Talk:Supreme Court of the United States/Archive 4

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Recent edits to "Political leanings" section

I would appreciate it if other editors would weigh in on the appropriateness of the recent edits to the "Political leanings" section concerning Justice Kennedy. Although these edits certainly seem to be pushing a point of view, I am having a hard time seeing how the previous text didn't suffer from the same problem, and how to discuss this topic without being subjective. --Russ (talk) 21:46, 23 June 2008 (UTC)

They are, in my opinion, in appropriate. It looks like someone being annoyed at some of his recent decisions. The fact that he has voted with some "liberal" majorities in recent cases (I suspect it is the Guantanamo case that is sticking in that particular editor's throat) is hardly a surprise: he voted with the majority in Texas v. Johnson, and he is a swing-vote, after all. That he is a more conservative swing-voter than O'Connor is certainly not in doubt, nor is it that he is generally perceived as a moderate conservative swing vote. If the editor can provide evidence that this perception is changing among court watchers, then by all means, modify the text, but the current text reflects the general view of court watchers and legal analysts. Magidin (talk) 22:20, 23 June 2008 (UTC)

I agree with Magidin. Since the new opinion about GITMO was just published, I would assume that the edits were the work of an angry individual. NuclearWarfare (talk) 03:29, 24 June 2008 (UTC)

And to be a bit snarky, I wonder if today's opinions in District of Columbia v. Heller and the Millionaire Amendment, in which Kennedy joined Scalia, Thomas, Alito, and Roberts in 5-4 votes will make such edits go away for now. Magidin (talk) 17:49, 26 June 2008 (UTC)

Organization of SCOTUS decisions in history section

I am having a disagreement with Swatjester. I personally feel that any categorization of decisions by amendment is not helpful to the average reader (Americans included) not aware of the U.S. Constitution and Bill of Rights. I think such a categorization clouds the issues involved. In particular, I am opposed to the description of certain cases in the summary of the Roberts Court's as "Second Amendment" or "Fourth Amendment" cases rather than as opinions affecting "gun ownership" and the "exclusionary rule". What does everyone else think? BoBo (talk) 04:17, 27 June 2008 (UTC)

• I give readers a bit more credit on knowing what the amendments are. Okay, maybe too much, but if we link to them, curious minds are only a click away from an explanation. Of course, we could explain things out, along the lines of "gun ownership under the Second Amendment". bd2412 T 04:22, 27 June 2008 (UTC)
  • If it is the consensus desire, I have no problem with ALL of the decisions listed in the history section being organized by amendment, but not just a few. I think the procedure needs to be standardized. Since hardly any of the prior summaries of cases from the beginning to the Rehnquist Court mention cases by amendment, I think it odd to start adding such descriptions now. BoBo (talk) 04:31, 27 June 2008 (UTC)

I'd like it if it were arranged by Amendment as well. NuclearWarfare (talk) 04:42, 27 June 2008 (UTC)

Of course, not all decisions relate to an Amendment - there's plenty of statutory interpretation with respect to some major decisions in areas like antitrust, copyright, CERCLA, ERISA, and the civil rights statutes which raise no constitutional questions. bd2412 T 04:56, 27 June 2008 (UTC)

I tend to agree with BoBo here; describing Heller as a "Second Amendment" case assumes that the reader knows what the Second Amendment is. I do, and most of those contributing to this article surely do, but that does not mean that J. Random Reader will. I think BD2412's suggestion of saying "gun ownership under the Second Amendment" is a good compromise. --Russ (talk) 09:25, 27 June 2008 (UTC)

It's technically incorrect to say that Heller was about gun ownership. Heller was not about ownership, it was about the classification of the second amendment as a collective or individual right. As I said before, the Court does not make rulings on gun ownership: that is the domain of congress. It makes interpretations on the constitution, which is why it is a Second Amendment issue. And if you think that the average american (by the way, this is a world encyclopedia, we have non-americans who read this as well) knows what the exclusionary rule is, you are in a world of your own. Seeing as the majority here agrees that it should be arranged by Amendment, I'm going to revert it back, but include a wikilink to the relevant amendment for further understanding. That should be a good compromise. ⇒SWATJester ^{Son of the Defender} 15:09, 27 June 2008 (UTC)

How about "the right of gun ownership" instead of just "gun ownership", then? Also, if we have "the exclusionary rule under the Fourth Amendment" that will confuse people doubly. How about "the exclusion of evidence obtained in violation of the Fourth Amendment"? Better to spell things out a bit more, I think. bd2412 T 15:15, 27 June 2008 (UTC)

I think the suggestion of bd2412 is a sound one. Specifying the ruling is about exclusion of evidence obtained in violation of the Fourth Amendment (suitably wikilinked) is more informative than "exclusionary rule" or "Fourth Amendment" (even if wikilinked). Heller is a bit more difficult, but perhaps something like "right of individuals to own firearms under the Second Amendment" (with suitable wikilinks) would be more informative without being overly detailed. Magidin (talk) 15:31, 27 June 2008 (UTC)

