Paul Benjamin Linton, Saint Louis University Public Law ...



Misc Courts CP

(not targeted at any particular aff)

CP Solvency 2

A2 Court legitimacy disad 3

Prostitution Pledge Solvency 4

Courts don’t link to politics 5

2AC Court legitimacy disad 6

1AR Legitimacy link extension 7

Courts link to politics 8

PEPFAR Prost. Neg 9

CP Solvency

Supreme court strike downs of policy are followed

Lawrence Baum, Professor of Pol Sci @ Ohio State, 2003 (Annu. Rev. Polit. Sci., “The Supreme Court In American politics”, p. 173)

In recent years, some scholars with a strategic perspective have analyzed relationships between the Supreme Court and lower courts in formal terms, terms that facilitate comparison between implementation processes in the judiciary and hierarchical relationships in other settings (Kornhauser 1995, Hammond et al. 2001; see Brehm & Gates 1997, pp. 13–20). Especially important is collaborative work by Segal, Songer, and Cameron (Songer et al. 1994, 1995; Cameron et al. 2000), who have employed principal-agent theory to guide empirical studies of the relationship between the Supreme Court and federal courts of appeals. Even in this new wave of research, however, there has been little systematic comparison between courts and other policy enactors. The natural comparison is between the Supreme Court and Congress, each of which acts to shape administrative policy. It is reasonable to posit that Congress does better in getting what it wants from administrators, because its powers (especially fiscal) and its capacity to monitor the bureaucracy are appreciably stronger. The sequences of events that overcame school segregation and racial barriers to voting in the Deep South support that hypothesis. But it remains essentially untested, in part because good tests are difficult to design. Thus, we still know little about the relative success of implementation for legislative and judicial policies. Once we know more about the implementation of the Court’s decisions in absolute and relative terms, the most important question might well be why implementation is as successful as it is. The Court’s limited concrete powers would seem to aggravate the difficulties faced by all organizational leaders, so why do judges and administrators follow the Court’s lead so frequently? Within the judiciary, part of the answer undoubtedly lies in selection and socialization processes that enhance agreement about legal policy and acceptance of hierarchical authority. Even the Court’s limited powers may be sufficient to rein in administrators, especially in the era of broad legal mobilization that Epp has described: Groups that undertake litigation campaigns to achieve favorable precedents can also litigate against organizations that refuse to accept those precedents. Both judges and administrators may reduce their decision costs by using the Court’s legal rules as a guide. In any event, the relationship between the Court and policy makers who implement its policies may be an especially good subject for studies to probe the forces that reduce centrifugal tendencies in hierarchies. It is also worth asking why the Court fares so well in Congress. As noted above, few of the Court’s most controversial interventions in the past half century have been directly reversed. Nor has Congress enacted any of the numerous bills to remove the Court’s jurisdiction over areas in which the Court has aroused congressional anger. A large part of the explanation lies in the difficulty of enacting legislation in a process with so many veto points. That difficulty is especially great in an era like the current one, which lacks a strong or stable law-making majority. In such an era, interventions are likely to have significant support in government regardless of their ideological direction, and even decisions that strike down federal laws may enjoy majority support. The line of decisions since 1995 that has limited the regulatory power of the federal government (e.g., Alden v. Maine 1999, United States v. Morrison 2000) constitutes the most significant judicial attack on federal policy since the 1930s. But since 1995, Congress has had Republican majorities except for the bare Democratic Senate majority in 2001–2002. In that situation, any significant action to counter the Court’s policies has been exceedingly unlikely. Beyond the difficulty of enacting legislation, two other factors may come into play. First, Congress often adopts measures that limit the impact of a Court policy or that attack the policy symbolically, actions that suffice for members who want to vent their unhappiness with the Court or to claim credit with constituents who oppose the decision (see Keynes & Miller 1989). In response to Roe v. Wade (1973), for instance, Congress (often with presidential encouragement) has mandated various limits on federal funding of abortion. Two years after Miranda v. Arizona (1966), it enacted a statutory provision purportedly to supersede the Miranda rules in federal cases, a provision that federal prosecutors ignored and that the Court ultimately struck down in Dickerson v. United States (2000). Second, the Court may enjoy a degree of institutional deference in Congress, similar to that found in other relationships among the three branches but buttressed by the symbolic status of the Constitution itself. This deference tinges certain courses of action, such as restrictions on court jurisdiction, with illegitimacy. The failure of proposals to overturn the flag-burning decisions with a constitutional amendment, despite broad and deep public opposition to those decisions, reflects the symbolic power of the First Amendment. Congressional deference to the Court is not limitless, but in combination with other factors it may help to explain why the Court’s recent interventions and the Court itself have survived congressional scrutiny so well.

