Opening Packet – Negative – hss 2017 offcase materials start here

Supreme Court Politics Disad

Note:

This includes only a specific 1NC Shell for the Trans- Bathroom Affirmative. It also includes a few additional cards that are specific to the Trans- bathroom Aff. Students should look to the larger Supreme Court Politics Disad for all remaining backlines.

1NC Shell - Court Politics

First/next off is court politics

Kennedy blocks travel ban now via a liberal application of animus, but PC key – it’s a huge test of his resolve

Flanagin 17 ---- Jake, J.D. Candidate (Georgetown University Law Center), Legal Intern at the National Political Advocacy Department of the ACLU, former Editorial Fellow at The Atlantic, “Trump’s Travel Ban Will Live or Die on the Vote of the Supreme Court’s Wildcard Justice,” Quartz, 6/5, https://qz.com/998865/anthony-kennedy-trumps-travel-ban-will-live-or-die-on-the-vote-of-the-scotus-wildcard-justice/
A test of Kennedy’s resolve may arise in the court’s consideration of the president’s executive order banning entry to the US by citizens of six Muslim-majority countries. The Department of Justice has asked the court to overturn a decision handed down by the 4th Circuit Court of Appeals, which upheld a freeze on the travel ban, and allow parties to proceed with oral arguments. So-called “emergency application” of the ban in the interim would also overturn a nationwide injunction issued by the 9th Circuit Court of Appeals in January.

The government requires a five-vote majority for the order to survive. We can expect the four liberals to oppose the ban, and if Kennedy swings left, it will bring a decisive end to months of struggle between the executive and judicial branches on one of Trump’s tent-pole campaign promises.

The possibility boils down to a key bit of legalese, according to Bloomberg’s legal-affairs columnist, Noah Feldman. Lower-court decisions have focused on the existence of “animus,” Feldman explains, or “illegitimate prejudice” in the crafting of the order; and, as it happens, animus is one of Kennedy’s favorite instruments for batting down cases. “If Kennedy reads Trump’s executive order temporarily blocking immigration from six predominantly Muslim countries as an exercise of anti-Muslim animus, the ban will fall at the court,” he writes.

Kennedy first identified animus as a contemporary means to invalidate unconstitutional laws in his 1996 opinion in Romer v. Evans, in which the justice sided with the majority in striking down an amendment to the Colorado state constitution which forbade the state legislature and city governments from adopting anti-discrimination laws to protect LGBT Americans. The amendment’s “sheer breadth” was “so discontinuous with the reasons offered for it that [it] seems inexplicable by anything but animus toward the class that it affects,” he wrote in an opinion that could very well substitute “Muslims” for “gay people.”

Kennedy has applied the animus argument in a number of landmark cases since, including United States v. Windsor, which struck down the federal Defense of Marriage Act (DOMA), and Obergefell v. Hodges, which legalize same-sex marriage in all 50 states. In Feldman’s view, it’s not a legacy Kennedy is likely to forego so close to retirement age: “I find it almost impossible to believe that Kennedy, at 80, would want to sign an opinion closing his eyes to animus, which he himself did so much to make into a constitutional touchstone.” The question remains, however, whether Kennedy’s animus towards animus is enough to inspire another four years, at the least, on the court. Because, given the ideological nature of the Trump administration, its a concept that will surely rear its head again.

Aff requires Kennedy to swing another high-profile case via another liberal application of animus – costs PC

Dunlap ‘17

Bridgette Dunlap is a lawyer and a scholar whose work centers on public understanding of and access to legal systems. Bridgette is a fellow and adjunct professor at the Leitner Center for International Law and Justice at Fordham Law School. From the article: “Gavin Grimm: What Supreme Court Announcement Means for Trans Rights” – Rolling Stone - March 7, 2017 http://www.rollingstone.com/culture/gavin-grimm-what-supreme-court-announcement-means-w470772

What will this mean for transgender student rights?

The argument that discrimination against transgender people is a form of sex discrimination isn't anywhere near as novel as Jeff Sessions would have you believe, so we can hope the Supreme Court will rule that Title IX prohibits it once this case or a similar one is before it again. However, if the court wasn't ready to rule that all discrimination against transgender people is sex discrimination, it could still rule more narrowly that bathroom bans are. As a friend of the court brief filed by a group of law professors in Grimm's case explains, rules like Gloucester's prevent students from choosing the restroom appropriate to their gender identities as other students are permitted to on the basis of their genitals – and that is sex discrimination.

