, Judge Roberts named two cases that had reversed major decisions: Lawrence v. Texas, a 2003 gay rights case that overruled a 1986 decision, Bowers v. Hardwick; and Payne v. Tennessee, a 1991 decision on the use of victim impact statements in capital cases that overruled decisions from 1987 and 1989.

Those decisions, Judge Roberts said, along with Casey's own analysis of precedent, set out a number of factors for deciding which decisions are vulnerable and which should stay in place. His discussion of those factors

may provide the best available evidence of how Judge Roberts would vote on Roe.

''Considerations of the court's legitimacy,'' he said, ''are terribly important.''

That alluded to the joint opinion in Casey signed by Justices Sandra Day O'Connor, Anthony M. Kennedy and David H. Souter. To overrule Roe ''under fire in the absence of the most compelling reason to re-examine a watershed decision,'' the three justices wrote, ''would subvert the court's legitimacy beyond any serious question.''

But Judge Roberts went on to say widespread disagreement with a decision can also undermine the court's legitimacy and may indeed be a ground for reconsidering a decision.

''So it's a factor that is played different ways in different precedents of the court,'' he said. ''I do think that it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and evenhandedness.''

Another factor, Judge Roberts said, is whether people have come to rely on a given decision in how they live their lives. ''Settled expectations,'' he said, counsel in favor of leaving a major decision undisturbed.

He also said he would consider whether ''a particular precedent is workable or not'' as a practical matter and ''whether a precedent has been eroded by subsequent developments'' in the law.

The details of the Roe decision have been repeatedly revisited by the courts, and the scope of the restrictions it allows has been the subject of constant litigation.

But the joint opinion in Casey said that Roe ''has in no sense proven 'unworkable''' and that the questions it has given rise to ''fall within judicial competence.''

The opinion added, perhaps a little defensively, that ''no development of constitutional law since the case was decided has implicitly or explicitly left Roe behind as a mere survivor of obsolete constitutional thinking.'' Indeed, the opinion said, ''one could classify Roe as sui generis.'' In that case, ''there clearly has been no erosion of its central determination.''

Precedents deserve the most respect, Judge Roberts added, when they involve statutory as opposed to constitutional questions.

''The theory is a very straightforward one,'' Judge Roberts said. ''If the court gets it wrong, Congress can fix it. And the Constitution, the court has explained, is different. Obviously, short of amendment, only the court can fix the constitutional precedents.''

Roe, of course, is a constitutional case.

It is not clear, finally, whether Judge Roberts views Casey as a ''superprecedent.'' But he considers it, he explained, a meta-precedent. That is, Casey is important not only for its substantive ruling but also for its explanation of how to analyze whether given cases should be overruled.

Casey is, he said, ''precedent on whether or not to revisit the Roe v. Wade precedent.''

L –   Desegregation Stare Decisis is key to court legitimacy – especially on desegregation of schools – EmpiricsCaplan, 11 – LINCOLN CAPLAN Section SR; Column 0; Editorial Desk; EDITORIAL SUNDAY OBSERVER; Pg. 10 The New York Times “ Clarence Thomas's Brand Of Judicial Logic” October 23, 2011 Sunday Late Edition – Final. Lexis Nexus. KKC

Almost all justices recognize the need to balance respect for earlier rulings wit

h openness to revising the law as norms of society and facts change. To do that, the court must reason its way to answers -- and precedents embody that reasoning.

JUSTICE LEWIS POWELL JR., a Nixon appointee to the court, wrote that stare decisis was necessary for maintaining the court's ''legitimacy.'' Disregard for precedent, he argued, leads the public to see the court as ''composed of unelected judges free to write their policy views into law.''

Since Justice Thomas has been on the bench, his opposing view about precedent has seeped into the broader political debate. Others on the court have also become more willing to override or twist the meaning of precedent in critical areas.

In 2007, for example, the court decided in a 5-to-4 vote that public school systems could no longer take account of a student's race in trying to achieve integration. The court's conservative majority turned the meaning of Brown v. Board of Education upside down in barring communities from voluntarily fulfilling Brown's promise to end segregation. In 2010, in the Citizens United case, the court's conservatives swept aside decades of established precedents in ruling that government may not restrict corporate and union donations to political campaigns.

IL

IL – HegUS legitimacy preserves hegemony—that prevents great power war.Knowles 9 (Robert H., New York University School of Law, "American Hegemony and the Foreign Affairs Constitution" (2009). New York University Public Law and Legal Theory Working Papers. Paper 111., http://lsr.nellco.org/nyu_plltwp/111, accessed 7-13-2017)

B. Constructing a Hegemonic Model

International relations scholars are still struggling to define the current era. The U.S.-led international order is unipolar, hegemonic, and, in some ways, imperial. In any event, this order diverges from traditional realist assumptions in important respects. It is unipolar, but stable. It is more hierarchical. The U.S. is not the same as other states; it performs unique functions in the world and has a government

open and accessible to foreigners. And the stability and legitimacy of the system depends more on successful functioning of the U.S. government as a whole than it does on balancing alliances crafted by elite statesmen practicing realpolitik. “[W]orld power politics are shaped primarily not by the structure created by interstate anarchy but by the foreign policy developed in Washington.”368 These differences require a new model for assessing the institutional competences of the executive and judicial branches in foreign affairs.

One approach would be to adapt an institutional competence model using insights from a major alternative theory of international relations – liberalism. Liberal IR theory generally holds that internal characteristics of states – in particular, the form of government – dictate states behavior, and that democracies do not go to war against one another.369 Liberalists also regard economic interdependence and international institutions as important for maintaining peace and stability in the world.370 Dean Anne-Marie Slaughter has proposed a binary model that distinguishes between liberal, democratic states and non-democratic states.371 Because domestic and foreign issues are “more convergent” among liberal democracies, Slaughter reasons, the courts should decide issues concerning the scope of the political branches’ powers.372 With respect to non-liberal states, the position of the U.S. is more “realist,” and courts should deploy a high level of deference.373

A strength of Dean Slaughter’s binary approach is that it would tend to reduce the uncertainty in foreign affairs adjudication. Professor Nzelibe has criticized this approach because it would put courts in the difficult position of determining which countries are liberal democracies.374 But even if courts are capable of making these determinations, they would still face the same dilemmas adjudicating controversies regarding non-liberal states. Where is the appropriate boundary between foreign affairs and domestic matters? How much discretion should be afforded the executive when individual rights and accountability values are at stake?

To resolve these dilemmas, an institutional competence model should be applicable to foreign affairs adjudication across the board. In constructing a new realist model, it is worth recalling that the functional justifications for special deference are aimed at addressing problems of a particular sort of role effectiveness—which allocation of power among the branches will best achieve general governmental effectiveness in foreign affairs. In the 21st Century, America’s global role has changed, and the best means of achieving effectiveness in foreign affairs have changed as well. The international realm remains highly political—if not as much as in the past— but it is American politics that matters most. If the U.S. is truly an empire— and in some respects it is—the problems of imperial management will be far different from the problems of managing relations with one other great power or many great powers. Similarly, the management of hegemony or unipolarity requires a different set of competences. Although American predominance is recognized as a salient fact, there is no consensus among realists about the precise nature of the current international order.375 The hegemonic model I offer here adopts common insights from the three IR frameworks—unipolar, hegemonic, and imperial—described above.

