2006 ADI TOPIC LECTURE

Dr. Dave Hingstman

Part I

How to construct affirmative cases and negative strategies on this topic

A. The Agent -- The US Supreme Court

1. The specified agent is the highest federal appellate court, above federal district courts and Courts of Appeals and state courts on federal issues.

2. It hears appeals to the procedures and application of legal principles by trial courts to resolve legal disputes.

US SUPREME COURT AS AGENT

3. Most appeals it hears are at the discretion of the justices of the Court itself. “Certiorari” petitions for a chance to have argument heard by the Court must be filed, and four justices must support the petition.

4. The Court can only act through its decisions and opinions in specific cases. It does not offer advisory opinions or pass rules or statutes. The test case as a mode of plan fiat has been contested on previous topics.

US SUPREME COURT AS AGENT

5. The Court rules by consensus among nine people, and thus what each justice believes is important in determining the ultimate decision. 5-4, 6-3, 7-2, 8-1, 9-0

6. In overruling any of the four decisions, the Court would be questioning its own institutional legitimacy, because a previous Court decided differently.

B. Implications of the US Supreme Court as Agent for Preparing to Debate

1. Start by reading the decisions and the accompanying opinions. All are available using Google or Lexis Academic Universe

a. Majority or plurality opinions

b. Concurring opinions

c. Dissenting opinions

d. Opinions that concur in part and dissent in part

PREPARING TO DEBATE SUPREME COURT DECISIONS

2. What to look for in the opinions? One formulation by Carter and Burke, Reason in Law (7th ed., 2005), pp. 9-13.

a. Case Facts

• Facts about the dispute between the parties in the case as developed in a trial

• Ask yourself: How can I summarize what the opinion writer says happened between the participants in this dispute before it came to the appellate court? What is the underlying dispute about and how do the parties want it to be resolved?

b. Rules of Law

• Official legal texts created by the state that are said to establish rights and duties in general.

• Ask yourself: What sources of law are mentioned by the opinion writer and where do they come from?

c. Social Background Facts

• Facts, events and other conditions that we observe in the world, quite apart from the case at hand

• Ask yourself: What kinds of explicit or implicit assumptions does the opinion writer make about the way things are or happen in general to explain why a dispute should be resolved a certain way?

d. Widely Shared Values

• Beliefs and moral principles that are shared by many people in society

• Ask yourself: What are the beliefs or principles that are in dispute between the parties or that seem to influence the opinion writer?

3. Why do you need to read the opinions this way?

a. The ambiguous nature of legal “decisions.” “A conclusion reached after an evaluation of facts and law.” West’s Encyclopaedia of American Law, 1998.

b. As an appellate court, the US Supreme Court is supposed to be limited to reviewing trial proceedings and, if applicable, intermediate appellate court decisions. Arguments before the court by the parties are confined to points of substantive law and procedure.

READING OPINIONS

c. But since the substantive law and procedures are applied to specific facts, it may be difficult to tell the difference when trying to figure out what to overrule.

d. The benefits of overrule for constraining the actions of lower courts, Congress and the executive branch also depend on what is “binding” about the decision.

READING OPINIONS

e. Affirmatives will be asked to describe the “decision” that is being overruled for purposes of fairness and education.

f. Negative ground to distinguish or modify previous decisions, as opposed to overruling them, may depend on how the “decision” is described. The “holding” of a case versus “dicta.”

C. The Mandates--Overrule a Decision

1. How the US Supreme Court ordinarily justifies its decision -- arguing from precedent (stare decisis).

Arguing from Precedents

a. Involves decisions and opinions from prior (appellate-level) disputes in which the facts and legal questions resemble those of a current disagreement

b. Starts with an analogy that identifies factual similarities and dissimilarities between past and present disputes.

Arguing from Precedents

c. Then assembles a series of rules from the decisions and opinions that resolved past disputes. These rules are generalizations, and can be very abstract or concrete.

d. Finally, the Court applies the rules of law to resolve the new dispute. A “precedent” is not a precedent until it is applied.

Overrule vs. Precedents

2. Overruling a decision interferes with its ability to be used as a precedent to decide future disputes.

“A judicial decision is overruled when [the same Court]… hands down a decision concerning the identical question of law which is in direct opposition to the earlier decision. The earlier decision is thereby overruled and deprived of its authority as precedent.” West’s Encyclopaedia of American Law, 1998.

