Debate Supreme Court Justices (West Wing case)

You are a fiscally moderate, socially liberal democratic president. Two supreme court justices just resigned. One was a liberal icon, the other was a conservative icon. You have two choices, opp choice: Do you nominate two moderates or another strong conservative and strong liberal.

A few clarifications: The moderates are committed to determining each case on a case by case basis based on precedent. The liberal is going to favor more government regulation and is significantly socially liberal. The conservative is libertarian, they will oppose almost all government intervention. This includes restrictions on social liberties.

Caveats:

1. 1. Congress will confirm whichever you choose
2. 2. All of the potential nominees are excellent jurists
3. 3. The court is currently balanced
4. a. This isn't the current supreme court

If they ask:

the court isn't perfectly moderate, but there are no Scalia's or Ginsburg's

Two Moderates:

1. 1. Precedent
2. a. precedent creates pillars of justice in our society
3. i. Precedent means that whenever the court makes any decision, it uses previous decisions to come up to a logical conclusion on the case.
4. 1. Meaning that precedent is intending to establish truths that society has identified to be important and unchanging.
5. a. Ex: power of judicial review, civil rights, etc
6. ii. Precedent can and has been used previously to change the way we interpret societies views.
7. 1. Ex: Gay marriage. The legal precedent always existed, however, it was only when society changed its mind significantly that the court was able to extend rights.
8. iii. You as a liberal president understand that society progresses forward on social & justice issues. The worst kind of decisions that occur happen when there are drastic changes in moving away from precedent AND changing institutionally important values.
9. 1. Ex: Citizens united vs. Gay Marriage
10. a. Citizens united, as a liberal, is problematic because it fundamentally changed the meaning of personhood away from original values that we deem important.
11. b. Gay Marriage simply followed principled precedent (civil rights) that your skin color, race, sex or gender cannot be used as a reason to discriminate against you.
12. i. citizens united ignored important precedent, while gay marriage was a continuation of a long line of decision
13. iv. So, while moderate judges would not be proactive in creating social change through the court (top down) they would be allies when the right case appears before them (bottom up).
14. 1. In comparison, a partisan judge would have incentives to create changes through voting, decisions, interviews, etc which would try to create political change at the expense of institutional values that are needed for progressive change.
15. v. essentially, moderates will create change steadily through precedent, while partisans will prioritize their political views
16. 1. while that change might be faster, it is much riskier, because it ignores basic rights protections
17. a. prioritize the steady change that protects justice
18. 2. Politics has no place in the court
19. a. Politics in the court goes against the philosophy of legal system
20. i. The US is based on the idea of Separation of Powers
21. 1. each branch of government has it's own separate role
22. a. the legislature passes laws
23. b. the executive approves and enforces laws
24. c. and the judiciary reviews them
25. ii. The court is intended only as a legal check, ensuring that the law is within the bounds of the constitution
26. 1. this is the idea of judicial review and has long been established in case law since Marbury v. Madison
27. iii. Nominating ideologues to the court forces the court into an activist framework
28. 1. rather than deciding cases purely on their merits, a conservative or liberal justice want to implement their own views into the law
29. iv. This has two major impacts
30. 1. Elections essentially mean nothing. The legislature and executive, which are elected by the people are intended to oversee the passage and enforcement of laws. When the court is overturning laws based on politics, not constitutional validity, legislation in this country is essentially being decided by an entirely unelected group who have life tenure.
31. 2. But additionally, it gives the court an executive veto. When the court allows politics into its decisions, it is essentially giving itself an executive veto to remove any legislation it dislikes and that veto can't be overruled by anyone. This means that the role of congress and the president are meaningless. The only laws that can be passed are those that the supreme court agrees with.
32. b. sensationalism
33. i. When ideologues are placed on the court, the court becomes sensationalized
34. 1. When justices are deciding based on the merits of the case, as moderates would do -- the court is essentially just a legal body
35. 2. Whereas when justices are political, the court becomes a political body
36. a. And political bodies are inherently easier to cover → They are what journalists are used to covering and they are more appealing to the public
37. i. They are a messy fights between parties, rather than dry legal arguments
38. ii. The problem with this is two fold
39. 1. Firstly justices are given the expectation to make certain cases iconic when the court is sensationalized
40. a. For example, when seeing a case about abortion, when the court is sensationalized, there is an expectation that the court make an iconic decision, rather than one based on the legal merits
41. i. This is problematic because often the "right" decision legally, isn't one which will make the case iconic
42. 1. it may be a very procedural one based on something like standing or mootness
43. b. And fundamentally, the justices are people who can be influenced by public pressure → just like the rest of us, they don't want to be hated
44. c. Thus, decisions are made in the interests of making the case iconic, rather that the legal merits, which is what a court should be doing
45. 2. The second issue is that not only are justices expected to make certain cases iconic, they are also expected to make certain decisions
46. a. When the court is sensationalized, the public begins to expect that the justices will rule a certain way
47. i. This is problematic because it forces justices into a position where they are making decisions based on the will of the public, not the correct legal decision
48. 1. The whole point of the court is that they aren't elected and are thus supposed to make purely legal decisions
49. a. Rather than congress or the executive who are elected.
50. 3. actor analysis: you as the president will want to nominate moderates
51. a. you are a moderate president
52. i. this is in case statement
53. 1. That means that you aren't stridently liberal or conservative
54. a. Yes, you are a democrat, but you are more interested in making nuanced decisions and striving for the best solution
55. i. rather than making a specific group look good
56. 2. Thus, you will want to nominate two moderates
57. 3. Moderates line up more accurately with your view of the role of government
58. a. They are more interested in doing what is legally correct, rather than what forward's their own interests
59. i. This is very similar to your outlook on government
60. b. But even more than that, nominating two moderates gives you a legacy of limiting politicization of the court
61. i. It is incredibly rare for two justices to retire at the same time
62. 1. This gives you a nearly unique opportunity
63. ii. And as is said in case statement, a strongly liberal and strongly conservative justice are the one's retiring
64. 1. The rest of the court is fairly moderate
65. iii. Thus, by replacing them with two moderates, you are essentially creating a truly moderate court
66. 1. This is unprecedented
67. a. You have now made a court which, really for the first time, is as a whole going to be more interested in legal arguments than forwarding a political agenda
68. iv. This means that you are creating an incredible legacy for the court
69. 1. You are sending the unequivocal message that the court should be solely a lawmaking body
70. a. Which is in line with your own moderate views
71. v. So, you will obviously want to set this once in a generation precedent

