9 0 Counterplan

8/13/2019 9 0 Counterplan

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9-0 Courts CP

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your $udge is. *ar 2tory timeF I ran this my $unior year in high school in the prelims of the

Barkley orum. *e thought #e #ere all hot shit because #e had 8ualified for the ":+ the

#eekend before, but the truth #as that #e #ere nervous #recks and #e #erent all that good.

*e hit eCingtons top team in the presets, a team that #as much better than us and if #e had

run anything else #e #ouldve been 8uickly crushed. Alas, unpredictable and 8uirky

strategies are the Achilles


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1NC

WE PRESENT THE FOLLOWING COUNTERPLANF

ohn arshall #orked so hard to eliminate. @ranted, too much concern #ith

consensus may paper over in public #hat are serious differences #ithin the institution. +onversely,ho#ever, too little concern #ith the coherence of institutional decisions in order to purchase tran8uility

and avoid hard negotiations #ithin the +ourt is conflict by another means, and it is far less helpful than a

careful compromise hammered out through intense negotiations. "he current spate of opinions in #hich

one $ustice concurs in parts A, +, =, and , and t#o other $ustices concur only in parts A and = is

reminiscent of AleCander


5/31

lurality decisions inhibit transformative efforts, stop reform, and destroy the moral leadership that is

critical to the solving the institutional roots of the case harms.

OFFICE OF "E#A" PO"IC$ %%

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lurality decisions mar the +ourts institutional legitimacy and the rule of la#, inviting backlash and non-

compliance over issues of constitutional rights

BAN(S 99M+hristopher & assiprof polisci ? Akron & 7 Akron . 6ev. 77N

Associate >ustice 6obert ackson once suggested that rulings fromthe 2upreme +ourt of the ?nited 2tates have Oa mortality rate as high as their

authors.O n1 >acksonPs 8uip is significant since it is consistent #ith

the political reality that the +ourt often manipulates the la# to make social

policy. "he remark is also controversial since it raises the 8uestion of #hether

the 2upreme +ourt, led by +hief >ustice *illiam ustice "hurgood arshall denounced6ehn8uistPs plurality opinion on the grounds that the +ourt #as creating a novel

theory of stare decisis. ayne, in other #ords, held that the force of precedent

is at its acme in cases involving contract or property rightsK and, conversely,

that it is at its nadir either in opinions relating to procedural and

evidentiary rules, 4-5 decisions, or ma$ority opinions achieved over Ospirited

dissents.O "he +hief >ustice responded to arshall by saying that Ostare decisis

is not an ineCorable commandK rather, it Pis a principle of policy and not a

mechanical formula of adherence to the latest decision . . . .PO n5 As apolicy matter, therefore, prior la# did not prevent the MQ75N statements from

being admitted into evidence.

)


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?pholding the 6ule of a# is a !-6ule to uphold the fundamental rights of all humanity

RAW"S )1

M>ohn & prof


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B*o+,sE.TN/s

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2NC1NR OVERVIEW

"he only possible #ay to capture the affs advantages is to vote negative for the counterplan. *e fiat and

ensure that the 2upreme +ourt decision is a unanimous 3- #hile the plan offers no such certainty. "he

1+ evidence indicates that split decisions #hich are the norm in the status 8uo carry #ith them a lack of

leadership and inherent dissent #hich doom long term solvency.

*e also have the eCternal impact of the 6ule of a# #hich our 6a#ls evidence indicates should be a

decision rule for the debate.

inally, pluralities undermine $udicial efficiency and give the lo#er courts no guidance. Stare decisisis

ignored, dooming solvency.

t 456 +ou*7/t 8t r sorr;udicial olicies p1HN

+lear decisions not only minimi9e lee#ay, they also minimi9e distortion in the communication of thedecision to relevant groups. 6ichard >ohnson points out, for eCample, that 'behavior congruent #ith the

message depends in large measure upon #hether the ruling is received in a relatively undistorted state by

those #ho are affected.( "hus, for those #ho are largely indifferent to a courts policy, a clear statement

of eCpectations is more likely to be met #ith the acceptance and positive responses than is an ambiguous

one. And for those #ho are not inclined to obey a court policy, a clear policy statement provides a

standard against #hich nonacceptance or noncompliance can be evaluated and perhaps sanctioned.

