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The Contender
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Judicial Activism in the United States is unjust.

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Voting Style: Open Point System: 7 Point
Started: 4/5/2010 Category: Society
Updated: 7 years ago Status: Post Voting Period
Viewed: 24,722 times Debate No: 11643
Debate Rounds (3)
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I thank my opponent for accepting this debate and I hope its a good debate.


Judicial activism-the act of replacing an impartial interpretation of existing law with the judge's personal feelings about what the law should be

Unjust-Not fair, just or right

1. Contradicts the essence of Democracy
A personal interpretation of the law done by Supreme Court judges (Judicial Activism) can be viewed as proactive or destructive according to an individual's belief, but an individual's opinion or belief is not the center of the Judicial System. The only deterrent of whether a law is just in the United States is the Constitution. It is the center of the Justice system and should be the only thing used to instate judicial rule. Many Judges disagree with the constitution on some issues, but essentially the way democracy is supposed to work is that the Constitution is a living representative document of the people. The people elect representatives and senators who add to the Constitution to speak for the people. So intrinsically the Constitution is the majority of the United States' opinion. And if we don't use the Constitution as the structure of justice then the structure of Justice lies in the hands of an individual which contradicts the essence of democracy-rule of the people.

2. Judicial Activism increases the chances of the United States being forced into a state of anarchy.
The purpose of the rule of law is to remove both the reality of injustice and the sense of injustice. It exists not merely because of the actual remedies it provides for damages, injunctions and other specific remedies, and criminal sanctions.
Most disputes are settled without the parties ever going to a trial before a judge. However, what happens in the resolution of trials is of vital importance to the rule of law. If a particular dispute is resolved by a speedy and just trial, the chance of the vastly greater numbers of potential disputes being settled before trial rises. If trials are slow and uncertain, and are not seen as objectively just, the chances of peaceful settlement of disputes are reduced and the temptation to violent self-help increases. Violent self-help is synonymous with vigilantism and ultimately anarchy.
I look forward to the negs arguments 


The Pro would like to thank the Con for what's going to be a good debate and would also like to say, "Wanna dance, pretty boy?"

The Pro will add its own definition of judicial activism to replace the words "impartial" and "judge's personal feelings" in the Con's definition that may unfairly sway some voters, as well as help to clarify what justice is.

Judicial activism - the making of new public policies through the decisions of judges (1)

== What is justice?==

The Con believes that the idea of justice should be clarified early in the debate for the voters' convenience and believes that it may even end up being contested. The Con agrees with the Pro's definition of "unjust." What determines something to be "fair, just or right" is that the benefits of the outcome outweigh the harms. If the Con can prove that judicial activism has more benefits than harms, then the Con will have proved that judicial activism is just and should receive your vote. The Pro should attempt to argue that the harms outweigh. This is the framework that the Con proposes.

== The good stuff==

1. Judicial activism increases the public's political engagement with the law, allowing for direct democracy.
As it stands, it is extremely difficult for Congress to move social reforms; they are just too controversial! It may take years for long-time-coming-decisions such as welfare reform, civil rights, or new public opinion on foreign wars to pass through Congress. As such, a Constitution and law that become archaic when it's difficult to change them fail to accurately represent the people anymore. Grassroots activism, the kind of mass opinion that must be represented in our government for it to claim that it's accurate to our will, can only go through the Supreme Court, for that is where it is most successful. "Legal mobilization strategies can nevertheless benefit social movements in a number of important ways: Litigation can raise expectations, spark indignation and hope, and stimulate a rights consciousness among movement constituents and supporters; it can help legitimize a movement's goals and values, publicize the movement's causes, and provide leverage in bargaining powerful elites." (2)

-Public opinion is magnified and affects our government much more strongly if it goes through the Supreme Court. Supreme Court rulings are what give new beliefs the boost needed to finally break the level of apathy and red tape that changing government policy is. Judicial activism is necessary to make sure these movements and public outcries remain strong.

2. Judicial activism is the method for social reform.
The people should be free to try judicial activism, especially because Congress itself sometimes uses judicial activism to push social reforms that it knows are important! "Congress allows the Supreme Court and the lower federal courts to engage in judicial activism because Congress, following popular opinion, actually likes or is at least ambivalent about the policy results being arrived at. Congress prefers that the courts legislate these popular results to legislating them itself because individual Congressmen [and women] do not want to go on record as voting for activist policies because those policies are controversial." (3)

-The reasons for which it's difficult to make change through Congress are the same reasons that Congresspeople use the Supreme Court for judicial activism; change is touchy. Even if a change to the law is important and necessary, Congresspeople are afraid to stick their necks out for it because they will be penalized for it at their next election by the voters who weren't happy with their decision. The Supreme Court gives them a way out, so that they can still support improvements to the law (even though they may claim they had nothing to do with it afterward). If judicial activism stops, Congress will have to face the brunt of public backlash and will once again be lax in wanting to support changes to current policy. This will slow down effective action for new issues.

