[eDebate] topic thoughts - replies to various posts

James Lyle jrlyle
Tue Jun 13 17:53:27 CDT 2006

Opening comments:

1.      As an interested party in the discussion about the topic choices, I
want to throw in my two cents.

2.      As has become the trend, the post is lengthy.

3.      I'm not as eloquent as some of the other commentators addressing
these issues.  I apologize.

4.      I think my comments can be divided into three sections: (1) overrule
is broad, (2) overrule and novice debate, (3) why the ADA split would not be
the end of the world.

5.      Although I am on the ADA Executive Committee, this is not meant to
speak for the ADA and is instead just individual commentary coming from a
program director, former debater, concerned community member.

6.      I must say that I am shocked by the silence that most are keeping on
this subject.  This discussion seems to be why things like edebate and the
cedatopic pages exist.  If you support list revision, you need to speak up.
If you oppose it, you need to speak up.  If you have opinions about the
meaning of overrule, you need to speak up.  Regardless of the outcome, this
whole discussion seems to have some serious consequences for the topic
process, the topic we'll debate this year, etc?

#1 ? Overrule is a broader term than some wish to admit.

Recent posts argue that those who think overrule is a broad term have it
wrong.  As one of the people who cut some of the evidence that is being
responded to, I feel the need to answer:

   1. Overrule does mean to reverse, but what?  There is no evidence that
   clearly says that to overrule means that the entirety of what occurred
   before must be reversed.  If anything, evidence suggests otherwise:
      1. The general evidence being cited (Black's and Barron's) notes
      that to overrule is to go in the opposite direction, but refers to the

                                                               i.      Barron's
says: "To overturn or make void the holding (decision)"

                                                             ii.      Black's
Law says: "expresses a judgment upon the same question of law DIRECTLY
OPPOSITE to that which was before given, thereby depriving the earlier
opinion of ALL AUTHORITY as precedent" and "Overruling is an act of superior
jurisdiction. A precedent overruled is definitely and formally deprived of
ALL AUTHORITY. It becomes null and void, LIKE A REPEALED STATUTE, and a new
principle is authoritatively substituted for the old."

   1. So, a decision and a holding are the same thing, and to overrule is
   to eliminate precedent.  What does this mean?  Evidence has been
   provided to show that a decision has multiple holdings and precedents.
   Does the AFF have to overrule all of them?
   2. No.  Not at all.  There is clear evidence that indicates that the
   Court does not overrule everything about a case when it makes an overrule.
   There are a few pieces of evidence in the O'Donnell post that I'll
      1. The Scalia evidence ? Scalia's dissent in the Lawrence case
      makes it very clear that the SC did not overrule everything in Bowers
      because the Court did not say that there was a fundamental right to
      homosexuality.  Scalia notes that the Court's decision stemmed
      from an overrule on the use of the rational basis test.  Additional
      Scalia evidence:

Justice Scalia, 2k3
2003?Decided June 26, 2003,

* *

*Most of the rest of today's opinion has no relevance to its actual
holding?that the Texas statute "furthers no legitimate state interest which
can justify" its application to petitioners under rational-basis review*. *
Ante*, at 18 (overruling *Bowers* to the extent it sustained Georgia's
anti-sodomy statute under the rational-basis test). *Though there is
discussion of "fundamental proposition[s]," ante, at 4, and "fundamental
decisions," ibid. nowhere does the Court's opinion declare that homosexual
sodomy is a "fundamental right*" under the Due Process Clause; nor does it
subject the Texas law to the standard of review that would be appropriate
(strict scrutiny) if homosexual sodomy *were* a "fundamental right." *Thus,
while overruling the outcome of Bowers, the Court leaves strangely untouched
its central legal conclusion: "[R]espondent would have us announce ? a
fundamental right to engage in homosexual sodomy. This we are quite
unwilling to do."* 478 U.S., at 191. Instead the Court simply describes
petitioners' conduct as "an exercise of their liberty"?which it undoubtedly
is?and proceeds to apply an unheard-of form of rational-basis review that
will have far-reaching implications beyond this case. *Ante*, at 3.