1&


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?nanimous decisions key to check congressional override

EPSTEIN& 9%

Mee, "he +hoices >ustices ake, prof *ash ?. p4N

ore broad-based support comes from a recent study by =pstein and 2egal that considered agenda-

setting behavior during the 1347 through the 1337 terms of the +ourt. "hese researchers begin #ith thebasic dispute-avoidance hypothesisF $ustices avoid placing policies on their agenda #hen they believe

that members of the other branches #ill move policy far from their ideal points. "o this hypothesis, they

add the follo#ingF $ustices behave in this #ay unless they also believe that they can insulate their

holdings from reversal by reaching consensual decisions. "his claim, =pstein and 2egal argue, flo#s

from the comments of scholars, legislators, and the $ustices themselves that suggest the more

authoritative a holding %for eCample, a unanimous decision) the less likely that +ongress #ill attempt tooverturn it.

1!


16/31

!issenting opinions kill solvency & no long-term adherence to the decision


ormer +hief >ustice +harles =van


17/31

2plit decisions are more likely to be overturned


"hat courts analy9e eCtantprecedent in light of the solidarity of thecourt issuing the underlying rule of la# is intuitive. "he more dissension in a

case cannot help but signal to prospective litigants and courts that adisfavored precedent is on #eak footing and ripe for an aggressive challenge in

court. "able 7, a summary of the percentage of unanimity or dissension in

overturned cases by the 6ehn8uist +ourt, partially belies this traditional

logic, ho#ever. :f the total number of overturned cases, t#elve, or 7G.5/,

#ere decided by a bare ma$ority %i.e. a 4-5 vote). In addition, in cases

featuring three dissents or more, the +ourt reversed them nearly one-half%5.4/) the time. "hese findings sho# that opinions resulting from

closely-divided +ourts are indeed more vulnerable to subse8uent attack.

evertheless, "able 7 also discloses that unanimity is not a guarantee that

precedent is sacrosanct. :f the thirty-four toppled decisions, eleven

precedents, or 77.7/, #ere unanimous. *hile unanimity or dissension is still a

conventional part of the +ourtPs approach to stare decisis, the eCpectation that

unanimity strengthens the force of precedent and dissension #eakens it is not,

therefore, completely met.

1)


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4-5 decisions reduce the value of the cases precedent & certainty and $ustice are at risk

PADDEN 9&MAmy & >! @eorgeto#n & @eo. .>. 1G3N

"he doctrine of stare decisis is #ell established in American$urisprudence. "he doctrine takes its name from the latin phrase stare decisis

et non 8uieta movere, #hich translates as Ostand by the thing decided and do notdisturb the calm.O n1 It represents the general proposition that a

precedent must be follo#ed unless there is a compelling reason to overrule it.

"his note criti8ues a ne# approach to stare decisis developed by +hief

>ustice 6ehn8uist and >ustice 2calia, #hich reduces the precedential effect of

decisions that #ere rendered by 4-5 votes that addressed constitutional issuesor #ere recently decided. "his approach to stare decisis is un#orkable

because it does not serve the important goals underlying the doctrine.

Although adherence to the doctrine of stare decisis has been the general rule

in 2upreme +ourt $urisprudence, it is often manipulated by liberals and

conservatives alike #hen precedents are vie#ed as unappealing. 2uch

manipulations have often caused the doctrine to be vie#ed as one of convenience.

!espite this perception, adherence to precedent serves many importantgoals in American $urisprudence, including certainty, e8uality, efficiency, and

the appearance of $ustice. "he ne# approach articulated by the+hief >ustice and >ustice 2calia fails to serve these goals.


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4-5 decisions arent likely to be enforced by lo#er courts

PADDEN 9&MAmy & >! @eorgeto#n & @eo. .>. 1G3N

"he +ourtPs eCplicit acceptance of limited precedential effect for 4-5decisions #ill also affect the application of precedent in the lo#er courts. A

doctrine called the Oprediction ruleO has gained acceptance among some courtsand commentators. ?nder this rule, a lo#er court need not follo#

precedent if it can predict that the 2upreme +ourt itself #ould not follo# that

precedent. o#er courts should not, ho#ever, consider personal

ideologies and eCtra$udicial intimations in reaching their decisions, but it

#ill be difficult for a lo#er court to predict the demise of a 4-5 2upreme +ourt

precedent #ithout improperly considering the personal ideologies of the current>ustices.

