Courts And Politics - Core – hss 15

courts link to politics

1nc courts link to politics

Courts link to politicsDavid Kuhn, Real Clear Politics Chief Political Correspondent, 6/29/12, The Incredible Polarization and Politicization of the Supreme Court, www.theatlantic.com/politics/archive/2012/06/the-incredible-polarization-and-politicization-of-the-supreme-court/259155/

Yet concerns about the Court's apolitical credibility are hardly alleviated . At least two-thirds of the 5-4 rulings during the Roberts Court have split along ideological lines. Roberts has agreed with the three most conservative justices -- Samuel Alito, Clarence Thomas and Antonin Scalia -- in at least eight in 10 non-unanimous rulings, according to calculations by SCOTUSblog. Roberts has also presided over the two most polarized Court years in American history. In 2006 and 2008, about one in three rulings were decided by a 5-to-4 vote. In the last three years, the Roberts Court decided slightly less than a fifth of its cases by a one-vote majority. Notably, that's still a few percentage points above the share of 5-to-4 rulings during Burger and Vinson Courts. The Supreme Court will consider controversial laws next term, including

the use of affirmative action. If past is prologue, major rulings will remain politicized . This is also the most

conservative Court since the New Deal. In a widely cited 2009 study, conservative judge and scholar Richard Posner, as well as his colleague at the University of Chicago law school William Landes, ranked the ideology of 43 Supreme Court justices from 1937 to 2006. Four of the five most conservative judges served on the Court that year. None of the five most liberal judges did. Ruth Bader Ginsburg was the only current judge to rank among the 10 most liberal justices. Posner and Landes also found that the more ideologically polarized the Court was, meaning the greater its range from right to left, the greater the number of cases decided by one vote. It found, critically, that ideology "matters more in the Supreme Court than in the court of appeals."

There have not only been more ideologically sorted rulings in recent decades. The most significant laws are increasingly decided by the same one-vote margin that undermines the very "supreme" authority of the Court. The 1966 Miranda decision, which defined police suspects' rights, was an early signal that 5-to-4 rulings were going to shape this nation like never before. The 2000 Bush v. Gore was decided along the same narrow margin. In the Roberts Court, 5-to-4

majorities have allowed unlimited corporate and union campaign spending, upheld an individual's right to gun ownership, limited an employee's ability to file a pay discrimination, decided states cannot impose mandatory

life sentences on juvenile murderers without the possibility of parole, and limited class-action suits as well as

decided the constitutionality of the health-care law. This polarization has not gone unnoticed . The judiciary

remains the most trusted branch of government. Sixty-three percent of Americans said in autumn 2011 that they have a "great deal" or a "fair amount" of faith in it. Yet that is the lowest share to express trust in the judicial branch since 1976, when

Gallup first asked the question. And the Supreme Court is especially sullied. Prior to Thursday's decision, about three in four Americans agreed that "personal or political views influence" current Court decisions, according to a recent New York

Times/CBS News Poll. Yet the public has not seen the Court as apolitical since, at least, it became more

politically ordered. In 1946, a narrow plurality, four in 10 Americans, told Gallup that they "agree" that "the Supreme Court decides many questions largely on the basis of politics."

2nc courts link to politics

The plan’s ruling is blamed on ObamaMr. Mirengoff 10 is an attorney in Washington, D.C. A.B., Dartmouth College J.D., Stanford Law School, June 23 The Federalist Society Online Debate Series, http://www.fed-soc.org/debates/dbtid.41/default.asp The other thing I found interesting was the degree to which Democrats used the hearings to attack the "Roberts Court." I don't recall either party going this much on the offensive in this respect during the last three sets of hearings. What explains this development? My view is that liberal Democratic politicians (and members of their base) think they lost the argument during the last three confirmation battles. John Roberts and Samuel Alito "played" well, and Sonia Sotomayor sounded like a conservative. The resulting frustration probably induced the Democrats to be more aggressive in general and, in particular, to try to discredit Roberts and Alito by claiming they are not the jurists they appeared to be when they made such a good impression on the public. I'm pretty sure the strategy didn't work. First, as I said, these hearings seem not to have attracted much attention. Second, Senate Democrats are unpopular right now, so their attacks on members of a more popular institution are not likely to resonate. Third, those who watched until the bitter end saw Ed Whelan, Robert Alt and others persuasively counter the alleged examples of "judicial activism" by the Roberts Court relied upon by the Democrats -- e.g., the Ledbetter case, which the Democrats continue grossly to mischaracterize. There's a chance that the Democrats' latest partisan innovation will come back to haunt them . Justice Sotomayor and soon-to-be Justice Kagan are on record having articulated a traditional, fairly minimalist view of the role of judges . If a liberal majority were to emerge -- or even if the liberals prevail in a few high profile cases -- the charge of "deceptive testimony" could be turned against them. And if Barack Obama is still president at that time, he likely will receive some of the blame.