First, the “hybrid” hegemonic model assumes that the goal of U.S. foreign affairs should be the preservation of American hegemony, which is more stable, more peaceful, and better for America’s security and prosperity, than the alternatives.

If the United States were to withdraw from its global leadership role, no other nation would be capable of taking its place.376 The result would be radical instability and a greater risk of major war . 377 In addition, the United States would no longer benefit from the public goods it had formerly produced; as the largest consumer, it would suffer the most.

Second, the hegemonic model assumes that American hegemony is unusually stable and durable.378 As noted above, other nations have many incentives to continue to tolerate the current order.379 And although other nations or groups of nations—China, the European Union, and India are often mentioned—may eventually overtake the United States in certain areas, such as manufacturing, the U.S. will remain dominant in most measures of capability for decades to come. In 2025, the U.S. economy is projected to be twice the size of China’s.380 The U.S. accounted for half of the world’s military spending in 2007 and holds enormous advantages in defense technology that far outstrip would-be competitors.381 Predictions of American decline are not new, and they have thus far proved premature.382

Third, the hegemonic model assumes that preservation of American hegemony depends not just on power, but legitimacy .383 All three IR frameworks for describing predominant states—although unipolarity less than hegemony or empire—suggest that legitimacy is crucial to the stability and durability of the system. Although empires and predominant states in unipolar systems can conceivably maintain their position through the use of force, this is much more likely to exhaust the

resources of the predominant state and to lead to counter-balancing or the loss of control.384 Legitimacy as a method of maintaining predominance is far more efficient.

The hegemonic model generally values courts’ institutional competences more than the anarchic realist model. The courts’ strengths in offering a stable interpretation of the law, relative insulation from political pressure, and power to bestow legitimacy are important for realizing the functional constitutional goal of effective U.S. foreign policy . This means that courts’ treatment of deference in foreign affairs will, in most respects, resemble its treatment of domestic affairs. Given the amorphous quality of foreign affairs deference, this “domestication” reduces uncertainty. The increasing boundary problems caused by the proliferation of treaties and the infiltration of domestic law by foreign affairs issues are lessened by reducing the deference gap. And the dilemma caused by the need to weigh different functional considerations—liberty, accountability, and effectiveness—against one another is made less intractable because it becomes part of the same project that the courts constantly grapple with in adjudicating domestic disputes.

IL – EconCourt legitimacy is key to every aspect of the economy.Dove 15 (John A. Dove, Manuel H. Johnson Center for Political Economy, Troy University, 2015, “The effect of judicial independence on entrepreneurship in the US states,” Econ. Syst.)

There have also been significant contributions in the area of institutional quality and its effect on entrepreneurship and entrepreneurial activity. Here, the causal link runs from the effect that institutions have on relative types of entrepreneurship (generally between productive and unproductive activities)2 and how this actually translates into economic growth through greater

opportunities to engage in productive entrepreneurial activities. Such analysis has been undertaken through both cross-country and international studies (Aidis et al., 2012; Bjornskov and Foss, 2008; Laeven and Woodruff, 2007; Nystrom, 2008; Troilo, 2011; Ardagna and Lusardi, 2010; Capelleras et al., 2008; Levie and Autio, 2011) and studies focused within the US, specifically at the state level (Campbell et al., 2012;

Hall and Sobel, 2008; Dove and Sobel, 2014; Kreft and Sobel, 2005; Hafer, 2013). This literature has clearly shown that where public predation is minimized and property rights clearly defined and protected, the gains from pursuing productive entrepreneurial activity are increased and, through this channel, economic activity and growth increase as well. There are also several studies which have attempted to look specifically at the rule of law and especially JI and how this may help or hinder economic growth and development, though this literature is relatively smaller as compared to those studies that have analyzed institutional quality broadly (Feld and Voigt, 2003; La Porta et

al., 1997). However, it has been shown that greater JI does have a strong and positive impact on economic growth overall. This occurs as increased JI creates a third party arbiter to enforce and referee the given rules of the game in an

unbiased manner, and ensure that all parties involved in a dispute are treated in like fashion. This provides a fair and impartial means of enforcing and upholding the rule of law, which in turn increases

predictability and opportunities for long-run planning and investment. Increased JI also conveys a credible commitment by the state.3 Here, the issue is controlling the problem, inherent in a state, that a state which is powerful enough to protect property rights is also powerful enough to arbitrarily confiscate property

(Weingast, 1995). With the creation of an independent, third party arbitrator the state can credibly signal its commitment to property rights protection rather than

predation. In this context, it may actually be in the interest of the state to maintain an independent judiciary and bind itself to the decisions rendered by that judiciary, as doing so will act as the necessary commitment device

which will increase physical and human capital investment, and importantly greater entrepreneurial activity. This will ultimately lead to higher incomes, growth, and, importantly for the state, increased tax receipts (Feld and Voigt, 2003). In this

regard, there has been a clearly established link between economic growth and JI. There are three situations then under which JI is crucial: (1) whenever conflicts arise between two private parties (contract enforcement), (2) whenever disputes between public authorities and private individuals arise (which requires a judiciary that can determine fault and also ensure that public officials properly followed procedural means of establishing laws), and (3) through conflicts that arise between two public entities (or two other

branches of government) (Feld and Voigt, 2003). With JI and a properly functioning judicial branch, it should be the

case that the transaction costs of dispute resolution will be lower and property rights will be better secured and protected. At the margin, this will drive individuals to seek out and

capitalize on available arbitrage opportunities, given the relatively lower cost of doing so. Therefore, greater JI increases the likelihood that each of the above discussed disputes are handled in an unbiased manner and ensures that, no matter the outcome, the judiciary

is insulated from any outside influence (whether it arise from a private party or

another branch of government). Given these causal mechanisms, the current paper attempts to tie all of this literature together. Specifically, if better quality institutional arrangements lead to increased entrepreneurial activity, which in turn leads to greater economic growth and development, and if greater JI also has a direct effect on

economic growth, then it should be the case that JI will have a direct impact on entrepreneurial activity.

IL – Enforcement Loss of Court legitimacy means it loses the power to enforce decisions Long, 3-22 – Emma Long, 3-22-2017, "Democrats have the votes to block Neil Gorsuch for the Supreme Court—but should they?," Newsweek, http://www.newsweek.com/neil-gorsuch-us-supreme-court-democrats-572072 KKCPlaying politics

The Supreme Court is first and foremost a legal institution, but it’s also a political one: Its place as one of three equal branches of the American government and its role in interpreting controversial aspects of the Constitution mean it cannot avoid being so. But too often in recent years politicians and commentators have discussed the court in explicitly partisan terms.

The effect has been to imply, and sometimes to overtly state, that the court’s members made decisions as Republicans or Democrats, not as judges whose political and legal world views might lead them to personally support one party over another. From here, it’s a very short step to argue, as Cruz and other Republicans did during the 2016 election cycle, that they could not allow the court to be “lost” or “taken over” by a liberal majority.

This is wrong. The court is not a branch to be “captured” by one party or another—and the Senate’s job is not to judge a nominee’s political views, but to assess their ability to perform the role to which they’ve been nominated.

This has too often been forgotten in recent years. Since the 1973 ruling in Roe v Wade that protected, within limits, women’s right to terminate a pregnancy, potential nominees have been judged, in part, on their views on particular hot button issues, particularly abortion, the death penalty, and gun control.

