[eDebate] On Areas and Lists

Lindsay Harrison lchesq
Fri Jun 2 09:30:48 CDT 2006


This is also posted at the blog, but for those not checking (you should 
be!):

Although this may contradict Ede's call to the committee (and I hate to 
disagree with Ede), I'd like to make another call for the committee to work 
on a plenary powers or other "areas" resolution, in part based on Paul's 
comments below and in part based on what I have heard over the past two 
days. I apologize in advance for the length - I had not a lot of time to 
edit.

First, Paul is correct when he states that the Court almost never directly 
states that X case is overruled. It overrules its precedents by announcing 
new rules that displace the old ones. As an example -- in Lawrence, the 
Supreme Court announces that there is a privacy interest in adult, 
consensual, private sexual conduct, thereby overruling Bowers. The Supreme 
Court chose to overrule Bowers in that way, but it could have done so in an 
infinite number of ways -- by announcing a completely new test for 
fundamental rights, by ruling on the basis of equal protection (which 
O'Connor did in her concurrence), by ruling on the basis of the first 
amendment right to expressive association (which many law review scholars 
advocated), by ruling on the basis of the privileges and immunities clause 
(which an amicus brief advocated), by ruling that the regulation of 
sexuality is outside the state's police powers (which the CATO institute 
advocated), etc. I think this is what the various members of the topic 
committee understand when they say the topic will be "too big." Each 
precedent may be overruled in a tremendously large number of ways.

Because of this, I see this year headed in a dangerous direction if the 
resolution simply requires the Aff to overrule a case --there are very, 
very, very few advocates there are for the simple overruling of Supreme 
Court precedent without advocating a new rule to displace the old (very, 
very, very few - pretty much just conservative crackpots discussing the need 
to "overrule Roe"). Once the community realizes this, I foresee Affirmatives 
that do a huge, wide range of things in very disparate areas of the law 
(examples -- if Glucksberg or Casey is included -- plan: rule that gays have 
a fundamental right to marry/kids have a right to education/etc., thereby 
overruling the test used in Glucksberg and Casey holding that fundamental 
rights must be deeply rooted in the concept of ordered liberty). 
Affirmatives will overrule the cases on your "list" resolutions by doing 
virtually anything that they want.

You are listing cases that come from a huge range of areas of the law -- 
your smallest resolution includes these:
Planned Parenthood v. Casey (1992)
Ex parte Quirin (1942)
U.S. v. Morrison (2000)
Milliken v. Bradley (1974)
Gratz v. Bollinger (2003)

Casey involves substantive due process - the test for what constitutes a 
fundamental right. This means one could overrule Casey by doing ALMOST 
ANYTHING that announces a new fundamental right by displacing the Casey 
test.

Ex parte Quirin involves the war powers of the president - one could 
overrule Quirin by limiting the war powers of the president or by announcing 
a new test for the judicial evaluation of those powers (displacing that 
announced in Quirin) or by announcing that questions concerning the 
president's war powers are now to be considered "political questions" from 
which the court will now abstain, etc.

Morrison involves both Congress's commerce power and its enforcement powers 
under section 5 of the 14th amendment. Since Congress has not passed the 
VAWA again, the Court could only overrule Morrison by announcing new tests 
for the evaluation of the scope of Congress's commerce power or its section 
5 authority. In other words, the Court could "overrule" Morrison by 
announcing almost any piece of Congressional legislation constitutional 
under the 14th amendment or the interstate commerce clause. This is 
particularly dangerous since the Negative will need to be prepared to debate 
both "Court affirms legislation" and "Court strikes down legislation" Affs.

Milliken involves the authority of courts to order injunctive relief. Yes, 
the case involved a desegregation order, but you won't find authors 
advocating that the Supreme Court overrule Milliken by approving the plan 
that was ordered in effect in Detroit because no such plan exists today to 
approve - what you will find are any number of authors who advocate 
enlarging the authority of the courts to order various remedies, thereby 
overruling the central holding of Milliken that the plan in effect was 
impermissible. There are also, of course, the racial aspects of Milliken, 
which held that busing remedies could extend across district lines only 
where there was actual evidence that multiple districts had deliberately 
engaged in a policy of segregation. Well, you could overrule Milliken by 
holding that there was, in fact, evidence of intentional segregation in 
Detroit (thereby overruling the main factual holding of the case, but 
leaving the legal rule the same).

