by Logan Scisco
Judicial issues is a topic area that United States extempers face, usually at NFL Districts and the NFL National Tournament, although it is also a topic that can find itself used at local and state tournaments as well. The judicial branch is one of the three branches of the U.S. national government and plays a vital role in defining the U.S. Constitution and weighing in on heated political, social, and economic issues. This topic brief will break down some of the major issues that extempers might have to discuss on the judicial issues topic area and things they want to keep in mind when answering these questions.
General Tips
The first piece of advice that I have for extempers when confronting judicial issues question is that you need to understand the American court system. There are state courts and then there are federal courts and nearly all of the questions that you will receive in extemp will be about the federal court system. Of those questions, nearly all will be about either the U.S. Supreme Court or the judicial confirmation process. As such, extempers should take the time to read the history of the U.S. Supreme Court and a college-level or AP-level textbook will help spell that out.
As a few points of clarification, the U.S. Supreme Court is made up of nine justices. These justices serve life terms, so they either retire on their own accord or die in office. They can also be impeached and removed from office, but this has never been successful. Justice Samuel Chase, a Federalist, was targeted by Democratic-Republicans in the Thomas Jefferson administration and was impeached by the House in 1804, but he was acquired by the Senate. Historians argue that the decision by the Senate not to impeach Chase reinforced the idea of judicial independence. This is the only time that a Supreme Court justice has been impeached. The seat that Elena Kagan currently occupies was held by Justice John Paul Stevens, who decided to retire in 2010. This was the last Supreme Court vacancy. Presidents have the power to appoint justices and the Senate must confirm them. Usually, presidential choices are confirmed and the last Supreme Court nominee to not pass confirmation was Robert Bork, a conservative choice by President Ronald Reagan, in 1987. Justice Clarence Thomas, the only African American justice on the current court, barely passed confirmation in 1991 after a sexual harassment allegations emerged. He was confirmed by a 52-48 vote.
Also, extempers should keep in mind that the Supreme Court only hears important cases and cases that it wants to hear. Four justices have to want to hear a case for it to before the Supreme Court and of the estimated 8,000 cases appealed before the Supreme Court each year, only about 100 are heard. Therefore, any case that is heard before the Court has significant merit.
As an ideological breakdown of the Court, there are two major camps of conservatives and liberals, just like what you see in American politics. Sometimes justices will fall into these camps on highly charged and controversial issues, but on some issues there are justices that switch sides, as seen in the Maryland v. King DNA decision that I discuss below. There is also a moderate voice on the Court in David Kennedy, although if you have to choose a camp to put him in he falls into the conservative side. Here is a breakdown of these camps, which extempers should commit to memory. I included the year that the justice came to the Supreme Court and the President that appointed them in parenthesis beside their name.
Conservative: Antonin Scalia (1986, Ronald Reagan), Clarence Thomas (1991, George H.W. Bush), John Roberts – Chief Justice (2005, George W. Bush), Samuel Alito (2006, George W. Bush)
Liberal: Ruth Bader Ginsburg (1993, Bill Clinton), Stephen Breyer (1994, Bill Clinton), Sonia Sotomayor (2009, Barack Obama), Elena Kagan (2010, Barack Obama)
Moderate/Swing Vote: David Kennedy (1988, Ronald Reagan)
The best speeches that I have ever seen in judicial issues rounds are those that break down the attitudes of judges on the Supreme Court or that provide a great overview of the judicial history behind certain issues. There are some cases worth knowing for the Supreme Court, like Engel v. Vitale, which banned mandatory school prayer, Roe v. Wade, which dealt with abortion, Griswold v. Connecticut, which established a right to privacy, Lemon v. Kurtzman, which clarified how the courts should decide if there was extensive entanglement between church and state, and Regents of the University of California v. Bakke where the Court struck down racial quotas as part of affirmative action plans, but said race could be a factor in admissions. If you can explain these issues in detail, if they fit your question, you will impress judges and provide the best analysis to answer your question.
Judicial Nominees & Filibustering
One unsettling trend that has emerged within the last several decades of American politics is the use of filibusters in the U.S. Senate to stall a president’s judicial choices for the federal court system. President George W. Bush had this happen when he tried to make a few very conservative appointments to the federal judiciary and President Barack Obama has had his nominations stalled as well, with Republicans alleging that they are too liberal. While the Senate has never filibustered a Supreme Court nominee, I am personally not sure how much longer that tradition is going to hold. It would be regrettable if it did, but extempers should be aware that if/when it does happen that it would be a ground breaking historical event.
Judicial battles are important for two reasons. First, appointments to the federal court system, which are also for life, will exist longer than a sitting president is in office. As a result, federal court appointments are part of their legacy and a president’s social agenda and worldview can be grafted onto American society long after they are gone. Today, there are still quite a few federal justices that owe their positions to Ronald Reagan, who was president from 1981-1989 and is no longer alive. A second reason is that the federal court system is the “training ground” for Supreme Court picks. The more choices a president has, the more candidates his party may enjoy in the future with sound experience to be on the Supreme Court. However, keep in mind that one can become a Supreme Court justice without having any legal experience. It is rare and the last justice to have this distinction was Stanley Forman Reed, who served from 1938-1957.