I already see problems with the way the last paragraph in the history section about the Roberts Court has been reverted. We now have references to the First, Second and Fourth Amendments in no particular order. If Amendments are going to be used, shouldn't they be listed in number order? Also, contrary to what bd2412 and Magidin have urged, the Amendments appear with no qualifying references as suggested. In addition, stylistically, I don't like the mixture of regular topic titles with Amendment titles. In my opinion, all topic titles should be listed separately from all Amendment titles if the Amendment titles are not going to be qualified with references. BoBo (talk) 00:11, 28 June 2008 (UTC)

In addition, to be consistent, whatever is done to the paragraph on the Roberts Court needs to be done to the previous paragraphs for the other Courts. Who is willing to take on that little time-consuming venture? BoBo (talk) 00:16, 28 June 2008 (UTC)

Deindenting for readability. It looks like we are in a bit of a flux; my comments occurred after the most recent change to the page, and I think the same holds for bd2412's comments. We have to strike a balance between a very brief summary and an informative one, and it will probably not be a simple one. I do think we have reached some consensus that we ought to try to be a bit more informative than simply listing the amendments or a term of art such as exclusionary rule, but striking the right balance is likely to take some tinkering. I won't volunteer to make a go at it right now (and not being a lawyer, I may be unqualified anyway), but might try my hand at it over the next couple of days. Don't let that stop anyone else, though. Magidin (talk) 00:46, 28 June 2008 (UTC)

It occurs to me that now all references to the death penalty in the history section are now going to have to be rewritten in terms of the Eighth Amendment. I don't know how abortion rulings are going to be described. Technically, they are "right to privacy" cases involving the Amendments. However, there is absolutely no consensus either in Griswold v. Connecticut or present SCOTUS jurisprudence as to which Amendments are the base and origin of the right. To repeat, I think we are going to obscure and not elucidate cases by reference to amendments. BoBo (talk) 01:45, 28 June 2008 (UTC)

Just an FYI: Roe is the controlling case law on abortion being a fundamental right under the right to privacy (over whether or not a woman has the right to terminate a pregnancy; it's a privacy right under the Ninth, federally, and under the 14th for the states; thus, Roe is a 14th). However, case law over regulation of abortion is mainly controlled by Planned Parenthood v. Casey, which overturned Roe's trimester system and replaced it with undue burden. Foofighter20x (talk) 20:54, 6 October 2008 (UTC)

I agree that mentioning amendments whenever they may (or do) have some bearing seems extreme. I think Heller is a bit different because a large part of the ruling is on the meaning of the Amendment, and as such that much ought to be mentioned. Much of the incorporation rulings also ought to mention the 14th in some way. But we don't need to go either all in or all out. Magidin (talk) 03:15, 28 June 2008 (UTC)

Right, and not all cases will involve an amendment. Heller was entirely based upon the second amendment. The ones that highly revolve around the amendments should reflect that in their blurb. The ones that do not should reflect the appropriate topic (i.e. suspension of habeas corpus, or extension of the commerce clause, etc.) 03:56, 28 June 2008 (UTC)

I agree with that approach as well. Voting rights, for example, may come under several amendments, but there is an overriding topical concern. bd2412 T 04:19, 28 June 2008 (UTC)

Zinn

Someone named Zinn is mentioned several times in the "Competing criticisms for partisanship and judicial activism" section. Is this Howard Zinn, and/or does it ever mention his first name anywhere? --Ye Olde Luke (talk) 18:08, 15 July 2008 (UTC)

Yes, and yes. The first mention of Zinn occurs in the section on criticisms of the nomination and appointment process, and his name is wikilinked and given in full there. The full name should also be mentioned the first time it occurs in the section you mention, though (since it is so far from the previous set of mentions), so I've added his name and wikilinked it there as well. Magidin (talk) 18:51, 15 July 2008 (UTC)

I am going to remove that entire section if you are going to have a criticism section you at least should have more then one person or source criticizing. It also lends undo wait to the opinion. Jp1701a (talk) 07:42, 2 August 2008 (UTC)

Link to Supreme Court decisions?

Since the most important thing they do is their decisions, I would like a link to the list of decisions.

Here is one page of those decisions, it's a wiki article:

http://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_493

I'm not smart enough to make that happen. —Preceding unsigned comment added by 159.182.1.4 (talk) 16:44, 6 October 2008 (UTC)

Tenure of a SCOTUS Justice -- Life v. Good Behavior

I realize the article (witch I had not been watching until recently) has said "good behavior" for a few months, but it was "life" for much longer, before. This issue has been intensely discussed and vetted on a related article. See here, if you please. If users who advocate for the "good behavior" wording have anything to add that wasn't discussed there, feel free to raise it. However, at this time, there is a consensus that "life tenure," properly explained, is the better wording. Non Curat Lex (talk) 09:08, 19 October 2008 (UTC)

Foofighter: Thank you for your willingness to compromise. I would still like to eliminte the "good behavior" verbiage from the infobox, on the grounds that it is cluttering, unnecessary, and perhaps even misleading, especially since, "life tneure" as used in the infobox is there as a "defined term" which links to a subpart of the page wherein its full explanation can be found. But even as a defined term, "life tenure" makes more sense, and is more economical. What's more, there is a consensus, on (and according to my research, off) wiki, that "life tenure" is more accurate, although of course, there are some dissenters. I will give you time to respond before making any changes.