This process arguably reached its nadir in the 1987 hearings on Ronald Reagan’s nomination of Robert Bork to the court. Intellectually capable, Bork was rejected because his politics were considered unacceptably conservative for the court at that time. In 2006, Samuel Alito found his nomination hearings more challenging than John Roberts had just a few months earlier, in part because he was a legal conservative nominated to a seat vacated by Sandra Day O’Connor, considered to be at the court’s ideological center.

The process has been a gradual one, with both Republicans and Democrats playing their part, but it has been corrosive nonetheless. The consequences for the court itself are coming into view. Whereas it traditionally enjoyed greater public approval than either the president or Congress, the court has seen its approval ratings plummet . A July 2016 Gallup poll showed its public approval rating at 42 percent, a severe drop since the 1990s.

The more politicized the court becomes, the more its legitimacy is threatened. Its justices are unelected and serve for life, with no power except their institutional role and persuasion to convince the country to abide by their decisions. That means its legitimacy rests not just on the principle of the rule of law, but on the idea that there is some distance between interpreting the law and making political decisions.

If Americans come to believe that politics is the only deciding factor in the court’s decision making, the court’s legitimacy, and so its ability to

compel compliance, may be drastically weakened. Should that happen, all Americans will lose, regardless of party affiliation.And so the stakes of Gorsuch’s hearings could scarcely be higher. Senators of both parties would do well to remember that. For the good of the court as an institution, Democrats in particular need to rigorously and thoroughly vet Gorsuch—and assuming nothing genuinely untoward comes to light, they should support his nomination.

The effect of court rulings are dependent on court legitimacyGibson&Nelson'14 James .L Gibson, Fellow, Centre for Comparative and International Politics, Professor Extraordinary in Political Science. Michael J. Nelson Ph.D. Candidate, Department of Political Science. "The Legitimacy of the U.S. Supreme Court: Conventional Wisdoms, and Recent Challenges Thereto " http://mjnelson.wustl.edu/papers/AnnualReview.pdf

The particular problem of the U.S. Supreme Courts that it is heavily dependent upon legitimacy for its efficacy and survival. As all undergraduates learn, the federal courts have neither the power of the purse (carrots) nor the sword (sticks) and are therefore uncommonly dependent upon voluntary compliance from their constituents.4 Moreover, and perhaps even more important, the U.S. Supreme Court is particularly vulnerable to backlashes against its decisions because it often rules against the preferences of the majority,5 and because, as an institution, it is unusually dependent upon the actions of other actors and institutions. The Supreme Court has little meaningful inherent or constitutional jurisdiction; instead, it gets its power to decide issues from ordinary legislation. What Congress giveth, Congress can taketh away. Even the fundamental structure of the institution – e.g., the number of justices on the Court – can change (and has throughout American history). Without legitimacy, the Supreme Court can be punished for the disagreeable decisions it makes, and/or those decisions can be ignored (for an important analysis of the Court/Congressional relations, see Clark 2011).

I/L Turn – Rodriguez caseInternal link turns case Beschle 13 – Donald L. Beschle Professor, The John Marshall Law School. B.A., 1973, Fordham University; J.D., 1976, New York University School of Law; L.L.M., 1983, Temple University School of Law.CARTER V. CANADA (ATTORNEY GENERAL): CANADIAN COURTS REVISIT THE CRIMINALIZATION OF ASSISTED SUICIDE Wayne State University The Wayne Law Review Fall, 2013 Wayne Law Review 59 Wayne L. Rev. 561 KKC

A Supreme Court position on this jurisprudential question was overdue. Unfortunately, the Court chose the wrong position. By focusing so narrowly on an inflexible rule of stare decisis, the Court overlooked the very policies that stare decisis is meant to serve . Anticipatory overruling makes the law more responsive to change, it ensures litigants fair and equal treatment, it enhances the predictability of the law and it promotes judicial efficiency. n18 Instead of condemning the lower courts that refused to follow Wilko, the Supreme Court should have applauded them.

[*43] I. ANTICIPATORY OVERRULING PRIOR TO RODRIGUEZ

The doctrine of anticipatory overruling rejected in Rodriguez was in no sense revolutionary. Anticipatory overruling has been vigorously debated in the lower courts for some time. Prior to Rodriguez, a number of lower court opinions indicated, often in dictum, a willingness to disregard a Supreme Court precedent if convinced that the Supreme Court would not follow it. n19 The few scholars writing on the issue generally agreed. n20

Aff Answers

UQ

Courts Not LegitimateJustice system isn’t legit – corrupt as heckMolloy ’04 (A lawyer from Tuscon, Arizona, John Fitzgerald Molloy was elected to the Superior Court bench where he served for seven years as both a juvenile court and trial bench judge. He subsequently was elected to the Court of Appeals where he authored over 300 appellate opinions. “The Fraternity: Lawyers and Judges in Collusion” 8/25/04.)//RKWhen I began practicing law in 1946, justice was much simpler. I joined a small Tucson practice at a salary of $250 a month, excellent compensation for a beginning lawyer. There was no paralegal staff or expensive artwork on the walls. In those days, the judicial system was straightforward and efficient. Decisions were handed down by judges who applied the law as outlined by the Constitution and state legislatures. Cases went to trial in a month or two, not years. In the courtroom, the focus was on uncovering and determining truth and fact.

I charged clients by what I was able to accomplish for them. The clock did not start ticking the minute they walked through the door.

Looking back

The legal profession has evolved dramatically during my 87 years. I am a second-generation lawyer from an Irish immigrant family that settled in Yuma. My father, who passed the Bar with a fifth-grade education, ended up arguing a case before the U.S. Supreme Court during his career.

The law changed dramatically during my years in the profession. For example, when I accepted my first appointment as a Pima County judge in 1957, I saw that lawyers expected me to act more as a referee than a judge. The county court I presided over resembled a gladiator arena, with dueling lawyers jockeying for points and one-upping each other with calculated and ingenuous briefs

That was just the beginning. By the time I ended my 50-year career as a trial attorney, judge and president of southern Arizona’s largest law firm, I no longer had confidence in the legal fraternity I had participated in and, yes,   profited from.

I was the ultimate insider, but as I looked back, I felt I had to write a book about serious issues in the legal profession and the implications for clients and society as a whole. The Fraternity: Lawyers and Judges in Collusion was 10 years in the making and has become my call to action for legal reform.

Disturbing evolution

Our Constitution intended that only elected lawmakers be permitted to create law.   Yet judges create their own law in the judicial system based on their own opinions and rulings. It’s called case law, and it is churned out daily through the rulings of judges. When a judge hands down a ruling and that ruling survives appeal with the next tier of judges, it then

becomes case law, or legal precedent. This now happens so consistently that we’ve become more subject to the case rulings of judges rather than to laws made by the lawmaking bodies outlined in our Constitution.

This case-law system is a constitutional nightmare because it continuously modifies constitutional intent. For lawyers, however, it creates endless business opportunities. That’s because case law is technically complicated and requires a lawyer’s expertise to guide and move you through the system. The judicial system may begin with enacted laws, but the variations that result from a judge’s application of case law all too often change the ultimate meaning.

