This isn't final until 8:30, but this is likely the 1NC


Text: The United States Congress should pass a Freedom of Choice Act invalidating all federal and state limitations on access to abortion and guarantee full federal funding for abortions.
  • The United States Congress offer positive incentives for businesses to not practice environmentally destructive practices in the United States
  • The United States Congress should massively increase funding for transportation.
  • The United States Congress should provide funding for urban revitalization and for district power equalization across all school districts in the United States.
Passing the FOCA creates a Constitutional Moment
Lupu, Mayo Law, 93
(Ira Lupu, Louis Harkey Mayo Research Professor of Law, Feb. 1993, Virginia Law Review, 79 Va. L. Rev. 1)

For most of our history, normal politics, in which citizens pursue their material interests, is the order of the day. In rare and special moments, however, we transcend those interests and achieve constitutional change in the name of the People. 323 Professor Ackerman argues that there have been three such moments in our history: the framing of the Constitution [*81] and Bill of Rights in the late 18th century, the Civil War and the Reconstruction Amendments which followed, and the New Deal transformation of the federal government into an activist instrument of planning and regulation. 324 The last of these three is the most controversial 325 because it involved no formal constitutional change. Rather, the New Deal transformation was achieved by the Roosevelt Administration's popularity, force, and vision; its political support in the Congress; and its eventual persuasion, or perhaps capture, of the Supreme Court. The Court's role in the New Deal "moment" was crucial. During this period, the Court dramatically rewrote significant portions of federal constitutional law. Accepting, for the sake of argument, Professor Ackerman's dualist analysis and his characterization of the New Deal as a "constitutional moment," what might we say about a period in our government's history in which the Supreme Court limited major rights-protecting precedents such as Roe and Sherbert v. Verner, and Congress, either with the President's signature or over his veto, restored the principles of those cases? Quite arguably, such a political phenomenon would constitute an even plainer case of the People rising to assert a constitutional vision than can be said of the New Deal. 326 Like the continued efforts of the New Deal Congress to accomplish economic recovery in the face of a recalcitrant Supreme Court, the Freedom of Choice Act and the Religious Freedom Restoration Act both involve explicit rejection of the Supreme Court's view of the Constitution. Moreover, legislative overturning of particular judicial decisions is far more focused on the precise content of constitutional law than was New Deal recovery legislation.

A Constitutional Moment is necessary to institute real legal change.
West, prof law Georgetown, 94 (Robin West, Professor of Law, Georgetown University Law Center, Progressive Constitutionalism, 1994, p. 220)

Therefore, the concluding section of this chapter argues that, for structural long-term as well as strategic short-term reasons, the progressive Constitution-the cluster of meanings found or implanted in constitutional guarantees by modern progressive scholars-should be addressed to the Congress and to the citizenry rather than to the courts. The goal of progressive constitutionalists, both in the academy and at the bar, over the coming decades should be to create what Bruce Ackerman has called in other contexts a "constitutional moment" and what Owen Fiss might call more dramatically an "interpretive crisis.'" Progressives need to create a world in which it is clear that a progressive Congress has embraced one set of constitutional meanings, and the conservative Court a contrasting and incompatible set. The Supreme Court does, and always has, as Fiss reminds us, read the Constitution so as to avoid crisis — The lesson to draw is surely that only when faced with such a constitutional moment will this conservative Court change paths.

CP 2/2
The United States Congress should provide greater financial resources for underprivileged schools.
Ervin Gonzalez, Board Certified trial attorney with more than 23 years of experience in civil and business litigation recently named one of the top 11 attorneys in the nation, “Economic Disparity Assures Public School Segregation” __ publicschoolsegregation/__

May 17, 2004 marked the fifty year anniversary of the landmark U.S. Supreme Court case of Brown v. Board of Education, which established that separate but equal was inappropriate and required the end of segregation in public schools in the United States. Yet, today many schools throughout our nation remain segregated as a result of economic discrimination. It is evident that the more affluent neighborhoods have better schools with superior teachers, programs and resources. This disparity in the school system makes it much more difficult for underprivileged children to succeed; thereby, perpetuating the invisible economic class barrier that results from not having equal opportunities available in education at the primary and secondary level. Once a child is deprived of the essential educational skills in elementary school, junior high and high school, her chance of being admitted into college and succeeding in business and life is greatly reduced. This result is unfair and preventable. As a community we must find ways to promote better educational facilities in underprivileged areas. We need to devote greater resources in these schools and ensure that high quality teachers are willing to teach in underprivileged areas. The cycle must be broken and the time has come to make the change.