A2 Court legitimacy disad

One decision can’t tank legitimacy.

Paul Benjamin Linton, Saint Louis University Public Law Review, 1993 lexis

The Court describes this first circumstance as "hypothetical." 272 The distinct impression left by this passage is that decisions of the Supreme Court overruling earlier decisions on matters of constitutional interpretation are rare and thus should not be too readily emulated, lest the "legitimacy" of the Court be called into question. But this impression is wrong. On more than 200 occasions, the Court has overturned previous decisions, and in nearly three-fourths of those cases, the Court overruled because the earlier decision had wrongly interpreted the Constitution. 273 What does this remarkable track re [*75] cord of "judicial correction" mean? At the very least, that the "legitimacy" of the Court is not affected by its acknowledgement of prior error, even when that error involved an intepretation of the Constitution. Indeed, as in Brown and West Coast Hotel, the Court has often enhanced its credibility by overruling decisions that were wrong when originally decided. One more overruling decision, if otherwise appropriate, could not reasonably be expected to damage that credibility.

Overruling outdated principles bolsters the Supreme Court’s prestige.

C. Steven Bradford (Assistant Professor of Law, University of Nebraska College of Law) October, 1990 Following Dead Precedent: The Supreme Court's Ill-Advised Rejection of Anticipatory Overruling 59 Fordham L. Rev. 39

Whether the public perception argument has much weight, even in the horizontal context, is unclear. Actually doing justice may be more important than appearing to do justice if these two interests collide. However, because the rule of law and the ability to do justice are highly dependent upon public confidence in the legal system, the public image argument has some validity. Even accepting public perception as an important value, however, it is unclear that the public reacts negatively when a case is overruled. Public debate on the Supreme Court's recent flag-burning n231 and abortion n232 decisions shows that the general public tends to focus on results rather than process. If the new decision reaches a substantive result that people believe is good, they applaud the decision even if precedent is discarded. If the new decision reaches a substantive result that people believe is bad, they decry the decision even if the case results from a straightforward application of precedent. If outdated, socially unacceptable or logically questionable decisions are those most likely to be overruled or questioned by the Supreme Court, replacing such decisions with a more publicly acceptable rule should actually increase public respect for the system. The same may be said for a lower court that disregards a doubtful Supreme Court precedent.

Prostitution Pledge Solvency

We have a test case

FCAA (Funders Concerned About AIDS) March 2007 News from the AIDS World U.S. appellate court approves PEPFAR prostitution pledge restriction

Debate continues over President Bush’s Emergency Plan for AIDS Relief (PEPFAR), which is currently still obligated to deny funding to NGOs that do not publicly disavow prostitution and sex trafficking. In many cases this restriction limits funding for organizations that work to prevent and treat HIV/AIDS among sex-workers, a highly at-risk population worldwide, and for other key allies in promoting proven-effective prevention strategies. In late February a federal appeals court in Washington, D.C., ruled that this restriction remains constitutional and does not violate free speech rights, as had been ruled earlier by a lower court (Int'l Herald Tribune, 2/27/07).* The Global Health Council decried this ruling as “an unjust and ill-considered expansion of government authority to limit the free speech of NGO’s receiving public funding to fight AIDS” (Global Health Council, 3/2/07). The federal ruling is unfortunate, and grantmakers should take the opportunity to focus more programming on the involvement of sex workers in prevention efforts, human rights discussions, and policy advocacy. A separate challenge to the prostitution pledge is pending in an appellate court in New York. A ruling by the Washington court is not binding on the New York case.

USAID being sued over PEPFAR’s prostitution pledge

Jim Cashel (head of AIDS matters) September 27. 2005 PEPFAR and the Prostitution Pledge AIDS Matters: Global AIDS Policy, Resources, New Ideas.

