Court Curbing CP - Michigan 7 2024 BFHR

Counterplan---Court Curbing
Notes
Thank you to Aditi and Bilal for doing the primary work on this file. It’s a good start and has some potential with additional work during the season.
Top Shelf
1NC---Shell
The United States legislative branch should threaten the federal Judiciary with court curbing measures unless the federal Judiciary _________________________________.
The current court has led to a decline in democracy---only legislative curbing can solve.
CLC 22---Campaign Legal Center (CLC) is a nonpartisan organization. (“The Supreme Court’s Role in Undermining American Democracy”, Campaign Legal Center, 7-13-2022, https://campaignlegal.org/sites/default/files/2022-07/CLC%202022%20SCOTUS%20Report_072022%20%281%29.pdf)//AN
Part III: The Impact of the Roberts Court on American Democracy
The Roberts Court’s decisions together have contributed to the recent decline of American representative democracy. Its decisions in Shelby County and Brnovich gutted the most powerful provisions of the Voting Rights Act, hamstringing Congress’s noble efforts to deliver on the promise of the Fifteenth Amendment. These and other decisions have made it easier for states to enact restrictive voting laws and draw electoral maps that dilute votes based on race and political party, and at the same time, harder or impossible for voters to challenge them in court. Finally, the Court has transformed the myth of voter fraud into a free pass to enact burdensome and discriminatory voting rules, while narrowing the acceptable justifications to rein in the distorting influence of money in elections. All of the Roberts Court’s decisions have also led to greater political polarization.
As far as explanation, the Court’s decisions chronicled here lack any coherent and principled through-line. The decisions cannot be explained, for example, by a principled commitment to judicial restraint. That interest could explain why the Court in Rucho decided not to venture further into the political thicket. But it cannot explain the Court’s ready willingness to strike down democracy-reinforcing acts of Congress in Shelby County, Citizens United, and McCutcheon. It could explain the Court’s uniform deference to legislatures when they assert a need for discriminatory or burdensome voting rules to combat voter fraud. But it cannot explain the Court’s refusal to afford the same deference when legislatures see a need to regulate money in politics to combat corruption and its appearance. Nor can these decisions be explained by a devotion to text, not with the addition of extra-textual factors in Brnovich or the failure to consider the Fifteenth Amendment in Shelby County. And certainly these decisions cannot be explained by an abiding respect for precedent, not with Citizens United and Rucho both overruling key precedents.
The lack of a unifying theory for the Roberts Court’s democracy jurisprudence leaves an explanatory void that does damage to the Court’s legitimacy. It leaves room to wonder whether the Roberts Court is guided in this realm not by some coherent judicial philosophy but by other motivations. Some have, for example, pointed to the consistent partisan make-up of the winners of these decisions—including where partisan amici fall on opposite sides of the “v”—as an indication that the outcomes may simply reflect loyalty of the Justices to the party or ideology of the President who appointed them.122 Another theory is that members of the current majority are simply averse to an egalitarian, participatory democracy in which every eligible citizen votes.123 Indeed, the losing party in every one of the Court’s decisions discussed here are American voters, particularly voters of color and those from marginalized backgrounds.
Speculation about the Justices’ subjective motivations, especially as they relate to democracy itself, does no favors to the Court’s current public perception problem. A June Gallop poll reported public confidence in the Supreme Court at 25 percent, a historic low.124 In a May 2022 Quinnipiac poll, a staggering 61 percent of registered voters said they believe the Supreme Court is mainly motivated by politics rather than law.125 And more than half of registered voters, 52 percent, reported that they disapproved of the way the Court is handling its job, with 37 percent approving and 14 percent not expressing an opinion.126 By contrast, in 2003, the Court’s disapproval rating was only 28 percent, with 56 percent approving and 17 percent not expressing an opinion.127 The President’s Commission on the Supreme Court acknowledged that the Court’s role in democracy and its perceived legitimacy are key factors in the debates surrounding court reform.128 In recent public statements, the Justices themselves have also acknowledged the problem.129
Conclusion
In sum, the Supreme Court’s decisions on voting rights, partisan gerrymandering, and campaign finance have done, and continue to do, damage to voters, American democracy generally, and to the legitimacy of the Supreme Court itself. As we’ve noted, the Court’s new supermajority appears poised to speed along on this anti-democratic trajectory, with cases like Merrill v. Milligan and Moore v. Harper on the Court’s docket for next term.