Lawyer domination

When a lawyer puts on a robe and takes the bench, he or she is called a judge. But in reality, when judges look down from the bench they are lawyers looking upon fellow members of their fraternity. In any other   area of the free-enterprise system, this would be seen as a conflict of interest . When a lawyer takes an oath as a judge, it merely enhances the ruling class of lawyers and judges. First of all, in Maricopa and Pima counties, judges are not elected but nominated by committees of lawyers, along with concerned citizens. How can they be expected not to be beholden to those who elevated them to the bench?

When they leave the bench, many return to large and successful law firms that leverage their names and relationships.Business of law

The concept of “time” has been converted into enormous revenue for lawyers. The profession has adopted elaborate systems where clients are billed for a lawyer’s time in six-minute increments. The paralegal profession is another brainchild of the fraternity, created as an additional tracking and revenue center. High powered firms have departmentalized their services into separate profit centers for probate and trusts, trial, commercial, and so forth.

The once-honorable profession of law now fully functions as a bottom-line business, driven by greed and the pursuit of power and wealth , even shaping the laws of the United States outside the elected Congress and state legislatures.Bureaucratic design

Today the skill and gamesmanship of lawyers, not the truth, often determine the outcome of a case. And we lawyers love it. All the tools are there to obscure and confound. The system’s process of discovery and the exclusionary rule often work to keep vital information off-limits to jurors and make cases so convoluted and complex that only lawyers and judges understand them.

The net effect has been to increase our need for lawyers , create more work for them, clog the courts and ensure that most cases never go to trial and are, instead, plea-bargained and compromised. All the while   the clock is ticking, and the monster is being fed.

The sullying of American law has resulted in a fountain of money for law professionals while the common people, who are increasingly affected by lawyer-driven changes

and an expensive, self-serving bureaucracy, are left confused and ill-served. Today, it is estimated that 70 percent of low-to-middle-income citizens can no longer afford the cost of justice in America. What would our Founding Fathers think?

This devolution of lawmaking by the judiciary has been subtle, taking place incrementally over decades. But today, it’s engrained in our legal system, and few even question it. But the result is clear. Individuals can no longer participate in the legal system.

It has become too complex and too expensive, all the while feeding our dependency on lawyers. By complicating the law, lawyers have achieved the ultimate job security. Gone are the days when American courts functioned to serve justice simply and swiftly. It is estimated that 95 million legal actions now pass through the courts annually, and the time and expense for a plaintiff or defendant in our legal system can be absolutely overwhelming.

Surely it’s time to question what has happened to our justice system and to wonder if it is possible to return to a system that truly does protect us from wrongs.

Corruption is rampant in the judiciaryPahis 9 Yale Law School, J.D. 2009; Universidad Complutense de Madrid, M.A. 2005; Dartmouth College, B.A. 2004. Stratos, Pahis, 2009, "Corruption in Our Courts: What It Looks Like and Where It Is Hidden," No Publication, http://www.yalelawjournal.org/note/corruption-in-our-courts-what-it-looks-like-and-where-it-is-hidden

Recent surveys and events indicate that judicial corruption could be a significant problem in the United States. This Note builds an economic model of bribery to better understand the incentives behind this pernicious phenomenon. It then compiles a data set of discovered incidents of judicial bribery in the United States to test the effectiveness of our anti-judicial-corruption institutions. This analysis suggests that our institutions are particularly ineffective at preventing and uncovering judicial bribery in civil disputes and traffic hearings.

CORRUPTION IN OUR COURTS “If experience demands a presumption that a judge will seize every opportunity presented to him in the course of his official conduct to line his pockets, no canon of ethics or statute regarding disqualification can save our judicial system.”—Justice William Rehnquist

A judiciary without honesty has little chance of executing its moral and constitutional duties, no matter how many rules of ethics exist. This is especially true in the United States, where the judiciary is afforded wide discretion. Facts and law require interpretation; justice and equity require judgment. Every decision to grant a motion, to follow precedent, to interpret a statute or facts, to set a sentence or damages—every decision left up to the discretion of a judge—is a potential opportunity for corruption. Eliminating all opportunities for personal gain would require nothing less than the destruction of the independent and adaptable judicial system we know. And so we count on honest judges to navigate our ship of justice through these dangerous waters. But we do not just keep our fingers crossed and hope we have good captains at the helm. We develop processes of choosing the most skilled and honest judges. We provide them with good pay and professional prestige to lessen the temptations of bribery. And we develop multilevel methods of oversight that intrude minimally (one hopes) upon their discretion and independence. We expect judges to be honest because we establish institutions that incentivize honesty.

Corruption spawns illegitimacyDakolias and Thachuck’00 , Maria Dakolias is counsel in the World Bank's Legal Department. She is a graduate of Haverford College (B.A.), George Mason University School of Law (J.D.), and the University of Amsterdam (L.L.M.). Kim Thachuck works on issues related to corruption and organized crime in the Americas. She has a doctorate in criminology and political science from Simon Fraser University, Canada, and a B.A., M.A. from the University of British Columbia, Canada,spring,2007, Wisconsin international law journal. The problem of Eradicating Corruption in the Judiciary

Corruption in the justice system thus spawns further corruption which leads to a loss of legitimacy and often violence. A vicious circle of corruption and lawlessness ensues from which it is difficult to extricate society. Indeed, corruption in the judiciary is somewhat distinct from corruption in other sectors of government because the judiciary is most often [*364] viewed as the failsafe between constitutionalism and a free-for-all or a Hobbesian state of nature. Corruption undermines political legitimacy and makes citizens become distrusting of government. If corruption is to be addressed it needs, among other things, independent prosecutors and judiciary. n44 However, if the judiciary cannot perform this function, the corruption will never be punished because individuals and other branches of government are confident that they are free to do as they please. n45 The judiciary, then, can be the cause of corruption especially if it is slow and does not accuse the guilty. n46 This will lead to impunity of corrupt activities and if nothing is done to address it, unaccountability of the government. n47

Not legit Rogowski & Stone, 6-13 – Jon C. Rogowski, Assistant Professor, Department of Government, and Andrew R. Stone, Ph.D. Student, Department of Government, Harvard University, June 13, 2017, “How Politicized Judicial Nominations Affect Attitudes Toward the Courts”, https://scholar.harvard.edu/files/rogowski/files/rogowski-stone-epsa.pdf, KKC

Contemporary Supreme Court nominations are unavoidably and inevitably political. Although scholars and justices themselves worry that politicized nominations undermine support for qualied nominees and threaten the Court’s legitimacy, extant scholarship provides little empirical evidence to address these claims. We argue that politicization polarizes partisans’ attitudes toward nominees and the Court more generally and test our argument with a conjoint experiment embedded in a nationally representative survey administered in the rst days of the Trump presidency. We show that politicized rhetoric attributed to President Trump and Senate Democrats signicantly polarizes partisans’ support for a nominee and perceptions of the Court’s legitimacy. Additional analyses suggest that politicization generates divergent partisan responses by shaping impressions of the nominee’s impartiality. Our results suggest that the Court is not immune from the eects of partisan rhetoric and indicate that the Court’s institutional strength is vulnerable to political contestation from actors in other branches of government.

Both institutional credibility and court legitimacy are dead—political stunts.Apgar 16 (David Apgar is the author of Risk Intelligence: Learning to Manage What We Don’t Know (Harvard Business, 2006) and Relevance: Hitting Your Goals By Knowing What Matters (Jossey-

Bass, 2008). Both books are based on ten years of best practices research for corporate finance teams as a managing director at the Corporate Executive Board., 11-11-2016, "US: Any Real Checks and Balances Left?", Globalist, https://www.theglobalist.com/us-any-real-checks-and-balances-left/, accessed 7-15-2017) ml

What makes the political risks so dangerous this time is that the environment has fundamentally changed — and those checks and balances have been undermined.