We can also expect courts to find that the Equal Protection clause protects transgender people from government discrimination, as a federal court in Pennsylvania did recently. What it takes for a law that classifies people based on particular characteristics to pass constitutional muster depends on whether the law targets a "suspect class." Laws that classify people based on race get the highest level of scrutiny and therefore rarely survive review. Sex-based classifications get "intermediate scrutiny," which means they will be struck down unless the government has an "exceedingly persuasive" justification.

The Supreme Court has not yet ruled on whether transgender people are a suspect class, but the Pennsylvania district court did in Evancho et al. v. Pine-Richland School District. There, the court found that laws affecting transgender people as a class meet the test for heightened scrutiny because transgender people have historically been discriminated against, have defining characteristics with little relation to their ability to contribute to society, and are a minority with relatively little political power.

There's an argument to be made that laws that discriminate against transgender people should receive the highest scrutiny. There's also an argument to be made that bathroom bans are so irrational that they shouldn't survive even the lowest level of scrutiny, which applies where a suspect class isn't targeted. But that may not matter. Bathroom bans are passed by reactionaries who don't want transgender boys in the boys' room or the girls room because their demonstrated intent is to tell transgender kids they are "freaks" who don't deserve to be anywhere. They're the kind of animus-based attacks that so flagrantly offend our constitutional values that the Supreme Court – and swing vote Justice Kennedy in particular – has struck them down without being too precious about tiers of scrutiny. Under Trump, the DOE has stopped telling local governments they can't bully transgender children – but that doesn't mean they can.

Travel ban overruling key to constrain presidential powers over immigration and national security

Hay 17 ---- Mark, political columnist for Vice, former editor of Awaaz and the Columbia Political Review, MPhil in Islamic Studies (University of Oxford), B.A. in religion, political studies, and international relations (Columbia), “Trump's Travel Ban Is Far from Dead,” 6/2, Vice, https://www.vice.com/en_us/article/trumps-travel-ban-is-far-from-dead
But no matter which way it rules, by tackling the travel ban the Supreme Court will be forced to make a huge judgment on the powers of the presidency in immigration, which as Law points out is a sector where the executive branch has a lot of leeway. Either the ban will be allowed to go into effect, and in the process the courts will reaffirm that Trump and his successors can pursue whatever twisted immigration agendas they like so long as they hide them under sound legal language. Or the ban will fall, meaning the presidency will forever face a new constraint on its executive powers.

"The precedent set by this case for the judiciary's proper role in reviewing the president's national security and immigration authority will transcend this debate, this order, and this constitutional moment," the Department of Justice wrote in its petition for review to the Supreme Court. They meant this as an caution to the Supreme Court, but it is nonetheless a rare Trumpian truth.