It’s linked to the PresidentHarrison ‘5Lindsay Harrison, Lecturer in Law at the University of Miami School of Law, 11/18/2005, Does the Court Act As "Political Cover" for the Other Branches?, http://legaldebate.blogspot.com/2005/11/does-court-act-as-political-cover-for.htmlDoes the Court Act as "Political Cover" for the Other Branches? While the Supreme Court may have historically been able to act as political cover for the President and/or Congress, that is not true in a world post-Bush v. Gore. The Court is seen today as a politicized body, and especially now that we are in the era of the Roberts Court, with a Chief Justice hand picked by the President and approved by the Congress, it is highly unlikely that Court action will not, at least to some extent, be blamed on and/or

credited to the President and Congress . The Court can still get away with a lot more than the elected branches since people don't understand the technicalities of legal doctrine like they understand the actions of the elected branches; this is, in part, because the media does such a poor job of covering legal news. Nevertheless, it is preposterous to argue that the Court is entirely insulated from politics, and equally preposterous to argue that Bush and the Congress would not receive at least a large portion of the blame for a Court ruling that, for whatever reason, received the attention of the public.

Plan galvanizes opposition to ObamaGreenwald 06Glenn Greenwald, JD, Guardian Journalist who published Snowden’s leaks, former GW Debater, , 2006, “Will Hamdan have any effect on the Bush Presidency?”, http://glenngreenwald.blogspot.com/2006_06_01_glenngreenwald_archive.html

Additionally, court opinions historically have a political impact as well as legal effects. Despite the concerted, destructive attacks on the credibility of the Supreme Court by the likes of Mark Levin and Rush Limbaugh, who hate and wage war on any institution (such as the media) which dares to challenge the Powers of the President, Americans still retain a respect for the Supreme Court as an important

and credible institution. The Court's proclamation that the President has been acting beyond his legal and constitutional authority strengthens that argument as a political matter.

It is also likely to further galvanize those in Congress and the media who have been gradually taking a stand against the Administration. A Supreme Court ruling that is this decisive, on an issue

this significant, is virtually never confined to the legal realm, but almost always has impact,

often profound impact , in the political realm as well.

Citizens United provesZeleny 10Jeff Zeleny, staff, NYT, January 21, 2010, “Political Fallout From the Supreme Court Ruling”, http://thecaucus.blogs.nytimes.com/2010/01/21/political-fallout-from-the-supreme-court-ruling/

Today’s ruling upends the nation’s campaign finance laws, allowing corporations and labor unions to spend freely on behalf of political candidates. With less than 11 months before the fall elections, the floodgates for political contributions will open wide, adding another element of intrigue to the fight for control of Congress.At first blush, Republican candidates would seem to benefit from this change in how political campaigns are conducted in America. The political environment – an angry, frustrated electorate seeking change in Washington – was already favoring Republicans. Now corporations, labor unions and a host of other organizations can weigh in like never before.But the populist showdown that was already brewing – President Obama on Thursday sought to limit the size of the nation’s banks – will surely only intensify by the Supreme Court’s ruling. The

development means that both sides will have even louder megaphones to make their

voices and viewpoints heard . Mr. Obama issued a statement – a rare instance of a president immediately weighing in on a ruling from the high court – and said his administration would work with Congressional leaders “to develop a forceful response to this decision.”“With its ruling today, the Supreme Court has given a green light to a new stampede of special interest money in our politics,” Mr. Obama said. “It is a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.”Republicans, of course, hailed the ruling as a victory for the First Amendment.“I am pleased that the Supreme Court has acted to protect the Constitution’s First Amendment rights of free speech and association,” said Senator John Cornyn of Texas, chairman of the National Republican Senatorial Committee. “These are the bedrock principles that underpin our system of governance and strengthen our democracy.”Democrats, not surprisingly, said the ruling would be bad for democracy.“Giving corporate interests an outsized role in our process will only mean citizens get heard less,” said Senator Robert Menendez of New Jersey, chairman of the Democratic Senatorial Campaign Committee. “We must look at legislative ways to make sure the ledger is not tipped so far for corporate interests that citizens voices are drowned out.”

at: not blamed on obama

Everything gets blamed on the ExecutiveThomas McGarity, Endowed Chair in Administrative Law, University of Texas School of Law, May

2012, ARTICLE: ADMINISTRATIVE LAW AS BLOOD SPORT: POLICY EROSION IN A HIGHLY PARTISAN AGE, 61 Duke L.J. 1671

In this Article, I raise the possibility that the nation has entered a period in which the population is so deeply divided about the proper role of government, regulated industries are so willing to spend millions of dollars to vindicate their interests, and political discourse is so unrestrained that an even more expansive

model of implementation may be warranted, at least in the context of high-stakes rulemaking

initiatives . n23 First, the implementation game has spread to arenas that are far less structured and far

more political than the agency hearing rooms and appellate courtrooms of the past. Second, the roster of players has expanded beyond agency and OIRA staffs, advocates for the regulated industry and beneficiary groups, and congressional aides to include individuals and organizations with broad policy

agendas, such as the U.S. Chamber of Commerce, think tanks, grassroots organizations, media pundits , and Internet bloggers. Third, because many parties play the implementation game in multiple arenas, the game has become far more strategic and the range of allowable tactics has widened rather dramatically. Finally, in this deeply divided political economy, the players in the implementation game no