Court Legitimacy – 1NC (1/2)
A. The court’s decision to uphold the voting rights act in a narrow ruling resulted in legitimacy

Los Angeles Times 6/23
(The LA times “Voting Rights Act is upheld ;The Supreme Court leaves safeguards intact while allowing some municipalities to seek exemptions. June 23, 2009 Lexis)

The historic Voting Rights Act -- the 1965 law that ended a century of racial discrimination at the ballot box and gave blacks a political voice across the South -- survived a strong challenge at the Supreme Court on Monday as justices pulled back from a widely anticipated decision to strike down a key part of the law as outdated and unfair to today's South. Instead, the justices agreed to narrow the law's impact by allowing municipalities with a clean record to seek an exemption. Though the court sided with the Texas water district that brought the case, its 8-1 decision preserved the core of the Voting Rights Act, including its special scrutiny for any changes in election rules by Southern states. The ruling also protected the Roberts court from charges of conservative "judicial activism" in its refusal to tamper with an act of Congress, a often sensitive procedure fraught with political risk. Monday's decision, considered among the most important of the term, came as a surprise and a relief to civil rights advocates.

B. Federal funded abortion is a unpopular issue even in the democratic party- health care proves
Yoest, staff writer, 7-17 (Patrick, Wall Street Journal, 7-17-09, BT-CO-20090717-713581.html)

-A group of anti-abortion Democrats opposed to U.S. House health-care legislation in its current form have emerged as a major obstacle to Democratic leaders' goal of passing the measure by August. A group of 20 House Democrats signed a letter sent Friday to House Democratic leaders stating they "cannot support any health care reform proposal unless it explicitly excludes abortion from the scope of any government-defined or subsidized health insurance plan." The letter comes at a time when other blocs of House Democrats, such as the fiscally conservative Blue Dog Coalition, have threatened to withhold their support for the bill. Rep. Bart Stupak, D-Mich., warned that Democratic leaders should heed the group's letter, saying the bill is endangered by the defection of anti-abortion Democrats. "I told leadership repeatedly, but they just sort of ignored us," said Stupak, who signed the letter. "They ignore at their own peril." President Barack Obama and the Democratic Congress have avoided painful debates on abortion thus far. Obama has largely stayed above the fray on culture-war issues, and the Senate confirmation hearings of Supreme Court justice nominee Sonia Sotomayor have done little to ignite passions on the issue. But abortion debates have creeped up in recent days in Congress. The House voted Thursday on a rule to limit amendments on a financial-services spending bill, with 39 anti-abortion Democrats voting against the rule because it bars a

vote on an abortion-related amendment.

C. Ruling against the public crushes legitimacy

Yoo, Law @ Berkley, ‘1
(Yoo 2k1, John , Professor, Law at University of California, Berkeley, “In Defense of the Courts’ Legitimacy, 68 U Chi. L. Rev. 775, Lexis)
How does the Court maintain this legitimacy? According to the Casey plurality, the Court receives its public support by "making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation." n39 In other words, only by acting in a manner that suggests that its decisions are the product of law rather than politics can the Court maintain its legitimacy. Therefore, the Court must adhere to settled precedent, lest the public believe that the Court is merely just another political actor. "To overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question." n40 Without this legitimacy, the Court would be unable to perform its role as interpreter of the Constitution, which at times may require the Court to act against the popular will in favor of individual rights. Leading social scientists appear to agree with the Casey plurality's notion of judicial legitimacy. The Court's institutional legitimacy both enhances the legitimacy of particular decisions and increases the voluntarily acceptance of unpopular decisions. n41 Valuable as it is, however, legitimacy is hard to come by. Political scientists have emphasized the limited ability of the federal courts to enforce their decisions, and hence have turned to the Court's legitimacy as an explanation for compliance. n42 The Court's standing is further complicated because it lacks any electoral basis for its legitimacy. n43 The way to acquire this legitimacy, many scholars seem to believe, is for the Court to appear to act neutrally, n44 objectively, n45 or fairly n46 by following standards of procedural justice or by making decisions that follow principled rules.