Unchecked presidential powers cause nuclear war – Accidents and miscalc

Adler 8 – David Gray, Professor of Political Science at Idaho State University, “The Judiciary and Presidential Power in Foreign Affairs: A Critique”, 6-1, http://www.freerangethought.com/index.php?option=com_content&task=blogsection&id=6&Itemid=41
{11} The structure of shared powers in foreign relations serves to deter abuse of power, misguided policies, irrational action, and unaccountable behavior.[31] As a fundamental matter, emphasis on joint policymaking permits the airing of sundry political, social, and economic values and concerns. Such a structure wisely ensures that the ultimate policies will not merely reflect the private preferences or the short-term political interests of the President.[32] {12} Of course, this arrangement has come under fire in the postwar period on a number of policy grounds. Some have argued, for example, that fundamental political and technological changes in the character of international relations and the position of the United States in the world have rendered obsolete an eighteenth century document designed for a peripheral, small state in the European system of diplomatic relations. Moreover, it has been asserted that quick action and a single, authoritative voice are necessary to deal with an increasingly complex, interdependent, and technologically linked world capable of almost instantaneous massive destruction. Extollers of presidential dominance also have contended that only the President has the qualitative information, the expertise, and the capacity to act with the necessary dispatch to conduct U.S. foreign policy.[33] {13} These policy arguments have been reviewed, and discredited, elsewhere; space limitations here permit only a brief commentary.[34] Above all else, the implications of U.S. power and action in the twentieth century have brought about an even greater need for institutional accountability and collective judgment than existed two hundred years ago. The devastating, incomprehensible destruction of nuclear war and the possible extermination of the human race demonstrate the need for joint participation in any decision to initiate war. Moreover, most of the disputes at stake between the executive and legislative branches in foreign affairs have virtually nothing to do with the need for rapid response to crisis. Rather, they are concerned only with routine policy formulation and execution, a classic example of the authority exercised under the separation of powers doctrine.[35] {14} Nevertheless, these joint functions have been fused by the executive branch and have become increasingly unilateral, secretive, insulated from public debate, and hence unaccountable.[36] In the wake of Vietnam, Watergate, and the Iran-contra scandal, unilateral executive behavior has become ever more difficult to defend. Scholarly appraisals have destroyed arguments about intrinsic executive expertise and wisdom in foreign affairs and the alleged superiority of information available to the President.[37] Moreover, the inattentiveness of presidents to important details and the effects of "groupthink" that have dramatized and exacerbated the relative inexperience of various presidents in international relations have also devalued the extollers' arguments. Finally, foreign policies, like domestic policies, are reflections of values. Against the strength of democratic principles, recent occupants of the White House have failed to demonstrate the superiority of their values in comparison to those of the American people and their representatives in Congress. {15} The assumption of foreign affairs powers by recent presidents represents a fundamental alteration of the Constitution that is both imprudent and dangerous. We turn now to an examination of the judiciary's contribution to executive hegemony in foreign affairs.

Docket items

Travel ban and CWA and class action = all top of the Court’s October docket.

Dorf ‘17

Michael C. Dorf is a Professor of Law at Cornell Law School. He has written or edited three books, including No Litmus Test: Law Versus Politics in the Twenty-First Century, and Constitutional Law Stories. Dorf is a former law clerk to Justice Anthony Kennedy of the U.S. Supreme Court. He graduated from Harvard College and Harvard Law School. While at Harvard as an undergraduate, he was the American Parliamentary Debate Association national champion. “Will Gorsuch Make the Supreme Court Less Polarized” – Newsweek - 4/10/17 - http://www.newsweek.com/michael-dorf-will-gorsuch-make-supreme-court-less-polarized-581081

Gorsuch will participate in cases to be argued later this month, including one involving church-state separation and another that poses the question what it takes to strip a naturalized citizen of her citizenship. The docket for next term, which begins in October, includes cases involving the scope of arbitration, the Clean Water Act, and class actions.
Higher-profile cases loom. A challenge to President Donald Trump’s executive order limiting travel to the United States by nationals of six majority-Muslim countries could make it to the high court in the coming months.

Kennedy = swing vote

Kennedy link:

On this controversial case, the least-restrictive means would be that Kennedy would flip over to a liberal vote

Hurley ‘17

Lawrence Hurley - Correspondent at Reuter’s and former U.S. Supreme Court Reporter for the Los Angeles Daily Journal - “Trump's transgender move puts spotlight on Supreme Court case” – Reuter’s, AOL News - available at: https://www.aol.com/article/news/2017/02/24/trumps-transgender-move-puts-spotlight-on-supreme-court-case/21720864/

Lawyers for both Grimm and the Gloucester County School Board have urged the court to decide whether Title IX applies to transgender students rather than taking a narrower approach by sending the case back to a lower court.

In a court filing on Thursday, the ACLU said that, regardless of the administration's position, the court "can - and should - resolve the underlying question of whether the Board's policy violates Title IX."

The school board's lawyers made similar comments in their most recent court filing, saying that the meaning of the federal law is "plain and may be resolved as a matter of straightforward interpretation."

But the court could take a more cautious approach and send the case back to the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals. That court's April 2016 ruling in favor of Grimm relied on the Obama administration's interpretation of the law.

Kyle Duncan, a lawyer representing the school board, said the court must at a minimum throw out the appeals court decision because "the entire basis for that opinion" was the no-longer extant Obama administration interpretation.

JUSTICE KENNEDY: PIVOTAL VOTE?