I do like your other changes to the infobox. Non Curat Lex (talk) 19:55, 19 October 2008 (UTC)

I like it just saying Life or Life Tenure "good behavior" is subjective in my opinion. CTJF83Talk 20:02, 19 October 2008 (UTC)

Better to have SOME sort of qualification on life or life tenure. I like to try and take a journalist's approach to information in infoboxes: comprehensive bite-size nuggets. Saying life without qualification could lead a reader to think that once in, there's not way to get rid of a horrible justice, God forbid one ever exist... And, since the info box appears a little crammed, we can always widen it. Foofighter20x (talk) 20:10, 19 October 2008 (UTC)

Here's my take: people will know once they read the definition of "life tenure," that it is not impossible to get rid of a SCOTUS Associate Justice (or any other Art. III Federal judge), but just "almost impossible." On the other hand, if they read, "good behavior," they might think, as soon as you misbehave, you're out. And that is not true. There are several judges who have done awful things, in and out of office, and are still serving -- there aren't currently any high profile scandals involving the Supreme Court, but at the District and Circuit court levels, there are plenty, and those judges have the same "life tenure." Moreover, "life tenure" is the short form more commonly used by legal academics and professionals. "Good behavior" has going for it that it is literally what the Constitution says. But like many Constitutional terms, it is not self-defining. And what it is defined as, is tantamount to life tenure. I think the infobox should use the term that gives the more accurate first impression. Non Curat Lex (talk) 00:15, 20 October 2008 (UTC)

Two sources that qualify the term life tenure (I'm sure you're familiar with the 2nd):

• • Neubauer, David W. (2007). Judical Process: Law, Courts, and Politics in the United States (4th ed.). Belmont, CA: Thompson Wadsworth. pp. pg. 65. {{cite book}}: |pages= has extra text (help); Unknown parameter |coauthors= ignored (|author= suggested) (help)

"Once they take the oath of office, they serve during 'good behavior,' which, for practical purposes, means for life."

• • May, Christopher N. (2007). Constitutional Law: National Power and Federalism (4th ed.). New York, NY: Aspen Publishers. pp. pg. 76. {{cite book}}: |pages= has extra text (help); Unknown parameter |coauthors= ignored (|author= suggested) (help)

Discussing Article III judges: "...judges who are vested with two important rights of office, namely, life tenure 'during good behavior,' and a compensation that will not be diminished..."

I am familiar. Mr. May was one of my [favorite] instructors. So anyhow, I'm not saying that it shouldn't be qualified; I'm saying it's okay, and better, to use the shorthand, as a defined term, cross-referencing the detailed explanation later in the article, in the infobox. Non Curat Lex (talk) 02:24, 21 October 2008 (UTC)

*shrug* Whatever works. Foofighter20x (talk) 03:04, 21 October 2008 (UTC)

Session

When is the supreme court in session? I could not find the answer on this page, nor through cursory Google search. If someone can find a source, I'd be interested in seeing that information put onto the page. —Preceding unsigned comment added by Dfrankow (talk • contribs) 18:42, 1 January 2009 (UTC) This is from the Supreme Court's web page <http://www.supremecourtus.gov/docket/docket.html>: "The Court's Term begins on the first Monday in October and ends on the preceding day the next year." The "First Monday in October" is a well-known phrase among Court-watchers and is even the title of a movie about a (fictional) first female justice. Wlasser (talk) 02:45, 2 January 2009 (UTC)

Merchant Exchange Building

This article says that the Merchant Exchange Building is in New York City, but the link goes to an article for the Merchant Exchange Building that is in Philadelphia. Is the link wrong? Is one of the articles wrong? Are there two Merchant Exchange Buildings? Evan7257 (talk) 20:13, 21 January 2009 (UTC)

Obama Picture

Why is this picture in the "How a case moves through the court" section? What does it have to do with the procedures? The photo with the composition of the Court is in the section that discusses the composition, size, etc. The picture of the building is in the section on the Supreme Court's quarters. The photo of the Marshall statue and quote from Marbury is in the relevant section of Jurisdiction, precisely what Marbury addresses. But what exactly does a photo of this meeting have to do with how a case moves through the Court? What does this photo add to the article? If it has some relevance to some section, I do not see it, and it definitely is not in the section wherein it is placed. Either place it in the correct context or it should go. Magidin (talk) 04:29, 22 January 2009 (UTC)

I agree with you on this, and I have boldly removed it. NuclearWarfare _(Talk) 04:34, 22 January 2009 (UTC)

I disagree and boldly reinserted the picture under the nominations section. miranda 13:37, 22 January 2009 (UTC)

And it has nothing to do with the nomination of Supreme Court Justice either. Look: it's a nice picture, no doubt about it. But it adds nothing to the article, and you keep putting it where in sections where it is inappropriate. What does it provide, in your opinion? How is the article better or more informative with that photo? Magidin (talk) 14:24, 22 January 2009 (UTC)

