Supreme Court LectureSupreme Court Lecture

Lecture OverviewLecture Overview

Talk about the way the Supreme Talk about the way the Supreme Court worksCourt works

Talk about debating Courts AFF’sTalk about debating Courts AFF’s Debating Courts on the NEGDebating Courts on the NEG Courts Specific Arguments on the Courts Specific Arguments on the

TopicTopic

What is the Supreme What is the Supreme Court?Court? Supreme Court is the highest Supreme Court is the highest

court in the landcourt in the land

The court has ultimate authority The court has ultimate authority over the law in the United Statesover the law in the United States

Nine justices, appointed for lifeNine justices, appointed for life

How does a case get to How does a case get to the Supreme Court?the Supreme Court? Starts out at a lower levelStarts out at a lower level Gets appealed to the Supreme CourtGets appealed to the Supreme Court Cases can come from State Supreme Cases can come from State Supreme

Courts or federal district courtsCourts or federal district courts The Supreme Court grants a writ of The Supreme Court grants a writ of

certiorai to a casecertiorai to a case It requires four Supreme Court justices It requires four Supreme Court justices

to decide whether a case will be heardto decide whether a case will be heard

What does the Court What does the Court do?do? They meet throughout the yearThey meet throughout the year They hear about 80-100 cases a They hear about 80-100 cases a

yearyear They hear oral arguments on a They hear oral arguments on a

casecase They release their decisions They release their decisions

usually in May or Juneusually in May or June The decision is then bindingThe decision is then binding

Courts and DebateCourts and Debate

Why read a courts AFF?Why read a courts AFF?

Because it helps versus politicsBecause it helps versus politics Because it allows you to claim advantages Because it allows you to claim advantages

from doctrinefrom doctrine Because it allows you to claim modeling Because it allows you to claim modeling

advantagesadvantages Because you’ll know more than they doBecause you’ll know more than they do

PoliticsPolitics

Do courts link to politics?Do courts link to politics? Obama doesn’t push the plan, but Obama doesn’t push the plan, but

the court does have spillover the court does have spillover effectseffects

Court also gives political branches Court also gives political branches a scapegoat “shielding”a scapegoat “shielding”

Doctrinal AdvantagesDoctrinal Advantages

The court decides cases based on The court decides cases based on precedentprecedent

Precedents spill-over to other Precedents spill-over to other areas of the lawareas of the law

By changing a precedent, you can By changing a precedent, you can change other areas of the lawchange other areas of the law

Arguably, Congress & executive Arguably, Congress & executive order counterplan can’t solveorder counterplan can’t solve

Modeling advantagesModeling advantages

Other nations “model” the Supreme Other nations “model” the Supreme CourtCourt

The Supreme Court has unique The Supreme Court has unique symbolic effect for other nationssymbolic effect for other nations

The US Supreme Court also gets cited The US Supreme Court also gets cited by other nationsby other nations

This gives you access to international This gives you access to international advantages even on a domestic topicadvantages even on a domestic topic

Angle vs. the Lower Angle vs. the Lower CourtsCourts The Supreme Court also has The Supreme Court also has

advantages vs. lower court advantages vs. lower court counterplanscounterplans

Unique symbolismUnique symbolism Access to doctrine of the federal Access to doctrine of the federal

constitutionconstitution Debate is fundamentally different Debate is fundamentally different

than a normal states cp debate than a normal states cp debate

Knowledge AdvantageKnowledge Advantage

Many people don’t know much Many people don’t know much about the courtsabout the courts

They may be a politics or They may be a politics or economics expert, but don’t know economics expert, but don’t know much about the courtsmuch about the courts

Tip: The Gibberish AdvantageTip: The Gibberish Advantage

Courts NEG ArgumentsCourts NEG Arguments

Legitimacy DALegitimacy DA The Supreme Court has no ability to The Supreme Court has no ability to

enforce its decisionsenforce its decisions Relies 100% on its legitimacyRelies 100% on its legitimacy Controversial decisions sap the courts Controversial decisions sap the courts

legitimacylegitimacy One impact is presidential powers—One impact is presidential powers—

that the court needs to stand up to the that the court needs to stand up to the presidentpresident

Court Capital DACourt Capital DA

A variant of legitimacyA variant of legitimacy Some theorize that the court has a Some theorize that the court has a

certain amount of “institutional certain amount of “institutional capital” that it can use capital” that it can use

The court doesn’t want to look bad, so The court doesn’t want to look bad, so they will only make a certain number they will only make a certain number of controversial decisionsof controversial decisions

Run specific upcoming court cases as Run specific upcoming court cases as DA’sDA’s

Hollow HopeHollow Hope

Named after Gerald Rosenberg’s Named after Gerald Rosenberg’s book—the Hollow Hope theory is that book—the Hollow Hope theory is that the Courts are bad for social changethe Courts are bad for social change