Court Legitimacy – 1NC (2/2)
D. Legitimacy key to rule of law, rights, and democracy.

Peretti 1999
(Terri J., In Defense of a Political Court, Princeton University Press)

Should the Court lose its legitimacy and, consequently, its power, we in turn lose the benefits that only the Court can provide. Vitally important constitutional rights and liberties, as well as minority groups, would be unprotected and would likely suffer at the hands of an indifferent or hostile majority. An additional loss of paramount importance is the ideal and the reality of the rule of law. All government action would be reduced to arbitrary will and force, rather than being justified according to reason and, thus, rendered legitimate. The consequences of the Court losing its legitimacy and the ability to play its specialized role, if we are to believe Philip Kurland, are horrible indeed.

D) The impact is extinction.
Diamond 95
(Larry Diamond, Hoover Institution senior fellow, co-editor of the Journal of Democracy, December 1995, A Report
to the Carnegie Commission on Preventing Deadly Conflict, “Promoting Democracy in the 1990s: Actors and Instruments, Issues and Imperatives,” __ ccpdc/pubs/di/1.htm__)
OTHER THREATS This hardly exhausts the lists of threats to our security and well-being in the coming years and decades. In the former Yugoslavia nationalist aggression tears at the stability of Europe and could easily spread. The flow of illegal drugs intensifies through increasingly powerful international crime syndicates that have made common cause with authoritarian regimes and have utterly corrupted the institutions of tenuous, democratic ones. Nuclear, chemical, and biological weapons continue to proliferate. The very source of life on Earth, the global ecosystem, appears increasingly endangered. Most of these new and unconventional threats to security are associated with or aggravated by the weakness or absence of democracy,
with its provisions for legality, accountability, popular sovereignty, and openness. LESSONS OF THE TWENTIETH CENTURY The experience of this century offers important lessons. Countries that govern themselves in a truly democratic fashion do not go to war with one another. They do not aggress against their neighbors to aggrandize themselves or glorify their leaders. Democratic governments do not ethnically “cleanse” their own populations, and they are much less likely to face ethnic insurgency. Democracies do not sponsor terrorism against one another. They do not build weapons of mass destruction to use on or to threaten one another. Democratic countries form more reliable, open, and enduring trading partnerships. In the long run they offer better and more stable climates for investment. They are more environmentally responsible because they must answer to their own citizens, who organize to protest the destruction of their environments. They are better bets to honor international treaties since they value legal obligations and because their openness makes it much more difficult to breach agreements in secret. Precisely because, within their own borders, they respect competition, civil liberties, property rights, and the rule of law, democracies are the only reliable foundation on which a new world order of international security and prosperity can be built.

DA 1/2
The judicial process stops progressivism which leads to oppression, only congressional action avoids this: this evidence assumes all of their courts are progressive arguments
West, prof law Georgetown, 93
(Robin West, Professor of Law, Georgetown University Law Center, Fall 1993, Northwestern Law Review, pg. 241) [Dan Li]

The first reason is, loosely, historical: the "adjudicated Constitution," by which I mean the Constitution that has been construed and applied by the courts, has proven to be a markedly conservative foundational document, and for that reason alone, a rule of restraint looks desirable. More often than not, our adjudicated Constitution has served to protect existing distributions of social, economic, racial, sexual, linguistic, and cultural power against serious threat of change. It has done so by insulating the private, social, economic, and intimate spheres of life, constituted in part by gross inequities of resources and maldistributions of power, against legislative attempts at redistribution or renegotiation of the terms of private, social, or economic struggle. That foundational conservatism is evidenced not only by the Lochner-era Court's substantive Due Process Clause, Contract Clause, and Takings Clause jurisprudence, which insulated economic hierarchies from redistributive legislative attack, but also by the modern Scalia Court's understanding of the Equal Protection Clause, which insulates racial hierarchies from progressive state legislative attack, and the same Court's interpretation of the First Amendment, which insulates cultural hierarchies from legislative renegotiation through hate speech ordinances. Although the adjudicated Constitution obviously has from time to time been used to effectuate progressive gains and to solidify progressive victories, those moments have been rare, anomalous, and often fleeting: the victory has been, as often as not, soured by near instantaneous conservative reconstruction. For the most part, the clauses of the adjudicated Constitution have operated in concert to conserve present distributions of social, economic, and private power against legislative and democratic attempts at redistributing those resources or renegotiating the terms of struggle. If for no other than that reason, progressives would be well advised to break their romance with the United States Constitution. If it is true, as I have suggested, that the adjudicated Constitution is doctrinally and substantively more of a bar to than a vehicle for progressive legislation, then Thayer's rule looks attractive indeed.