== The Con's case==

To sum up, judicial activism benefits the American people because it increases the representation of movements and because it's a path clear of bureaucratic red tape for social reform. The Con will make rebuttal arguments for the Pro's points in the next round, and suggests the Pro do the same for the arguments made above.

(2) Sandra Levitsky; Cause Lawyers and Social Movements; "to lead with Law: Reassessing the Influence of Legal Advocacy", 2006
Organizations in Social Movements; 2006; pp. 146-147; AC]
(3) Steven Calabresi, "Article: The Congressional Roots of Judicial Activism," The Journal of Law & Politics, Fall 2004
Debate Round No. 1


Before I begin my rebuttal, I want to indicate to the Con that I take a particular liking in the Tango, but we will have to address that after the Debate.
First I want to accept the definitions that the Con has given, to insure fair debate I accept the following definitions:

Judicial activism - the making of new public policies through the decisions of judges

Unjust-Having more harms than benefits

My duty throughout this debate is to convey to the public that Judicial Activism inflicts intrinsic harms on the people of our Society.
My Case stands untouched by the Con so,

Let me break down the Con's First Argument, The Con eloquently talks about how broken the current system of representation and legislation is because Social Reform is incredibly controversial, and also goes on to say that grassroots social reform is achieved faster and better through the Supreme Court.

I agree with the Con's Argument that the current system is somewhat broken, but that is not where this debate lies, it lies in whether the Con can prove that Judicial Activism is a better legislator than the Legislative branch of the United States Government. This is simply not true.

On July 2, 1964, President Johnson signed the Civil Rights Act of 1964, that banned discrimination based on "race, color, religion, or national origin" in employment practices and public accommodations. The bill authorized the Attorney General to file lawsuits to enforce the new law. The law also nullified state and local laws which required such discrimination.

Not only did the Civil Rights Act legally end discrimination in the Status quo, it also took away state and local rights to implement discrimination. There has not been a single issue so controversial in the history of the United States, but the legislation passed and legal bigotry was ended. So the Con's premise that controversial Social Reform cannot happen under a proper and Constitutional basis is false.
Another example of the Legislative Branch doing its job is…

Congress passed the Voting Rights Act of 1965, making it easier for Southern blacks to register to vote. Literacy tests, poll taxes, and other such requirements that were used to restrict black voting are made illegal.

Again, the Congressmen and women deliver and drive toward a better tomorrow through Social Reform. These are two living and breathing examples of Legislators conducting collective change, therefore the only way my opponent can convince me that Judicial Activism has the power to do even more than the Legislature the Con has to provide his own examples with equally compelling impacts and equally controversial issues.

The Con further verbalizes that the Courts can be the vehicle of Social reform. I do not disagree. When dissecting this argument, we have to look to what kind of social reform the Courts are most likely to implement, and the fact that "public opinion" is not best represented by the Courts.
First, the infrastructure of the United States Government is set up to achieve a representative democracy, one that properly represents the American people. Social reform through Judicial Activism does not achieve this. Lets look at the Statistics,
Ethnicity of Judges White HispanicBlack non-Hispanic
83.2% 4.5% 8.8%

In a world where Judicial Activism was in the forefront of Legislating change in our society, White people would get 83.2% of say in government. Hispanics would get 4.5% and Black people would get 8.8% of say in government. This is unfair because Blacks and Hispanics should be playing a bigger role in Government because they make up a bigger portion of the population.
Second, What is public opinion, and How do judges know what public opinion is? Two very good questions. If a person watches MSNBC it says the public opinion is this, when if a person watches FOX it says it is that. Believe it or not but judges watch the News to keep informed and under a Judicial Activism state some judges are going to legislate upon what they feel is the public opinion when in actuality it is not. Congressmen and women are constantly lobbied by their constituency, constantly getting letters from angry unions or angry unemployed Americans. Congressmen and Women know the public opinion of their state because they receive notice directly from the public on what their opinion is.

Go Congress!!