Magidin, since you are owning the article, I might as well back the fuck off. miranda 15:40, 22 January 2009 (UTC)

There's no cause to make personal attacks. Magidin was not the only user who objected to the picture. I don't think it's particularly relevant, either. --R'n'B (call me Russ) 15:43, 22 January 2009 (UTC)

I moved the picture to another relevant article. I don't think one picture should piss everyone off. Also, please don't warn me what I should or should not do because someone is in bunches over a picture, R'n'B. Thanks. miranda 15:49, 22 January 2009 (UTC)

Wikisource

I'm wondering whether {{wikisource|Author: _____}} would be a useful addition to this article. I don't own the article, and don't even want to. I don't know who the author would be out the many possible. So I am putting it up to you who have been involved in this process. 7&6=thirteen (talk) 21:53, 1 February 2009 (UTC) Stan

I would agree to that. At the very least, there are per curium opinions with no "author" but the Court. bd2412 T 23:17, 1 February 2009 (UTC)

I've not seen any negative feedback. Someone just ought to do this. Best. 7&6=thirteen (talk) 18:32, 7 February 2009 (UTC) Stan

Checks and balances vs. Limits on Power

The section formally titled "Checks and Balances" has been changed to "Limits on Power" since checks and balances refers to how all three branches of government operate as a whole. The new title is there for more appropriate to what is discussed in the current text of the section. —Preceding unsigned comment added by 216.158.20.134 (talk) 21:58, 11 February 2009 (UTC)

There are 3 paragraphs in that section. Two of them say nothing about any limits on the Court's power. Old title restored. --R'n'B (call me Russ) 22:15, 11 February 2009 (UTC)

"Constitution does not explicitly grant the Supreme Court the power of judicial review" the topic of this paragraph is a limit. This paragraph discusses the establishment of judicial review, not what judicial review does. "The Supreme Court cannot directly enforce its rulings" is a limit on power and is the topic of the second paragraph. Neither of these two subjects reflect how The Court, its members or its decisions can be altered by other branches of government. The third paragraph is the only topic that actually covers "checks in balances"Rpcb (talk) 02:49, 12 February 2009 (UTC)

Actual checks and balances provided by a process of mixed government have been added. See Checks and balances.Rpcb (talk) 02:49, 12 February 2009 (UTC)

This whole section needs a rewrite. I'll see what I can do on short notice. Also: please be parsimonious in changing the text of your comments after others have already replied to them. Magidin (talk) 03:53, 12 February 2009 (UTC)

Don't forget to sign your comments. In addition, I just removed the following sentence:

Court rulings maybe[sic] overturned only by amendment to The Constitution which is carried out by the Congress followed by the States.

This statement is simply false. First, most Court rulings are on statutory interpretations; these may be easily overturned by simple legislative action. For example, the recent passage of the Lilly Ledbetter Fair Pay Act of 2009 overturned the decision of the Supreme Court in Ledbetter v. Goodyear. And second, Court rulings may be overturned by the Court itself with subsequent decisions, which does not require an amendment to the constitution. Magidin (talk) 01:28, 12 February 2009 (UTC)

I removed the new section, changed the header, and added some material taken from sundry articles of The Oxford Companion to the Supreme Court (1992 edition). Please edit freely, removing and/or adding material as appropriate. Magidin (talk) 05:08, 12 February 2009 (UTC)

I like the new section! Good work Magidin. I'm glad you noted a need for an expansion on this section that was more approprite to the title. Rpcb (talk) 13:57, 12 February 2009 (UTC)

FDR's "actual purpose" ??? How could anyone know that?

The article has the following passage:

"President Franklin D. Roosevelt attempted to expand the Court in 1937; his plan would have allowed the President to appoint one additional Justice for each existing Justice who reached the age of 70 years 6 months but did not retire from the bench, until the Court reached a maximum size of fifteen justices. Ostensibly, the proposal was made to ease the burdens of the docket on the elderly judges, but the President's actual purpose was to add Justices who would favor his New Deal policies, which had been regularly ruled unconstitutional by the Court.[8]"

with the reference being to piece from a 1937 American Bar Association Journal article of three brief paragraphs that offers not a whit of proof for what FDR's "actual purpose" was.

There is no way to know what FDR's "actual purpose" was. Like most people, I would personally guess that it was indeed in order to "pack" the court with justices favorable to his programs. But it is foolish to state in an encyclopedia article information that can be obtained only by the use of paranormal powers. (Even if someone claims what their own purpose was -- especially a politician! -- there is no way of knowing if this is accurate.)