Finally, Gratz involves the evaluation of an affirmative action plan under 
the equal protection clause. This is another hugely bidirectional case -- 
you could overrule Gratz by holding that diversity is not a compelling state 
interest OR by holding that affirmative action plans should not be subject 
to strict scrutiny because they remedy racial discrimination. There are 
solvency advocates for doing so in a variety of ways.

I hope I have given you a sense of how huge the topic could get. I think the 
community seriously needs to consider the scope of the resolution and needs 
to consider putting some limited "areas" resolutions on the ballot.

I'll advocate here for plenary powers since I genuinely think it would be a 
much more limited topic than the "lists" resolutions presently under 
consideration. I also will explain why I think it is wholly faithful to the 
"Supreme Court overrule" topic the community elected.

As I have previously stated, the plenary power doctrine is wholly the 
creation of the Supreme Court. For the court to rule that the powers of the 
Executive or Congress are not plenary IS an overruling of court precedent. 
Thus, the committee could easily draft a plenary powers resolution that is 
faithful to the community's election of a "Sup Ct overrule" topic but that 
does not include the actual word "overrule."

I still say the best resolution for a plenary powers topic -- one that is 
limited and one that has substantial numbers of solvency advocates and one 
that excludes Indians -- is this one:
The United States Supreme Court should substantially limit the plenary power 
of the Executive or Congress in one or more of the following areas of the 
law: immigration, foreign affairs, public lands.

I will try to be clear about why I think this resolution is faithful to the 
"Supreme Court overrule" topic in case I have not been in the past. Because 
the Supreme Court created the doctrine of plenary powers, for the Court to 
now limit those powers is PRECISELY the kind of overruling of Court 
precedent that the legal literature is talking about when it discusses 
"overrule." Plus, I don't understand why the plans under a plenary powers 
resolution would be any more about "overrule" than the plans I have given as 
examples for the "lists" topic above. A plan advocating a new fundamental 
right (and thereby overruling Casey) doesn't "overrule" precedent any more 
than a plan that limits the Executive or Congress's plenary powers -- in 
fact, it is probably less faithful to the "overrule" topic.

I think an areas resolution is superior because the Negative will at least 
know the direction the Aff must go. The Negative can still use all of its 
"overrule" evidence (though, as Josh Zive states in his comments, the hollow 
hope and other courts generics are not nearly as strategically beneficial as 
the case debates and PICs on a courts topic -- there just aren't a huge 
number of Negative authors discussing why overruling precedent, in itself is 
bad -- just ask anyone who has debated Korematsu or Bowers whether those 
strategies were ever successful -- i mean, "stare decisis good" is just not 
a great debate argument -- do you really want every round to be "CP - do the 
Aff but don't overrule a case, net benefit is stare decisis"????). Debates 
will still be about whether the Court should backtrack from a doctrine that 
it created. And the community will learn a ton about a key area or two of 
the law -- the area that is, in fact, THE legal hot topic in a post-9/11 
world. I do think a first amendment resolution would be good as well, 
requiring the Court to overrule one of its first amendment precedents. At 
least in such a resolution, the area of the law is singular and 
well-defined. I think you could also solve some of the problem by adding in 
a directional limiting phrase (requiring the Aff to rule in a particular way 
and not just simply to "overrule" a case).

If you have questions about this, I'm happy to talk with the topic committee 
today - my work number is 305-579-4414. I'm not trying to scare anyone - I 
just have thought about it a lot (while watching the Mavs kick total ass 
last night) and felt obligated to share those thoughts...I love that the 
community is debating a legal topic and don't want it to be another 15 years 
until it happens again.

Peace.

Lindsay






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