The argument is that the courts are The argument is that the courts are “flypaper” for social movements—big “flypaper” for social movements—big symbolic cases suck them insymbolic cases suck them in

The movement gets hurt because the The movement gets hurt because the court is bad for social changecourt is bad for social change

Court StrippingCourt Stripping

When Congress limits the ability of the When Congress limits the ability of the court to hear certain casescourt to hear certain cases

If Congress gets angry with the Courts, If Congress gets angry with the Courts, stripping occursstripping occurs

Undermines the courts ability to Undermines the courts ability to function and causes problems function and causes problems internationallyinternationally

Reverse PoliticsReverse Politics

Works with the Congress CounterplanWorks with the Congress Counterplan The Congress Counterplan “triggers the The Congress Counterplan “triggers the

politics disad”politics disad” You run a politics disad where triggering You run a politics disad where triggering

the impact is good (i.e. Obama bad)the impact is good (i.e. Obama bad) You then argue that the permutation You then argue that the permutation

and the plan alone “shield the link” and the plan alone “shield the link” preventing the good impact from preventing the good impact from happeninghappening

Example of Reverse Example of Reverse PoliticsPolitics A) TPP will pass nowA) TPP will pass now B) Congress Counterplan tanks the TPAB) Congress Counterplan tanks the TPA C) TPP is badC) TPP is bad

If the AFF argues that the courts case If the AFF argues that the courts case or the permutation triggers the link, or the permutation triggers the link, the neg argues that the court shields the neg argues that the court shields the linkthe link

Court Specific K--CLSCourt Specific K--CLS

Critical Legal Studies says the law Critical Legal Studies says the law is inherently biasedis inherently biased

It doesn’t matter what the law is, It doesn’t matter what the law is, judges will manipulate the law to judges will manipulate the law to bolster the richbolster the rich

It is bad to uphold the law and It is bad to uphold the law and make it look good—you shouldn’t make it look good—you shouldn’t mask the lawmask the law

Surveillance law and Surveillance law and the Courtsthe Courts Fourth Amendment: The right of the people to be secure in

their persons, houses, papers, and effects,[a] against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Katz decisionThe Katz decision

1967 decision Katz v. United States The government conducted a warrantless

wiretap and listened to a telephone that the defendant, Charles Katz, was using to conduct gambling activities

Justice Stewart made it clear that the Fourth Amendment "protects people, not places.

Creates a reasonable expectation of privacy

The modern day interp The modern day interp of Katzof Katz Katz has not been well updated to Katz has not been well updated to

the internet erathe internet era Third Party Doctrine: Fourth Amendment does not

prohibit obtaining information revealed to a third party

Doesn’t matter if the assumption was the person would not tell

Third Party Doctrine in Third Party Doctrine in Modern EraModern Era Google, Facebook, email are considered third Google, Facebook, email are considered third

parties parties

Ninth Circuit has held that to/from addresses Ninth Circuit has held that to/from addresses of emails and IP addresses of websites are of emails and IP addresses of websites are “third parties”“third parties”

You use a browser like Internet Explorer, You use a browser like Internet Explorer, Firefox, etc. considered to be a “third party”Firefox, etc. considered to be a “third party”

The right to privacyThe right to privacy

Right to privacy was first decided Right to privacy was first decided in Griswold v. Connecticutin Griswold v. Connecticut

Comes from 1Comes from 1stst, 3, 3rdrd, 4, 4thth, 5, 5thth, 9, 9thth amendmentamendment

Extended in Roe v. Wade, Extended in Roe v. Wade, Lawrence v. TexasLawrence v. Texas

Other modern day Other modern day surveillancesurveillance Kyllo v. United States, n31 the

Court's 2001 decision finding that the use of a thermal imaging device on a home is a search within the meaning of the Fourth Amendment.

Adaptation to modern day Adaptation to modern day technologytechnology

Klayman v. ObamaKlayman v. Obama

This is the meta-data case that is on appeal

Ruled that bulk collection of American telephone metadata likely violates the Constitution. Case has been argued before the DC Circuit Court of Appeals.

KlaymanKlayman

Klayman recently filed a Klayman recently filed a supplemental brief stressing the stressing the importance of the appeal importance of the appeal continuing despite USA Freedom continuing despite USA Freedom given the NSA’s “pattern of illegal given the NSA’s “pattern of illegal and unconstitutional acts for an and unconstitutional acts for an extended period of time.” extended period of time.”

