[eDebate] Procedural question(s) about the courts topic

Bryan Grayson bryan.grayson
Tue Apr 11 17:51:32 CDT 2006


Joe's concerns are valid. However, I don't think they are reasons to oppose
a courts topic. They are just reasons that the topic committee needs to be
quite careful and precise about how it words the resolutions.

As to the issue of how the Supreme Court overrules a previous decision, the
Supreme Court definitely doesn't spontaneously decide to proclaim that Roe
v. Wade is no longer a valid constitutional precedent. However, I think a
properly worded resolution would say something along the lines of "the
United States Supreme Court should overturn its holding in one or more of
the following: [list of Court decisions]." I'm not necessarily sure
"overturn" is the best verb. Reverse and vacate are also words to consider.
But for the Court to overturn its "holding" just means that the Court would
declare in a subsequent case that its previous constitutional (or statutory)
interpretation was improper.

The Supreme Court only gets to rule on cases and controversies as per
federal court jurisdiction in Article III. However, it still has huge
latitude to decide what issues it wants to address. A case typically gets to
the Supreme Court when a losing party in a U.S. Court of Appeals files a
petition for writ of certiorari. Thousands of these writs get filed every
year because of course every losing party in any of the 13 courts of appeal
wants their case heard by the Supreme Court. The Supreme Court then gets to
choose which of these thousands of cases to hear. Around a hundred or so
cases end up getting heard each year. However, we can probably safely assume
that the cases in the resolution will deal with core questions of
constitutional interpretation (i.e. privacy, free speech, commerce power,
etc.). Assuming this is the case, there will almost certainly be relevant
cases that the Supreme Court could grant cert to in order to issue a ruling
overturning its holding in Roe, Morrison, Lopez or whatever ends up in the
resolution. There are even cards out there that say if the Court wants to
make policy, it can always find a relevant test case. I suspect if all else
fails, people could probably safely rely on these cards. But as a community,
we're a pretty sophisticated group of researchers, and I expect affirmatives
will be able to find specific cases on appeal that the Supreme Court could
select to hear.

To deal with concerns that the topic should reflect the way the Court
actually works, the topic committee could consider inserting language like
"on the next relevant test case, the Supreme Court should..." or "the
Supreme Court should grant certiorari to a relevant test case and overturn
its holding..."

As for inherency issues created by the Court's docket, as long as the cases
are chosen wisely this shouldn't be an issue. Although there has obviously
been turnover on the Court, stare decisis is still an overarching doctrine
to which the Court generally adheres. So a series of major reversals within
the course of the next debate season is highly unlikely. (On a side note: I
think the Court docket might be a valid concern on the detention/civil
liberties topic. There are lots of cases pending about detainee rights and
executive authority.) And South Dakota has banned abortion and there will be
lawsuits. However, the process through which a case makes it through the
federal courts is quite slow. And, I would be shocked if the Supreme Court
actually gets around to hearing a case regarding South Dakota law during the
course of next year's debate season. And would it really be the end of the
world if we ended up losing one case in a topic that would probably include
5-7? We kind of lost SORT towards the end of the treaty topic but it didn't
really matter.

Also, I just read Eback's post. I'm sure why the concern about the delay CP
is unique to a courts topic at all. People can "hunker down" and read delay
on any topic. And I'm not sure why the fact that the Court hands down
decisions weekly makes a Supreme Court topic unworkable. It may mess with
uniqueness for hollow hope, judicial activism, and other lame Court disads,
but ideally debates will be about the subject matter of the Court decisions.
In a lot of ways, the structure of the resolution would resemble the
treaties topic. People would have case hits for every aff assuming the list
is kept to a reasonable 5-8 cases. I promise you we won't be having hollow
hope throwdowns all year long.

Bryan

-----Original Message-----
From: edebate-bounces at ndtceda.com [mailto:edebate-bounces at ndtceda.com] On
Behalf Of Dr. Joe Bellon
Sent: Tuesday, April 11, 2006 4:21 PM
To: Edebate
Subject: [eDebate] Procedural question(s) about the courts topic

Having debated one courts topic in college and coached another, I have
had very serious misgivings about what I perceive to be two related
procedural problems with a topic in which the supreme court is the
agent.

The court makes its decisions exclusively based on specific cases that
are brought before it. Lower court rulings apply to the court to be
heard, then are placed on the docket for potential ruling.

This presents us with two problems as a debate community.

First, the court cannot simply decide to overrule (or overturn or
whatever) one of its previous rulings. If it does so (and I'm not sure
it does this very often at all), it must take that action as part of a
ruling on a specific existing case whose issues give rise to the
central questions of the previous ruling.

It is very possible that, at any given time in the debate season,
there may be no specific case on the docket that the court could rule
on concerning a specific existing precedent. That means it is possible
that one or more plan areas might not be workable. Perhaps the aff
could have the court grant cert to a case not on the docket, but that
would have the effect of substantially increasing the research burden
for the neg. There may be very little literature on a case that is not
actually pending before the court.

Why is having a case so important? I have heard folks suggest that we
simply act as if there is a pending case and not worry about the
specifics. This seems to me to mischaracterize the way the court
works. It is not like congress -- it can't create a law out of whole
cloth and pass it overnight. Congress does that. The court must
consider the specifics of the case, and has often indicated that it
does not feel empowered to rule on questions that are not related
directly to the specifics of the case. To fiat past the specifics of a
pending case seems to void the argument that it is educational to
learn about non-congressional agents.

Second, what if there *is* a case on the docket that deals with one of
the topic areas? Doesn't this create a huge inherency problem? I think
here of the recent discussion of Roe. It seems South Dakota is
positively chomping at the bit to go to court and overturn Roe. If
such a case were on the docket at the beginning of the debate season,
then the court could decide at any time to rule and obviate an entire
topic area. Given the court's schedule, wouldn't we be voting on a
resolution before we even know what was on the court's docket?

Now, I will be the first to say that I lack an intricate understanding
of the workings of the court. I feel sure that our community is
populated with the vastly more educated. I await the perspectives of
these experts, who I'm sure will explain to me why I shouldn't be
worried about these procedural issues. While they're at it, maybe they
could explain how a courts plan could be written in a realistic
fashion, when real court decisions are enormous and contain hundreds
of important details.

Dr. Joe Bellon
Director of Debate
Georgia State University

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