longer make a pretense of separation between the domains of politics and administrative law, and they are far less restrained in the rhetoric they employ to influence agency policymaking . n24In this new milieu, "winning" can mean more than compelling unreasonable delays in agency action, invoking APA procedures to impede the policymaking process, or persuading the agency to accept a particular position on the relevant law and facts. Winning can consist of extracting promises from nominees during the confirmation process, preventing the confirmation of disfavored nominees, or preventing the confirmation of any agency leaders until the administration has agreed to change the agency's decisionmaking structure. Winning can also mean incapacitating the agency by reducing its annual appropriation, repealing the agency's organic act, or whittling away its regulatory authority through rifle-shot riders attached to must-pass legislation. n25 The players are less reluctant to attack agencies and the statutes those agencies administer head on. The players launch their attacks much earlier in the evolution of regulatory programs, and they feel free to go beyond attacks on the agencies as institutions to launch ad hominem attacks on agency decisionmakers.In short, I raise the possibility that, for some high-stakes rulemaking initiatives in some areas of

regulation, implementation is not so much "politics by other means" as it is " politics as usual ." And because politics is so very different from the deliberative, lawyer-dominated domain of traditional administrative law, the word "law" may no longer be an accurate descriptor. Former U.S. [*1681] Securities and Exchange Commission (SEC) Chairman Arthur Levitt referred in 2010 to federal regulation as a "kind of a blood sport" in which the regulated industries attempt "to make the particular agency" promulgating an unwelcome regulation "look stupid or inept or venal." n27 If the implementation of

regulatory statutes has become a blood sport in important contexts, and if the goal of administrative law extends beyond ensuring procedural regularity to a concern about the effective implementation of legislation, then it would behoove administrative-law scholars to pay attention to the larger setting in which informal rulemaking now takes place and to begin thinking about the implications of these developments for the field.

at: visibility

Plan’s controversial ruling is perceived and causes Congressional backlashUribe et al 2013 Alicia, Lecturer in Political Science – University of Illinois, PhD University of Washington St. Louis, The Influence of Congressional Preferences on Legislative Overrides of Supreme Court Decisions, Law & Society Review, http://faculty.ucmerced.edu/thansford/Articles/congress_reaction_to_court.pdf

Conclusion Congress and the Supreme Court interact in a separation-of-powers framework as each attempts to shape policy. While the broader congressional politics literature provides convincing empirical evidence that legislative preferences have a significant effect on Members’ votes and the passage of legislation (e.g., Poole and Rosenthal 2007), no systematic evidence demonstrates legislative overrides of Supreme Court opinions result from congressional preferences. This lack of empirical support exists despite the widespread application of a spatial modeling approach to understand Congress-Court relations, which assumes overrides occur when Court decisions are ideologically distant from Congress. Our first goal was to show, consistent with existing spatial models in the literature, that Congress is more likely to pass laws overriding Supreme Court decisions the further ideologically removed a decision is from the legislative gridlock interval. Our statistical results,

for the first time, demonstrate Congress overrides Court decisions the further

ideologically removed it is from them . A two standard deviation shift around the mean of the ideological distance of Congress from a Court decision increases the likelihood of an override by 66.4%.

This result indicates Congress takes notice of the policy import of a Court decision and is more likely to reject those it dislikes on ideological grounds . We therefore provide evidence in support of a core part of SOP models, showing Congress does indeed respond to Court decisions based on its preferences. This result is important because it confirms a fundamental component of nearly all SOP explanations of the relationship between Congress and the Court. Future studies can now be confident that their assertion that legislative preferences influence overrides is on a strong empirical footing. We further demonstrate Congress does not act strategically by

avoiding legislative overrides when the Court is likely to reject them. The implication is that

Congress is motivated by position-taking goals rather than the ultimate effect of its policy actions and the separation-ofpowers. That is, our data suggest Congress cares more about the short-term gains from overriding legislation (e.g., passing the legislation for electoral purposes) than the ultimate shape of the policies it chooses to override. This result suggests the Court may, at least when it concerns the ultimate effect of override legislation, have greater influence on the ultimate location of public policy. Of course, this conclusion is tempered by the fact that Congress and the Court rarely disagree about whether the status quo should be altered; Congress wishes to override a Court decision preferred by the Court only 2.5% of the time in our data. As Dahl (1957) famously declared, the Court is not often out-of-step with the elected branches, and as a result Congress and the Court tend to agree on the desirability of previously decided Court cases. Finally, we show the effect of ideological distance matters for all types of Court decisions, including constitutional ones. Thus, while the Court

may, as some suggest (e.g., King 2007), attempt to insulate its decisions from congressional override by using constitutional interpretation, it appears this tactic does not work . When Congress is ideologically distant from a Court decision , regardless

of whether the decision is based on constitutional, statutory or common law interpretation, it is more likely to override it . This result is new to the literature, and it means subsequent studies cannot exclusively focus on statutory cases.

courts avoid politics

2ac courts avoid politics

Courts shieldKeith E. Whittington 5, Cromwell Professor of Politics – Princeton University, ““Interpose Your Friendly Hand”: Political Supports for the Exercise of Judicial Review by the United States Supreme Court”, American Political Science Review, 99(4), November, p. 585, 591-592