DA 2/2
Progressive politics checks the threat of proliferation, terrorism, and wars
The Congressional Progressive Caucus, 03
(The Congressional Progressive Caucus, largest non party Congressional Caucus, 2003, Progressive State of the Union 2003, “While Bush Prepares the US for War, the Congressional Progressive Caucus Presents an Alternative for the American People,”
“On America in the World,” progstate.html) [Dan Li]

Preemptive war doctrine: The administration has come up with a new doctrine, known as "preemptive war," that puts the countries of the world on notice that they may be invaded by US forces at any time, for any reason the administration deems appropriate. Further, the administration announced that the US would use nuclear weapons, even against an adversary that did not possess nuclear weapons of its own. Progressives know that "preemptive war" and "nuclear first strike" doctrines are dangerous for our security. These policies goad countries to prepare for potential US attacks with nuclear weapons of their own, as North Korea has recently demonstrated. Preemptive war and nuclear first strike policies are also illegal. They were made illegal by treaties the US has committed to. Furthermore, "preemptive war" and nuclear first strike are shameful and un-American. Treaties: The administration turned the US into the first country to unilaterally withdraw from a nuclear weapons control (ABM) treaty. Progressives believe that weapons treaties serve our security. The administration should have known that by unilaterally abrogating a nuclear arms control treaty, it would tempt other countries to do the same, as obviously happened in North Korea. Iraq: The administration has claimed that Iraq poses a threat to the US and has ignored the potential of war against Iraq to endanger stability in the region and put our allies at risk. Progressives in Congress believe that war in Iraq is unjustified. The US should allow UN inspectors to complete their inspections and dismantle any existing Iraqi weapons capacity. 9/11: The administration has squandered international support for the US following the attacks by repeatedly using discredited reports of a connection between Iraq and the 9/11 leaders to justify war against Iraq. Progressives believe that the administration has misdirected America's efforts: A war in Iraq distracts America from finding the specific individuals who plotted the 9/11 attacks.