Liberal/Conservative

1. 1. blindly following precedent is harmful to the court
2. a. We agree that generally the Supreme Court does and should follow their own precedent.
3. i. Just to provide background, the supreme court's precedent is binding for all lower courts
4. 1. However, the supreme court also certainly have the power to overturn their precedent.
5. a. This generally happens when the originally precedent is constitutionally suspect
6. i. such as in the case of Plessy v. Ferguson, where the court dubiously upheld separate but equal
7. b. The ability to overturn precedent is an important check the supreme court has on itself
8. i. The court sees more than 100 cases a year, they are sure to make the wrong decision in some of them
9. ii. We wouldn't want a court which blindly follows that precedent, even when that precedent is clearly wrong
10. 1. Separate but equal would still be legal if the supreme court had to follow their own precedent
11. iii. Ultimately, the supreme court's most important job is to interpret the constitutionality of the issues in the cases it reviews
12. 1. If the precedent is constitutionally suspect, that precedent ought to be overturned
13. 2. The issue is that moderates will always prioritize precedent, over everything else
14. a. They are unwilling to intervene in any way
15. i. To a true moderate, the first responsibility of a justice is to decide cases in keeping with precedent
16. 1. As described above, this has the impact of allowing hateful, discriminatory or just blatantly unconstitutional laws on the books
17. a. We would say that often the decisions which need to later be reversed harm minorities -- like Plessy which allowed for seperate but equal
18. i. This is because, these decisions are often colored by the biases of the time
19. ii. If precedent is always followed, we are forced to continue using logic from truly hateful cases that represent a vastly different time
20. 2. Having a strong liberal and conservative justice greatly increases discourse
21. a. Having those strong voices in the court leads to the truly incredible decisions
22. i. We often forget that the court is made up of actual people
23. 1. Private meetings between the justices are involved in making every decision
24. a. During these meetings, the justices have the opportunity to discuss and debate with each other
25. 2. Remember from case statement that the rest of the court is moderate
26. a. So if you nominate two more moderates, the entire court will be moderate
27. 3. A court of entirely moderates can never have the level of debate that a strong liberal and conservative can
28. a. The liberal and conservative can get into important ideological debates over things like the extent of the commerce clause or when speech can be restricted
29. i. These debates will inherantly lead to better decisions
30. 1. Rather than just scratching the surface of the current case, the liberal and conservative can force the court to truly examine the underlying issues at hand
31. a. They will consider the ideological underpinning of the issue
32. i. This is how you get the most meaningful and potentially historic decisions
33. b. However, even if you don't buy that the decisions themselves get better, you also get the incredible dissents
34. i. Although dissents don't set precedent, the important ones are often referenced later on
35. 1. They can be brought up later on in future decisions as evidence for a particular position
36. a. When you have a strong liberal and strong conservative you can get the more radical, forward thinking dissents
37. i. These are the kind of dissents most likely to get referenced later on
38. 3. actor analysis
39. a. reason why we like moderate presidents is because engages in debate
40. i. we don't like moderates because they are wishy-washy or will only consider old ideas
41. 1. We like moderates because won't jump to the party line conclusion, but rather will think critically about both sides of the debate
42. a. As a moderate president, you value this kind of debate
43. i. Good debate is better achieved with a strong liberal and conservative
44. 1. Moderates essentially just apply the appropriate precedent
45. a. Whereas a conservative and liberal can have great debates about the meaning of the constitution and the appropriate role of government
46. ii. A moderate will value this kind of reasoned debate more than just reapplying what has already been done in the past
47. b. reaching out to other side
48. i. it is relatively unprecedented for a democratic president to nominate an obviously conservative nominee
49. 1. you are showing that you value conservative discourse and don't just dismiss it out of hand
50. a. congressional republicans will be more likely to work with you when you show that you value hearing what their side has to say
51. 2. it is generally accepted that presidents will use supreme court vacancies to nominate someone who agrees with them as much as possible
52. a. supreme court nominations have become increasingly politicized in recent years
53. i. you are reversing this trend
54. ii. this makes it easier to get other deals with republicans on other issues
55. 1. it is an incredible show of good faith
56. a. while you are also nominating a liberal, that is expected
57. i. it is important that you are balancing it with a conservative
58. 1. on their side of the house, they are just nominating moderates, which won't meaningfully change the calculus of congressional republicans
59. 2. in contrast your relationship with congress and ability to get your agenda through is massively improved when you actually listen to the other side of the political divide