Political leaders in such a situation will have reason to support or, at minimum, tolerate the active exercise of judicial review. In the American context, the presidency is a particularly useful site for locating such behavior. The Constitution gives the president a powerful role in selecting and speaking to federal judges. As national party leaders, presidents and presidential candidates are both conscious of the fragmented nature of American political parties and sensitive to policy goals that will not be shared by all of the president’s putative partisan allies in Congress. We would expect political support for judicial review to make itself apparent in any of four fields of activity: (1) in the selection of “activist” judges, (2) in the encouragement of specific judicial action consistent with the political needs of coalition

leaders, (3) in the congenial reception of judicial action after it has been taken , and (4) in the public expression of generalized support for judicial supremacy in the articulation of constitutional

commitments. Although it might sometimes be the case that judges and elected officials act in more-

or-less explicit concert to shift the politically appropriate decisions into the judicial arena for resolution, it is also the case that judges might act independently of elected officials but nonetheless in

ways that elected officials find congenial to their own interests and are willing and able to accommodate . Although Attorney General Richard Olney and perhaps President Grover Cleveland thought the 1894 federal income tax was politically unwise and socially unjust, they did not necessarily therefore think judicial intervention was appropriate in the case considered in more detail later (Eggert 1974, 101– 14). If a majority of the justices and Cleveland-allies in and around the administration had more serious doubts about the constitutionality of the tax, however, the White House would hardly feel aggrieved. We should be equally interested in how judges might exploit the political space open to

them to render controversial decisions and in how elected officials might anticipate the utility of future acts of judicial review to their own interests.¶ [CONTINUES]¶ There are some issues that politicians cannot easily handle. For individual legislators, their constituents may be sharply divided on a given issue or overwhelmingly hostile to a policy that the legislator would nonetheless like to see adopted. Party leaders, including presidents and legislative leaders, must similarly sometimes manage deeply divided or cross-pressured coalitions. When faced with such issues, elected officials may actively seek to turn

over controversial political questions to the courts so as to circumvent a paralyzed

legislature and avoid the political fallout that would come with taking direct action themselves. As Mark Graber (1993) has detailed in cases such as slavery and abortion, elected officials may prefer judicial resolution of disruptive political issues to direct legislative action, especially when the courts are believed to be sympathetic to the politician’s own substantive preferences but even when the attitude of the courts is uncertain or unfavorable (see also, Lovell 2003). Even when politicians do not invite judicial intervention, strategically minded courts will take into account not only the policy preferences of well-positioned policymakers but also the willingness of those potential policymakers to act if doing so means that they must assume responsibility for policy outcomes. For cross-pressured

politicians and coalition leaders, shifting blame for controversial decisions to the Court and

obscuring their own relationship to those decisions may preserve electoral support and coalition unity without threatening active judicial review (Arnold 1990; Fiorina 1986; Weaver 1986). The conditions for the exercise of judicial review may be relatively favorable when judicial invalidations of legislative policy can be managed to the electoral benefit of most legislators. In the cases considered previously,

fractious coalitions produced legislation that presidents and party leaders deplored but were unwilling to block. Divisions within the governing coalition can also prevent legislative action that political leaders want taken, as illustrated in the following case.

1ar courts avoid politics

Obama will deflect blame – studies proveAlison M. MARTENS, Political Science at University of Louisville, ‘7 [“Reconsidering Judicial Supremacy: From the Counter-Majoritarian Difficulty to Constitutional Transformations,” Perspectives on Politics, 2007, Vol. 5, Issue 3, p. 447-459]

The outline of this revised research agenda, begins by looking at a 1993 article written by Mark Graber challenging the countermajoritarian difficulty paradigm. Graber's observations point to the importance of studying systemic transformations, such as

the evolution of judicial supremacy. Using historical case studies on abortion, the   Dred Scott   controversy, and anti-trust issues to study perceived incidents of judicial independence, he contends that scholars who seek to justify independent judicial policymaking, even in the face of believed democratic deficiencies, misunderstand and inaccurately represent the relationships between justices and elected officials. By looking at the dialogues between these parties it

becomes apparent that judicial independence, when it actually occurs, is   often   exercised   at the invitation of

elected officials, and in the absence of any expressed majoritarian choice, in order   to resolve political

controversies   that elected officials cannot or do not want to resolve themselves . Hence the

counter-majoritarian difficulty can be more appropriately characterized as the “non-majoritarian difficulty.”33

According to Graber, where crosscutting issues divide   a   lawmaking   majority   an invitation is often tacitly but

consciously   issued to the Court   by political elites   to   resolve the political controversy  that they

themselves are unwilling or unable to address, thereby “foisting disruptive political debates off on the Supreme Court .”34 Graber writes that