The question now is: What is to be done? Better lawyering by advocates for democracy is not the solution. The examples cited here show that this Court acts with determination to undermine democracy, even when its stated reasons for doing so are made out of whole cloth and utterly unpersuasive. When one branch of the federal government has gone this far astray, the only solution is a firm application of the “checks and balances” the Framers designed to prevent such abuses of power. Indeed, the Court’s consistent undermining of American democracy is a quintessential example of why our Constitution leaves no single actor or institution immune from correction.
Congress must step up. It has the constitutional authority to correct many—though not all—of the Court's most egregious anti-democratic rulings. Congress has authority over the size, jurisdiction, and other particulars of how the Supreme Court and the federal court system is structured. The Framers also gave Congress the power to check the Court in other ways, such as changing the number of Justices and setting term limits. It is beyond the scope of this report to map out a specific program of congressional action in response to the Roberts Court’s anti-democratic crusade, but serious, consistent, and substantial legislative effort to restore American democracy is the only remedy we have left.
An unconstrained conservative judiciary causes extinction.
Bruce I. Petrie 20 Jr., Partner in the Cincinnati Law Firm of Graydon Head, Chair of the Graydon Education Group, Adjunct Professor at Miami University and University of Cincinnati, BA from Brown University, JD from Northwestern University Law School, Former Federal Judicial Law Clerk, The Constitution Needs A Friend Like You, p. 43-81
We realize that more perfect union necessarily has many more meanings, discovered and still undiscovered, for us today. The words express the hope that 50 states covering an abundant swath of planet earth’s surface can cooperate. There is of course nothing simple about the challenge of cooperation between the governments of 50 states and the federal government. But this is part of what the endless work of forming a more perfect union entails. Today, more perfect union involves whether states can cooperate with each other and with the federal government over the biggest problems of our times, including a pandemic, economic crisis, public health, social justice, climate change, gun violence, terrorism at home and abroad, immigration and a long list of other pressing issues for humanity and our life on earth.
In July, 2020, protestors and local officials in Portland, Chicago, Seattle, Washington, D.C., Albuquerque, N.M., Louisville, Ky., Kansas City, Mo. and other American cities decried the Trump Administration’s use of federal force in cities dealing with protests and violence in the wake of the police killing of George Floyd. In the disorienting summer of 2020, amid pandemic, recession, racial tension, protest, violence, and heated calls for police reform, the stressors on federalism are manifold. The Preamble’s more perfect union is a dream in the sense that Martin Luther King, Jr. had a dream. It uses poetic-sounding language to express the unavoidable interdependency between We the People and their constituted governments, state, local and federal. It is a dream based on the hard stuff of interdependency in a world where one person’s plastic ends up on another person’s shore. Or where an individual’s infection ends up infecting a community. Abraham Lincoln used the famous house divided, biblical metaphor to express what’s at stake in our dream of union: “A house divided against itself cannot stand.” For the Preamble, for Lincoln and for us today, the hard work of cooperation, of getting along with each other, of working together, of sacrificing some self-interest is a practical necessity if the republic is to stand.
What is the more perfect union we now seek today? What does it look like? What priorities, investments of time and effort, and sacrifices will it take?
To be sure, our work is now more than hand-stitching together the homespun of 13 colonies. For many today, a more perfect union means things like a safer neighborhood for their kids. Or the opportunity to achieve a better life. Or freedom from fear. Or a vaccine. Or getting back to normal after covid. Or returning to face to face classes. Perhaps we can imagine those kinds of dreams were in the hearts and minds of 18th century people as well.