With the eight-justice court likely to be closely divided, Trump's Supreme Court nominee, conservative appeals court judge Neil Gorsuch, could end up casting the deciding vote if he is confirmed by the U.S. Senate in time. Otherwise, the court, which is divided equally between liberals and conservatives, could split 4-4, which would set no nationwide legal precedent.

Clues as to how the high court could rule can be gleaned from its decision last August to temporarily block the appeals court decision in Grimm's case from going into effect. That emergency request from the school board did not require the justices to decide the merits of the case.

The vote in favor of the school board was 5-3, with Justice Stephen Breyer, a liberal, joining the four conservative justices. Breyer made clear in a statement at the time that his vote would not dictate how he would approach the case if the court took the issue up.

That decision indicated that the court is likely to be closely divided at oral argument. Grimm's hopes may rest in Justice Anthony Kennedy, a conservative who voted against Grimm last summer but has sometimes sided with liberals in major cases, including several on gay rights.

But even lawyers closely following the case are not sure which way Kennedy could go.

Kennedy would be the swing vote on a Trans- bathroom case.

Millhiser ‘17

Ian Millhiser - Justice Editor, ThinkProgress and author of Injustices: SCOTUS’ History of Comforting the Comfortable and Afflicting the Afflicted – from the article: “9 terrible things Neil Gorsuch could do in his first full term on the Supreme Court” – ThinkProgess – April 7^th – Modified for language that may offend - https://thinkprogress.org/nine-terrible-things-neil-gorsuch-could-do-in-his-first-full-term-on-the-supreme-court-3f4edd86209c

Trans rights

Earlier this year, the Supreme Court intended to hear Gloucester County School Board v. G.G. (Grimm), which concerns the right of trans students to use a bathroom that corresponds with their gender identity. The justices wound up kicking the case back down to the lower courts, however, after the Trump administration rescinded an Obama-era policy guidance that was at the heart of the case.

Although, a federal appeals court sided with Gavin Grimm, the trans student challenging a Virginia school board’s policy preventing him from using the men’s room at school, the lower court opinion relied primarily on the Obama administration’s pro-trans interpretation of a federal education regulation. Now that the Trump administration walked away from this interpretation, it was appropriate for the Supreme Court to send the case back down so that the lower court consider the remaining issues in the case.

The issue of anti-trans discrimination is not going away, however, and it is likely that either this case or a related case will make it up to the justices again soon.

Although Grimm won in the appeals court, he did not benefit from this ruling because the Supreme Court stayed it — in a decision joined by all four conservatives plus Justice Stephen Breyer (although Breyer wrote that he joined the conservatives solely as a “courtesy”). That suggests Kennedy and possibly even Breyer are uncertain votes in favor of trans rights.

Gorsuch is very unlikely to side with trans students in a similar position to Grimm, which means that those students will almost certainly need to win Kennedy and Breyer in order to prevail.

Court Politics – link premise

a Decision for Grimm requires three Left-leaning Justices to push for the win, and two more to expend capital to say “yes”.

Carter ‘17

W. Burlette Carter - Professor of Law at George Washington University. Professor Carter is a historian whose scholarship and scholarship in progress covers a wide variety of historical topics including early American legal treatment of women and minority groups (including LGBTQIA communities), early legal education, and sports history. She has taught Civil Procedure, Evidence, Trusts and Estates, Sports and the Law, and Women, Money, and the Law. Professor Carter is a graduate of the Harvard Law School and Agnes Scott College. From the publication: George Washington Law Review: On the Docket – March 21^st – Modified for language that may offend - http://www.gwlr.org/gloucester-county-school-board-v-g-g/

Three Justices—Ruth B. Ginsburg, Elena Kagan and Sonia Sotomayor—voted against a stay in (Grimm) G.G. That may be a sign of support for the broader interpretation of the term “sex” in federal statutes, and a supportive view of equal protection. But on a panel of nine, the three will need to convince two other Justices to come on board for the win. The split due process/equal protection analysis in Obergefell suggests that the votes needed for an equal protection-centered opinion were not then available. We will see if they are available when (Grimm) G.G., or a similar case about bathroom access and gender identity, finally receives Supreme Court review.