“elected   officials   encourage or tacitly support judicial policymaking both as a means

of   avoiding political responsibility   for making tough decisions   and   as a means of pursuing controversial   policy   goals  that they cannot publicly advance   through open legislative   and

electoral politics.” 35 Furthermore, political and electoral advantages can accrue by ducking these tough questions and sending

them on to be settled by the Court. Graber explains that elites (including the executive) can benefit   from passing the political buck   to the Court in multiple ways. Party activists can be redirected to focus on legal action in the courts, thereby reducing pressure on mainstream politicians who wish to maintain a more politically viable moderate stance.   Voters can be redirected to focus any ire they might have over policy outcomes on the Court.   Politicians can take   responsive   positions on judicial decisions that   may   make for a good sound bite but  really require no   politically accountable   action   on their part. Finally, political compromise between the legislature and the executive might be had under the table of Court policymaking. 36 This is an impressive set of political benefits that can stem from a practice of judicial supremacy that creates a Court equipped with the interpretive authority and legitimacy to make controversial public policies. Graber's article, then, highlights the perversion of political accountability that can possibly occur where everyone in the system, the public included, accepts and expects interpretive authority to reside with the courts.

Court action preserves PC Mark TUSHNET, William Nelson Cromwell Professor of Law, Harvard Law School, ‘8 [“Book Review: The Obama Presidency and The Roberts Court: Some Hints from Political Science,” Constitutional Commentary, Summer 2008, 25 Const. Commentary 343, Lexis]

What can the courts do for a resilient regime? Presidents and Congress have limited time and political energy. They will spend them on what they regard as central issues. But at any time there will be "outliers" - geographic regions as yet uncommitted to the regime's constitutional understandings, or

substantive areas that plainly require change if those understandings are to become deeply implanted in society, yet politically too touchy [*347] or relatively unimportant to Congress. "For the affiliated leader, enhancing judicial authority to

define and enforce constitutional meaning provides an efficient mechanism for supervising and

correcting those who might fail to adhere to the politically preferred constitutional vision" (pp. 105-06).

The courts can serve as a convenient but essentially administrative mechanism for bringing these outliers into the constitutional order. n16

In addition, the courts may have rhetorical resources unavailable to presidents. Their obligation to explain their decisions, and the fact that they make decision after decision, means that they have an opportunity to develop a reasonably general account of the resilient regime's constitutional understandings. In Whittington's words, "It is the classic task of judges within the Anglo-American tradition ... to render new decisions and lay down new rules that can be explicated as a mere working out of previously established

legal principles" (p. 84). Presidents, in contrast, only sporadically make speeches illuminating those understandings.

More boldly, affiliated presidents may try to use the courts to "overcomee gridlock" (p. 124)

caused by the strategic positions recalcitrant opponents of the new constitutional regime may occupy. And, if not

"use the courts," at least rely on the courts to take the initiative , because "the Court can sometimes move forward on the constitutional agenda where other political officials cannot" (p. 125).

"Coalition leaders might be constrained by the needs of coalition maintenance," but "judges have a relatively free hand" (p. 125). This "use" of the courts, though, poses risks. The courts may push the regime's constitutional principles further and faster than is politically wise, and the regime's political leaders may find themselves on the defensive. Indeed, in this way the courts can contribute to making a resilient regime vulnerable, which may be part of the story about the Warren Court and the demise of the New Deal/Great Society regime. n17

[*348] Preemptive presidents face a special strategic problem. Sometimes they take office because they manage to persuade the public that they remain committed to a resilient regime's constitutional vision even if in their hearts they want to transform the regime. n18 At other times they take office as a regime becomes vulnerable, but do not themselves have the program, vision, or

charisma to be reconstructive presidents themselves. n19 They are likely to face opposition in Congress and to some

degree in the courts. But they can turn divided government to their advantage by seeking judicial confirmation of executive prerogative. The judges in place might be sympathetic to such claims for doctrinal and political reasons. They will have "inherited from affiliated administrations" (p. 169) doctrines supporting executive authority. And, though Whittington doesn't make this point explicitly, they may see the preemptive president as an accident, soon to be replaced by

an affiliated one whose exercises of presidential power they will want to endorse. Finally, preemptive presidents need to get their authority from somewhere when they face congressional opposition, as they will. They don't

have much of their own, but they can try "to borrow from the authority of the courts in order to hold off their political adversaries" (p. 195).One final point before I move to some speculations about the future of judicial supremacy. Whittington emphasizes the growth of judicial supremacy during the twentieth century, both in terms of the judges' self-understanding and, perhaps more importantly, in

terms of the degree of political commitment to judicial supremacy (p. 25). He suggests that politicians have had increasingly strong reasons to support the Supreme Court. The reconstructive presidency of Ronald Reagan was less ambitious than that of Franklin Roosevelt (p. 232), assuring the American people that Reagan's policies would strengthen rather than destroy the social safety nets that Roosevelt and Lyndon Johnson's regimes had created. Even a reconstructive president could hope that the Supreme Court would assist in articulating regime principles in the way the Court ordinarily does for affiliated presidents. Further, drawing again on Skowronek's account of the [*349] ways in which regimes leave a residue even after they have been displaced, Whittington describes the doctrinal thickening that occurred during the twentieth century with respect to essentially every possible ideological and political commitment a President could have (p. 283). Doctrinal thickening means that every member of a ruling coalition will have some basis in constitutional law for its assertions that the Constitution requires satisfaction of its policy preferences, and that the Court cannot possibly satisfy all the demands on it. n20 So, for the future,

we might expect Presidents to have increasingly ambivalent views about the Supreme Court. In the twenty-first century, the Supreme Court will be useful and annoying to every President - useful because the Court can serve to

articulate regime principles and can do some policy work that Presidents would rather not

expend time and political capital on , and annoying because the Court's failure to satisfy all the demands

emanating from a President's political supporters will put pressure on the President to do something about the Court.