1. 1. Precedent
2. a. Sub Point 1: Pillars of justice
3. i. Whenever the court makes any decision, it uses previous decisions to come up to a logical conclusion on the case.
4. 1. Meaning, it establishes truths that society has identified to be important and unchanging.
5. a. Ex: power of judicial review, civil rights, etc
6. ii. Any type of progressive policy, in a liberal perspective, is built on the ideas of:
7. 1. Equality of people (civil rights)
8. 2. Power of the court to establish these rights (judicial review)
9. iii. Therefore, precedent can and has been used previously to change the way we interpret societies views.
10. 1. Ex: Gay marriage. The legal precedent always existed, however, it was only until society changed their minds significantly that the court was able to extend rights.
11. iv. You as a liberal president understand that society progresses forward on social & justice issues. The worst kind of decisions that occur happen when there are drastic changes in moving away from precedent AND changing institutionally important values.
12. 1. Ex: Citizens united & Gay Marriage
13. a. Citizens united, as a liberal, is problematic because it fundamentally changed the meaning of personhood away from original values that we deem important.
14. b. Gay Marriage simply followed principled precedent (civil rights) that your skin color, race, sex or gender cannot be used as a reason to discriminate against you.
15. v. So, while moderate judges would not be proactive in creating social change through the court (top down) they would be allies when the right case appears before them (bottom up).
16. 1. In comparison, a conservative judge would have incentives to create changes through voting, decisions, interviews, etc which would try to create political change at the expense of institutional values that are needed for progressive change.

1. 4. Precedent must be paramount

2. a. the supreme court is generally obligated to follow their own precedent b/c it creates pillars of justice

3. i. Precedent means that whenever the court makes any decision, it uses previous decisions to come up to a logical conclusion on the case

4. 1. this is one of the most fundamental tenets of the supreme court

6. b. However, they also certainly have the power to overturn their precedent.

7. i. This generally happens very occasionally, only when the original precedent is clearly constitutionally suspect

8. 1. such as in the case of Plessy v. Ferguson, where the court dubiously upheld separate but equal

9. ii. However these cases are very rare and indeed must be very rare

10. 1. because without reliable rulings the entire structure of the legal system is thrown into jeopardy

11. iii. When the supreme court sets precedent, all lower courts must abide by it

12. 1. If the supreme court is consistently reversing their own precedent, there is no clear standard for the lower courts to use

13. a. This is an issue because it means the justice becomes uneven

14. i. the sentence two people receive for the same crime might vary year to year based on the current court precedent

15. ii. Or the actions of a certain government organization might be legal some years and subject to regulation other years

16. 1. This undermines the very foundation of the legal system: justice

17. iv. Nominating ideologues to the court will lead to precedent being overturned

18. 1. As was set up in case construct, they care more about forwarding their personal views than following precedent

19. v. Whereas, nominating moderates to the court ensures that precedent is respected

20. 1. Because their greatest goal is to determine each case based on the merits and apply the precedent as accurately as possible

21. a.**** Thus having two moderates on the court leads to more justice