A. The affirmative tells the story of power backwards. For them, the imposition of law delimits the possibility of individual self-expression. This only obscures the endless proliferation of identity practices which CONSTITUTE and CREATE social meaning.
Hailing the law as a savior enacts a fundamental limit on the capacity for multiplicity
Michel Foucault, Society Must Be Defended: Lectures at the College De France 1975-1976,2003, p. 265-6
IN ORDER TO MAKE a concrete analysis of power relations, we must abandon the juridical model of sovereignty. That model in effect presupposes that the individual is a subject with natural rights or primitive powers; it sets itself the task of accounting for the ideal genesis of the State; and finally, it makes the law the basic manifestation of power. We should be trying to study power not on the basis of the primitive terms of the relationship, but on the basis of the relationship itself, to the extent that it is the relationship itself that determines the elements on which it bears: rather than asking ideal subjects what part of themselves or their powers they have surrendered in order to let themselves become subjects, we have to look at how relations of subjugation can manufacture subjects. Similarly, rather than looking for the single form or the central point from which all forms of power derive, either by way of consequence or development, we must begin by letting them operate in their multiplicity, their differences, their specificity, and their reversibility; we must therefore study them as relations of force that intersect, refer to one another, converge, or, on the contrary, come into conflict and strive to negate one another. And, finally, rather than privileging the law as manifestation of power, we would do better to try to identify the different techniques of constraint that it implements.
B. This is particularly true with the doctrine of equal protection. The abstract concept of equality when put into practice becomes a tool of normalization and assimilation. By emphasizing the fundamental sameness of disparate classes it erases all the marks of difference which make possible the imagination of bodies distinct from the white, male, high class norm
Kenji Yoshino Yale School of Law. 1998 “Assimilationist Bias in Equal Protection: The Visibility Presumption and the Case of "Don't Ask, Don't Tell".”Yale Law Journal. Volume: 108. Issue: 3.
Covering, rather than conversion or passing, is at issue here. Williams's colleague was not asking her to convert to being white or to pass as white. Rather, he was suggesting that she might cover her blackness by not making "too much of [her] race."(67) That expression is telling--Williams is entitled to her race, but not to "too much" of it; there is a set of unspecified race-related traits that extends beyond the acceptable bounds of black identity. Covering also inheres more subtly in the colleague's wish that the school be able to find "more blacks like"(68) Williams, which, by his own admission, is defined at least in part as a category of persons whom he does not even think of as black. The colleague's statements, while contradictory in the way Williams notes, nonetheless arise from a consistent assumption that there is such a thing as "excessive blackness." That excess both disrupts the relationship he and Williams could otherwise have and disqualifies the other black woman from that relationship. It is this excess, which extends beyond skin color alone, that needs to be covered.(69) All three assimilationist demands inhere in current equal protection doctrine. The demands to convert and to pass are explicitly made in the immutability and visibility factors, respectively. The immutability factor withholds protection from groups that can convert, leaving them susceptible to legislation that pressures them to do so.(70) The visibility factor similarly withholds protection from groups that can hide their defining trait, making them vulnerable to legislation that induces them to pass.(71) In contrast, the demand to cover has a more subtle and pervasive presence in equal protection doctrine. It is not captured in any discrete factor, but rather in a classification-based--as opposed to class-based view of equal protection. A classification-based view of equal protection seeks to treat all classes created by a classification the same, while a class-based--view privileges the disadvantaged class(es) created by a classification. Because it tends to ignore differences between the classes created by a classification, the classification-based view often results in the demand to cover. The ideal of "colorblindness" is perhaps the best example of such a classification-based view. In attempting to be colorblind, the judiciary often garners results that not only ignore the real disparities between whites and blacks but evaluate blacks by implicitly white standards.(72) In order to succeed, blacks are forced to meet those standards, and thereby must mute any cultural and historical differences between whites and blacks. In such a scenario, blacks are not being asked to convert or to pass, but they are being asked to cover.(73)

The plan rescues agency and human dignity – but it does so at the cost of rendering theme fundamentally alien.
Vote negative to sacrifice this meaning, to give up on agency and to establish the possibility of immanence that stands in stark contrast to the world of biological destiny
Only we access the true internal link to their agency arguments – the degradation of an infinitely valuable self by a world which insists that meaning can be found only in the principle of utility.
Georges Bataille, Theory of Religion, 1992, p. 41-46
The Worker and the Tool. Generally speaking, the world of things is perceived as a fallen world. It entails the alienation of the one who created it. This is the basic principle: to subordinate is not only to alter the subordinated element but to be altered oneself. The tool changes nature and man at the same time: it subjugates nature to man, who makes and uses it, but it ties man to subjugated nature. Nature becomes man’s property but it ceases to be immanent to him. It is his on condition that it is closed to him. If he places the world in his power, this is to the extent that he forgets that he is himself the world: he denies the world but it is himself that he denies. Everything in my power declares that I have compelled that which is equal to me no longer to exist for its own purpose but rather for a purpose that is alien to it. The purpose of a plow is alien to the reality that constitutes it; and with greater reason, the same is true of a grain of wheat or a calf. If I ate the wheat or the calf in an animal way, they would also be diverted from their own purpose, but they would be suddenly destroyed as wheat and as calf. At no time would the wheat and the calf be the things that they are from the start. The grain of wheat is a unit of agricultural production; the cow is a head of livestock, and the one who cultivates the wheat is a farmer; the one who raises the steer is a stock raiser. Now, during the time when he is cultivating, the farmer’s purpose is not his own purpose, and during the time when he is tending stock, the purpose of the stock raiser is not his own purpose. The agricultural product and the livestock are things, and the farmer and the stock raiser during the time they are working, are also things. All this is foreign to the immanent immensity, where there are neither separations nor limits. In the degree that he is the immanent immensity, that he is being, that he is of the world, man is a stranger for himself. The farmer is not a man: he is the plow of the one who eats the bread. At the limit, the act of the eater himself is already agricultural labor, to which he furnishes the energy Chapter III Sacrifice, the Festival, and the Principles of the Sacred World The Need that is Met by Sacrifice and Its Principle The first fruits of the harvest or a head of livestock are sacrificed in order to remove the plant and the animal, together with the farmer and the stock raiser, from the world of things. The principle of sacrifice is destruction, but though it sometimes goes so far as to destroy completely (as in a holocaust), the destruction that sacrifice is intended to bring about is not annihilation. The thing - only the thing - is what sacrifice means to destroy in the victim. Sacrifice destroys an object's real ties of subordination; it draws the victim out of the world of utility and restores it to that of unintelligible caprice. When the offered animal enters the circle in which the priest will immolate it, it passes from the world of things which are closed to man and are nothing to him, which he knows from the outside - to the world that is immanent to it, intimate, known as the wife is known is sexual consumption (consummation charnelle). This assumes that it has ceased to be separated from its own intimacy, as it is in the subordination of labour. The sacrificer's prior separation from the world of thing is necessary for the return to intimacy, of immanence between man and the world, between the subject and the object. The sacrificer needs the sacrifice in order to separate himself from the world of things and the victim could not be separated from it in turn if the sacrificer was not already separated in advance. The sacrificer declares: "Intimately, I belong to the sovereign world of gods and myths, to the world of violent and uncalculated generosity, just as my wife belongs to my desires. I withdraw you, victim, from the world in which you were and could only be reduced to the condition of a thing, having a meaning that was foreign to your intimate nature. I call you back to the intimacy of the divine world, of the profound immanence of all that is." The Unreality of the Divine World Of course this is a monologue and the victim can neither understand nor reply. Sacrifice essentially turns its back on real relations. If it took them into account, it would go against its own nature, which is precisely the opposite of that world of things on which distinct reality is founded. It could not destroy the animal as a thing without denying the animal's objective reality. This is what gives the world of sacrifice an appearance of puerile gratuitousness. But one cannot at the same time destroy the values that found reality and accept their limits. The return to immanent intimacy implies a beclouded consciousness: consciousness is tied to the positing of objects as such, grasped directly, apart from a vague perception, beyond the always unreal images of a thinking based on participation.

