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DDI 2008


Court DA updates
DDI 2008
Stare Decisis Key to Legitimacy

Stare Decisis key to public perception and legitimacy

Daniel Katz, Professor, University of Oregon, No Date Cited
The Supreme Court, as well as the judicial system as a whole suffers from a continuing question of legitimacy. The
potential for illegitimacy is linked to the tripartite American constitutional system. The judicial branch simply lacks the
power of the sword that the executive branch enjoys under its command of the armed forces, and the power of the purse that
Congress is granted with its right to tax and spend revenue. Henceforth, judicial legitimacy is only derived from the power
of the pen and the public’s faith in the righteousness of its outcomes. This faith is maintained primarily through the public’s
perception of an apolitical judicial branch. Therefore, the Court may act as a political body and set forth a given agenda but
must be ever-mindful of its countermajoritarian limitations. The new post-partisan model develops as one of moderation
and adherence to concepts such as stare decisis as the Court faces judicial nullification and undermining in its continuing
quest for legitimacy.

Breaking stare decisis subverts legitimacy

Bruce Shaprio, Executive Director of the Dart Center for Journalism and Trauma, 1-11-06, The Nation,

Specter tried another friendly angle with Planned Parenthood v. Casey: What did Alito think of the argument by Justices
O'Connor, Kennedy and Souter that overturning Roe would "subvert the Court's legitimacy" because of evolving social
consensus in favor of women's control of reproduction? Alito: "The Supreme Court, my court, all federal courts, should be
insulated from public opinion." Over aund over through the day, Alito leaned on the importance of precedent in evaluating
any case--with respect for precedent on the surrogate issues for Roe. Yet when it comes to respect for precedent, Alito
suffers from a profound credibility gap--a point ignored until Senator Chuck Schumer took over questioning Alito late in the
day. As Schumer pointed out, Alito has routinely been charged by colleagues on the bench with ignoring precedent.
Schumer read off the condemnations of Alito's findings from other Third Circuit judges: "contrary to our precedent";
"ignores our precedent"; "ignored case after case." Schumer came close to making it personal when he quoted Judge David
Garth, for whom Alito had clerked, calling one of Alito'su opinions "unprecedented in its disregard for the principles of stare

Overruling laws stifles legitimacy

AP, Associated Press 5-20-07, USA Today,

WASHINGTON (AP) — Retired Justice Sandra Day O'Connor says the Supreme Court should generally follow its prior
rulings so the public has confidence that laws do not change just because justices come and go. O'Connor, a swing vote in
favor of abortion rights and affirmative action, said she was seeing an unprecedented level of public criticism in recent
months of state and federal court decisions. The vast majority of the criticism, she said, is unjustified and borders on
harassment of judges, especially in cases where lawmakers threaten impeachment of judges for decisions they disagreed
with. But federal courts, too, play a role in fostering public credibility by generally adhering to "stare decisis," or settled
precedent, O'Connor said. "Obviously, that is a concern," said the Reagan appointee who retired early last year. She
responded to a question in a broadcast interview about the public's perception that the Supreme Court based its decisions
more on politics than principle and whether that belief undermined the court's credibility.
DDI 2008
Overruling can drastically subvert court legitimacy
James F. Spriggs, Professor of Political Science, University of California- Davis, Apr. 23-25 1998,
Journal of Politics
In addition to acting on their policy preferences, justices on the Court respond to
constraints imposed by formal or informal rules. The Court, first ofall, can not realistically
overrule all prior decisions with which it disagrees. To do so could quite possibly undermine the
Court’s authority and legitimacy and thus reduce the impact of its opinions (see Gibson, Caldeira,
and Baird 1998; Knight and Epstein1996; Mondak 1994). The Court mayalso feel bound to
follow precedent so that its decisions are respected by future Courts (Rasmusen 1994). By
changing law incrementally and, at some level heeding precedent, the Court maximizes the
probability of its opinions having greater impact. In this sense, stare decisismay constitute a
self-enforcing norm resultingfrom the justices’desire to write efficacious legal doctrine. In sum,
the overuse of the power to overrule precedent can erode the legitimacy of the Court and
undermine the impact of its opinions. For this reason, we argue that justices abide by aset of
informal norms regarding the limited appropriatecontext for the overruling of precedent.

Stare Decisis keeps court legitimacy in line

James F. Spriggs, Professor of Political Science, University of California- Davis, Apr. 23-25 1998,
Journal of Politics

Second, the norm of stare decisis, as operating through prior legal treatment, influences the Court. A precedent is at greater
risk of being overruled if the Court previously interpreted it in a negative manner. In addition, particular characteristics of
precedents affect the overruling of precedent by helping structure how justices subsequently interpret and implement
opinions. Thus, the greater the consensus and clarity of a precedent, as seen in its voting and opinion coalitions, the less
likely it will be overruled. The Court, however, appears not to respond to any potential separation-of-powers constraint.
DDI 2008
Short-Term Overrules hurt Legitimacy

Mind-shift overrules hurt legitimacy

CRS, Congressional Research Service, 11-29-05

[W]hen the Court does act in this way, its decision requires an equally rare precedential force to counter the inevitable
efforts to overturn it and to thwart its implementation. . . . [O]nly the most convincing justification under accepted standards
of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political
pressure, and an unjustified repudiation of the principle on which the Court staked its authority in the first instance. So to
overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the
Court’s legitimacy beyond any serious question.