Angry at Republican’s stalling his judicial appointments, President Obama announced this week that he is sending three nominees names to the Senate to be confirmed to the U.S. Court of Appeals for the District of Columbia. The D.C. Court of Appeals has been an area of contention between Republicans and Democrats over the last two decades. The Court hears appeals that concern federal agencies and large federal issues. In 2003, Democrats started the process of filibustering nominees to this court by blocking President George W. Bush’s selection Miguel Estrada. Republicans have similarly been slow approving President Obama’s nominees for four vacancies on the Court, although they did allow the confirmation of Sri Srinivasan in a unanimous vote last month. There are three vacancies now and President Obama has put up three nominees at the same time: Patricia Millett, Cornelia Pillard, and Robert Wilkins. To read more about these nominees, read this article from Slate magazine.
This court battle matters for extempers because it deals with President Obama’s legacy and a push to make the D.C. Court of Appeals more liberal, where it has traditionally been a bulwark of conservative power. Republicans fear that a more liberal court system would be the return of the left-leaning courts of the 1960s and 1970s, which found abortion constitutional and outlawed school prayer. President Obama’s decision to nominate three individuals forces Republicans to make their stonewalling more public and if they choose to block all three nominees, Senate Majority Leader Harry Reid has threatened to push for a Senate rule change to stop judicial filibusters. Republicans argue that Reid cannot do this with a majority vote, but Reid thinks that he can. This so-called “nuclear option” would work against a Senate minority that wants to block “extreme” nominees, which is what filibusters are only supposed to be for anyway, but it may come to this if Republicans refuse to confirm any of President Obama’s choices. The likely scenario will see Republicans give in and confirm at least two of these nominees, but there might be fireworks if they don’t go that route.
Supreme Court Cases (2013)
In the limited space remaining, I’m going to provide a brief overview of controversial cases that are before the Court. Extempers may have to discuss these cases or how they should be ruled upon for NFL Nationals, so I will provide some details about them below. By no means are these the only cases before the Court, but just a few that you might have to face in-round and may want to gather research on before NFL Nationals.
Maryland v. King: This was the recently decided case, by a 5-4 margin, whereby the Court ruled that the U.S. Constitution does not ban states from collecting DNA samples from those arrested for serious crimes. Privacy advocates frown on the decision because they believed that taking these samples did not constitute traditional police practice and violated Fourth Amendment protections against “unreasonable search and seizure.” The Court in this case held that there was a state interest in obtaining DNA in order to figure out who individuals were. The case is somewhat notable because Justice Antonin Scalia broke from his usual conservative voting group and voted with more liberal members of the bench like Ruth Bader Ginsburg and Elena Kagan on the grounds that the decision opens the door to forcing people to give their DNA for other reasons. Civil rights groups also protested that because of high minority incarceration rates, the DNA of minorities will be disproportionately stored and used, which will lead to more arrests in those populations.
Fisher v. University of Texas: Once again the Supreme Court is wrestling with an affirmative action case. This time, a student named Abigail Fisher is alleging that the University of Texas-Austin rejected her application because she was white. Texas state schools accept the top ten percent of Texas high schools graduating classes by law, but they do use race as an admissions factor after that point. Only eight justices are hearing the case since Elena Kagan dealt with previous litigation on this issue. If the Court rules 4-4, the university would win because they won on the lower court level and ties in the Supreme Court default to the lower court ruling. However, if all five right-leaning justices vote together, a precedent against affirmative action or race-conscious policies could be established by the high court.
U.S. v. Windsor: This case concerns the Defense of Marriage Act and like the Brown v. Board of Education decision of 1954, it is part of a collection of cases that will likely be grouped together. The Defense of Marriage Act (DOMA), signed in 1996, allows states to avoid recognizing gay marriages performed in other states and defines marriage as between men and women on the federal level. Therefore, a state like Kentucky that does not recognize same-sex marriage is not obligated to recognize a same-sex marriage performed in Massachusetts, where the practice is legal. Advocates of same-sex marriage allege that DOMA is an unlawful denial of benefits to same-sex couples. In fact, the push for this case came from Edith Windsor, who was in a same-sex relationship in New York, and paid more than $300,000 in estate taxes because of DOMA. This would not have been the case if she was in a heterosexual relationship. DOMA’s provision about recognition about marriage across state lines has not been challenged, but the Court might strike that down here as well. President Obama and his legal team refused to argue for the government in this case, so House Republicans have done the legal work for the Supreme Court case.
Hollingsworth v. Perry: This case challenges California’s Proposition 8, which was passed in 2008 and banned recognition of same-sex marriage. Opponents of Proposition 8, who back Perry, allege that the equal protection clause of the Fourteenth Amendment does not allow states to define marriage as between a man and a woman. If the Court sides with Perry, it could lay the foundation for legal challenges in other states that have passed laws or passed state constitutional amendments banning gay marriage. However, some legal advocates think the Court might take a “pass” at this case because there are questions standing in the case since the suit was originally filed against the California state government and is being legally fought by Dennis Hollingsworth, who leads a proponent group of Proposition 8 called ProtectMarriage.com.
Association for Molecular Pathology v. Myriad Genetics: In this case, referred to as BRCA, which are gene mutations of breast cancer genes, Myriad Genetics, who discovered breast cancer genes called BRCA 1 and BRCA 2, patented these genes and is stifling research because of those patents. The American Civil Liberties Union, in conjunction with interested medical parties, is arguing that DNA and genes cannot be patented like a regular invention. The Court is simply concerned with whether human genes can be patented, but as the Washington Times noted on May 28th, this case has little significance because Myriad Genetics patents are expiring soon and few companies are invested in single-gene patents.
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