The impact is the endless proliferation of destructive politics. The underside of the right to agency is the biopolitical capacity for absolute state extermination.
The bloodiest wars and the worst atrocities are part and parcel of a concept of social organization which locates power in the capacity for state regulation
James Bernauer, Professor of Philosophy, Boston College, Michel Foucault’s Force of Flight, 1990, p. 141-142
This capacity of power to conceal itself cannot cloak the tragedy of the implications contained in Foucault's examination of its functioning. While liberals have fought to extend rights and Marxists have denounced the injustice of capitalism, a political technology, acting in the interests of a better administration of life, has produced a politics that places man's existence as a living being in question. The very period that proclaimed pride in having overthrown the tyranny of monarchy, that engaged in an endless clamor for reform, that is confident in the virtues of its humanistic faith-this period's politics created a landscape dominated by history's bloodiest wars. What comparison is possible between a sovereign's authority to take a life and a power that, in the interest of protecting a society's quality of life, can plan, as well as develop the means for its implementation, a policy of mutually assured destruction? Such a policy is neither an aberration of the fundamental principles of modern politics nor an abandonment of our age's humanism in favor of a more primitive right to kill; it is but the other side of a Power that is "situated and exercised at the level of life, the species, the race, and the large-scale phenomena of population." The bio-political project of administering and optimizing life closes its circle with the production of the Bomb. "The atomic situation is now at the end point of this process: the power to expose a whole population to death is the underside of a power to guarantee an individual's continued existence." The solace that might have been expected from being able to gaze at scaffolds empty of the victims of a tyrant's vengeance has been stolen from us by the noose that has tightened around each of our own necks.