The Con will first rebut the Pro's original case, then rebut the last Round of arguments.

== Round 1==

1. The Pro first states that judicial activism lets judges ignore the consensus of the Constitution and make personal decisions, going against the majority of the voices of the people and instead replacing it with one opinion.

-However, judicial activism is good for democracy and for Constitutional focus because it uncovers previously unknown rights in the Constitution, bringing them to the attention of the masses. "The most celebrated of the first [class actions] concerned the administration of welfare especially the Supreme Court rulings that children could not be denied welfare on the grounds that their mother was living with a man to whom she was not married; that welfare could not be cut off before the recipient had exercised her right to a fair hearing; that states could not apply length of residence conditions in the granting of welfare. Each of these rulings defined and extended the right to welfare[...] They uncovered rights implicit in the law and the constitution which had not previously been recognized[...] Such cases not only introduced new interpretations of the law, but brought new information to light. Courts can also inject additional information into bureaucracies by making new facts known through court proceedings." (1)

-Judicial activism, even when it fails, also takes Constitutional law and displays it in a relevant way that can be studied by the public, not described in the difficult-to-perceive government context. "It is not just that new facts were presented, but presented in a setting where they could not be dismissed. The courtroom is a public forum, attended by the press, where the presiding judge must consider the implications of all relevant evidence, and may have power to restrain administrative action. Governing institutions no longer control the context of discussion, and must answer convincingly or risk their case. Action in law can therefore be seen as an alternative solution to at least one of the problems of communication we set out above. It cannot break down the barriers to communication between administrative jurisdictions, nor within the bureaucratic hierarchy, but it can force the interests and knowledge of citizens on the attention of administrators not only to protect their individual rights, but to influence matters of public policy." (1)

-For these two reasons, judicial activism is actually good for Constitutional democracy.

2. The Pro's next argument is that slow decision-making by the Supreme Court frustrates the people and persuades them to respond with violent, vigilante actions and causes anarchy.

- The Pro believes that this argument is irrelevant to whether judicial activism is just for 2 reasons. 1) The Pro is trying to use this argument as a reason to persuade the voters to vote against judicial activism and instead support Congressional activism. However, even if the Supreme Court were to take a long time ruling on a case, Congress would take a similarly long amount of time to pass legislation on the ruling or on its own. Congressional sessions consist of many debates, earmarks, committee hearings, lobbying, and votes. In fact, many bills aren't even enacted immediately; they have a future date to be set into action. This long process will also induce some people to violent self-help.

- 2) Cases that are not judicial activism also take the same amount of time. This means that even in a world where there is zero judicial activism, court cases would still take the same long time to be decided and the same people would resort to vigilantism.

-Therefore, the Pro has made a compelling argument as to why
1) the government sucks
or why 2) the court system sucks.
However, what it doesn't do is give a reason why judicial activism sucks. Therefore, don't worry about this point.

== Round 2==

-The Pro uses the examples of the Voting Acts of 1965 and the Civil Rights Act of 1964 as examples of Congress taking action on social issues. The Con simply states that this is only fuel for the Con's rocket-like arguments. The Con would like to call attention to its Point 1 in Round 1. The Con said, "It may take years for long-time-coming-decisions such as welfare reform, civil rights, or new public opinion on foreign wars to pass through Congress." The Pro's two examples prove this point, as the first action for civil rights was the Brown v. Board of Education case in 1954.(2) Congress took action almost 10 years after the Supreme Court first recognized that segregation should be considered illegal. Another precedent can be found in 1948, when the Supreme Court ruled in Shelley v. Kraemer(3) that state governments can not enforce discrimination in private real estate sales, which would be an important precedent that would allow blacks many years later to perform sit-ins at other private places to protest segregation and ultimately prompt the Civil Rights Act the Pro mentioned above. Therefore, the Con argues that these two examples prove the Con's Point 1 and 2 in Round 1; the Shelley v. Kraemer would later promote increased movements in the form of sit-in protests and the social reform of Brown v. Board of Education brought change long before Congress acted.

-Next, the Pro says that the unequal percentage of race in the court system would mean unequal democratic representation. In response, the Con argues that judicial activism doesn't mean that the courts are the only legislating branch. Congress still makes dozens of bills regarding everything from the budget for NASA, discussions of possible new tax changes or systems, and the administration of foreign aid. Judicial activism just means that whenever a bill or currently existing law is skewed and flawed, the Supreme Court will expand or contract the meaning of past rulings or interpretations to correct the mistake. Even with the unevenness of race (83.2%/4.5%/8.8%), this would only affect a small percentage of law (the Supreme Court doesn't argue with Congress on absolutely everything it says). Therefore, the majority of legislating will still occur in Congress, where races are more equally represented. The Con argues that any racial skew in Supreme Court decisions won't have much effect.

