Courts shield

The plan wouldnt be announced until June

Jake Ward 10, Bilski Decision Tomorrow (Thursday, June 17th)? Maybe?,
Anticipate This! (Patent and Trademark Law Blog), 6-17,
http://anticipatethis.wordpress.com/2010/06/16/bilski-decision-tomorrowthursday-june-17th-maybe/
In mid-May until the end of June, the Supreme Court of the United States
(SCOTUS) releases orders and opinions. SCOTUS has yet to issue a number
of decisions this term, however, and it is rapidly moving toward summer
recess. Most notable from a patent law perspective is that the decision in
Bilski v. Kappos, which was argued in November 2009, has yet to be decided.

Courts shield
Keith E. Whittington 5, Cromwell Professor of Politics Princeton
University, Interpose Your Friendly Hand: Political Supports for the Exercise
of Judicial Review by the United States Supreme Court, American Political
Science Review, 99(4), November, p. 585, 591-592
Political leaders in such a situation will have reason to support or, at
minimum, tolerate the active exercise of judicial review. In the American
context, the presidency is a particularly useful site for locating such behavior.
The Constitution gives the president a powerful role in selecting and speaking
to federal judges. As national party leaders, presidents and presidential
candidates are both conscious of the fragmented nature of American political
parties and sensitive to policy goals that will not be shared by all of the
presidents putative partisan allies in Congress. We would expect political
support for judicial review to make itself apparent in any of four fields of
activity: (1) in the selection of activist judges, (2) in the encouragement of
specific judicial action consistent with the political needs of coalition leaders,
(3) in the congenial reception of judicial action after it has been taken, and
(4) in the public expression of generalized support for judicial supremacy in
the articulation of constitutional commitments. Although it might sometimes
be the case that judges and elected officials act in more-or-less explicit
concert to shift the politically appropriate decisions into the judicial arena for
resolution, it is also the case that judges might act independently of elected
officials but nonetheless in ways that elected officials find congenial to their
own interests and are willing and able to accommodate. Although Attorney
General Richard Olney and perhaps President Grover Cleveland thought the
1894 federal income tax was politically unwise and socially unjust, they did
not necessarily therefore think judicial intervention was appropriate in the
case considered in more detail later (Eggert 1974, 101 14). If a majority of
the justices and Cleveland-allies in and around the administration had more
serious doubts about the constitutionality of the tax, however, the White
House would hardly feel aggrieved. We should be equally interested in how
judges might exploit the political space open to them to render controversial
decisions and in how elected officials might anticipate the utility of future
acts of judicial review to their own interests. [CONTINUES] There are some
issues that politicians cannot easily handle. For individual legislators, their
constituents may be sharply divided on a given issue or overwhelmingly

hostile to a policy that the legislator would nonetheless like to see adopted.
Party leaders, including presidents and legislative leaders, must similarly
sometimes manage deeply divided or cross-pressured coalitions. When faced
with such issues, elected officials may actively seek to turn over controversial
political questions to the courts so as to circumvent a paralyzed legislature
and avoid the political fallout that would come with taking direct action
themselves. As Mark Graber (1993) has detailed in cases such as slavery and
abortion, elected officials may prefer judicial resolution of disruptive political
issues to direct legislative action, especially when the courts are believed to
be sympathetic to the politicians own substantive preferences but even
when the attitude of the courts is uncertain or unfavorable (see also, Lovell
2003). Even when politicians do not invite judicial intervention, strategically
minded courts will take into account not only the policy preferences of wellpositioned policymakers but also the willingness of those potential
policymakers to act if doing so means that they must assume responsibility
for policy outcomes. For cross-pressured politicians and coalition leaders,
shifting blame for controversial decisions to the Court and obscuring their
own relationship to those decisions may preserve electoral support and
coalition unity without threatening active judicial review (Arnold 1990; Fiorina
1986; Weaver 1986). The conditions for the exercise of judicial review may be
relatively favorable when judicial invalidations of legislative policy can be
managed to the electoral benefit of most legislators. In the cases considered
previously, fractious coalitions produced legislation that presidents and party
leaders deplored but were unwilling to block. Divisions within the governing
coalition can also prevent legislative action that political leaders want taken,
as illustrated in the following case.