Link booster - Plan will be high-profile and controversial

The Aff will be high-profile and controversial

Heriot ‘16

et al ; Gail L. Heriot is a Professor of Law at the University of San Diego School of Law. Since 2007 she has been a member of the United States Commission on Civil Rights. Gail was also a professor and associate dean at George Mason University School of Law. She is a former civil rights council to the United States Senate Committee on the Judiciary. Amicus Brief - GLOUCESTER COUNTY SCHOOL BOARD, Petitioner, v. G. G., BY HIS NEXT FRIEND AND MOTHER, DEIRDRE GRIMM, Respondent. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit BRIEF OF AMICI CURIAE GAIL HERIOT AND PETER N. KIRSANOW, MEMBERS OF THE U.S. COMMISSION ON CWIL RIGHTS, IN THEIR CAPACITIES AS PRWATE CITIZENS, IN SUPPORT OF PETITIONER – September – Available at SCOUTS blog – along with all amicus briefs on this matter – modified to avoid potentially objectionable language - http://www.scotusblog.com/wp-content/uploads/2016/09/16-273-cert-amicus-heriot.pdf

This Case Has Captured the Public's Attention as a Symbol of the Rule of Law's Decline; Vindicating the Rule of Law in this Case Is Thus Vital to the Health of the American System of Laws.

For a variety of reasons, many abuses of the administrative state slip by the public unnoticed. Similarly, legitimate governmental actions are sometimes unfairly called abusive. This case is different: It is correctly viewed (considered) by many as an egregious overreach. When the preliminary injunctions in both this case and its opposite, Texas v. United States, Civil Action No. 7:16-cv-00054-O (N.D. Tex. Aug. 21, 2016), were issued, they made the news across the country.

It is not hard to see why. First, the statutory interpretation issue can be readily grasped. Few would argue that Title IX's sex discrimination ban was originally understood to require OCR's conclusions. Indeed, OCR made no such claim. See supra at Section II. As for Price Waterhouse and Oncale, few have ever heard of them, and if they did hear of them they would be unlikely to believe that such decisions could change a statute's clear meaning.

Second, fairly or unfairly, the underlying social issue tends to provoke a strong response from many members of the public. When Target Corporation announced on April 19, 2016, that it would begin inviting transgendered individuals to use the store restroom that corresponds to their gender identity rather than to their sex (as was clearly Target's legal right), an online petition began to be circulated. As of this writing (September 4th), it has garnered the signatures of 1,417,548 individuals, all of whom have pledged to boycott Target (as was clearly the legal right of the signatories).8 Google reports that Target's stock plummeted over 15.7% between April 19th and September 2nd (market closing as of the time of this writing), while its chief competitor, Wal-Mart, saw its stock increase 3.9%.

Similarly, the issue of toilet, locker room, and shower assignment was thought by some (perhaps correctly in retrospect) to be embedded in a Houston initiative that prohibited gender identity discrimination. As a result, Houston voters (a group that voted heavily for President Obama in 2012) voted it down by a 3 to 1 margin.

Supporters of the Transgender Guidances have argued that male-to-female transgendered persons are no threat to the safety of females.9 Opponents have argued that OCR's (and Target's) policy requires no proof that one psychologically identifies with the opposite sex. The effect is that ill-motivated individuals can use the intimate facility of their choice without fear of being turned away. In some instances, this has led to tragic results. See, e.g., Sam Pazzano, Predator Who Claimed to be Transgender Declared Dangerous Offender, Toronto Sun, Feb. 26, 2014.

Even if one regards these cases to be too rare to be significant in setting public policy, they will be discussed in lurid detail on the radio, television, newspapers, magazines, and blogs and circulated over Face-book and Twitter.

Polls indicate that strong majorities of Americans oppose OCR's policies.FN10 Of course, polls should not drive this Court's deliberations. But under some circumstances they should have an indirect bearing on which cases receive priority. The judiciary has the primary responsibility—both real and symbolic—as the guardian of the rule of law. When an administrative action brings the rule of law into disrepute, the courts should be mindful of the threat it poses to the legal system.
(Note to Students: “OCR” is the US Dept of Education’s “Office of Civil Rights”. Under the Obama Administration, the OCR wrote a guidance letter endorsing that students be permitted to use the bathroom that corresponds with their gender identity.)