-Finally, the Pro says that public opinion is difficult for Supreme Court justices to grasp. However, the Supreme Court is an expert on this. "The problem for courts is to determine, at the moment of decision, whether our collective values on a given issue have converged to a degree that they can be persuasively crystallized and credibly absorbed into
legal doctrine... Yet the task is familiar to common law adjudication and, as noted earlier, pervades the interpretive work of courts on a wide range of constitutional questions." (4) This source not only addresses the issue, but states that courts are used to the "common" issue and are aware of it throughout their work. Therefore, they should be considered experts on considering the social consensus.

== To sum up==

Therefore, the Con is extending its two points from Round 1 that the Supreme Court helps political movements and gets social reform done. The Con would be glad to give the sources quoted from journals and such to anybody who asks for them. The Con also would like to apologize for finishing his argument in the last 10 minutes of the time.... again... It takes two to tango, so show me what you got.

(1) Peter Marris and Martin Rein, sociologist and novelist at the Institute of Community Studies
(4) Goodwin Liu, Associate Dean and Professor of Law, University of California, Berkeley School of Law, "Rethinking Constitutional Welfare Rights", Stanford Law Review, 61 Stan. L. Rev. 203, November 2008, Lexis
Debate Round No. 2


I want to thank the Con for a good debate. I'm only sad that we couldn't dance a few more sets.
First I want to accept the definitions that the Con has given, to insure fair debate I accept the following definitions:

Judicial activism - the making of new public policies through the decisions of judges

Unjust-Having more harms than benefits

My duty throughout this debate is to convey to the public that Judicial Activism inflicts intrinsic harms on the people of our Society.
I will first bring back my first point from the first round.

My first point is that a judge's interpretation of the law disregards the Constitution, which has been carefully modified to represent the interests of the people of the United States. Even if a judge's ruling improves those rights in some small regard, that level of power in the courts is too much. The Con uses two sources to claim that judicial activism actually helps Constitutional law, but both sources are also ammo for the Pro's arguments. The first source has some lines saying, "Each of these rulings defined and extended the right to welfare[...] They uncovered rights implicit in the law and the constitution which had not previously been recognized." Although the Con's source makes judicial activism sound pretty professional, one should note that this quote proves the danger in judicial activism. Without informed debate about the implications of extending the right to welfare, the Supreme Court broadened it. Although the Con (and especially the second source) would have you think that the courts carefully analyze proceedings, rarely do the prosecutor or defense attorney make a speech saying "By the way, if you rule this way, you will be broadening this right and causing the government to have to pay more money for this or change its policies to match this." In all of these cases (as is the case for Brown v. Board of Education), the evidence presented is only for one case, one incident of trouble. The result of judicial activism is that instead of simply correcting the single error, the Supreme Court will take this one incident and use it to make a NATIONAL statement. This ability to make a small issue BIG is what makes judicial activism dangerous. Only Congress uses a legislating ability in support of the Constitution, because it will carefully discuss issues before making such a huge change. The Con is arguing that the Supreme Court has corrected some wrongs in the past with judicial activism. This is simply not important. These issues did not require the huge leap of judicial activism. These wounds should have had a small redressing under a normal court case fixing damages, and then Congress should have prevailed with definitive action. As the Con's second source says, "It cannot break down the barriers to communication between administrative jurisdictions, nor within the bureaucratic hierarchy." The only effect on government that judicial activism has is expanding the Judicial Branch's power to something far too dangerous to democracy. When new "laws" are flung out by the Supreme Court, the checks and balances can lead to something too threatening to allow.
Next, the Con shows some court cases to prove that the Supreme Court acted first on social issues. However, his words are actually a disadvantage to his arguments. The Supreme Court made two rulings in 1948 and 1954, and yet segregation would continue for 10 more years? This proves the ineffectiveness of judicial activism. If these rulings were as good as the Con would have you believe, then Martin Luther King, Jr. would have had no need for this March on Washington and "I have a Dream" speech in 1963. Only the Voting Acts of 1965 and Civil Rights Act of 1964 brought truly strong efforts to cancel the negative effects of discrimination. Therefore, Congress should be preferred as the dominant legislating group.