So it would be appropriate to say something like "Many [or most] historians believe that FDR's purpose was in fact to 'pack' the court" -- IF this can be shown by citation to be true. But *not* to claim to know what FDR was thinking.Daqu (talk) 16:29, 1 May 2009 (UTC)

Good points. As currently referenced, I would suggest: "Many perceived FDR's purpose was in fact..." Magidin (talk) 17:05, 1 May 2009 (UTC)

Judicial Activism

The last paragraph or so of the "Judicial Activism" section takes a point-of-view (POV). Although the beginning of the section attempts to provide a "balanced" view of judicial activism from both the liberal and conservative parts of the political spectrum, the last paragraph contains a long quote from Pat Buchanan denouncing what he sees as liberal judicial activism -- e.g. abortion, desegregation, prohibiting prayer in schools, etc.

Thus, I have two problems with the way this section is written: (1) The conclusion contains a very POV quote that basically states the proposition that the Supreme Court has improperly strayed from the constitution over the past five decades. Although this quote might be appropriate in a balanced article discussing the history of the term "judicial activism," a POV quote of this length is inappropriate in a section of this size. (2) Although "judicial activism" may have historically referred to all sides of the political section, today it is used almost exclusively to refer to liberal constitutional interpretations. In its attempt to be balanced, the beginning of this section fails to make this point about modern politics.

I would love to make some changes to the article to reflect this and thus make the article less POV, but since I'm not an experienced Wikipedian, I thought that I would discuss it here first. —Preceding unsigned comment added by 69.86.162.156 (talk) 02:33, 4 May 2009 (UTC)

Overturning decisions?

I was looking for information regarding the legal requirement for the Supreme Court to overturn one of its own decisions -- like Roe v. Wade -- and couldn't find anything. I think it should be included in this article. 85.180.68.144 (talk) 23:26, 25 October 2008 (UTC)

The Supreme Court is not in any way obligated to overturn any of its prior holdings. They typically hold to stare decisis as it is. Even when the Justices later realize they've made a bad call (usually due to a slightly different Court composition), they've been reluctant to overturn the precedent right away in order to maintain the prestige of the Court as an institution of stablility. Foofighter20x (talk) 00:10, 26 October 2008 (UTC)

Foo: I don't think the above anon meant to ask if the court was ever required to reverse itself; I think he wanted to know what legal requirements constrained the court's own decisions to reverse its own past precedent.

Anon: Short answer - there is none.

Long answer: the only actual requirement is contained in the article, although it requires some interpretation. There are a few different ways it can happen, and while it doesn't happen often, there is nothing whatsoever to stop them from doing it. Here's how it goes:

First, Keep in mind that the Supreme Court does not automatically grant every request for an appeal. So the first way they can change the law, is for a lower Federal court to not follow past precedent, and the Supreme Court to deny the petition for review ("certiorari").

Second,even if the court does grant review, if there is no majority (for example, if one judge recuses himself and there are two four judge pluralities) the new precedent will be de facto affirmed.

Third, even if a case is actually heard and decided by the court, to overturn past precedent requires only that five judges decide that it should be overturned. For example, in Lawrence v. Texas, a mere five judge majority decided to overturn the two-decade old precedent ofBowers v. Hardwick. In District of Columbia v. Heller, a mere five judge majority decided to overturn the precedent of U.S. v. Miller which had stood since 1934.

A more common alternative is not to "overrule" past precedent, but simply subtly change it. For example, in Planned Parenthood v. Casey, the Supreme Court purported to "reaffirm" Roe, while subtley changing the law to make subsantial restrictions on abortion legal, as seen in "Gonzales v. Carhart." Sometimes, the court does this another way: ignoring the past precedent. For example, in Texaco v. Dagher, the Supreme Court made a new rule that was at odds with its prior pronouncement on the same subject in U.S. v. Topco.

So how easy is it really? Overruling past precedent is considered drastic. And it doesn't happen that often. However, there is nothing to stop any justice from so deciding, except his or her own conscience, and his or her own understanding of the law. People have many different opinions about how strong stare decisis really is.

For example, Antonin Scalia said "I do not myself believe in rigid adherence to stare decisis in constitutional cases." Lawrence, 539 U.S. 558, 587 (2003) (Scalia, J., Dissenting). Kennedy, who is most often the deciding vote on the court these days, said "Stare decisis is not an inexorable command; rather, it 'is a principle of policy and not a mechanical foruma of adherence to the latest decision." Id. at __ (citing Payne v. Tennessee, 501 U.S. 808, 828; Helvering v. Hallock, 309 U.S. 106, 119 (1940). So, technically, stare decisis is, by its own terms, a weak doctrine. Here's what Circuit Judge Richard Posner said about Heller: "The decision was the most noteworthy of the Court's recent term. It is questionable in both method and result, and it is evidence that the Supreme Court, in deciding constitutional cases, exercises a freewheeling discretion strongly flavored with ideology." _In Defense of Looseness_, The New Republic, accessed 10/25/08.