1AR Courts Shield

Plan wont be announced until June when courts release
orders
Downs says ---Courts shield --- Whittington says that <Congress> will
just shift blame to the Courts, and since its electoral
season, the Courts will openly take responsibility
court action explicitly shifts the controversy and debate
away from the president
Alison M. Martens, political science at University of Louisville, 2007

(Perspectives on Politics 5.3)

The outline of this revised research agenda, begins by looking at a 1993
article written by Mark Graber challenging the countermajoritarian difficulty
paradigm. Graber's observations point to the importance of studying
systemic transformations, such as the evolution of judicial supremacy. Using
historical case studies on abortion, the Dred Scott controversy, and anti-trust
issues to study perceived incidents of judicial independence, he contends
that scholars who seek to justify independent judicial policymaking, even in
the face of believed democratic deficiencies, misunderstand and inaccurately
represent the relationships between justices and elected officials. By looking
at the dialogues between these parties it becomes apparent that judicial
independence, when it actually occurs, is often exercised at the invitation
of elected officials , and in the absence of any expressed majoritarian
choice, in order to resolve political controversies that elected officials
cannot or do not want to resolve themselves. Hence the counter-majoritarian
difficulty can be more appropriately characterized as the non-majoritarian
difficulty. 33 According to Graber, where crosscutting issues divide a
lawmaking majority an invitation is often tacitly but consciously
issued to the Court by political elites to resolve the political
controversy that they themselves are unwilling or unable to address,
thereby foisting disruptive political debates off on the Supreme
Court. 34 Graber writes that elected officials encourage or tacitly
support judicial policymaking both as a means of avoiding political
responsibility for making tough decisions and as a means of
pursuing controversial policy goals that they cannot publicly
advance through open legislative and electoral politics. 35
Furthermore, political and electoral advantages can accrue by
ducking these tough questions and sending them on to be settled by
the Court. Graber explains that elites (including the executive) can benefit from
passing the political buck to the Court in multiple ways. Party
activists can be redirected to focus on legal action in the courts,

thereby reducing pressure on mainstream politicians who wish to

maintain a more politically viable moderate stance . Voters can be
redirected to focus any ire they might have over policy outcomes on
the Court. Politicians can take responsive positions on judicial
decisions that may make for a good sound bite but really require no
politically accountable action on their part. Finally, political
compromise between the legislature and the executive might be
had under the table of Court policymakin g. 36 This is an impressive set of political
benefits that can stem from a practice of judicial supremacy that creates a Court equipped with the
interpretive authority and legitimacy to make controversial public policies. Graber's article, then, highlights
the perversion of political accountability that can possibly occur where everyone in the system, the public
included, accepts and expects interpretive authority to reside with the courts.

Language

AT: Languistics

2AC A2 Discourse Shapes Reality

Discourse doesnt shape reality
Fram-Cohen 85 (Michelle Fram-Cohen 1985 Reality, Language,
Translation American Translators Association Conference in Miami)
The idea that language is created inside one's mind independently of
outside experience eliminates the possibility that the external world
is the common source of all languages .

But a common source of all languages

underlies any attempt to explain the possibility of translation. Chomsky suggests that the common basis of
all languages is universal phonetics and semantics, with the result that "certain objects of human thoughts
and mentality are essentially invariable across languages." (13) To the best of my knowledge Chomsky did
not develop this idea in the direction of explaining the possibility of translation. In contrast, linguist Eugene
Nida insists that outside experience is the common basis of all languages when he writes that "each
language is different from all other languages in the ways in which the sets of verbal symbol classify the
various elements of experience." (14) ida did not provide the philosophical basis of the view that the
external world is the common source of all languages. Such a basis can be found in the philosophy of
Objectivism, originated by Ayn Rand. Objectivism, as its name implies, upholds the objectivity of reality.
This means that

reality is independent of consciousness , consciousness

being the means of perceiving reality, not of creating it .

Rand defines

language as "a code of visual-auditory symbols that denote concepts." (15) These symbols are the written
or spoken words of any language. Concepts are defined as the "mental integration of two or more units
possessing the same distinguishing characteristic(s), with their particular measurements omitted." (16)
This means that concepts are abstractions of units perceived in reality. Since words denote concepts,
words are the symbols of such abstractions; words are the means of representing concepts in a language .

Since reality provides the data from which we abstract and form
concepts, reality is the source of all words--and of all languages. The very
existence of translation demonstrates this fact. If there was no
objective reality, there could be no similar concepts expressed in
different verbal symbols . There could be no similarity between the
content of different languages , and so, no translation .