   1. The Rehnquist evidence ? Rehnquist, speaking for the majority in
      Payne v. Tennessee, says that the Court has a history of
      overruling only part of a decision.
      2. Furthermore, these cards (along with others), make it clear
      that Court decisions have multiple holdings ? Scalia specifically notes
      multiple holdings, and why else would the Court issue partial overrules.
      The Stevens evidence (again, speaking for the majority) cited in
      the O'Donnell document is more evidence that decision and holding are the
      same, which gives the AFF pretty evidence to use in support of a
case that
      overrules something other than the central claim of the case.  Justice
      O'Connor also defines a holding as a decision in the only reference to
      "overrule" in the entirety of Boerne v. Flores:

Justice O'Connor, 97

al. No. 95-2074, Argued February 19, 1997, Decided June 25, 1997,

*Stare decisis concerns should not prevent us from revisiting our holding in
Smith. " `[S]tare decisis is a principle of policy and not a mechanical
formula of adherence to the latest decision*, however recent and
questionable, when such adherence involves collision with a prior doctrine
more embracing in its scope, intrinsically sounder, and verified by
experience.' " Adarand Constructors, Inc. v. Pe?a, 515 U.S. 200, 231
(citing Helvering v. Hallock, 309 U.S. 106, 119
This principle is particularly true in constitutional cases, where--as this
case so plainly illustrates--%correction through legislative action is
practically impossible." Seminole Tribe of Fla. v. Florida, 517 U. S. ___,
___ (1996) (slip op., at 18) (internal quotationmarks and citation omitted).
I believe that, in light of both our precedent and our Nation's tradition of
religious liberty, *Smith is demonstrably wrong. Moreover, it is a recent
decision. As such, it has not engendered the kind of reliance on its
continued application that would militate against overruling* it. Cf.
Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 855
(1992). Accordingly, *I believe that we should reexamine our holding in
Smith*, and do so in this very case.

   1. These cards seem pretty clear in building a case for an AFF that
      would overrule one part of a bigger case.  Furthermore, these 5
      pieces of evidence all come straight from the decisions of the Court.
      I really don't see how we can establish a sense of what the
      topic is to mean without relying on what the actual Justices have to say.
   1. One possible answer that has been made is that some of the evidence
   (Scalia and O'Connor) comes from the dissent to a case.  This is not a
   very good response:
      1. Dissent does not mean total disagreement.  Scalia, for
      example, is merely noting what was done and not done regarding
the overrule.
      He makes this argument because he does not see how the Court can
      make a decision like this in Lawrence and not make a similar
      decision regarding the Casey/Roe relationship.  If Lawrence is
      an overrule, then he thinks Casey should also be an overrule.
      as the evidence above shows, the majority admits what Scalia claims about
      the declaration of homosexual rights.
      2. If we throw out something because it comes from the dissent,
      then aren't we saying that the AFF should always lose on this
topic because
      all their arguments come from, or are linked to, the dissent?
   2. One easy answer to all these arguments is that judges will take
   care of the problem by siding with really limited interpretations of
   "overrule" or "decision".  Answers:
      1. Will believe it when I see it ? reality is that many judges
      don't care about T, are afraid to vote on T, or are real liberal with T.
      People literally ignore the debate topics at hand and win T
      debates all the time.
      2. How do you really limit the AFF out when they are reading
      evidence from Supreme Court Justices on these questions?  How
      can this not be the first place to look for evidence?  How can
      the words of the judges not be the most reliable source we have?
      I really don't know how we could say that an AFF is not
      acceptable for reasons of topicality when a person who was Chief
Justice for
      roughly twenty years says otherwise.
      3. Why is letting T debates settle things good?  I generally
      don't understand those arguments about why topicality debates
are good for
      the activity.  I was taught that the key to a good resolution is
      that it clearly identifies the controversies so each side
clearly knows what
      needs done ? I know I try and teach my argumentation and debate
classes so
      as to reduce/eliminate topicality debates.  Furthermore, it
      seems that there is agreement by most/all participating in this
      that the AFF should have to defend the central issue of the case.
      If that is so, why then wouldn't we attempt to write a
      resolution that makes it more likely that Gratz debates are about
      affirmative action?
   3. An additional response that has been offered is that the AFF can
   simply omit the word "overrule" from their plan.  Answer:
      1. Doesn't this undo everything that was fought for in getting
      the word included in the stem?  Wasn't the reason to include the
      word that we needed to find a way to give the negative some
ground to argue
      from?  How is the negative guaranteed that ground when the AFF
      doesn't have to defend the term?
   4. Just found this card, thought I'd include it.  Says that Casey
   created a standard that allows for a partial overrule ? and an overrule of
   the non-essential.  This is devastating to the argument that overrule
   = replace essential:

Sullivan, Harvard Law Professor, 92

[Kathleen, Harvard Law Review, Nov, lexis]