The Preamble is realistic. It qualifies the word perfect with “more.” Our neighborhoods, we don’t realistically expect, will be perfectly perfect. But it is not too much to dream that our neighborhoods, along with our republic, can be better for more people.
Justice
What does the word justice mean to you? Recall those times in your life when you thought others didn’t treat you fairly. Our sense of justice is often based on our experiences with being treated fairly or unfairly. I can’t believe the ref called a foul on that. The other team has been getting away with murder. Whose side is the ref on? Or, why was that store clerk so rude to me but so nice to that other person? Or, everybody else on this highway is speeding and the cop pulls me over? What’s that about? Or, why was my starting salary $10,000 less that that guy’s? Our senses of justice, of comparative treatment and fairness, start young.
The Preamble’s “why” to “establish Justice” are the 16th and 17th words of the Constitution: i.e., one of the first and top priorities. The historical context of these words is monumental, linking to the July 4, 1776 Declaration of Independence and the Revolutionary War. The Declaration was mostly, in terms of word count, a recitation of injustices. The Declaration recited “a long train of Abuses and Usurpations” by the King, the monarch, George III, referred to as “He” repeatedly so as to reinforce, like a pointing and jabbing finger of blame, where the injustices had come from. Having declared independence from tyranny, the opposite of justice, the Preamble made establishing justice a top priority.
But we also know how contingent and imperfect that 18th century view of justice was, requiring later constitutional amendments to include African Americans, women, Native Americans and others within the meaning of justice. As we think about justice in today’s context, we see that the word “equality” is missing from the Preamble, at least expressly in the text. We’ll see that later amendments, especially the post-Civil War Fourteenth Amendment, put equality into the Preamble.
The word justice links to what we today call America’s justice system: courts, judges, lawyers, prosecutors, public defenders, police, jails and so on. “Equal justice under law” was engraved (in 1932) on the front of the U.S. Supreme Court building in D.C. American rule of law, despite many flaws and setbacks in actual practice, aspires to a preambular virtue of equal justice.
The Preamble’s reference to Justice connects to other language in the text, especially Article III and judicial powers. Federal judges, also known as Article III judges, preside in 94 federal judicial districts, including at least one district in each state, in D.C. and Puerto Rico. The U.S. courts of appeals (or circuit courts) are divided into 13 circuits, each one hearing appeals from the district courts within their boundaries. At the top is the U.S. Supreme Court, currently with 9 Justices.
The Constitution makes plenty of room for judicial power to be exercised with reason, wisdom and compassion, because the absence of those qualities leads to what the founding generation was breaking away from: tyranny. Read in the Declaration of Independence the list of “Facts... submitted to a candid World” about who and what makes “a Tyrant.” How do we know a Tyrant when we see one? Check the Declaration’s facts. A Tyrant makes judges “dependent on his Will alone,” obstructs the administration of Justice and refuses to assent to laws that establish judicial powers independent of the Tyrant’s will. American constitutionalism is indelibly stamped by the lived experience, by the real historical suffering and sacrifice, over the question: what makes a tyrant? Americans listed the facts of tyranny in the record, in the memory bank, in the Facts submitted to a candid world. Tyranny, in the American experience, is about arbitrary, coercive, unchecked and unreasonable abuse of power. It ties to the Hamiltonian question of rule by force. What forms of tyranny do you think still exist today?
Preambular Justice has a context, a story that includes its past and its present, a story of Americans rejecting “justice” dressed up as the will of a tyrant and choosing instead the rule of law. The rule of law includes judges who know the limitations on their power, the constitutional job of deciding cases and controversies based on the facts and the law
History influences the Supreme Court’s constitutional standing, legitimacy and reputation. The current Supreme Court under Chief Justice John Roberts is concerned about how the Court is viewed by the American public during times of political fracture. (More on this later.) A public perception that the Court is just as politicized as everything else in government is a big concern. What the Court actually does and what the public perceives it as doing are not always the same thing.