And what you must never forget is the answer to this question: who has the final word on whether or not something is stare decisis ? Non Curat Lex (talk) 00:41, 26 October 2008 (UTC)

How does this apply to a Constitutionality challenge that has been dismissed as an unsubstantial Federal question, e.g. Baker_V_Nelson? How would one go about getting the Court to decide to reverse that kind of dismissal, which is different to a regular dismissal in that it binds lower Courts into not hearing cases on it?--Occono (talk) 20:24, 4 May 2009 (UTC)

Disclaimer: I'm not a lawyer; this is just my understanding. You could get them to reverse it by raising the question again and asking them to reconsider their prior conclusion, much like you would ask them to reverse any other decision. One way would be to raise a "substantial federal question" that the original request for a grant of certiorari did not raise. (Consider, for example, the questioning the justices made during the first oral argument of Roe v. Wade, in which they kept pressing the attorneys for Roe to raise a federal claim; or similar questioning during Bush v Gore; if at a later date a "substantial federal question" is raised, they can take up the underlying matter again). Another is to again ask for a writ on the same issues and see if the Court changes its mind; if it does, that may end up overturning the precedent. Presumably, you would start by arguing that there is a substantial federal question, and appeal a dismissal from a lower court on those grounds, asking the Court to reconsider its conclusion that no substantial question existed in the first place. If they were to agree to revisit the issue, and then decide that there is a substantial federal question, the case would likely be remanded down so the underlying issue can then be litigated and decided. I believe there was a point when the Supreme Court refused to hear reapportionment cases, claiming it was a nonjusticiable issue, but it later reversed that decision during the Warren era (and if I'm recalling correclty, Frankfurter objected precisely because he thought the issue was non-justiciable). Magidin (talk) 21:18, 4 May 2009 (UTC)

Retired justices

Is it still relevant to have a section on O'Connor, she retired over two years ago, that'd be like mentioning rhenquist —Preceding unsigned comment added by 88.109.159.56 (talk) 14:39, 11 May 2009 (UTC)

Justice O'Connor, as a senior (retired) justice, can still be asked to sit on Courts of Appeals and to render other service; she also has certain priviledges (a clerk, office space, etc). She is still listed in official documents as a Justice. Rehnquist, on the other hand, is dead so none of these apply. When Justice Souter officially steps down, he will also be in senior status. Magidin (talk) 17:06, 11 May 2009 (UTC)

New sentence in lede

Earlier today, an anon editor inserted into the lede paragraph, in between a sentence about the nomination and confirmation of Justices and a sentence about their tenure in office, the following: "Members of the Supreme Court have attended Harvard, Cornell, Yale, and Princeton." Now, I'm sure this is a true statement, but I'm also sure we could find a fair number of other colleges to add to that list; more importantly, though, it has absolutely nothing to do with the sentences before and after it, and is simply not an important enough fact to highlight in the lede paragraph. Accordingly, I deleted the sentence, but User:Pietrov88 then undid my edit. Rather than get into an edit war over this, I would appreciate it if other editors would independently review this insertion. --R'n'B (call me Russ) 19:13, 26 May 2009 (UTC)

I see no reason to have it in the middle of the lead paragraph. If it belongs anywhere, it belongs under "Current membership". Magidin (talk) 20:34, 26 May 2009 (UTC)

Warning, a Brit has escaped from his cage

Just to inform y'all I've taken a load of SCOTUS books out of my law library and I'll be trying to beef this article up. Query me if you see any misunderstandings/factual errors - I'm not an American, so I might interpret things wrongly. Ironholds (talk) 13:06, 28 May 2009 (UTC)

Basic Information Request

The writings here on the USA Supreme Court is great, but I see no writings as to what the Constitutional Responsibility of the US Supreme Court actually is. I have searched the Internet and can not find it there either. Can someone with Constitutional law credibility please add exactly what the founding fathers intended our US Supreme Court to be and do? What is their Constitutional responsibility, what is their mission and what is their interpretive limits? THANKS! Al Barrs

It's described in the Jurisdiction section. Magidin (talk) 17:00, 17 May 2009 (UTC)

It's also clearly stated in Article III, Section 2 of the Constituion. The role of the court is hear and decide cases which come to it under its jurisdiction. It's that simple. -- Foofighter20x (talk) 18:47, 30 May 2009 (UTC)

Religious affiliation

I don't much care for the column on religious affiliation on the table; while it might be relevant to discuss it in the article, I don't think it belongs on that table. Just like the political leanings are discussed, but not included on that table. Magidin (talk) 15:18, 28 May 2009 (UTC)

• Concur. -- Foofighter20x (talk) 18:36, 30 May 2009 (UTC)

I would prefer some more comments, but if nobody steps up, I'll delete the column later today or early tomorrow. Magidin (talk) 15:08, 3 June 2009 (UTC)

• I don't much care for it, either. --R'n'B (call me Russ) 17:18, 3 June 2009 (UTC)
  • I agree. Delete. We have Demographics of the Supreme Court of the United States for precisely this reason (although we could just have a separate article listing all Justices by demographic characteristics). bd2412 T 17:31, 3 June 2009 (UTC)

Good; I'll delete and add a pointer to the Demographics article instead. Magidin (talk) 18:31, 3 June 2009 (UTC)

SCOTUS

I don't think this acronym is pervasive enough that it should be referenced immediately after the court's title. This makes sense for organizations that are generally known by their acronyms (e.g., the EPA, the SEC--though note that even in that article the parenthetical reads "(commonly known as the SEC)"), but not for the Supreme Court, which is nearly always referred to as ... wait for it.. "the Supreme Court." Notice that the President of the United States article does not start with, or even include, "POTUS". —Preceding unsigned comment added by 67.161.85.181 (talk) 21:47, 3 May 2009 (UTC)