1ar empirics

Empirics – conservatives backlash against Roberts for the ACA ruling – not ObamaRobert Shrum, The Daily Beast, 7/2/12, "The Right-Wing Backlash Against John Roberts," www.thedailybeast.com/articles/2012/07/02/the-right-wing-backlash-against-john-roberts-over-obamacare.html

In that spirit, conservatives spun out an explanation, a sinister one, for what Roberts did. In a Washington Post article on “second-guessing” the ruling, “some” commentators contended that Roberts switched sides after originally intending to vote against health-care reform. Their proof? The wording of the opinions. Fox News happily propagated the theory, citing the fact that Justice Ruth Bader Ginsburg’s concurrence was referred to as a “dissent” in the dissent—which, therefore, must have been the majority

opinion before Roberts apostatized . In fact, in her concurrence, Ginsburg also was dissenting from the chief justice’s ruling that the Affordable Care Act could not be upheld under the congressional power to regulate commerce. That ruling, for which there was a five-person majority, may have laid the rationale for blocking future progressive measures. Roberts’s opinion was genuinely conservative; as John O’Quinn, an official in the Bush Justice Department, said, “I read the opinion ... and realized that it was filled with thoughtful reasoning.”This weekend, CBS reported an unprecedented “leak,” presumably from sore losers inside the court—where else could it come from?—that Roberts had switched his vote a month ago. The right appears ready to shred any institution and promote any myth to assure its success or explain its failures. But the conspiracy theory that the chief justice changed or “capitulated,” as The Wall Street Journal alleged, is confounded by the reality, too little noticed at the time, that he previewed the guiding principle of his decision during the oral arguments in March. He told a counsel for the plaintiffs challenging the law: “The idea that the [individual] mandate is something separate from whether you want to call it a penalty or a tax doesn’t seem to make much sense.” That’s exactly the grounds on which he validated health-care reform—the clearly constitutional authority of Congress to levy a tax, in this case on those who don’t purchase health-care coverage.

As the right wing backlash raged, Roberts, who was preparing to leave for a meeting in Malta, joked

to a conference of judges and lawyers that he was headed for “an impregnable island fortress. It seemed like a good idea.” The rest of America is left to contend with a Republican Party whose attitude seems to be “my way or it was highway robbery ,” a party that sees intrigue in every issue and a plot in every Obama policy, or even in his mere presence in the White House.

1ar no spill over

Decision controversy doesn’t spill overRichard L. Pacelle, Prof-Political Science-Georgia Southern, ’02 (“The Role of the Supreme Court in American Politics: The Least Dangerous Branch?” 2002 p 175-6)

The limitations on the Court are not as significant as they once seemed. They constrain the Court, but the boundaries of those constraints are very broad. Justiciability is self-imposed and seems to be a function of the composition of the Court, rather than a philosophical position. Checks and balances are seldom successfully invoked against the judiciary, in part because the Court has positive institutional resources to justify its decisions. The Supreme Court has a relatively high level of diffuse support that comes, in part, from a general lack of knowledge by the public and that contributes to its legitimacy.[6] The cloak of the Constitution and the symbolism attendant to the marble palace and the law contribute as well. As a result, presidents and Congress should pause before striking at the Court or

refusing to follow its directives. Indeed, presidents and members of Congress can often use

unpopular Court decisions as political cover. They cite the need to enforce or support such decisions even though they disagree with them. In the end, the institutional limitations do not mandate judicial restraint, but turn the focus to judicial capacity, the subject of the next chapter.

Plan is shielded from political pressureWard 09 (Artemus Ward, Professor at NIU, Political Foundations of Judicial Supremacy, Congress and The Presidency, pg. 119)

After the old order has collapse the once- united, new-regime coalition begins to fracture as original commitments are extended to new issues. In chapter 3 Whittington combines Skowronek's articulation and disjunctive categories into the overarching "affiliated" presidencies as both seek to elaborate the regime begun under reconstructive leaders. By this point in the ascendant regime, Bourts are staffed by justices from the dominant ruling coalition via the appointment process - and Whittington spends time on appointment politics here and more fully in chapter 4. Perhaps counter-intuitively, affiliated political actors - including presidents - encourage Courts to exercise vetoes and operate in issue areas of relatively low political salience. Of course, this "activism" is never used against the affiliated president per se. Instead, affiliated Courts correct for the overreaching of those who operate outside the preferred constitutional vision, which are often state and local governments who need to be brought into line with nationally dominant constitutional commitments. Whittington explains why it is easier for affilitated judges, rather than affiliated presidents, to rein in outliers and conduct constitutional maintenance. The latter are saddled with controlling opposition political figures, satisfying short-term political demands, and navigating intraregime gridlock and political thickets . Furthermore, because of their electoral accountability, politicians engage in position-taking, credit-claiming, and blame-avoidance behavior. By contrast, their judicial counterparts are relatively sheltered from

political pressures and have more straightforward decisional processes. Activist Courts can take the blame for advancing and legitimizing constitutional commitments that might have electoral costs. In short, a division of labor exists between politicians and judges affiliated with the dominant regime.