With both judges and ordinary people (which judges are too), reputations are more easily lost than won. The Supreme Court’s reputation, its historic role in American constitutionalism, includes but goes beyond the words in the concise text of Article III. Yes, it must decide cases and controversies. Litigants who pass through its doors win or lose. But the Court must also have an ear attuned to We the People. The Court is, after all, the creation of the Constitution and is thus part and parcel of its principles, including popular sovereignty. That doesn’t mean that We the People should decide cases. Or that the Justices should check which way the winds are blowing and decide cases on public opinion. It doesn’t mean that Justices must listen to a proverbial mob with pitchforks. It means instead that public trust and confidence in the Court and popular understanding of what judges do is essential to democracy. It means that the Court is part of the republican form of government the Constitution establishes. No, Justices are not supposed to be politicians or elected representatives making law. But neither should we expect them to be legal robots churning out decisions that are disconnected from the constitutional general welfare.
The Court’s reputation and role turns critically on the principle of an independent judiciary. If the public believes judges are deciding cases not on what the law is, but on what the judges’ politics and policy preferences are, the public will lose confidence not only in individual judges, but also more importantly in our Constitution’s highest Court which exceeds any individual judge. The Internet-juiced politicization of the Supreme Court nomination process and politically-charged Senate confirmation hearings feed the perception of pervasive politics.
When and if unelected judges go too far in overruling precedents and changing law that should be left instead to the legislative process (both state and federal), the judiciary opens itself to public opinion that it has overstepped its constitutional boundaries deciding “cases and controversies.” Public opinion tends to look to the courts as a default option when lawmakers are gridlocked or not doing what we want. But the Constitution doesn’t require that whenever We the People law-making gets stuck or screwed up, the Justices must ride to the rescue.
You may have heard the over-used term “judicial activism.” This term is an example of rhetoric that has lost real meaning because it cuts both ways. Charges of judicial activism, across the Supreme Court’s history, have been launched on both sides, with both liberals and conservatives claiming the Court was making policy rather than saying what the law is. The political rhetoric about judicial activism usually is in the eye of the beholder, shifting according to which side is on the winning or losing side. When my side wins, the Court is brilliantly constitutional. When my side loses, the Court is a bunch of judicial activists.
Domestic Tranquility
The Constitution’s choice to combine the words “domestic” and “tranquility” has multiple levels of meaning. Domestic as adjective means relating to home or family relations. It also means existing within a country. Not international. So domestic tranquility, to a generation that had fought a Revolutionary War meant peace at home, meaning peace in the new country.
But it also meant peace in the home, in the homes of We the People. Domestic tranquility encompasses both home and homeland. The Constitution wants both home and homeland tranquility, peace in both settings. The Constitution’s domestication, its respect for the homes of We the People, resonates from the Preamble to the Bill of Rights. There we find reference to “house” in Amendment III as well as to “peace.” “No Soldier shall, in any time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” This is a recognition of the value of property, one’s house.
But it goes beyond the bare fact of material property rights. To a Revolutionary Ware generation, no more monarchs would quarter troops in their homes without their consent. No King could so enter the castles of We the People, their homes. How could one’s home be tranquil if soldiers could be quartered there without the owner’s consent? Further, the Third Amendment distinguishes “time of peace” and “time of war,” giving the government more leeway in the latter case to quarter soldiers in a house, but even then only by rule of law rather than royal prerequisite. We the People were fed up with royal perks.
Hard on the heels of Amendment III of the Bill of Rights, is another echo of the preambular idea of domestic tranquility in Amendment IV. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Again, we see the domestic tranquility theme in reference to “houses” but also, more broadly to “persons,” “papers,” and “effects.” Security of person. Security of home. Security of papers. Security of effects. The word “effects” means broadly personal belongings (and is today used in many homeowner insurance policies). Again, the Constitution has an interest not only

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