We have commented previously on PEPFAR's requirement that all recipient groups sign a pledge opposing prostitution. Unfortunately, PEPFAR doesn't make the language of their restrictions readily available (we have posted some language here). As far as we know, PEPFAR also has yet to issue additional guidance concerning this policy. PEPFAR may now need to address the issue directly. This week the Open Society Institute announced a lawsuit against USAID, claiming the policy to be unconstitutional. As the lawsuit moves forward, USAID will by necessity be required to explain and defend its policies.

Courts don’t link to politics

Court decisions provide political cover.

Gerald N. Rosenberg (prof. political science @ Univ. Chicago) 1991 Hollow Hope, p. 34-35

Finally, court orders can simply provide a shield or cover for administrators fearful of political reaction. This is particularly helpful for elected officials who can implement required reforms and protest against them at the same time.

Courts absorb political criticism for controversial policy decisions.

Richard A. Posner (judge for U.S. Court of Appeals; 7th Circuit) 1983 “The Meaning of Judicial Self-Restraint,” Indiana Law Journal, Winter, p. 12-13

Yet the recent history of the federal courts suggests that it is not their political capital that is running out so much as their judicial capital -- their ability to supply judicial decisions of reasonable quality. Although there have been some stirrings of revolt by the political branches against the self-aggrandizement of the judicial branch in the last two decades, nothing comparable to Franklin Roosevelt's court-packing plan is yet visible on the horizon. This is in part because some of the groups on whose behalf the courts have been aggressive lately, notably women and blacks, are politically influential, and therefore protect the courts' vulnerable political flanks, and in part because the political branches are happy to shift responsibility for unpopular policies to the federal courts, which are a kind of lightning rod since the judges cannot be voted out of office. Since those courts are inherently weak yet seem to be getting away with a big power grab from the political branches, there is a presumption that those branches are cooperating in the shift of power -- and with it responsibility -- to the courts. Thus, not the autonomy of the federal courts, but their capacity to function effectively, has been called into question -- by a caseload crisis that is, however, partly the result of the federal courts' self-aggrandizing decisions.

2AC Court legitimacy disad

The Supreme Court has legitimacy now, but is susceptible to dramatic shifts.

James L. Gibson, Prof African American Studies, and Sidney Souers, W., Prof of Government at Washington U, “The Legitimacy of the United States Supreme Court in a Polarized Polity, June 15, 2006

From the analysis presented here, it appears that the Supreme Court has sufficient institutional legitimacy to be able to continue to perform its assigned role within the American democratic scheme, even within the context of deep substantive divisions within the American mass public. Whether this will remain so is unclear, especially if the Supreme Court takes a dramatically rightward shift in its policy outputs (as many expect it will). As African Americans have shown us, even obdurate loyalty toward an institution can indeed wither away. But at present, for those who worry about the systemic consequences of sharp ideological divisions in American politics, the findings of this analysis will surely provide some comfort.

The Supreme Court has a finite amount of institutional capital – this eliminates their link turns because no decision can ever increase capital

Ernest A. Young, Judge Benjamin Harrison Powell Prof. of Law, University of Texas at Austin. J.D. Harvard Law School 1993, 2004 [Texas Law Review Texas Law Review, November, 2004, 83 Tex. L. Rev. 1, ARTICLE: The Rehnquist Court's Two Federalisms]

The courts' basis of legitimacy also arises from this notion that they decide according to law. That basis is in some sense a mirror image of the legislature's: Legislators' legitimacy rests on their basic connection to the public will; judicial legitimacy, however, arises from being cut off from that will - from the institutional independence that allows judges to seek the law rather than respond to possibly short-sighted public preferences. But of course this notion of legitimacy can be viewed as fundamentally antidemocratic, leading to Alexander Bickel's famous "counter-majoritarian difficulty." n442 It may also constrain the frequency of judicial action counter to majoritarian preferences; that is, courts' nondemocratic nature may limit their "institutional capital" and, therefore, favor doctrines of judicial restraint in most situations. n443

American Court legitimacy is key to solve nuclear war.