yes announced now

2nc yes announced now

The aff should have to defend immediate implementation

a) Infinitely regressive – anything other than immediacy is arbitrary – allowing the 2AC to choose when their plan is implemented kills 1NC strategy

b) Kills neg ground – every disad has temporally sensitive uniqueness – allowing them to delay plan implementation lets them spike out of everything. Immediate action is the only basis for predictable research and preparation. The alternative makes any link highly probabilistic at best.

They can start announcing in the fallSCOTUS 12 (Supreme Court of the United States, 7/25/2012 “The Court and Its Procedures,” http://www.supremecourt.gov/about/procedures.aspx)A Term of the Supreme Court begins, by statute, on the first Monday in October . Usually Court sessions continue until late June or early July. The Term is divided between "sittings," when the Justices hear cases and deliver opinions, and intervening "recesses," when they consider the business before the Court and write opinions. Sittings and recesses alternate at approximately two-week intervals.

The plan is two actions – a Court ruling and a change to relevant surveillance laws – if the ruling is announced in June, it takes out all of their Court blame shifting arguments which magnifies the link to the plan.

at: decide now, announce later

Plan is not a secret decision by the Justices – it is a ruling on US surveillance laws. If the ruling is not made immediately then the plan is not immediate.

Their model Court decisions is unrealistic and anti-educationalPeters 14J. Peters, American Legal Encyclopedia, August 24, 2014, “Supreme Court of the United States: Writing Opinions”, http://lawi.us/court-writing-opinions/

Justices may take weeks or even months to complete their opinions, and votes may change during this period. The justices circulate drafts of the opinions and sometimes write memos to explain their views. Dissenting justices sometimes decide to go along with the majority, and justices initially in the majority may decide to support the dissenting view. In some cases enough justices change their votes that an opinion that began as the Court's majority opinion becomes a dissenting opinion. Because the justices can and often do change their votes right up until the moment the decision is publicly announced, there is often a considerable amount of discussion and negotiation to shape the direction, tone, and analysis of the Court's opinion.

not announced now

2ac not announced now

Normal means is courts will announce their decision at the end of the termMondak 92 [Jeffery J., assistant professor of political science @ the University of Pittsburgh. “Institutional legitimacy, policy legitimacy, and the Supreme Court.” American Politics Quarterly, Vol. 20, No. 4, Lexis]

The process described by the political capital hypothesis acts as expected in the laboratory, and the logic of the link between institutional and policy legitimacy has thus gained strong empirical corroboration. However, the dynamic's pervasiveness defies precise estimation due to the limitations of available public opinion data. Still, the results reported here are provocative. First, this view of legitimation may apply to institutions beyond the Supreme Court. Consequently, efforts to use this theory in the study of other institutions may yield evidence supportive of a general process. A second concern is how the Court responds to its institutional limits. Specifically, strategy within the Court can be considered from the context of legitimacy. For example, what tactics may the Court employ to reduce the erosion of political capital? By releasing controversial rulings at the end of a term, for instance, the Court may afford itself a healing period, a time to repair damaged credibility prior to the next round of efforts at conferring policy legitimacy. This suggests a third issue, the manner in which institutional approval is replenished. Does institutional support return to some equilibrium once dispute surrounding a particular ruling fades, or must the Court release popular edicts to offset the effects of its controversial actions?

It’s not a delay – the plan immediately rules [X] but it’s not announced publicly until later

That’s the most realistic and predictable way to interpret the plan – the neg’s interpretation has no basis in the literature and skews education about the Court

1ar not announced now

It’s the only reasonable way to interpret the planThe Hill 13 (6/9, Staffwriter Sam Baker “Decision on gay marriage highlights Supreme Court’s term” http://thehill.com/homenews/news/304225-decision-on-gay-marriage-highlights-supreme-courts-summer-term#ixzz2gJR8Vkpt)

The marriage rulings will likely be the last ones released before the justices leave town for summer vacations and teaching positions, although the specific timing is hard to predict. The court doesn’t announce when specific decisions are coming, or even set a fixed end date by which all decisions will be released. But the last rulings, which are usually the most controversial , tend to come out at the end of June. (The court’s ruling on ObamaCare, for example, was released June 28.)