Nevertheless, *the joint opinion overstated its rigid rule of stare decisis
in intensely divisive cases. A few lines after the rule was set forth, the
opinion substantially overruled both Thornburgh and Akron I**.* n331 In so
doing, *it replaced the rule of stare decisis with a standard: don't
overrule the "essential" part of past holdings. n332 Stick fast to the core,
but the periphery can go*. In distinguishing between the core and the
periphery, the Court implied that the fact of pastness alone is not enough.
A judgment must be made, but it is more factual than normative: the joint
opinion simply portrayed *Thornburgh* and *Akron I* as themselves
"inconsistent with [*Roe.*]" n333

Sullivan's article is a lengthy recap of the decisions authored by the Court
during the previous year and identifies the major actions taken by the
Court.  In the section on "Constitutional Rules and Standards," Sullivan
explores how the Court moves between the use of hard rules and softer
standards.  According to Sullivan, the Casey decision is a clear example of
the Court moving from an existing rule (stare decisis) and adopting a
standard which allows the Court to keep Roe alive but allows the Court to
make other changes.  [Note: I've included a much larger except from the
article at the end to give fuller context.]

#2 ? Overrule and novice debate ? revised lists would be better for
novice/JV debate

   1. Developing novice-level debaters can be easily described as being a
   two-step process
      1. Recruit the novices ? go out and find interested bodies
      2. Keep the novices ? keep the interested around
   2. The resolution plays an important role in both parts of the process
      1. The resolution needs to be simple so as to attract people to
      the subject matter being discussed.  On one level, you need to
      be able to say "hey, we have a Europe topic."  On another, you
      need to be able to say "here's what the resolution specifically says."
      The current resolutions seem okay in terms of the initial
      recruiting.  "We have a First Amendment topic," "we have a
      Supreme Court topic," "we have a topic that places the Supreme
Court in an
      abortion/desegregation/etc debate."  Although some choices are
      better than others for this goal?all-in-all, things are okay.
      2. The resolution has to work to keep debates small so that
      people stay interested.  The more diverse the subject matter,
      the harder it is to keep novices.  Realizing you have to learn
      everthing about China is a downer.  Learning about all the human
      rights stuff was more than enough for a new debater to deal
with, and then
      we go an add Taiwan, proliferation, and trade?  And, don't
      forget all the debate-specific knowledge that is needed as well.
      Monumental challenge to say the least.  Although the 8 case list
      may be too big in and of itself for a novice to really handle,
the reality
      is that if there are 10 Casey affs, and 10 Gratz affs, and so
on?a novice/jv
      debater's mind will explode (which is a real mess to clean up).
      You may keep some of the debaters, but many will get frustrated
      at having Casey debates that have nothing to do with abortion.  Adding
      controls to make life more manageable for these debaters does
not seem like
      a bad thing.
   3. I guess there's not much more to say here?it all comes down to the
   understanding of overrule.  If you think it is reasonable to read
   overrule in a really broad manner, then you should also conclude that such
   an outcome is not good for newer debaters.
   4. This is a concern (the resolutions effect on novice debaters) that
   has been raised by a few people on the blog/edebate/etc over the past month,
   but is one that I do not think has been addressed at all.  I am really
   curious to hear what others have to say on this issue.

#3 ? ADA addendums aren't the end of the world

   1. Just to restate what I said at the beginning: this is not an
   ADA-sanctioned post, and I do not claim to speak for the ADA.  This
   post does not endorse or oppose the idea of the addendums, rather it
   attempts to answer a couple of the questions/arguments raised about the
   effect of such an action.
   2. If the ADA were to add-to the CEDA resolution, this would not
   create a permanent divide between the two.  The CEDA topic would
   essentially be "ADA+" so any ADA team could travel to CEDA tournaments
   and survive.  Furthermore, CEDA teams would need, at most, to tweak
   their AFFs to survive at an ADA tournament.
   3. The ADA exists primarily to promote novice and JV debate.  As
   already explained, addendums make this more manageable.  If one group
   doesn't respond to this concern, why shouldn't the other?
   4. Tournaments could easily employ a "Catholic set-up."  Run an
   ADA-sanctioned novice/JV division, and run a CEDA-sanctioned open division.

   5. It seems that the real effect would be encourage teams that travel
   in/around the ADA to simply have more controlled versions of their affs so
   they can play in both worlds.
   6. Finally, what would the impact be if the "pro-overrule" crowd is
   correct?  CEDA topic affs would be the same as ADA topic affs and
   everyone still gets to play together.  The only way the "split bad"
   impacts would be accessed is if overrule is understood as myself and others
   have argued regarding its weaknesses.  That is the only situation
   where we end up with two different camps of affs.

Again, this is not a comprehensive response to some of the concerns that
have been raised, but is simply an attempt to respond to a few issues that
seem to stick out in my mind.