Overrule vs. Precedents

3. Decisions can be overruled in part, just as decisions can serve as multiple precedents to resolve disputes.

4. The basis for overruling a decision becomes an important part of the debate argument. It affects the Court’s ability to function as a social institution, and engages policy and critical impacts.

D. Implications of the Mandate to Overrule Decisions for Preparation

1. Read as many of the sources as possible for arguments about how the four decisions serve as precedents.a. Supreme Court briefs on Lexis federal cases.b. Law review articles on Lexis (including Notes and Comments) and legal treatisesc. Briefs and opinions in subsequent cases that cite the decision as precedent. Shepard’s Citations and the West Digest System help trace citations.

READING LEGAL COMMENTARY

2. What to look for

a. How does the source describe the “holding” of the decision (legal syllabi in case reporters) and distinguish “dicta” in the opinions?

b. How does the source describe the precedential effect of the decision?

c. How does the source claim that the decision could be modified, distinguished, or set aside by future decisions?

READING LEGAL COMMENTARY

3. Why do you need to read legal commentary this way?

a. Because very few people explicitly advocate “overrule” in the literature on the four decisions. It is seen as a waste of time.

b. Because when they do advocate “overrule,” they often jump over the procedural questions of how to do it. They want to talk about the beneficial results of overrule.

READING LEGAL COMMENTARY

c. Because there is much potential negative ground outside of “overruling” a decision. Besides alternative agents and mandates, there are options within Supreme Court action itself. Distinguishing or modifying.

d. Because of the judicial paradigm. Affirmative teams may try to argue that only legal standards of evaluation matter.

READING LEGAL COMMENTARY

e. Because these are the sources of “specific links” to policy and critical arguments for each decision.

Part II

The Four Decisions

Planned Parenthood v. Casey (1992)

1. Some unusual qualities of the decision in the literaturea. Most often discussed by legal commentary as a decision that could be and should be overruled.b. The opinions in the case themselves discuss standards for overruling (Roe v. Wade)

Planned Parenthood v. Casey (1992)

2. Involved 5 parts of a Pennsylvania statute regulating abortions: informed consent of the patient, consent of a minor child’s parent, notification of the spouse, a “medical emergencies” exception to the above, and reporting requirements for abortion providers.

Planned Parenthood v. Casey (1992)

3. The opinion of the Court reaffirmed the Roe v. Wade decision but described the right to reproductive choice as a part of substantive due process of law, a “liberty interest” which would be weighed against the state interest in protecting fetal life and maternal health.

Planned Parenthood v. Casey (1992)

4. The opinion of the Court replaced the Roe trimester test of permissible state regulation with a focus on pre- and post-viability. Pre-viability, the state must avoid imposing “undue burdens” on the right to an abortion. Post-viability, the state could do almost anything, including making abortions difficult to get.

Planned Parenthood v. Casey (1992)

5. Courts would have to decide on a case-by-case basis what state regulations involve “undue burdens.” Only the husband notification provisions of the Pennsylvania law were explicitly ruled to be “undue” in Casey.

Planned Parenthood v. Casey (1992)

6. A conservative-leaning version of an overrule might find husband notification laws to be “not unduly burdensome,” or replace the “undue burden” with a “rational basis” test, an easier one for a state to meet, or argue that the substantive due process right to an abortion should be eliminated.

Planned Parenthood v. Casey (1992)

a. Policy advantages might include sending a national and international signal for saving life (the unborn) and avoiding a slide into a eugenic mindset.

b. Process advantages might include undermining “substantive due process” and privacy-based rights protection, and restoring Supreme Court legitimacy.

Planned Parenthood v. Casey (1992)

7. A liberal version of a Casey overrule might find the other provisions of Pennsylvania-like laws to be unconstitutional, or return to the trimester scheme and privacy rights framework of Roe, or substitute equal protection law for due process, or rule that the right to abortion is a fundamental right that requires strict scrutiny.

Planned Parenthood v. Casey (1992)

a. Policy advantages might include overcoming the stigmatization of people who cannot afford to bypass the regulations and better material health, as well as sending a signal for maternal rights.

b. Process advantages might include judicial legitimation and justice.