1AR A2 Discourse Shapes Reality

Discourse doesnt shape realityTranslation proves
reality precedes consciousness and provides the
perceptual basis for language, thats Fram-Cohen
And, even if it does you shouldnt evaluate its
philosophical foundations because it is methodologically
inconsistent with policymaking
Dietz 00 (Mary Dietz, Professor of Political Science at Minnesota, 2000
Political Theory and Partisan Politics p. 120)

I am calling these presuppositions "Machiavellian" in less than a philosophical and more than a
metaphorical sense. In the first instance, the limitations of a purely legal/juridical approach to politics are
anticipated in Machiavelli's beastly advice in The Prince concerning the "two methods of fighting, the one
by law, the other by force." The former, Machiavelli observes, "is often insufficient," hence one must "have
recourse to the second." Then follow his famous remarks upon the lion and the fox (Machiavelli 1950, 64).
In the second instance, Machiavelli anticipates the limitations of a concept of political speech as a practice
of redeeming validity claims (especially with regard to sincerity), when he advises the prince that politics
requires both the appearance of such qualities as sincerity, but also a "mind so disposed that when it is

a
truly virtuous prince-as-political-actor must not only be always ready
to intend to deceive others, but also able to resist attempts by
others to "redeem" the (sincere) intention behind the speech-act
that deceives. In light of these Machiavellian insights, we might also bear in mind Foucault's
observation that even the "best" theories and philosophies do not
constitute very effective protection against disastrous political
choices. We should reckon with the fact that there is an extremely tenuous link
between a philosophical conception of (political) language as
communication, or a philosophically grounded account of political principles on the one hand,
and the concrete speech dynamics of strategic political actors who
needful to be otherwise you may be able to change to the opposite qualities" (1950, 65). In short,

appeal to such principles on the other.

2AC A2 Reps First

The NEGs focus on representations destroys social
change
Taft-Kaufman 95 (Jill, professor, Department of Speech Communication

And Dramatic Arts, at Central Michigan University, Southern Communication

Journal, Spring, proquest)
The postmodern passwords of "polyvocality," "Otherness," and "difference," unsupported by substantial
analysis of the concrete contexts of subjects, creates a solipsistic quagmire. The political sympathies of the
new cultural critics, with their ostensible concern for the lack of power experienced by marginalized
people, aligns them with the political left. Yet, despite their adversarial posture and talk of opposition,

discourses on intertextuality and inter-referentiality isolate them

from andignore the conditions that have produced leftist politics-their

conflict, racism, poverty, and injustice. In short, as Clarke (1991) asserts, postmodern emphasis on new
subjects conceals the old subjects, those who have limited access to good jobs, food, housing, health care,
and transportation, as well as to the media that depict them. Merod (1987) decries this situation as one
which leaves no vision, will, or commitment to activism. He notes that academic lip service to the
oppositional is underscored by the absence of focused collective or politically active intellectual
communities. Provoked by the academic manifestations of this problem Di Leonardo (1990) echoes Merod
and laments: Has there ever been a historical era characterized by as little radical analysis or activism and
as much radical-chic writing as ours? Maundering on about Otherness: phallocentrism or Eurocentric tropes
has become a lazy academic substitute for actual engagement with the detailed histories and
contemporary realities of Western racial minorities, white women, or any Third World population. (p. 530)
Clarke's assessment of the postmodern elevation of language to the "sine qua non" of critical discussion is
an even stronger indictment against the trend. Clarke examines Lyotard's (1984) The Postmodern
Condition in which Lyotard maintains that virtually all social relations are linguistic, and, therefore, it is
through the coercion that threatens speech that we enter the "realm of terror" and society falls apart. To
this assertion, Clarke replies:

I can think of few more striking indicators of

the political and intellectual impoverishment of a view of society
that can only recognize the discursive. If the worst terror we can envisage is the
threat not to be allowed to speak, we are appallingly ignorant of terror in its elaborate contemporary
forms. It may be the intellectual's conception of terror (what else do we do but speak?), but its projection
onto the rest of the world would be calamitous....(pp. 2-27) The realm of the discursive is derived from the
requisites for human life, which are in the physical world, rather than in a world of ideas or symbols.(4)
Nutrition, shelter, and protection are basic human needs that require collective activity for their

emphasis on the discursive without an accompanying analysis of

circumstanceshides the complex task of
envisioning and working towards concrete social goals (Merod, 1987).
fulfillment. Postmodern

how the discursive emerges from material

Although the material conditions that create the situation of marginality escape the purview of the
postmodernist, the situation and its consequences are not overlooked by scholars from marginalized
groups. Robinson (1990) for example, argues that "the justice that working people deserve is economic,
not just textual" (p. 571). Lopez (1992) states that "the starting point for organizing the program content of
education or political action must be the present existential, concrete situation" (p. 299). West (1988)
asserts that borrowing French post-structuralist discourses about "Otherness" blinds us to realities of
American difference going on in front of us (p. 170). Unlike postmodern "textual

radicals" who
Rabinow (1986) acknowledges are "fuzzy about power
and the realities of socioeconomic constraints" (p. 255), most writers from marginalized groups
are clear about how discourse interweaves with the concrete circumstances that create lived

People whose lives form the material for

postmodern counter-hegemonic discourse do not share the
optimism over the new recognition of their discursive
subjectivities,because such an acknowledgment does not
address sufficiently their collective historical and current
struggles against racism, sexism, homophobia, and economic injustice. They do not appreciate being
experience.

told they are living in a world in which there are no more real subjects. Ideas have
consequences. Emphasizing the discursive self when a person is hungry and homeless represents both a
cultural and humane failure. The need to look beyond texts to the perception and attainment of concrete

social goals keeps writers from marginalized groups ever-mindful of the specifics of how power works
through political agendas, institutions, agencies, and the budgets.

1AR A2 Reps First

Focus on representations is badIt soley focuses on
recognizing the discursive implications which ignores
progress towards concrete social goals because it does
not address historical or current struggles, thats TaftKaufman
Prefer itPure focus on reps destroys activism
Tuathail 96 (Gearid, Professor of Government and International Affairs,

Virginia Tech, The patterned mess of history and the writing of critical
geopolitics: a reply to Dalby, Political Geography 15:6/7, p 661-5)
While theoretical debates at academic conferences are important to academics, the discourse
and concerns of foreign-policy decisionmakers are quite different, so
different that they constitute a distinctive problemsolving, theoryaverse, policy-making subculture. There is a danger that academics assume that the
discourses they engage are more significant in the practice of foreign policy and the exercise of power
than they really are. This is not, however, to minimize the obvious importance of academia as a general
institutional structure among many that sustain certain epistemic communities in particular states. In
general, I do not disagree with Dalbys fourth point about politics and discourse except to note that his
statement-Precisely because reality could be represented in particular ways political decisions could be
taken, troops and material moved and war fought-evades the important question of agency that I noted in

The assumption that it is representations that make

action possible is inadequate by itself. Political, military and
economic structures, institutions, discursive networks and
leadership are all crucial in explaining social action and should be theorized together with
my review essay.

representational practices. Both here and earlier, Dalbys reasoning inclines towards a form of idealism. In
response to Dalbys fifth point (with its three subpoints), it is worth noting, first, that his book is about the
CPD, not the Reagan administration. He analyzes certain CPD discourses, root the geographical reasoning
practices of the Reagan administration nor its public-policy reasoning on national security. Dalbys book is
narrowly textual; the general contextuality of the Reagan administration is not dealt with. Second, let me
simply note that I find that the distinction between critical theorists and poststructuralists is a little too
rigidly and heroically drawn by Dalby and others. Third, Dalbys interpretation of the reconceptualization of
national security in Moscow as heavily influenced by dissident peace researchers in Europe is highly
idealist, an interpretation that ignores the structural and ideological crises facing the Soviet elite at that
time. Gorbachevs reforms and his new security discourse were also strongly selfinterested, an ultimately
futile attempt to save the Communist Party and a discredited regime of power from disintegration. The
issues raised by Simon Dalby in his comment are important ones for all those interested in the practice of
critical geopolitics. While I agree with Dalby that questions of discourse are extremely important ones for

there is a danger of fetishizing this concern

with discourse so that we neglect the institutional and the sociological, the materialist
and the cultural, the political and the geographical contexts within which particular
discursive strategies become significant. Critical geopolitics, in other
words, should not be a prisoner of the sweeping ahistorical cant that
sometimes accompanies poststructuralism nor convenient reading
strategies like the identity politics narrative; it needs to always be open to the patterned mess that is
political geographers to engage,

human history.