Most importantly, others have to get involved or risk being spoken for

Jim Lyle

Clarion University

jlyle at clarion.edu

Excerpt of Sullivan article cited above [card is bolded]:

*B. Rules and Standards This Term: Three Levels of Division*

In every major instance of surprising moderation in constitutional cases
last Term, the Justices divided over the choice between rules and standards.
These divisions were complex, as the Justices divided over rules and
standards at three different levels: first, whether the Court's own
constitutional precedents ought to be construed as rules or standards;
second, whether the Constitution's provisions should be interpreted as rules
or standards; and third, whether the Court, in fashioning the operative
doctrines (that is, tests and levels of scrutiny that will guide the lower
courts and the Court itself in future cases), ought to formulate rules or
standards. This section examines these divisions in turn, with reference to
the decisions outlined earlier in Part I. As will become clear, the Reagan
and Bush appointees divided into two camps: the Justices who favor
continuity with precedent and  [*70]  interpretive and operative standards,
and the Justices who would give continuity little independent value and
favor interpretive and operative rules.

*I. Stare Decisis Rules and Standards.* -- The Court can take either a
rule-like or standard-like approach to its own body of precedent. The "rule"
of stare decisis says "adhere to precedent." A flexible standard says
something like "overrule when wrong." n297 The Court divided sharply between
the two last Term, most strikingly in the abortion case.

In recent Terms, several Justices have argued that, in constitutional cases,
stare decisis should be a flexible standard, not a rule, so that
constitutional "error" may be corrected. n298 If the Court errs in
interpreting a statute, the legislature can correct it through ordinary
majority vote. But if the Court errs in interpreting the Constitution, a
legislature is powerless to correct it through ordinary legislation, n299
and Article V makes it difficult for the people to overrule the Court by
constitutional amendment. Hence a standard: the Court should overrule itself
when wrong in constitutional cases. This standard appeared to gain momentum
when the Court, in the 1991 case of *Payne v. Tennessee,* n300 overruled its
recent precedent regarding the admissibility of victim impact statements in
capital punishment cases. n301 Some observers saw this as a dress rehearsal
for the impending overruling of *Roe.* n302

Surprisingly, the *Casey* joint opinion blocked the advancing
overrule-when-wrong standard, adopting a rule instead. The plurality
insisted that *Roe,* correct or not, n303 be essentially reaffirmed because
"the very concept of the rule of law underlying our own Constitution  [*71]
requires . . . continuity over time." n304 The joint opinion's argument for
stare decisis proceeded as follows. n305

The general rule about overruling constitutional decisions is: don't. Why
not? The Court is the least dangerous branch. It cannot tax, and it has no
tanks. So why should people obey it? Because it has "legitimacy, a product
of substance and perception." n306 People "perceive" the Court as making
"principled" decisions, not political "compromises." n307

This does not mean that the Court can never overrule prior decisions; the
people can "accept some correction of error without necessarily questioning
the legitimacy of the Court." n308 But they can't handle too much. Thus,
"normal stare decisis analysis" n309 allows for standard-like exceptions to
the rule of "don't overrule": first, overrule if the old case proves too
"unworkable"; n310 second, overrule if people's "reliance" on the old case
is not too great; n311 third, overrule if the surrounding law changes too
much; or fourth, overrule if the underlying facts change too much n312 -- as
long as you do not do it too often. n313

The exceptions to the rule are themselves standards, but no factor favors
the overruling of *Roe:* first, *Roe* works; second, people have relied on
it (couples have more sex and women have more jobs and job security); third,
there has been no law change (curiously, the Court's short-circuiting of the
privacy strand of substantive due process in *Bowers v. Hardwick* n314 goes
entirely unmentioned); and fourth, there have been no material changes in
reproductive fact. n315

By contrast, the joint opinion argued, *Lochner v. New York* n316 and *Plessy
v. Ferguson* n317 required overruling in *West Coast Hotel Co. v.  [*72]
Parrish* n318 and *Brown v. Board of Education* n319 respectively. The
"factual assumptions" underlying both of the earlier cases had been exposed
as "fundamentally false," n320 thereby triggering the fourth factor of the
normal stare decisis test. n321 Crucially, these overrulings turned on
facts, not values. They were not "the victories of one doctrinal school over
another by dint of numbers," n322 which would make the Court seem "'little
different from the two political branches of the Government.'" n323 Instead,
they rested "on some special reason over and above the belief that a prior
case was wrongly decided." n324