Checks and balances depend on institutions. The new problem facing the U.S. is that the Republican Party has serially undermined the credibility of U.S. institutions — often for minor political gains — and drastically weakened the normal checks on the Executive.

The state of those institutions has changed dramatically even since 2000. Recent political stunts had undermined just two major social institutions in 2000:

The impeachment of Bill Clinton in 1998-99 for lying about an affair undermined the credibility of the House as leader after leader fell to evidence of affairs outside their own marriages, in one case with a lobbyist.

The 2000 Bush v Gore decision to overrule the Constitutional provision that states choose their electors in such manner as their legislatures direct shredded the credibility of the Supreme Court because only justices appointed by Republicans supported in its entirety the opinion, which put Republican George W. Bush in office.But since 2000 one can add five more examples to the list:

Going to war in 2003 over false claims about nuclear weapons in Iraq shredded the credibility of the U.S. intelligence community and foreign policy establishment.

The 2008 financial crash shredded the credibility of U.S. financial regulatory institutions , leading to a zero-trust economy in which corporations refuse to invest their mountains of cash.

The 2011 and 2013 debt-ceiling crises ruined the country’s international financial credibility and resulted in credit downgrades.

The refusal of Senator Mitch McConnell and his leadership group to follow Constitutional norms this year in voting on a sitting president’s nominee to replace the late Justice Scalia shredded the credibility of the Senate .

Director Comey’s intervention at the last minute of this year’s presidential election with the revelation of a new batch of Clinton emails that turned out to be irrelevant to his prior investigation shredded the credibility of the FBI and federal law-enforcement system in general.

A Trump election shouldn’t matter so much. It does now because the party that gave rise to him has undermined the institutional infrastructure that would otherwise keep a rogue government in check — or one that made promises only a police state can deliver.

Gorsuch ThumpsGorsuch means courts aren’t legit – public perception shiftRogowski & Stone, 6-13 – Jon C. Rogowski, Assistant Professor, Department of Government, and Andrew R. Stone, Ph.D. Student, Department of Government, Harvard University, June 13, 2017, “How Politicized Judicial Nominations Affect Attitudes Toward the Courts”, https://scholar.harvard.edu/files/rogowski/files/rogowski-stone-epsa.pdf, KKC

Independence is arguably the judiciary’s most important attribute. In modern times, concerns over the politicization of court nominations have generated an uncommon level of agreement across party lines. Increased political scrutiny of judicial nominees presents challenges for securing well-qualied justices and poses a particularly acute threat to the Court’s legitimacy. For instance, after nominating Merrick Garland in 2016 to ll the seat vacated upon Justice Antonin Scalia’s death, President Obama lamented the Senate’s refusal to hold a conrmation vote for “an extraordinary jurist who is indisputably qualied to serve on the highest court of the land.”1 None other than Neil Gorsuch, nominated for the same vacancy by President Trump, had earlier recognized Merrick Garland as “among the nest lawyers of [his] generation” who had been “grossly mistreated” by the Senate when nominated by President George W. Bush to serve on the U.S. Court of Appeals.2 The millions of dollars spent by interest groups on advertising campaigns supporting and opposing Court nominees and the stark partisan divides that frequently emerge in support for nominees threaten the Court’s legitimacy if the public begins to equate judges with “ordinary politicians” (Gibson and Caldeira 2009a, 2011). These concerns are widely shared, with Obama worrying that the infusion of partisanship into judicial appointments “erodes the [Court’s] institutional integrity” and Chief Justice Roberts arguing that the modern nomination process leads the public to view the Court and its members in partisan and ideological terms.3

Gorsuch’s behavior saps courts legitimacy and is a reason why the right should worry. Greenhouse 7-6, the Knight Distinguished Journalist in Residence and Joseph M. Goldstein Senior Fellow at Yale Law School, 7-6-2017 (Linda Greenhouse, "Trump’S Life-Tenured Judicial Avatar", New York Times, https://www.nytimes.com/2017/07/06/opinion/gorsuch-trump-supreme-court.html?rref=collection%2Ftimestopic%2FU.S.%20Supreme%20Court, accessed on 7-15-2017, AB)

So Neil M. Gorsuch, the aw-shucks humble servant of the law whom the country encountered during his mind-numbing confirmation hearing, turns out to be a hard-right conservative. No real surprise there, and by now, no real news either, given that nearly every account of the Supreme Court term

that ended last week took note of Justice Gorsuch’s budding alliance with Justice Clarence Thomas on the court’s far right.

Missing from much of the commentary, however, was the sheer flamboyance of the junior justice’s behavior. To give some context: Here is a man who participated in a mere two weeks of Supreme Court arguments — 13 cases — amid eight colleagues whose collective Supreme Court tenure comes to 140 years. Maybe all those years have brought wisdom, maybe not. But what they have brought, surely, are habits, norms, unwritten rules that enable people to go home after a hard day, show up again the next morning, look one another in the eye and get back to business.

I don’t know whether Justice Gorsuch has adhered to certain of the Supreme Court’s unwritten rules. But we don’t need inside sources in order to read the story that his votes and separate opinions tell.

Whether out of ignorance or by deliberate choice, Neil Gorsuch is a norm breaker. He’s the new kid in class with his hand always up, the boy on the playground who snatches the ball out of turn. He is in his colleagues’ faces pointing out the error of their ways, his snarky tone oozing disrespect toward those who might, just might, know what they are talking about. It’s hard to ascribe this behavior to ignorance — he was, after all, like three of his colleagues, once a Supreme Court law clerk. But if it’s not ignorance, what is it? How could the folksy “Mr. Smith Goes to the Senate Judiciary Committee” morph so quickly into Donald Trump’s life-tenured judicial avatar?

The most widely noticed Gorsuch opinion came on the term’s final day, June 26, in a case the court hadn’t even accepted for argument. The question in Pavan v. Smith was whether the state of Arkansas could refuse to put the name of a birth-mother’s same-sex spouse on their child’s birth certificate. A husband’s name is automatically listed on an Arkansas birth certificate without inquiry into his biological relationship to the child his wife bears. Two legally married lesbian couples, parents by means of anonymous sperm donations, claimed a constitutional right to equal treatment.

A majority of the Supreme Court agreed, overturning a contrary ruling by the Arkansas Supreme Court. Quoting from the decision that established the constitutional right to same-sex marriage — Obergefell v. Hodges, decided two years earlier to the day — the justices’ unsigned opinion declared that “the Constitution entitles same-sex couples to civil marriage ‘on the same terms and conditions as opposite-sex couples,’ ” and noted that the Obergefell decision itself named birth and death certificates as among the rights and benefits of marriage “to which same-sex couples, no less than opposite-sex couples, must have access.”

Most often these days, the Supreme Court uses the device of the unsigned “per curiam” opinion, meaning “by the court,” when a lower court grants habeas corpus to a criminal defendant and a majority of justices finds the

error so clear as to warrant summary reversal without the need for full briefing and argument. The decision in the Arkansas case was a per curiam ruling that Chief Justice Roberts, a vigorous dissenter from the Obergefell decision, may or may not have joined; as Joshua Matz pointed out on the Take Care blog, it’s not always the case that justices who dissent from an anonymous per curiam ruling identify themselves.