Ex parte Quirin (1942)

1. Some unusual qualities of the decision in the literature

a. Cited and distinguished in the recent Hamdan decision concerning enemy combatants

b. Probably works best as a critical affirmative because Quirin was a unanimous decision and Hamdan supported it.

Ex parte Quirin (1942)

2. Some accused Nazi saboteurs were held as enemy combatants and their attorneys challenged their detention and upcoming trial before a military commission with a petition for habeas corpus. One was a US citizen. They said these procedures violated the Articles of War passed by Congress.

Ex parte Quirin (1942)

3. The court ruled that the charges alleged an offense that the President was authorized by try by military commission, that the commissions did not violate the Articles of War, and thus the enemy combatants did not need to be released.

Ex parte Quirin (1942)

4. A liberal/critical version of a Quirin overrule would argue that military commissions violate the Geneva Conventions and other laws of war. Advantages might include soft power, strengthen the European alliance, and cosmopolitanism.

Ex parte Quirin (1942)

5. A conservative version might argue that any suggestion that Congress can regulate the President’s military commissions violates the commander-in-chief power; although the opinion explicitly avoids this issue. Advantages might include hegemony and presidential power good

U.S. v. Morrison (2000)

1. Some unusual qualities of the decision in the literature

a. The opinion by Chief Justice Rehnquist makes broad claims about the Commerce Clause and state action doctrines that access other cases

b. There is a interesting feminist liberal/critical literature on the gendered assumptions of the decision.

U.S. v. Morrison (2000)

2. Some Virginia Tech male varsity football players were alleged to have brutally and repeatedly raped two female students in an incident on campus. The school charged them with assault, and suspended them, but then reduced Morrison’s sentence without notifying the victims. The women sued, alleging a violation of the federal Title IX and calling for damages under § 13981 of the Violence Against Women Act.

U.S. v. Morrison (2000)

3. The Court in the opinion of Chief Justice Rehnquist ruled that VAWA was unconstitutional because it involved congressional regulation of an activity that did not substantially affect interstate commerce. Furthermore, Congress could not use its power under §5 of the 14th Amendment because §1398’s civil remedies are designed to recover money from individual assailants.

U.S. v. Morrison (2000)

4. One liberal version of the affirmative would overrule Morrison by arguing that Congress has greater power to regulate interstate commerce than the decision allowed. Advantages might include signaling the importance of gender justice and centralization of government good.

U.S. v. Morrison (2000)

5. Another liberal version of the affirmative would use an overrule of Morrison as a opportunity to repudiate the state action doctrine. Advantages would include resistance to public/private dichotomies that disadvantage minorities and women.

Milliken v. Bradley (1974)

1. Some unusual qualities of the decision in the literature

a. It has strong signal qualities for antiracism efforts because it was a major support for the distinction of racially discriminatory intention and effect.

b. It has been blamed for stopping progress in desegregation and, together with San Antonio v. Rodriguez, impoverishing urban schools.

Milliken v. Bradley (1974)

2. A federal district court and Court of Appeals approved a interdistrict remedy for desegregation of the Detroit-area public schools after finding that Detroit could not be adequately desegregated within the city’s boundaries and that state officials had been complicitous in previous acts of locational decisions for students in the area.

Milliken v. Bradley (1974)

3. The majority opinion by Chief Justice Burger stated that because there was no evidence in the record of deliberate acts of discrimination by administrators in the 53 school districts adjoining Detroit’s, it would be beyond the constitutional power of federal courts under Brown to call for a remedy that would affect those districts.

Milliken v. Bradley (1974)

4. A critical version of an overrule of Milliken might use it to overrule Brown v. Board of Education by effect, by claiming that desegregation is not an appropriate way to ensure equal educational opportunity, particularly in light of San Antonio v. Rodriguez. Advantages might include sending a signal for racial realism and a renewed awareness of importance of overcoming the effects of income inequality.

Milliken v. Bradley (1974)

5. A liberal version of an overrule of Milliken might argue that it would send a strong signal to resist resegregation efforts and open new possibilities for improving urban schools. Advantages include overcoming the effects of past and present discrimination and improvements in school quality.