Their link proves it!US Courts 13 (United States Courts, “U.S. Supreme Court Procedures”, Accessed 2/18/2013, http://www.uscourts.gov/EducationalResources/ConstitutionResources/SeparationOfPowers/USSupremeCourtProcedures.aspx)

All opinions of the Court are, typically, be handed down by the last day of the Court's term (the day in

late June/early July when the Court recesses for the summer). With the exception of this deadline, there are no rules concerning when decisions must be released. Typically, decisions that are unanimous are released sooner than those that have concurring and dissenting opinions. While some unanimous

decisions are handed down as early as December, some controversial opinions , even if heard in October, may not be handed down until the last day of the term . A majority of Justices must agree to all of the contents of the Court's opinion before it is publicly delivered. Justices do this by "signing onto" the opinion. The Justice in charge of writing the opinion must be careful to take into consideration the comments and concerns of the others who voted in the majority. If this does not happen, there may not be enough Justices to maintain the majority. On rare occasions in close cases, a dissenting opinion later becomes the majority opinion because one or more Justices switches their votes after reading the drafts of the majority and dissenting opinions. No opinion is considered the official opinion of the Court until it is delivered in open Court (or at least made available to the public). On days when the Court is hearing oral arguments, decisions may be handed down before the arguments are

heard. During the months of May and June , the Court meets at 10 a.m. every Monday to release opinions. During the last week of the term, additional days may be designated as "opinion days."

at: can announce now

Announcements don’t even begin until MayWard 10 (Jake, “Bilski Decision Tomorrow (Thursday, June 17th)? Maybe?”, Anticipate This! (Patent and Trademark Law Blog), 6-17, http://anticipatethis.wordpress.com/2010/06/16/bilski-decision-tomorrow-thursday-june-17th-maybe/)

In mid-May until the end of June, the Supreme Court of the United States (SCOTUS) releases orders and opinions.     SCOTUS has yet to issue a number of decisions this term , however, and it is rapidly moving toward summer recess.  Most notable from a patent law perspective is that the decision in Bilski v. Kappos, which was argued in November 2009, has yet to be decided. 

fisa links to politics

fisa action links to politics

Highly visibleLevy 13Pema Levy, staff writer, IB Times, July 17, 2013, “NSA FISA Controversy: Congress Looks To Reform Secret Court”, http://www.ibtimes.com/nsa-fisa-controversy-congress-looks-reform-secret-court-1348875

Since former National Security Agency contractor Edward Snowden revealed that the government is collecting a significant amount of data from American citizens, members of Congress have begun to look seriously at the secret court approving these surveillance activities.Beginning last month, numerous bills have been put forward to make the court more transparent and trustworthy. On Wednesday, a House Judiciary Hearing will examine how the federal government is running programs that were approved by the FISA (Foreign Intelligence Surveillance Act) court. Though some lawmakers have been sounding alarm bells about the court for a few years, current

bipartisan interest in the court’s activities put the FISC (Foreign Intelligence Surveillance Court) at the center of possible congressional responses to Snowden’s leaks.“I think the public is extremely concerned about the metadata that is being collected,” said Rep. Steve Cohen, D-Tenn., who has put forward a proposal to reform the secret court. “I think because of that massive concern, that because the Snowden situation has maintained itself in the news,” questions about the court have not been as “front-burner as they are now,” Cohen said.Civil liberties advocates also feel that the FISA court is where they are most likely to win reforms, particularly when it comes to increasing transparency. "In terms of issues that have bipartisan support and are more likely than others to go forward, I would agree that this is one of those issues,” said Sharon Bradford Franklin, a senior counsel at the Constitution Project, a nonpartisan legal research and advocacy group. In response to abuses of the government’s spying powers, Congress created the FISC in the 1978 Foreign Intelligence Surveillance Act to approve warrant applications for surveillance activities related to national security. For years, the court appeared to function just as Congress had intended, even though the process is one-sided: the government seeks approval for an operation, and there is no pushback from a counterparty to argue that the operation is overreaching. But in light of the recently leaked documents detailing the vast scope of the National Security Agency’s surveillance programs, members of Congress are beginning to question whether the secret court is acting as an effective check on the government’s spying operations. In fact, recent revelations show that the scope and functions of the court have vastly expanded in recent years.

Saps focusGreenemeier 14Larry Greenemeier, associate editor of technology coverage for Scientific American Online, Scientific American, January 16, 2014, “Obama to Speak on NSA Surveillance Controversy”, http://www.scientificamerican.com/article/obama-to-speak-out-on-nsa-surveillance-controversy/

The recommendations, and Obama’s response to them, also raise several questions over any changes a chief executive can implement on his own versus those that will require changes to existing laws. “Almost anything that involves turning off programs, he can do on his own,” says Benjamin Wittes, a senior fellow and research director in public law at The Brookings Institution. The president doesn’t have the authority to make changes to data-collection programs such as Section 215 that are codified in a law. This would include requiring telecom companies to retain customer metadata that the NSA could later request via a court order.That also means there’s no quick fix for the headaches caused by Snowden’s revelations. For starters there’s not broad agreement in Congress about the direction the surveillance work should go—

the Senate Select Committee on Intelligence sees the need for only minor changes, whereas the Senate Judiciary Committee and much of the House have taken the position that the Section 215 program end entirely, Wittes says.Regardless of the recommendations that Obama accepts or rejects, the timing of his speech is

notable for at least two reasons: Apparently, the surveillance backlash has distracted the Obama administration to such an extent that the president is devoting a separate speech to the issue rather than including it in his January 28 State of the Union Address. Yet the White House has scheduled Obama to address these issues just before a holiday weekend, a time slot that government organizations and companies often use to release news they’d rather not see get a lot of attention.