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?nanimous court decisions indicate an adherence to the rule of la# and sheath the s#ords of $udicial

activism

C=WR %9

M.on/ressional uarterly Weekly 1eport& 11S11N

"he absence of sharp rhetoric in unanimous decisions lessens the public controversy and the si9e of theheadlines. "he unanimity casts this ideologically diverse court in a gentler light as the 133-3 term

begins. "he cases also serve as a reminder that 2upreme +ourt decisions reflect la#s and precedents and

legal reasoning at least as much as ideology. re8uently the $ustices seem to have simply sheathed their

ideological s#ords.

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?nanimous decisions best for social change

(IM>RA 92M;en & HH +ornell . 6ev. 1437N

"hus, the single opinion in Bro#n v. Board of =duc., 75H ?.2. 57

%1345), incorporated both the ma$ority rule and the internal rule. :necommentator suggests that OMiNf the +ourt had further split into a ma$ority

divided against itself, if the $ustices had spoken as nine individuals rather

than as Pthe 2upreme +ourt,P the moral authority of Bro#n #ould perhaps have

been too diluted to have led to even the gradual social changes #hich it in fact

inspired.O

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?nanimity key to rule of la#

(IM>RA 92M;en & HH +ornell . 6ev. 1437N

A plurality decision, by its very nature, represents the most unstable form

of case la#. It is the resolution of a OhardO case by a nonunanimous +ourt.At least three opinions, resting upon diverse legal theories, are

present in a plurality decision. "he 2upreme +ourtPs failure to

articulate a single rule of la# creates confusion in the lo#er courts as ho# to

interpret and #eigh that decision.

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4-5 !ecisions T normal means

NPR )-'-01

":"=B=6@F ooking for#ard to neCt term0 !onPt eCpect a big change in the

4-to-5 voting pattern #ith 8uestions like affirmative action and the death

penalty on the docket. ina "otenberg, 6 e#s, *ashington.

=!*A6!2F "he time is 13 minutes past the hour.

2&


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4-5 !ecisions are business as usual for this court

NPR )-!-01M"otenbernTreporter, @oldsteinT2upreme +ourt AdvocateN

":"=B=6@F Indeed, @oldstein points out that if you eliminate from thee8uation the courtPs business cases, most of #hich #ere easily decided #ith

little or no dissent...

r. @:!2"=IF "he number of 4-5 cases goes through the roof. It becomes

about t#o-thirds or even three-8uarters of the cases.

2!


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>ustices deliberately #rite confusing opinions

(IRMAN 9!

MIgor & 34 +olum. . 6ev. 7N

In order to gain the support of a ma$ority, such opinions are often#ritten, to borro# a phrase from


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AT: P"AN DOESN/T INDICATE A SP"IT DECISION

1) lan indicates normal means#& our 1nc +ooper evidence indicates that split decisions are business

as usual for the +ourt.

) "heir inherency evidence proves & conflicts eCist that prevent grassroots mobili9ation, state

reforms, andSor a +ourt decision, #hich means the plan #ould have to be a split decision givenstatus 8uo attitudes

7) +ontroversy over the plan causes a split decisionF

A) ustices hold different premises, and even ifthese different premises are more general values, it is much more difficult for them to reach a consensus.

"he result is an increase in the number of plurality decisions.( !iffering values as a basis of $udicialdecisions create irreconcilable differences.

5) "his is a good interpretation of fiatF our interpretation of fiat and normal means allo#s running

real #orld congressional backlash !As, politics !As, etc. #hich are the heart of the topic. If the

neg can find evidence proving #hat normal means is, or the popular effects of the plan, they

should be able to run it. "he aff interpretation punishes hard #ork and research at the eCpense ofcreativity and neg ground.

4) "hey couldve specified & "hey had infinite prep time to craft the 1A+ and their plan teCt, they

couldve avoided this debate by specifying a 3- decision. "herefore, since they passed on the

opportunity, it should be our choice and this should be legitimate + ground.

G) Allo#s for moreaff ground. "hey get 4-5, -1, H-, and G-7.

H) Uinsert a sle# of normal means evidenceV

1if the plan doesnt say normal means, you should obviously not say this. you should instead say that the

1nc +ooper evidence indicates that split decisions are business as usual #hich means that if the plan

doesnt say #hich #ay the decision goes, you should assume its a split.