Three dissenting justices did identify themselves: Justice Thomas, Justice Samuel A. Alito Jr. and Justice Gorsuch, who wrote for the three. What the majority found to have been obvious in the Obergefell decision — in which all current members of the court but Justice Gorsuch participated — he found lacking. “Nothing in Obergefell spoke (let alone clearly) to the question,” he wrote. The parenthetical “(let alone clearly)” either was or was not a sly dig at Justice Anthony M. Kennedy’s majority opinion in the marriage case: It has been widely criticized, and not only on the right, for grandiloquence that outstripped rigorous constitutional analysis. In any event, Justice Gorsuch’s five-paragraph opinion addressed itself solely to the way the court dealt with the Arkansas case. “It seems far from clear what here warrants the strong medicine of summary reversal,” he wrote.

By sticking to the procedural issue, his opinion skirted, albeit barely, a declaration of his own view of the merits. This raises the question: Why write at all? If he wasn’t willing to argue or even engage with the majority on the merits of what the right to same-sex marriage entails, why bother to dissent? It was, I think, an odd judicial game of show-and-don’t-tell, a way to demonstrate his alliance with the court’s right flank without speaking quotably to the hot-button social issue at hand.

Justice Gorsuch showed no such diffidence in expressing his views on a case the court decided on the merits on the term’s last day: Trinity Lutheran Church v. Comer, in which the court held that a state could not make churches ineligible for certain public grant programs (in this instance, a grant for using recycled tires as playground surfaces). Justice Gorsuch joined the majority opinion by Chief Justice Roberts except for one important footnote that appeared to limit significantly the scope of the decision. The chief justice’s footnote said: “This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.”

But wait, Justice Gorsuch said in his separate opinion. “I worry,” he said, that “some might mistakenly read” the footnote “to suggest that only ‘playground resurfacing’ cases, or only those with some association with children’s safety or health, or perhaps some other social good we find sufficiently worthy, are governed by the legal rules recounted in and faithfully applied by the court’s opinion.” He continued, quoting a 2004 decision: “Such a reading would be unreasonable for our cases are ‘governed by general principles, rather than ad hoc improvisations.’ And the

general principles here do not permit discrimination against religious exercise — whether on the playground or anywhere else.”

There’s little doubt that the chief justice inserted that footnote late in the decisional process to satisfy a demand by one or more members of his majority, most likely Justice Kagan, maybe Justice Kennedy. Assuming Justice Gorsuch realizes that compromises of this sort are the stuff of life on a multi-member court, did he really need to call the chief justice out on it with his patronizing public reminder about how the Supreme Court articulates “general principles”? Did he think the chief justice didn’t know that already? Or perhaps he just wanted to underscore the strong suggestion in his separate opinion that he interprets the First Amendment’s Free Exercise clause as the Supreme Court never has, to entitle churches to public money on the same basis as secular institutions, even if the money will be put directly to religious uses (read, parochial school support).

Justice Ruth Bader Ginsburg was also on the receiving end of a public lecture by her new colleague. The case was a particularly obscure one, concerning how particular rulings of a federal agency are to be appealed by federal Civil Service employees. Six justices agreed with Justice Ginsburg that the proper venue was Federal District Court. That’s not precisely how the statute reads, Justice Ginsburg acknowledged, but it was “the more sensible reading” that avoided making courts wrestle with an “unworkable” distinction between the two types of cases at issue.

Oh, no, said Justice Gorsuch in dissent. “If a statute needs repair, there’s a constitutionally prescribed way to do it. It’s called legislation.” He went on: “To be sure, the demands of bicameralism and presentment are real and the process can be protracted. But the difficulty of making new laws isn’t some bug in the constitutional design: it’s the point of the design, the better to preserve liberty.”

Really? The effort by seven Supreme Court justices to make sense of an impossibly complex statute rather than throw up their hands is a threat to “liberty”? Those same justices, including the chief justice of the United States, needed a lesson in how a bill becomes a law? This case, argued on the morning of April 17, happened to be the very first case Neil Gorsuch heard as a Supreme Court justice. He dominated the first half of the argument, pounding away at Christopher Landau, an experienced member of the Supreme Court bar who eventually won the case. “We’re not asking the court to break any new ground,” Mr. Landau said at one point. “No, just to continue to make it up,” was Justice Gorsuch’s response from the bench.

Justice Thomas joined Justice Gorsuch’s dissenting opinion. And Justice Gorsuch joined an opinion by Justice Thomas, dissenting from the court’s refusal to hear a challenge to California’s restrictions on the concealed carrying of firearms. In their dissenting opinion, the two called “indefensible” the lower court’s decision to uphold the statute, and they said

the Supreme Court’s failure to take up any gun cases for the past seven years was “inexcusable.”

More consequential was Justice Gorsuch’s vote with Justice Thomas’s separate opinion in dissent from the court’s interim ruling on the Trump administration’s Muslim travel ban. The majority, in an unsigned opinion, allowed the ban to apply for the time being only to people from the six affected Muslim-majority countries who lack a “bona fide connection” to the United States. Justices Thomas, Alito and Gorsuch would have lifted a lower court’s injunction in its entirety, permitting the travel ban to apply to all residents of the six countries.

The opinion that Justice Gorsuch signed contained an odd line: “I agree with the court’s implication that the government has made a strong showing that it is likely to succeed on the merits.” In fact, the implication from the majority’s refusal to leave the injunction in place only for those who were most unlikely to get visas to enter the United States even without the travel ban is exactly the opposite.

And there was a further oddity. Typically when a dissenting opinion refers to something in the majority opinion, the dissenting justice includes a citation to the point at issue. But in the Thomas opinion, there was no citation to a place in the majority opinion where the pro-government “implication” could be found. Indeed, there could not have been a citation because there was no such implication. Although the majority opinion was unsigned, it’s safe to assume that Chief Justice Roberts joined it; certainly, he would have spoken if he thought the court was set on the wrong course.

After the term ended, voices on the right predictably cheered Justice Gorsuch’s performance. “Gorsuch proves a solid conservative on court’s final day,” read a statement from the Committee for Justice, a strong supporter of his nomination. The right has reason to cheer, of course, but also reason to be wary when the new kid on the block overplays his hand. Early in Justice Antonin Scalia’s tenure, he lashed out at Justice Sandra Day O’Connor for refusing to join him in voting to overturn Roe v. Wade when the opportunity presented itself in the 1989 Webster case. In his opinion in that case, he called his senior colleague’s position “irrational” and said she “cannot be taken seriously.” If Justice Scalia thought that he would persuade Justice O’Connor by belittling her, he placed a bad bet; three years later, she voted with the 5 to 4 majority to uphold the right to abortion.

And while liberals have every reason to gnash their teeth over the justice who holds the seat that should have been Merrick Garland’s, they can perhaps take some comfort in the unexpected daylight that has opened between him and two of the court’s other conservatives, Chief Justice Roberts and Justice Kennedy. My concern when Justice Gorsuch joined the court was how like Chief Justice Roberts he seemed in demeanor and professional trajectory. I could see him as a natural ally who would bolster the chief justice’s most conservative instincts. It now seems just as likely

that Neil Gorsuch’s main effect on John Roberts will be to get on his nerves.