(https://www.eff.org/deeplinks/2015/06/how-usa-freedom-impacts-ongoing-nsa-litigation)(https://www.eff.org/deeplinks/2015/06/how-usa-freedom-impacts-ongoing-nsa-litigation)

AFF CaseAFF Case

Re-balance Katz test to eliminate theRe-balance Katz test to eliminate the

third party requirement for the internetthird party requirement for the internet

Would make it part of your reasonable Would make it part of your reasonable expectation of privacy that what you expectation of privacy that what you type into google can’t be searched by type into google can’t be searched by the government without a warrantthe government without a warrant

AFF Plan ideasAFF Plan ideas

Justice Sotomayor’s solo concurrence in United States v. Jones:

Called into question “the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.”

This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose…the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers

(https://www.fas.org/sgp/crs/misc/R43586.pdf)

AdvantagesAdvantages

A1. Fourth AmendmentA1. Fourth Amendment Could claim deontology: that rights are Could claim deontology: that rights are

absoluteabsolute Excellent evidence that the 4Excellent evidence that the 4thth

amendment is key to democracyamendment is key to democracy Good evidence that US Supreme Court Good evidence that US Supreme Court

decisions are modeled, and that decisions are modeled, and that democracy is modeleddemocracy is modeled

Democracy solves war Democracy solves war

AdvantagesAdvantages

A2. Open internetA2. Open internet Several dissent oriented web-sites Several dissent oriented web-sites

have shut down in the wake of the have shut down in the wake of the Snowden revelationsSnowden revelations

We need a free and open internet We need a free and open internet to solve a host of problemsto solve a host of problems

Economy, disease, general exist. Economy, disease, general exist. problemsproblems

AdvantagesAdvantages

A3. Presidential Powers BadA3. Presidential Powers Bad Good evidence that the Court has Good evidence that the Court has

given too much ground to the given too much ground to the President in surveillancePresident in surveillance

Presidential powers risk war and Presidential powers risk war and executive overreachexecutive overreach

Court is a key checkCourt is a key check

Other AdvantagesOther Advantages

A4. Human rights credibility: A4. Human rights credibility: propping up fourth amendment propping up fourth amendment important to hr credibilityimportant to hr credibility

A5. Judicial independence: good A5. Judicial independence: good to create a strong model of to create a strong model of judicial independencejudicial independence

Drones AFFDrones AFF

Good cards that say the court should re-calibrate Good cards that say the court should re-calibrate the right to privacy to put limits on drone the right to privacy to put limits on drone surveillancesurveillance

A1. War on terror—court checks on executive help A1. War on terror—court checks on executive help WoT b/c exec will be more carefulWoT b/c exec will be more careful

A2. Right to privacy—claim rights or democracy off A2. Right to privacy—claim rights or democracy off of itof it

A3. Drone proliferation—our drone policy is A3. Drone proliferation—our drone policy is modeled and causes other nations to use dronesmodeled and causes other nations to use drones

A4. Racial profiling—drones are used against A4. Racial profiling—drones are used against minoritiesminorities

Possible to run other Possible to run other AFF’sAFF’s Strike down meta-data with the Strike down meta-data with the

courtscourts

Human Rights CredibilityHuman Rights Credibility Judicial independence Judicial independence Net FreedomNet Freedom Tech LeadershipTech Leadership

NEG Capital DANEG Capital DA

Spokeo v. Robins Spokeo v. Robins Robins sued Spokeo, which is a website that Robins sued Spokeo, which is a website that

has information about people on ithas information about people on it Spokeo, Inc. operates a “people search

engine”—it aggregates publicly available information from phone books, social networks, and other sources into a database that is searchable via the Internet, and displays the results of searches in an easy-to-read format

Spokeo continuedSpokeo continued

Thomas Robins claimed that Spokeo had Thomas Robins claimed that Spokeo had inaccurate info that he was employed, inaccurate info that he was employed, according to Robins, this prevented him from according to Robins, this prevented him from getting a jobgetting a job

No proof of injury to RobinsNo proof of injury to Robins

Class action lawsuit that Robins claims Class action lawsuit that Robins claims millions of similarly situated customers, so millions of similarly situated customers, so the case is worth billionsthe case is worth billions

The DisadThe Disad

A) Court will rule for Spokeo nowA) Court will rule for Spokeo now B) Capital trades-off with SpokeoB) Capital trades-off with Spokeo C) Spokeo key to the tech sector C) Spokeo key to the tech sector D) Tech sector key to military D) Tech sector key to military

heg/economyheg/economy

Answer to opening Answer to opening trivia questiontrivia question Chief Justice John RobertsChief Justice John Roberts Antonin ScaliaAntonin Scalia Samuel AlitoSamuel Alito Clarence ThomasClarence Thomas Anthony KennedyAnthony Kennedy Sonia SotomayorSonia Sotomayor Elena KaganElena Kagan Stephen BreyerStephen Breyer Ruth Bader GinsburgRuth Bader Ginsburg