Case 1NC
  1. Ideology dominates precedent – no spillover.
Songer, University of South Carolina, 99
(Donald R. Songer, University of South Carolina, December 1999, The American Political Science Review, Vol. 93, No. 4) SS

The primary focus of Majority Rule is an empirical test of whether the votes of Supreme Court justices are determined by the Court's own precedent or reflect their ideological preferences. "Does precedent actually cause justices to reach decisions that they otherwise would not have made" (p. 7)? The authors conceptualize this question as involving a dichotomous choice. They assume that a vote is determined solely by either precedent or judicial ideology. They do not attempt to test whether, and do not even allow the possibility that, the votes and policies adopted by the justices can be jointly influenced by both. Analysis centers on the behavior of justices in cases labelled the "progeny" of earlier cases that set precedent. The assumption is that, if the Legal Model is accurate, votes in these progeny cases should be controlled by the parent case. Only the progeny votes of justices who dissented in the precedent case are examined, as one can make no firm conclusions about the motivations of the justices who were part of the majority in the precedent. In the case of those who dissented in the precedent, it may objectively be determined that the precedent was contrary to their ideological prefer- ences. Thus, their votes in the progeny can be classified "objectively" as supporting either precedent or their prefer- ences. Spaeth and Segal examine all the votes of the dissenters in all the orally argued progeny of the universe of a list of the "landmark" decisions of the Court and a sample of the nonunanimous "ordinary" decisions of the Court. In all, 2,425 votes cast by 77 justices in the 1,206 progeny of 341 precedential cases are examined. The conclusions of the authors are unambiguous and can be easily summarized: "The justices are rarely influenced by stare decisis" (p. 288). In only 11.9% of the votes did Spaeth and Segal find any evidence that the justices were influenced by precedent. Moreover, the domination of precedent by the ideological preferences of the justices was found in every era of the Court's history and characterized voting in the progeny of both the landmark and the ordinary cases.

  1. The privacy doctrine better for abortion rights than Equal Protection.
Mentone, Fordham University School of Law, 02
(Kristina M. Mentone, Fordham University School of Law, May 2002, “When Equal Protection Fails: How the Equal Protection Justification for Abortion Undercuts the Struggle for Equality in the Workplace, publications/articles/ 500flspub11453.pdf) SS

Ronald Dworkin supports the privacy argument for abortion and believes that the "right of procreative autonomy follows from any competent interpretation of the due process clause and of the Supreme Court's past decisions applying it.” Dworkin argues that the Due Process Clause of the Fourteenth Amendment selects certain freedoms, such as the freedom to procure an abortion, and makes them specific constitutional rights that a state cannot restrict or override unless it has a compelling reason for doing so. According to his reasoning, abortion rights are safeguarded by the right to privacy, which is inherent in the concept of ordered liberty and personal autonomy. The decision to procure an abortion is at least as private as decisions involving contraception, and decisions involving contraception have been protected under the theory of privacy. Dworkin further explains that the right to an abortion is a necessary component of autonomy. "[Integrity demands general recognition of the principle of procreative autonomy, and therefore of the right of women to decide for themselves not only whether to conceive but whether to bear a child." Abortion "involves a woman's control not just of her sexual relations, but [also] of changes within her own body."

  1. Abortion rights based on equal protection are meant to protect women from male dominance – this view crushes the idea of gender equality.
Mentone, Fordham University School of Law, 02
(Kristina M. Mentone, Fordham University School of Law, May 2002, “When Equal Protection Fails: How the Equal Protection Justification for Abortion Undercuts the Struggle for Equality in the Workplace, publications/articles/ 500flspub11453.pdf) SS

Moreover, the equal protection argument endangers the right to abortion even at the present time. If the primary reason that a woman is entitled to an abortion is that she likely was coerced into having sex and did not have control over her pregnancy in the first place, or that she likely will be the primary caretaker, then perhaps states could limit abortion rights to such situations. Under such a system, a woman who voluntarily has sex, or perhaps intentionally gets pregnant, but then changes her mind, could be denied the right to an abortion. Similarly, a woman who becomes pregnant by a man who is willing to be the primary caretaker might be denied the right to have an abortion so that the father could raise the baby. According to the equal protection theory, then, abortion is merely a means to repair women's situation in society based on discrimination. Therefore, abortion may be seen as a right limited to a time when women still experience discrimination. By contrast, the privacy argument is bound neither by a time limit nor by the individual circumstances of a particular woman. The privacy argument acknowledges that no woman, regardless of how powerless or powerful she may be, can be forced to have a baby. It protects women who intentionally get pregnant and then change their minds. It protects women who consensually have sex but accidentally get pregnant. It protects women who are pregnant due to rape or coercion. It protects women who are pregnant by men who are willing to support the baby. It protects all women, all the time.