Politicization already stripped legitimacy – Gorsuch, abortion, gun control, and death penalty thumpLong 17 — (Emma Long, Lecturer in American Studies@ University of East Anglia, "The legitimacy of the US Supreme Court is at stake", Conversation, 3-21-2017, Available Online at http://theconversation.com/the-legitimacy-of-the-us-supreme-court-is-at-stake-74897, accessed 7-15-2017, JSO)

Playing politics

The Supreme Court is first and foremost a legal institution, but it’s also a political one: its place as one of three equal branches of the American government and its role in interpreting controversial aspects of the Constitution mean it cannot avoid being so. But too often in recent years politicians and commentators have discussed the court in explicitly partisan terms.

The effect has been to imply, and sometimes to overtly state, that the court’s members made decisions as Republicans or Democrats, not as judges whose political and legal worldviews might lead them to personally support one party over another. From here, it’s a very short step to argue, as Cruz and other Republicans did during the 2016 election cycle, that they could not allow the court to be “lost” or “taken over” by a liberal majority.

This is wrong. The court is not a branch to be “captured” by one party or another – and the Senate’s job is not to judge a nominee’s political views, but to assess their ability to perform the role to which they’ve been nominated.

This has too often been forgotten in recent years. Since the 1973 ruling in Roe v Wade that protected, within limits, women’s right to terminate a pregnancy, potential nominees have been judged, in part, on their views on particular hot button issues, particularly abortion, the death penalty, and gun control.

This process arguably reached its nadir in the 1987 hearings on Ronald Reagan’s nomination of Robert Bork to the court. Intellectually capable, Bork was rejected because his politics were considered unacceptably conservative for the court at that time. In 2006, Samuel Alito found his nomination hearings more challenging than John Roberts had just a few months earlier, in part because he was a legal conservative nominated to a seat vacated by Sandra Day O’Connor, considered to be at the court’s ideological centre.

The process has been a gradual one, with both Republicans and Democrats playing their part, but it has been corrosive nonetheless. The consequences for the court itself are coming into view. Whereas it traditionally enjoyed greater public approval than either the president or Congress, the court has seen its approval ratings plummet. A July 2016 Gallup poll showed its public approval rating at 42%, a severe drop since the 1990s.

The more politicised the court becomes, the more its legitimacy is threatened. Its justices are unelected and serve for life, with no power except their institutional role and persuasion to convince the country to abide by their decisions. That means its legitimacy rests not just on the principle of the rule of law, but on the idea that there is some distance between interpreting the law and making political decisions.

Americans come to believe that politics is the only deciding factor in the court’s decision making, the court’s legitimacy, and so its ability to compel compliance, may be drastically weakened. Should that happen, all Americans will lose, regardless of party affiliation.

And so the stakes of Gorsuch’s hearings could scarcely be higher. Senators of both parties would do well to remember that. For the good of the court as an institution, Democrats in particular need to rigorously and thoroughly vet Gorsuch – and assuming nothing genuinely untoward comes to light, they should support his nomination.

L

AT: L – Controversy Stare Decisis is not the controlling factor of court legitimacy and its also just not realHardy, 07 – Tom Hardy, J.D. 2007, University of California, Hastings College of the Law. B.A. 1997, History, Washington University in St. Louis, 2007 Hastings College of the Law Hastings Constitutional Law Quarterly Summer, 2007 34 Hastings Const. L.Q. 591 KKC

B. William S. Consovoy

William S. Consovoy takes an opposite approach, viewing the Court's analysis as overly flexible. He argues that the Court's willingness to entertain reliance-based arguments outside of the economic context is rooted in practical concerns. n67 In short, he contends that the Court's stare decisis analysis has no real content and that the opinions in Casey and Dickerson "are joined only in that each achieved the result the majority ... wanted at that particular [*602] moment, for their own particular reasons." n68 Consovoy notes that turning stare decisis into a pragmatic "tool" rather than a limiting principle has the effect of making precedents much easier to overturn. n69 He believes that the Court's analysis ultimately comes down to the question of whether overruling a precedent will be more or less popular than upholding it. n70 The special justifications analysis is simply a means to the end of maintaining the Court's legitimacy. n71 Consovoy proposes that the Court cease making references to stare decisis in constitutional cases, if only to match its words to its actions. n72

AT: L – Don’t Care People don’t care what the court doesCilliza'12Chris Cillizza, Reporter for the Washington post/6-28-2012, "The most amazing Supreme Court chart. Maybe ever.," https://www.washingtonpost.com/blogs/the-fix/post/what-people-dont-know-about-the-supreme-court--in-one-chart/2012/04/18/gIQA5w6gQT_blog.html?utm_term=.e832452ade0b

What the above chart proves is that analysis about how what the Court does — whether it’s what they have already done on Citizens United or what they might do with the Affordable Care Act — will impact the political landscape amounts to something close to a guessing game.

Regular people are simply not engaged — they don’t know or care — about the intricacies of the government in a way that people who live inside the Beltway and spend their lives in politics are.

It’s a lesson we have to re-learn constantly.

AT: L – Rodriguez Rodriguez affirmative – people don’t believe courts legit on Rodriguez now Bradyley Scott Shannon, 09 – Associate Professor of Law, Florida Coastal School of Law. 2009 The Seattle University Law Review Seattle University Law Review, Fall, 2009, Seattle University Law Review, 33 Seattle U. L. Rev. 151, 16568 words, ARTICLE: OVERRULED BY IMPLICATION, Bradley Scott Shannon. Lexis Nexus KKC

[*176] 1. May the Court's Statement be Regarded as Decisional Methodology?

Some might argue that the above discussion of holding is unreasonably narrow in that it fails to capture what might be termed decisional methodology. In other words, perhaps a court's holding should be regarded as including not only the rule of law used to decide the case, but also analytical methods used by the court to reach that decision. Thus, for example, a holding involving the interpretation of a statute might include the particular theory of statutory interpretation used to reach the result. By similar reasoning, the Supreme Court's holding in Rodriguez de Quijas might be thought of as including not only the enforceability of an arbitration agreement but also the Court's statement regarding the duty of a lower court to "follow the case which directly controls," even when that case "rest[s] on reasons rejected in some other line of decisions." n134

But, there are at least two problems with this argument. First, while some believe that decisional methodology may count as a holding, n135 some do not, n136 and the Court itself has yet to clearly resolve this issue. n137 Second, even if one presumes that decisional methodology may sometimes [*177] count as a holding , it still does not seem that the Court's statement in Rodriguez de Quijas qualifies. The problem, again, relates to the fact that the Court's statement in no way led to its decision in that case. For, unlike the application of a particular theory of statutory interpretation-- which, if followed by lower courts in similar cases, might lead to better decision making (at least in terms of fewer reversals)-- the Court's statement in Rodriguez de Quijas has no such effect. In fact, if anything, a faithful following of this "rule" has the opposite effect and actually results in a higher probability of reversal. n138 The decisional methodology argument therefore fails for the same reason that the more general holding argument fails: the Court's statement in Rodriguez de Quijas is pure dicta, an aside with no relevance to the decision in that case.