Second, I will extend an argument from the last round. I said that the law system does not represent all races equally. 83.2% of those associated with the law system have been white, 4.5% have been Hispanic, and 8.8% have been Black non-Hispanic. Someone's background is inextricably linked to their beliefs and values. Though the Supreme Court justices may claim that they rule only on principle, they are still using their backgrounds in their decisions. Therefore, with a Supreme Court that can interpret one incident to broadcast a new national policy, the amount of value that a justice puts in the ruling can change whether or not they change the nation. These values need to be carefully checked with a more representative system, or democracy will be crushed.

This is the final scoreboard: both Congress and the Supreme Court have enacted important social reform in the past. The differences are that the Supreme Court made a dangerous leap across democracy in ruling and that the Supreme Court's rulings had little effect. Also, the Supreme Court relied on one example and on mostly white values to rule, while Congress debated many different situations until they could justifiably pass a law. The preservation of democracy is the most important harm in this round.

Well danced, Con. Go Congress!!!


Hmm, so it comes down to this. Well danced indeed.

== The Pro's Last Stand==

The Pro's first point is about the apparent "slippery slope" of judicial activism.

The Pro's second point is about the bias in the Supreme Court and how it would color activist rulings.

-To answer both of these, the Con will bring up its words from the last Round. "[...] This would only affect a small percentage of law (the Supreme Court doesn't argue with Congress on absolutely everything it says). Therefore, the majority of legislating will still occur in Congress [...]"

The Con understands that the Pro's harm of bias and undemocratic danger is a lil too well defended for the Con to argue it doesn't exist at all; but for the Con to prove that judicial activism is just, the Con only has to prove that the benefits of judicial activism outweigh this harm.

Therefore, the Con will argue with the above quote from Round 2 that any problems the Pro is describing only affect a minor percentage of laws that were altered by a Supreme Court ruling. After all, it's not every year that the Supreme Court even makes more than one ruling. Only after a hundred such rulings would the checks and balances of democracy be in danger of tipping, and only after several rulings would "white values" start to skew a part of the law.

== The Con, from the hip==

First, the Con will bring back from last Round its arguments about how judicial activism is good for democracy.

-The first source was about how judicial activism uncovers rights in the Constitution that had not previously been recognized. However, the Pro has made some extensive rebuttals on this, so the Con will instead focus on the next source.

-The second source was about how the courtroom setting takes the enormous letter of the law and presents it in a context for the public to understand. This is offense against the Pro's two points; a public that's informed in court will take their knowledge and fight in Congress. They will also keep any offensive or threatening opinions in the government (i.e. in the Supreme Court) in check. Any danger of a Supreme Court abusing its powers has a safety check because citizens will backlash and vote to keep democracy safe.

The Pro made an argument saying that the Supreme Court rulings in 1948 and 1954 had little effect. The Con is going to red-flag this for the attention of all the voters. A large part of your vote is probably going to come down to this question; did the Supreme Court rulings make early decisions to inspire political movements like MLK's to change Congress and the law(as the Con argues)? Or did the Supreme Court rulings ultimately have no effect and did civil rights wait until Congress's independent actions to have victory (as the Pro argues)?

If the first is true, then the Con's arguments that the Supreme Court inspires further political movements is true. This means that the judicial activism fosters direct democracy among the people. This also means that the Supreme Court is the vehicle for controversial change, even used by Congress to pass important and necessary legislation in a way possible for Congresspeople whose jobs can be so easily lost by controversy.

Even if the second is true, and the Supreme Court turns out to not be effective for social change, judicial activism still has the benefit of taking the Constitution and displaying it in a context understandable by the public. This means that the Pro's only harm disappears, because the safety check still exists, and an informed public will fight against bias and too much government power, not only in the Supreme Court itself but in other parts of the government. Therefore, no harm, and benefit of fighting corruption in other branches.

== The Showdown==

Therefore, the Con argues that any risks to democracy and to bias are minimal, as judicial activism doesn't happen that frequently. However, judicial activism increases direct democracy and enacts necessary change when it's needed. Judicial activism also keeps the public informed so that they can actively fight bias, further minimizing any harms.

If you the voter, believe that these benefits outweigh the harms, then judicial activism is just, and you should vote Con.

And once more, if you don't buy the majority of the Con's arguments, the safety check argument means that the Con should still come out with no harms and at least a slight benefit.

Jazz hands and curtains...
Debate Round No. 3
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