Barry Kellman (professor @ Depaul) December 1989 Duke Law Journal

In this era of thermonuclear weapons, America must uphold its historical commitment to be a nation of law. Our strength grows from the resolve to subject military force to constitutional authority. Especially in these times when weapons proliferation can lead to nuclear winter, when weapons production can cause cancer, when soldiers die unnecessarily in the name of readiness: those who control military force must be held accountable under law. As the Supreme Court recognized a generation ago, the Founders envisioned the army as a necessary institution, but one dangerous to liberty if not confined within its essential bounds. Their fears were rooted in history. They knew that ancient republics had been overthrown by their military leaders. . . .. . . We cannot close our eyes to the fact that today the peoples of many nations are ruled by the military. We should not break faith with this Nation's tradition of keeping military power subservient to civilian authority, a tradition which we believe is firmly embodied in the Constitution. 1 Our fears may be rooted in more recent history. During the decade of history's largest peacetime military expansion (1979-1989), more than 17,000 service personnel were killed in training accidents. 2 In the same period, virtually every facility in the nuclear bomb complex has been revealed [*1598] to be contaminated with radioactive and poisonous materials; the clean-up costs are projected to exceed $ 100 billion. 3 Headlines of fatal B-1B bomber crashes, 4 the downing of an Iranian passenger plane, 5 the Navy's frequent accidents 6 including the fatal crash of a fighter plane into a Georgia apartment complex, 7 remind Americans that a tragic price is paid to support the military establishment. Other commentaries may distinguish between the specific losses that might have been preventable and those which were the random consequence of what is undeniably a dangerous military program. This Article can only repeat the questions of the parents of those who have died: "Is the military accountable to anyone? Why is it allowed to keep making the same mistakes? How many more lives must be lost to senseless accidents?" 8 This Article describes a judicial concession of the law's domain, ironically impelled by concerns for "national security." In three recent controversies involving weapons testing, the judiciary has disallowed tort accountability for serious and unwarranted injuries. In United States v. Stanley, 9 the Supreme Court ruled that an Army sergeant, unknowingly drugged with LSD by the Central Intelligence Agency, could not pursue a claim for deprivation of his constitutional rights. In Allen v. United States, 10 civilian victims of atmospheric atomic testing were denied a right of tort recovery against the government officials who managed and performed the tests. Finally, in Boyle v. United Technologies, 11 the Supreme Court ruled that private weapons manufacturers enjoy immunity from product liability actions alleging design defects. A critical analysis of these decisions reveals that the judiciary, notably the Rehnquist Court, has abdicated its responsibility to review civil matters involving the military security establishment. 12 [*1599] Standing at the vanguard of "national security" law, 13 these three decisions elevate the task of preparing for war to a level beyond legal [*1600] accountability. They suggest that determinations of both the ends and the means of national security are inherently above the law and hence unreviewable regardless of the legal rights transgressed by these determinations. This conclusion signals a dangerous abdication of judicial responsibility. The very underpinnings of constitutional governance are threatened by those who contend that the rule of law weakens the execution of military policy. Their argument -- that because our adversaries are not restricted by our Constitution, we should become more like our adversaries to secure ourselves -- cannot be sustained if our tradition of adherence to the rule of law is to be maintained. To the contrary, the judiciary must be willing to demand adherence to legal principles by assessing responsibility for weapons decisions. This Article posits that judicial abdication in this field is not compelled and certainly is not desirable. The legal system can provide a useful check against dangerous military action, more so than these three opinions would suggest. The judiciary must rigorously scrutinize military decisions if our 18th century dream of a nation founded in musket smoke is to remain recognizable in a millennium ushered in under the mushroom cloud of thermonuclear holocaust.

1AR Legitimacy link extension

More evidence

Richard A. Posner, Judge, United States Court of Appeals for the Seventh Circuit; Senior Lecturer, University of Chicago Law School, 1983 [Indiana Law Journal Winter, 59 Ind. L.J. 1, lexis]

Because separation of powers judicial self-restraint implies a low profile for the courts, it tends to produce outcomes similar to those produced by prudential self-restraint in either its political or its functional form. The forms of judicial self-restraint are related in another way. They all can be seen as proceeding from recognition of the federal courts' special vulnerability, though this is not necessarily the most illuminating perspective. The federal courts, one has been told over and over again until the point has become thoroughly hackneyed, lack the power of purse or sword, lack the legitimacy conferred by an electoral mandate, yet have responsibility for countermanding the elected branches. They do this not only when enforcing the Constitution but also when enforcing federal statutes in accordance with the intent of the enacting rather than the current Congress. Hence, the argument continues, the courts are the weakest branch of the federal government. They can preserve their influence only by conserving their political capital, which can be squandered not only by too freely countermanding the other branches but by the decline in professional respect for the quality of the courts' decisions that must accompany any rapid expansion in the number of judges and any substantial relaxation of the traditional limitations on justiciability.

