[eDebate] topic thoughts - replies to various posts

NEIL BERCH berchnorto
Tue Jun 13 22:08:18 CDT 2006

I had been pursuing some of these issues backchannel, but since Jim has posted at some length, I?ll address all three of his points.


  1.. Jim:  ?Overrule is broad?.  

Neil:  Maybe it is, maybe it isn?t.  There clearly are competing interpretations (and Jim does a fine job of outlining them).  The question is which interpretation is best for debate, both competitively and educationally; the question is not which is the best definition in court.  To quote from Tim O?Donnell?s judging philosophy:  ?Topicality debates are about competing sets of affirmative cases. When we seek to answer the question ?Is the affirmative plan topical?? we are asking if it is included in the set of cases that would produce the best sets of debates over a given year. A ?best? set would be the set that maximizes (while balancing) the two fundamental debate values (see above).?  The two values Tim cites are competition and education.  


I don?t think our teams will have trouble arguing that the broad interpretation of overrule gives the affirmative a competitive advantage and reduces education.  I see some negative debaters also throwing in a kritik that reinforces the educational criterion by pointing out that the affirmative is turning away from our opportunity and obligation to discuss pressing issues of race, gender, and perhaps class.  I don?t know if that will work with Jim in the back of the room, but, most of the time, I think the negative will be able to make the affirmative debate the central tenets of the cases?or will win the debate about why we need to be debating the central tenets of these cases.   And I don?t think it will be the worst thing in the world if debaters have to learn to argue eloquently about why it?s important that we confront issues of race, gender, and perhaps class.


  2.. Jim:  ?Overrule and novice debate ? revised lists would be better for novice/JV debate?  
 Neil:  And your evidence is??  Jim argues that the resolution needs to be simple to attract novice debaters.  I tend to agree, and I think part of being simple is being short.  Adding a hundred or so words to the resolution will (in my estimation) turn off novices.  I don?t want to be in a position where I have to turn to new novices and say, ?Here?s the resolution.  And here?s the second page of the resolution.?  (hyperbole conceded, but you get the idea).  I have had no difficulty attracting novices for next year (12 definites and two maybes right now), and they?ve seen the slate of resolutions.


Jim?s argument about retaining novices through the year is, I believe, incorrect.  Maybe his experience is different from mine (and we both coach novices every year), but mine is that the overwhelming majority of WVU novices who go to the first tournament end up debating all year.  Indeed, on last year?s topic (which Jim said was tough for novice retention), all 6 of our new novices stayed on the team all year.  My experience is that novice retention is largely a function of how much time, effort, and affection the coaches and senior debaters show novices; random intrasquad relationship issues; and tradeoffs between tournament travel on the one hand, and work, academics, and social life on the other hand.



  3.. Jim:  ?ADA addendums aren't the end of the world?.  

Neil:  I heartily disagree.  Qualifications and disclaimer:  WVU has been a member of the ADA for a very long time.  I have attended 8 of the last 9 ADA May Business meetings (only missing the one in Orlando).  Our February tournament (not held last year) was always an ADA tournament.  I admire much about the ADA?s commitment to novice and JV debate, and I consider most of the ADA directors to be both friends and respected colleagues who care a great deal about their students.  We have attended fewer ADA tournaments in recent years, in large part because of concern that the ADA has been isolating itself from the rest of the debate community.  However, I am currently chair of the new ADA committee on reinvigorating novice debate, and we have a schedule for next year that includes ADA tournaments at King?s, James Madison, Navy, ADA Nationals at Liberty, probably John Carroll, and maybe one more.  I'm anxious to "play both sides of the street" and expose my students to a wide variety of kinds of argumentation.


The background is that the ADA changed its rules in 2005 to give the ADA Executive Committee the power to reject the CEDA topic and replace it with one of its own.  ?The ADA will adopt the policy topic approved by the Executive Committee.?  At this year?s ADA Business meeting, I introduced a rules change that would have required the ADA to use the CEDA topic.  After some discussion, a rules change was approved that provided that the ADA would use the CEDA topic if it is a policy proposition; otherwise, it would use the NDT topic (on the assumption that the NDT would adopt its own resolution if it deemed CEDA?s resolution not to be a policy proposition).  That change is now pending before a mail ballot of the ADA membership.


A)     If the rules change is ratified, the ADA would have no choice but to use the CEDA topic (unless it wishes to violate its own rules).

B)     Even if that rules change does not pass, I believe that the ADA, by accepting a seat on the CEDA Topic Committee, should agree to abide by that process.  I think that?s implicit.  Others may disagree.

C)     The main argument for ADA using an addendum (as Jim puts it) is that it would be more novice/JV friendly.  I disagree with that, as indicated above.

D)     Jim, after arguing for simplicity for novices, then suggests that they should have to debate two different resolutions unless they attend only ADA (or only non-ADA) tournaments.  I don?t get this.  I have enough difficulty preparing people to debate one resolution; why put two different ones in front of the least experienced debaters?

E)      I think the net effect, as Tom O?Gorman argued moments ago (the second or third time Tom and I have ever agreed!), will be to reduce the presence of ?non-ADA? schools (or, more accurately, I think, non-exclusively ADA schools) at ADA tournaments.  I know that I would be less likely to want us to attend ADA tournaments.


Again, let me be clear that I have great respect for Jim, for Tim, and for the work that all of the ADA coaches do to support novice debate.  I think, however, that such a move would only serve to exacerbate the serious downward trend in attendance at ADA tournaments.  I hope that doesn?t happen.

One last thing about the Topic Committee:  I may disagree with product and even elements of process, but the committee members worked their butts off for us and our students, the blog was a tremendous advance (and a resource for students beginning their research), and the webcast was an advance in democracy as well.


--Neil Berch

West Virginia University

  ----- Original Message ----- 
  From: James Lyle<mailto:jrlyle at gmail.com> 
  To: edebate at ndtceda.com<mailto:edebate at ndtceda.com> 
  Sent: Tuesday, June 13, 2006 6:53 PM
  Subject: [eDebate] topic thoughts - replies to various posts

  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 decision/holding/precedent.  
                                                                 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."

    2.. 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? 
    3.. 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 cite: 
      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
  [Dissenting Opinion, LAWRENCE ET AL. v. TEXAS, CERTIORARI TO THE COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, No. 02?102. Argued March 26, 2003?Decided June 26, 2003, http://a257.g.akamaitech.net/7/257/2422/26jun20031200/www.supremecourtus.gov/opinions/02pdf/02-102.pdf<http://a257.g.akamaitech.net/7/257/2422/26jun20031200/www.supremecourtus.gov/opinions/02pdf/02-102.pdf>] 

  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.

      2.. 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.  
      3.. 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

  [Dissenting Opinion, CITY OF BOERNE v. FLORES, ARCHBISHOP OF SAN ANTONIO, et al. No. 95-2074, Argued February 19, 1997, Decided June 25, 1997, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=95-2074<http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=95-2074>] 

  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 <http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=515&invol=200#231>(1995) (citing Helvering v. Hallock, 309 U.S. 106, 119 <http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=309&invol=106#119>(1940)). 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 <http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=505&invol=833#855>-856 (1992). Accordingly, I believe that we should reexamine our holding in Smith, and do so in this very case.

      4.. 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.
    3.. 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.  Furthermore, 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?   
    4.. 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 discussion 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?
    5.. 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? 
    6.. 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 by?.whoever.

  Jim Lyle

  Clarion University

  jlyle at clarion.edu<mailto: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 Roe.

   [*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.]" n333

  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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