There used to be a reference justifying the inclusion, with a link to some comments by, I believe, Justice O'Connor. What happened to it? Magidin (talk) 21:56, 3 May 2009 (UTC)

It's not that I object to the inclusion of the term at all... it just seems out of place immediately at the beginning. "SCOTUS" is not "EPA" or "NAACP". It is a cutesy term that people in the know use to demonstrate that they are in the know. I bet that not more than one or two of the justices themselves have ever actually used the term. —Preceding unsigned comment added by 67.161.85.181 (talk) 22:21, 3 May 2009 (UTC)

Whether the Justices themselves use the term is not really the issue; I'll wager most vice-presidents don't refer to themselves as "VP", but that, in and of itself, does not mean the term is not common or used. Your characterization of a "cutesy term that people in the know use to demonstrate they are in the know" seems rather dismissive; do you have any citation or evidence that this is the entirety of its extent? Magidin (talk) 14:51, 5 May 2009 (UTC)

You're right that whether the Justices use the term is not really the issue. I thought it was probably a good indicator of what kind of term it was (i.e., it is not official or pseudo-official like EPA--the head of the EPA probably refers to the EPA all the time). I think your reference to "VP" is very apposite. It is a relatively common slang term for the Vice President, but it is probably not used by the Vice President himself--though I would think it is more likely to be used than SCOTUS. And "VP", of course, is not referred to parenthetically immediately after "Vice President of the United States" in that article. Nor should it be. I do not have a citation for my "cutesy" comment. And it was pretty dismissive... so sorry about that. I do think it is accurate though. I'm not saying SCOTUS isn't used--just that it's not very common and except among a particular set, and that is more like slang than anything else. Like "Veep" for the Vice President or "Prez" for the president. It doesn't belong right at the head of an encyclopedia article about the Supreme Court. —Preceding unsigned comment added by 128.208.191.7 (talk) 19:50, 5 May 2009 (UTC)

Incidentally, I found that comment by Justice O'Connor. I think it's pretty clear that she was responding in a tongue in cheek manner to an article lamenting rampant acronyms rather than endorsing SCOTUS as an official term for the Court (unless you think her article should begin with "Sandra Day O'Connor (FWOTSC). ;) NY Times article.(The article had referred to "Scotus" as "nine men", and Justice O'Connor wrote a letter saying that uhh... she was a woman and that "If you have any contradictory information, I would be grateful if you would forward it -- as I am sure the Potus, the Scotus and undersigned (the Fwotsc) would be most interested in seeing it.") —Preceding unsigned comment added by 128.208.191.7 (talk) 20:14, 5 May 2009 (UTC)

I have always abbreviated it as USSC. Jigen III (talk) 07:50, 10 July 2009 (UTC)

Linking "United States"

Based on WP:LINKS, I removed the wikilink to "United States" (I concede my edit summary overquoted and was not the most appropriate text). My edit was undone with the comment "P:LINKS says no such thing. reverting link to U.S. on first appearance."

Please see WP:LINKS, which says,

Unless they are particularly relevant to the topic of the article, it is generally inappropriate to link plain English words and terms whose meaning can be understood by most readers of the English Wikipedia, including the names of major geographic features and locations, religions, languages, common professions, common units of measurement....

TJRC (talk) 19:46, 23 July 2009 (UTC)

Granted, "United States" meets the second part of what you have quoted above, as it is a term whose meaning should be understood by most readers. But what about the first part? "United States" certainly seems to be particularly relevant to an article about one of the major branches of the United States government! --R'n'B (call me Russ) 20:26, 23 July 2009 (UTC)

Not to mention, United States in the sense it's being used refers not just to a geographic location, but also to the name of a federation of independent and sovereign states. Quasi-equivalently, this would be like saying that an article on the European Council shouldn't link to the article on the European Union. My opinion: it's probably more appropriate to have the words United States be a link to the federal government article. -- Foofighter20x (talk) 00:43, 24 July 2009 (UTC)

Sotomayor...

Don't add until Pres. Obama signs her commission. Once he executes that commissioning duty, then she's lawfully a Justice. Not before, but upon commissioning (and no, she doesn't have to be sworn in to hold office, just commissioned--the swearing is required to execute the office). -- Foofighter20x (talk) 21:07, 6 August 2009 (UTC)

I concur with your analysis. This goes back to Marbury v. Madison, which unfortunately, most people (including many lawyers) don't really understand. The commission is essential. --Coolcaesar (talk) 17:38, 8 August 2009 (UTC)

Sotomayor Commission Date

It is my understanding that a Supreme Court justice's tenure begins on the date of his/her commission, not on when he/she takes their oath. As a result, Sotomayor's (as well as all the other justices') start date should be on the date of her commission (August 6) and not on the date of her oath (August 8). See her official Federal Judicial Center biography [1] BoBo (talk) 00:04, 12 August 2009 (UTC)

