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204 CHAPTER 6 %u2022 The Federal Judiciaryreview to strike down state laws restricting the civil rights of Americans in the areas of education and voting. Conservative Courts have used activism to protect the rights of states and private businesses. Sometimes people cannot agree on whether or not a decision represents judicial activism or restraint. For example, in National Federation of Independent Business v. Sebelius , 73 the Supreme Court upheld the provision of the Patient Protection and Affordable Care Act (ACA) requiring individuals to purchase health insurance or pay a fine. 74 Some critics viewed this decision as judicial activism because the Supreme Court broadened the definition of Congress%u2019s power to tax to include the power to impose fines under the ACA. Others characterized the decision as an example of judicial restraint because the Supreme Court deferred to Congress in upholding the ACA. The final task on the argument essay is to %u201crespond to an opposing or alternate perspective using refutation or rebuttal.%u201d Refutation is the practice of using evidence to prove that an opponent%u2019s contention is false. Rebuttal means discrediting an argument by offering a differing point of view. Don%u2019t worry about the differences between refutation and rebuttal. The main idea is that you should be able to acknowledge and address an opposing viewpoint. The refutation and rebuttal portion of the argument essay is%u00a0worth one point. To earn this point, you must do three things: 1. State the other%u2019s sides position. This is the flip side of your thesis. 2. Describe how an opponent of your thesis would support their position. 3. Explain why your argument is better. You Decide: Refutation and Rebuttal Suppose the prompt is %u201cTake a position about whether judicial activism or judicial restraint best supports democratic government.%u201d The thesis statement is %u201cJudicial restraint best supports democratic government because citizens%u2019 interests should be represented in government, and federal justices do not represent citizens%u2019 interests because they are not elected.%u201d As evidence, the essay uses the lifetime appointment of federal judges in Article III and the argument in Brutus No. 1 that the federal judiciary will become too powerful. Which of the following refutation/rebuttal statements is most likely to earn the point? 1. An opponent of my argument would claim that judicial activism best supports democracy because the judiciary is not elected and can make unpopular decisions. While elected officials may risk losing their jobs by supporting unpopular causes, judges serve for life and are insulated from public opinion. 2. An opponent of my argument would claim that judicial activism best supports democracy because unelected judges are in a better position to make decisions supporting civil rights. However, this argument is wrong, because unelected judges can also make decisions that hinder civil rights, such as the decision in Plessy v. Ferguson . 3. An opponent of my argument would claim that judicial activism best supports democracy. However, this argument is incorrect because democracy does not just uphold the will of the majority. In a truly democratic government, everyone%u2019s rights must be treated the same under the law. Your Turn: Suppose the prompt is %u201cTake a position on whether Congress has sufficient power to check the federal judiciary.%u201d The thesis statement is %u201cCongress does not have sufficient power to check the federal judiciary because judges serve for life and Congress cannot remove them unless they are impeached, which is a very difficult process.%u201d Write a refutation or rebuttal statement that responds to the thesis. Make sure to include the three components listed above. AP%u00ae Exam PRACTICERefutation and Rebuttal Preparing for the AP%u00aeExam Make sure you understand the difference between judicial activism and judicial restraint. For each of the fourteen required Supreme Court cases, be able to make an argument about whether the decision represents judicial activism or represents judicial restraint. AP%u00ae TIP %u00a9 Bedford, Freeman & Worth Publishers. For review purposes only. Do not distribute.