Courts link to politics

President takes the blame for any decision made by a Federal Government branch.

Richard Ellis (Prof. politics @ Willamette Univ.) 1994 Presidential Lightening Rods, p. 2

An American president, Laski maintains, cannot deflect blame onto subordinates. A president's position as head of the executive branch, Laski insists, "makes him a target to be attacked by every person or interest at all critical of his purposes. He is there in all cases, to be blamed; and there is no one, in any real sense, who can help to bear the burden of the blame." In contrast to England, where we blame an anonymous entity 'the Government' if things go wrong, in the United States it is the president who is blamed. A decision of the Supreme Court is regarded as adverse to his policy; a defeat in Congress is a blow to his prestige; the mid-term congressional elections affect his policy, for good or ill. No one thinks of them in terms of their effect upon his cabinet.

Role as chief executive requires the President to take responsibility for court decisions.

David M. O’Brien (prof. law @ Univ. Virginia) 2000 Storm Center: The Supreme Court in American Politics, p. 371-372

Charged with the responsibility of taking "care that the laws be faithfully executed," the President is the chief executive officer under the Constitution. As the only nationally elected public official, the President represents the views of the dominant national political coalition. A President's obligation to faithfully execute the laws, including the decisions of the Court, may thus collide with his own perceived electoral mandate.

PEPFAR Prost. Neg

Providing aid to sex workers won’t solve AIDS, the epidemiological approach to prostitution disrupts solvency

Tonya Nicole Taylor 1998 University of Pennsylvania "Blaming the Infected African Other: An Epidemic of Discrimination" (Paper presented at the Sixth Annual African Studies Consortium Workshop, October 02, 1998)

Similarly, in Africa the use of western culture to define African sexual behavior has created a discourse of "evil sirens" or "reservoirs of HIV infection" which resulted in physical assault, harassment, and even incarceration in countries like Rwanda and Zimbabwe (de Zalduondo 1991: 224-5). In particular, the inappropriate use of the terms "promiscuity" and "prostitution" to define African sexual behavior is problematic because they impose western ideologies and morals, which are not necessarily shared cross culturally. For example, western researchers in Africa narrowly defined prostitution as the exchange of money for anonymous sex; however, this definition is inadequate because it does not account for the diversity of sexualities and sexual strategies for economic security, which fall outside of boundaries of commercial sex work. The difficulties defining prostitution in Africa have been innumerable (e.g., Caldwell, Caldwell, & Quiggin 1989; Day 1988). Under the rubric of sexual networking,[17] researchers have gained insight into how Africa women exchange sex for social and cultural support as a wife or mother, as well as for more direct forms of financial assistance.[18] For many women in Africa with limited socioeconomic and political choices, the commodification of their sexuality and fertility are the only vehicles through which they can achieve social status and economic support. Barbara de Zalduondo (1991: 224) argues that efforts to understand prostitution and AIDS have been hampered by reliance on an epidemiological paradigm, which is poorly suited to the task of finding avenues for prevention. This frame of reference has prevented researchers from engaging with social meanings and functions of prostitution in relation to broader economic, political, and gender issues which vary from culture to culture.

Prostitution care along can’t solve AIDS. Many alt causes, including cultural taboo’s around sex and prostitution, prevent solvency

CARIN MARCUS FEBRUARY 2002 (MA, Afrikaans University) THE CULTURAL CONTEXT OF HIV/AIDS IN SOUTH AFRICA

Many factors and forces have been identified that are said to restrict people’s autonomy leaving them particularly vulnerable to HIV infection and needless suffering. In sum, these include: lower status of women, abuse of power by older, wealthier individuals - and in the case of young women this has resulted in the ‘sugar daddy’ phenomenon, scarcity of HIV counselling, testing and condoms, poverty or trafficking that leads to prostitution, domestic violence and rape, labour migration which splits up families, economic dependence of women and the use of sex for goods in return, lack of parental care, cultural taboos around sex, and inadequate access to health services - this list is a long one and varies from place to place and from group to group. Recognition of the factors that fuel the HIV epidemic can prompt the development of new understandings and programmes for reducing vulnerability - in the civil, political, economic, social and cultural arenas - that could work in synergy with the more traditional prevention approaches aimed at diminishing risk-taking behaviour.

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