2)


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AT: PERM DO BOTH

1) "heyre mutually eCclusive & the +ourt cant take actions to decide one case t#o different #ays

at the same time & violates the la#s of physics and makes no sense.

) Its an intrinsicness perm & in order for the perm to function an additional action that isnt in the

advocacy of the plan or the + & such as a second test case or striking do#n one of the decisions ould have to take place. "his is illegitimate and a voting issue because the infinite amount of

plan amendments that occur half#ay through the debate make it impossible to be negative and it

kills our ground because it makes all counterplans non-competitive and net benefits irrelevant.

7) o net benefit & "hey still enact a split decision, meaning theyll al#ays link to the 6ule of a#

net benefit and risk not solving because of all the reasons split decisions dont solve articulated in

the 1+

5) erm links #orse & t#o decisions on the same case going t#o different #ays0 If the lo#er courts

and society-at-large #erent going to muddle up the plan, theyre sure going to be unable to handle

the perm.

2%


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AT: PERM DO THE CO>NTERP"AN

1) Its a severance perm & it severs out of the part of the plan that is a split decision. 2everance perms

are a voting issue because plan alterations that make all negative offense irrelevant mid-#ay

through the debate make it impossible to be negative.

) "eCtual +ompetition is a bad standard &

a) it makes all counterplans non-competitive via stupid #ordplay and grammar magic. A

counterplan to 'ot !o "he lan( #ould be non-competitive even though its theopposite of the plan, all conditioning and consultation counterplans #ould be non-

competitive even though they are functionally eCtremely different, it makes stupid and

non-sensical acronyms and 're-arrange the letters( counterplans legitimate, etc.

b) provides for better debate & functional competitive means you have to make arguments

about #hat the plan and the counterplan actually do& #hich is al#ays better for

education and in-depth debate

c) $ust as arbitrary & grammar and plan #ordings are al#ays imprecise & $udges are smart

enough to figure out the debate, #hich means theyre smart enough to resolve #hether ornot a counterplan functionally competes

7) Its our idea & they have conceeded that the negative advocacy is better than the aff. 6e#ard us.

5) 2ets a bad precedent & if they can $ustify stealing the negative advocacy in this round, thats a

slippery slope to making all counterplans and criti8ue alternatives $ust A+ plan clarifications,unfairly privileging the affirmative #hich already has first and last speeches, infinite prep time,

choice of topic, and #ins most debates. If a contrived theory debate that the aff started is close,you should al#ays err negative due to massive side bias.

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AT: ATTIT>DE FIAT BAD

1) All fiat is attitude fiat & inherency al#ays means opposition to the plan eCists in the status 8uo,

#hich means that in order for anything to pass the attitudes of la#makers have to temporarily

change. "his is inevitable #ith all instances of fiat in debate.

) o inround abuse & "heir #orst case scenario are counterplans that #ish a#ay violence or racismor other things at the grassroots level & #e can agree that attitude fiat of 'the #orld( or individual

citi9ens is bad #hile limiting ourselves to fiating #hat the government does & that ensures a good

debate over process and ho# politics happens in the real #orld rather than $ust fiating a#ay theharms.

7) +ompetition checks abuse & #e still have to #in #ere competitive & '*orld eace( counterplans

can never do that

5) 2olvency evidence checks abuse & #e still have to #in a substantive debate over ho# the

decisions are perceived & #e are reading cards about ho# 3- decisions are perceived #hich

means a fair debate is possible

4) =rr neg on theory & aff gets first and last speech, choice of topic, #ins most of the time, and hasinfinite prep time & give us lee#ay on contrived theory ob$ections

G) unishment doesnt fit the crime & at #orst you $ust re$ect the counterplan not the team.

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9-0 C*5r8+5to t 4*5 tt s Etr5-to4+5*

A? VIO"ATION

plan goes beyond the boundaries of the resolution and fiats that the vote count of the +ourt is a 3-

B? THIS IS A VOTIN# ISS>E

1- ground & they prevent us from running specific backlash !As and political process !As by

performing unpredictable god-like manipulation of their agent in a #ay that is inconsistent #iththe literature base

- infinite regression & they use attitudinal fiat #hich can sno#ball into fiating a#ay racism or

homophobia or any terminal impact to their affirmative

7- education & they shift the focus off of the real #orld effects of the plan by using eCtra fiat to spike

out of substantive offense

5- de$ustifies the resolution by illustrating that it is insufficient by itself to solve the harms

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