IL

Alt CauseLoyalty not approval measures court legitimacyFarganis' 03 Farganis,Dion , Federal Judicial clerk. 2008-04-03 "Is the Supreme Court Bulletproof?" Paper presented at the annual meeting of the MPSA Annual National Conference, Palmer House Hotel, Hilton, Chicago, IL Online <APPLICATION/PDF>. 2013-12-14 from http://citation.allacademic.com/meta/p266029_index.html

Note also that the alternative hypothesis – that approval is a good predictor of legitimacy – does not fare well at all. In fact, approval of the Court’s job performance is actually the weakest of all of the independent variables in both regressions. This demonstrates there is a disconnect between approval attitudes and loyalty to the Court’s basic institutional arrangements – an individual can disapprove of the job that the Court is doing but still maintain a high level of institutional loyalty. This is an important corrective to the notion that measures of confidence and approval are good indicators of legitimacy. As Gibson et al. and others have persuasively argued, legitimacy is a function of loyalty, which is a much more enduring attitude than confidence or approval. The regression here confirms that insight.

No internal link between activism and legitimacy loss – if a decision is unpopular the court loses legitimacy, regardless of reasoningBonneau et al 17 — (Chris W. Bonneau, assoc prof of political science @ University of Pittsburgh, Ph.D. Candidate, Department of Political Science @ University of Pittsburgh, Jarrod T. Kelly, PhD candidate, Department of Political Science @ Pitt, Kira Pronin, PhD student at Pitt, Shane M. Redman, Prof of PolSci @ Pitt, and Matthew Zarit, Prof of International Politics @ Pitt, “Evaluating the Effects of Multiple Opinion Rationales on Supreme Court Legitimacy,” American Politics Research, 45:3, 2017, p. 335-65, http://journals.sagepub.com/doi/pdf/10.1177/1532673X16667089, JSO)

The explanation for why these are thought to be illegitimate grounds on∂ which to base judicial decisions is that their foundation is outside the law;∂ that is, legitimate judicial decisions ought to be based on legal reasoning and∂ legal reasoning alone (e.g., Gibson & Caldeira, 1996; Gibson et al., 2005).∂ Of course, in practice, it is not always easy to empirically disentangle∂ whether a reason is “legal” or “extralegal.” Moreover, the Court may intentionally∂ craft an unclear opinion to hide its decisions from scrutiny by pivotal∂ legislative actors (Owens, Wedeking, & Wohlfarth, 2013). A controlled∂ experimental approach, such as presented in this article, is a better way to∂ evaluate the impact of legal and extralegal opinion rationales. That is, we can∂ use clear examples of both legal and extralegal reasons to empirically evaluate∂ their effects on the legitimacy of the Court.

In addition, testing the claim that the reasoning of judicial decisions can∂ affect judicial legitimacy is difficult because all judicial decisions are based∂ on legal reasoning, at least in part. Judges, at least implicitly, acknowledge∂ the importance of legal reasoning.1 However, many judicial decisions contain∂ more than just legal reasoning, and it is possible that the inclusion of certain∂ extralegal factors can serve to undermine the perceived legitimacy of the∂ decision. This might particularly be the case for individuals who expect that∂ the Court should decide cases solely (or primarily) based on legal factors. If∂ the Court’s decisions fail to live up to the expectations of citizens, then the∂ Court could very well suffer a loss of legitimacy.

In this article, we design two experiments to determine whether the inclusion∂ of extralegal factors can undermine the legitimacy of Court decisions. ∂ Across both experiments, we find that the inclusion of extralegal reasons∂ does not harm the legitimacy of the Court , and find some evidence that, when∂ individuals disagree with the outcome of the case, even legalistic reasoning∂ may harm the Court’s legitimacy.

I

AT: DemocracyDemocratic peace theory is wrong – makes false assumptionsRosato ’03 (Sebastian Rosato, University of Chicago. “The Flawed Logic of Democratic Peace Theory,” November, 2003. https://doi.org/10.1017/S0003055403000893)//rk

Democratic peace theory is probably the most powerful liberal contribution to the debate on the causes of war and peace. In this paper I examine the causal logics that underpin the theory to determine whether they offer compelling explanations for the finding of mutual democratic pacifism. I find that they do not. Democracies do not reliably externalize their domestic norms of conflict resolution and do not trust or respect one another when their interests clash. Moreover, elected leaders are not especially accountable to peace loving publics or pacific interest groups, democracies are not particularly slow to mobilize or incapable of surprise attack, and open political competition does not guarantee that a democracy will reveal private information about its level of resolve thereby avoiding conflict. Since the evidence suggests that the logics do not operate as stipulated by the theory’s proponents, there are good reasons to believe that while there is certainly peace among democracies, it may not be caused by the democratic nature of those states.

Democratic peace theory is wrongLarison 12 (Daniel Larison PhD in history from the University of Chicago Democratic Peace Theory Is False http://www.theamericanconservative.com/larison/democratic-peace-theory-is-false/)

Rojas’ claim depends entirely on the meaning of “genuine democracy.” Even though there are numerous examples of wars between states with universal male suffrage and elected governments (including that little dust-up known as WWI), the states in question probably don’t qualify as “genuine” democracies and

so can’t be used as counter-examples. Regardless, democratic peace theory draws broad conclusions from a short period in modern history with very few cases before the 20th century. The core of democratic peace theory as I understand it is that democratic governments are more accountable to their populations, and because the people will bear the costs of the war they are going to be less willing to support a war policy. This supposedly keeps democratic states from waging wars against one another because of the built-in electoral and institutional checks on government power. One small problem with this is that it is rubbish.

Democracies in antiquity fought against one another. Political equality and voting do not abolish conflicts of interest between competing states. Democratic peace theory doesn’t account for the effects of nationalist and imperialist ideologies on the way democratic nations

think about war. Democratic nations that have professional armies to do the fighting for them are often enthusiastic about overseas wars. The Conservative-Unionist government that waged the South African War (against two states with elected governments, I might add) enjoyed great popular support and won a huge majority in the “Khaki” election that followed.

As long as it goes well and doesn’t have too many costs, war can be quite popular, and even if the war is costly it may still be popular if it is fought for nationalist reasons that appeal to a majority of the public. If the public is whipped into thinking that there is an intolerable foreign threat or if they believe that their country can gain something at relatively low cost by going to war , the type of government they have really is irrelevant . Unless a democratic public believes that a military conflict will go badly for their military, they may be ready to welcome the

outbreak of a war that they expect to win. Setting aside the flaws and failures of U.S.-led democracy promotion for a moment, the idea that reducing the number of non-democracies makes war less likely is just fantasy. Clashing interests between states aren’t going away, and the more democratic states there are in the world the more likely it is that two or more of them will eventually fight one another.

AT: HegPath dependence solves even if American primacy collapses Jervis 11 Robert Jervis, Department of Political Science and School of International and Public Affairs, Columbia University Force in Our Times http://journals.sagepub.com/doi/pdf/10.1177/0047117811422531

A more likely change would be an erosion of American hegemony. Among the leading powers, all are not equally leading. The strength, interests and military presence of the US remain sufficient to see that others in the community do not challenge either it or each other. A decline in American power and a partial withdrawal of its influence are certainly possible, and, at minimum, American troops might be withdrawn from Europe in the coming years. But would this matter? Even if American dominance played a large role in forming the community, it may not be necessary for the community’s maintenance. Path-dependence may operate strongly here, and although firm evidence is hard to come by, I would argue that in the absence of other changes of the kind I have discussed, it is very unlikely that pulling off the American security blanket would lead to thoughts of war. (On the level of policy prescription, however, I am cautious enough not to want to run the experiment.)