Quick changes hurt public perception and court legitimacy

Anthony Lewis, Former Columnist, New York Times, Two Time winner of Pulitzer Prize, 12-20-07,
The New York Review of Books,
At the end of his first Supreme Court term, in July 2006, Chief Justice John Roberts was interviewed by Jeffrey Rosen for a
book on the Court. Roberts emphasized the aim of having the justices subordinate their individual preferences to an effort to
achieve unanimity. "I think it's bad, long-term," he said, if people identify the rule of law with how individual justices
vote.... You do have to put [the justices] in a situation where they will appreciate, from their own point of view, having the
Court acquire more legitimacy, credibility, that they will benefit from the shared commitment to unanimity.... People don't
hwant the Court to seem to be lurching around because of changes in personnel.

Quick overrules makes the court look political- hurting legitimacy- lawrence proves
Anthony Lewis, Former Columnist, New York Times, Two Time winner of Pulitzer Prize, 12-20-07,
The New York Review of Books,

Or consider the 2003 decision, in Lawrence v. Texas, that states could not punish private homosexual activity as a crime. In
1986 the Court had decided the other way in a case from Georgia. Seventeen years later attitudes had changed, on the Court
and in the country. Six justices, Toobin puts it, "believed that the time had come to recognize that it was an abomination to
allow criminal punishment of consensual homosexual sex." What was different about the overrulings of previous decisions
during the last Supreme Court term was their number, and the fact that they so quickly and obviously reflected the changes
in the Court's membership. It made the Court seem to be doing exactly what Chief Justice Roberts had warned against in his
2006 interview: "lurching around because of changes in personnel." To put it another way, it made the nine look like
DDI 2008
Legitimacy Now

Roberts holding the line on legitimacy now

Time, 10-2-06, CNN,,9171,1541296,00.html

During Chief Justice Roberts' honeymoon term, about half the court's decisions were unanimous--nearly double the typical
tally in recent years. This term, big cases on divisive social issues mean Roberts is likely to struggle to build such
consensus. Still, he'll try in order to boost the court's "stature and legitimacy," he said in July. When the court can choose
either a narrow but unanimous ruling or a sweeping, landmark decision by a 5-4 vote, he said, "I think it's better to decide
on the former ground, and let it go at that."

Roberts is hard on legitimacy

NYT, New York Times, 9-18- 05,

"Considerations of the court's legitimacy," he said, "are terribly important." That alluded to the joint opinion in Casey
signed by Justices Sandra Day O'Connor, Anthony M. Kennedy and David H. Souter. To overrule Roe "under fire in the
absence of the most compelling reason to re-examine a watershed decision," the three justices wrote, "would subvert the
court's legitimacy beyond any serious question." But Judge Roberts went on to say widespread disagreement with a decision
can also undermine the court's legitimacy and may indeed be a ground for reconsidering a decision. "So it's a factor that is
played different ways in different precedents of the court," he said. "I do think that it is a jolt to the legal system when you
overrule a precedent. Precedent plays an important role in promoting stability and evenhandedness."

Confidence in the court high now

Ryan Blitstein, Staff Writer, MillerMcCune, 4-18-08,

Nevertheless, public confidence and approval of the court remains extremely high, often hovering in the 60 percent range,
as much as double that of the president or Congress. It ranks among the most well-regarded high courts in the world, as
measured by citizen opinion.

Legitimacy on the brink

Brookings Institute, 6-25-07,

In the wake of Bush v. Gore, it became something of a vogue among liberal law professors to declare
that the Supreme Court had lost its legitimacy. I objected. "That claim is subject to empirical testing.
And the tests prove it false--that is, if legitimacy is regarded as a function of public opinion," I wrote,
together with Peter Berkowitz. Citing this very Gallup trend line and other data, we concluded, "The
Court has enjoyed a remarkably stable level of public confidence and trust over a long period of time"--
one that the election controversy had not disrupted. Now, however, the very effect that did not exist
then is manifesting itself significantly. With approval of the Court still high, it's too early to say that the
Court's public standing is in trouble. But it's not too early to wonder if its Teflon may be starting to
wear thin.
DDI 2008
Roberts is strict on court credibility now
Anthony Lewis, Former Columnist, New York Times, Two Time winner of Pulitzer Prize, 12-20-07,
The New York Review of Books,

The nagging question is the position of Chief Justice Roberts. He is presiding over a Court whose sudden and radical
changes have made the public focus on the ways in which individual justices vote—which in his 2006 interview he deplored
—and put in question the legitimacy and credibility that he said he wanted to gain by more unanimity. cWas he serious in
those 2006 comments on the benefits of a "shared commitment to unanimity?" Did he mean them? Were commentators who
took his statements at face value unduly credulous? The test of the pudding is in the eating. In case after case since then he
might have brought the justices together, and did not. So the effort at unanimity cannot be a high priority for him. Judging
by what he has done on the Court, John Roberts is a committed legal conservative: not an originalist like Scalia or Thomas
but someone determined to read the law and the Constitution to achieve conservative ends. But why would he be in such a
hurry? One possible answer is that, given the makeup of the Court, he sees an opening right now to move the law toward
what the conservative movement wants, in matters like abortion and affirmative action, and you never know whether that
opening will last.
DDI 2008
No Legitimacy Now

Legitimacy low now- polls show

Brookings Institute, 6-25-07,

When Gallup's pollsters ask a slightly different question, they get a dramatically different figure.
Gallup this month released polling data on public confidence in American institutions, including the
Supreme Court. Only 34 percent of those surveyed reported having "a great deal" or "quite a lot" of
confidence in the court. This figure is the lowest since Gallup started tracking this particular metric
back in 1973. The Court's confidence rating has only once before dipped below 40 percent. Yet in the
past few years, confidence in the Court has been in steep decline. If you take these numbers seriously,
the Court has an incipient legitimacy crisis on its hands.