So far so good, but the joint opinion then announced a different and
stricter test for overruling cases such as *Roe* that resolve an "intensely
divisive controversy." n325 In such cases, the opinion said to use a rule:
Don't overrule without "the most compelling reason." n326 Forget the four
factors; in such cases, stand fast unless there is something like a civil
war. Had any case ever met this exacting test? No. *Brown* was the only
other case to spark such controversy in its aftermath as to trigger it.
Despite massive white resistance to *Brown* that made Operation Rescue look
minor-league, the Court held steady "under fire." n327 So too, the
*Casey*joint opinion found no "compelling reason" to surrender in the
aftermath of

 [*73]  Why stand faster in such a case? Like Ulysses tying himself to the
mast in anticipation of the sirens' song, the Court makes a "promise of
constancy" in anticipation of coming "under fire." n328 Why? To preserve the
Court's legitimacy. People will not give the Court "credit for principle" if
it abandons an intensely divisive decision; n329 they will regard it instead
as a "surrender to political pressure." n330

*Nevertheless, the joint opinion overstated its rigid rule of stare decisis
in intensely divisive cases. A few lines after the rule was set forth, the
opinion substantially overruled both Thornburgh and Akron I. n331 In so
doing, it replaced the rule of stare decisis with a standard: don't overrule
the "essential" part of past holdings. n332 Stick fast to the core, but the
periphery can go. In distinguishing between the core and the periphery, the
Court implied that the fact of pastness alone is not enough. A judgment must
be made, but it is more factual than normative: the joint opinion simply
portrayed Thornburgh and Akron I as themselves "inconsistent with [Roe.]"
And so, the joint opinion reinvents the method of the common law. Adherence
to precedent is what makes the common law "law." n334 As a source of
authority that is exterior to the judge, precedent negates suspicion that
discretion -- that is, the interior, arbitrary, and subjective -- is at work
in judicial decisionmaking. n335 Thus, the arguments for adherence to
precedent recapitulate general arguments for rule-based decisionmaking. n336
First, treating persons at a later time the same as similarly situated
persons at an earlier time is fair, because accidents of timing are morally
irrelevant. Second, adherence to precedent maximizes private productivity
(or liberty) because people can go about their business secure in that they
can rely on the precedent's continuing force. Third, adherence to precedent
increases judicial efficiency by eliminating the duplicative work and the
risk of error from incompetence or bias that would result from starting each
case anew from first principles. n337

If common law adjudication adheres to precedent at the core, however, it
also allows change through reasoned elaboration at the  [*74]  periphery.
The *Casey* joint opinion does the same. *Casey* struck down criminal
sanctions as inconsistent with Roe's essential holding, but permitted the
state to create disincentives to choosing an abortion. In nineteenth-century
legal thought, the common law's distinction between the core and the
periphery of prior holdings was deemed a matter of fact-like taxonomy rather
than a value choice. n338 If change was confined to the periphery, novel
departures were still law and not discretion. Progressive legal thinkers
claimed that such categorical approaches masked free-wheeling judicial
discretion behind the facade of rule-like legal craft. n339

In *Casey,* it was the Chief Justice and Justice Scalia who were the
latter-day progressive critics. They suggested that the joint opinion's
common-law-style reasoned elaboration was precisely *not* the law of rules.
Mocking the joint opinion's interpretation of stare decisis, Chief Justice
Rehnquist said, "*Roe* continues to exist, but only in the way a storefront
on a western movie set exists," n340 or worse still, "a sort of judicial
Potemkin Village, which may be pointed out to passers by as a monument to
the importance of adhering to precedent," but nevertheless a mere "facade."
n341 Justice Scalia found it "difficult . . . to sit still" for the joint
opinion's claims of adherence to precedent in light of its interpretation of
stare decisis as "keep-what-you-want-and-throw-away-the-rest." n342

The *Casey* dissenters would have given precedent no decisive force on the
ground of its pastness as such. In place of a rule of stare decisis, they
would have applied a standard: "overrule when wrong." n343 Lest this
standard seem too discretionary, the dissenters would default immediately to
rule-like substantive constitutional interpretation. The only question is
whether *Roe* was correct as an original matter, and at the interpretive
level, the *Casey* dissenters favored a rule: stick to constitutional text
and its contemporaneous tradition. On their view, "abortion" is not within
the plain meaning of "liberty," and abortion was outlawed when the
Fourteenth Amendment was ratified. Thus, the dissenters argued that
contemporaneous tradition negated a claim of constitutional protection for
abortion rights. n344

 [*75]  Thus, both the joint opinion and the dissents in *Casey* invoked the
past, but they differed on the importance of continuity. One side invoked
the immediate, continuous past; the other, the discontinuous past of an
older history and tradition.
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