Agreed. The FJC is generally the authoritative source for this. bd2412 T 00:46, 12 August 2009 (UTC)

The reason there's even ambiguity over this is because of Edwin M. Stanton. He was nominated by President Grant, and confirmed by the Senate, but died 4 days later, before he ever took his oath. I don't have information on whether Grant executed a commission for him, but I imagine he did. The historians have used the "taking the oath" demarcation to keep him off the list. -- Foofighter20x (talk) 03:38, 12 August 2009 (UTC)

Legally, I don't think there is really that much ambiguity. According to the United States Code: "Associate justices shall have precedence according to the seniority of their commissions. Justices whose commissions bear the same date shall have precedence according to seniority in age."[2] There is no mention of precedence based upon the date of oaths. If oaths were the defining criteria for tenure on the Supreme Court, one would think that the United States Code would mention it. BoBo (talk) 04:09, 12 August 2009 (UTC)

Forcing the overturn of a law?

I was discussing "hard" and "soft" powers of constitutional courts with some friends. The US Supreme Court is often invoked as *the* example of a court that can take the legislative branch to task and force the overturn of a controversial passed law - a federal law, in US context - without anyone on the other side being able to defy it, not even the President, but how often does this actually happen? And what happens next if it does? The article states that the Court cannot on its own enforce its decisions (e.g. by troops) so to a certain degree it depends on the consent and cooperation of the president. If someone had brought Gitmo to the Supreme Court under Bush, saying it was unconstitutional, and the SC had agreed that holding "unlawful combattants" there without trial was unconstitutional and impossible (I am just making this up as an example, and I'm not an American), what would Bush actually have been forced to do, in a hard sense? And how often does that kind of thing occur with a recent federal law?

Yeah, I know this is about the subject of the article rather than the article itself, but this kind of "ultimate arbiter" status is one of the aspects of the USSC that's most often brought up in discussion overseas and it could be made clearer in the text - the section on the institutional limits of the court only discusses the fact that it can't enforce its decisioons by turning to the military or FBI on its own, not the issue of what happens when a law, as such, is earmarked as unconstitutional.Strausszek (talk) 08:12, 11 June 2009 (UTC)

See Judicial review in the United States and Law of the United States, each of which explain part of what you're asking for.

Stare decisis implies that once an appellate court rules that a statute is unconstitutional, all lower courts are bound to follow that ruling. The judges of the courts of appeals and the district court judges are sworn to uphold the federal Constitution, which impliedly means that they will not enforce a statute already declared to be unconstitutional.

This is why decisions are reported in law reports and most lawyers use annotated statutes or codes (either online or in hard copy with softcover pocket part supplements inserted into the back cover). The annotations for a given statute will include summaries of any cases interpreting or overturning that statute. Also, there are citators like Shepard's Citations which show whether a statute or case is still good law. --Coolcaesar (talk) 08:50, 11 June 2009 (UTC)

Thanks. I just read the article on Judicial Review and it certinly shows a quite "hard" decisis power. However, it also says that the USSC normally tries to avoid reviewing cases where the outcome can be decided on other grounds (e.g. by military courts?) Also, cases that come before a federal court land there as case review, they can't begin as an overall law review even if the law is implicitly reviewed by the Federal Court, such as the Supreme Court (obvioulsy this appeals procedure sometimes takes years from ground level).. If the Supreme Court definitely does thumbs down on a law, all of it, does that immediately nullify all earlier decisions reaching sown and back over some time (back to the point when earlier SC rulings, or even back to the Constitution itself) came in place and now are seen to contradict that law? Or do those cases have to be brought before a local court and then appealed to a state court, one by one? What I'm intersted in is the power of the SC (compared to constitutional courts elsewhere) to act as a "quick hard check" on laws that are seen as unconstitutional. Strausszek (talk) 09:47, 11 June 2009 (UTC)

That's an extremely difficult question because there are about a dozen things that can happen (in terms of the impact on other cases) when the Supreme Court declares a particular statute unconstitutional. Some preexisting case law could survive, though a large part may not (for example, there are a few tiny bits and pieces of general federal common law that survived the Erie decision which reinterpreted the Rules of Decision Act, but they are extremely rare and obscure). You also need to be aware of the concurrent jurisdiction issue---that a lot of cases can proceed in federal or state courts or both depending upon the particular facts and how the complaint was pleaded. What you're asking for is normally covered in about three months of constitutional law and civil procedure courses in the first year of law school in the United States. I don't have the time to explain it all right now (it would take about 100 paragraphs and amount to a new Wikipedia article in itself). --Coolcaesar (talk) 15:21, 11 June 2009 (UTC)

I hear WP:BOLD bells ringing! Somebody start that article!----occono (talk) 02:35, 20 August 2009 (UTC)

New U.S. Supreme Court Photo which includes Sotomayor

Perhaps the 2006 photo in the article should be updated with a new one which includes Justice Sotomayor? http://news.yahoo.com/nphotos/slideshow/photo//091003/480/ef187de6a861493c919987e1a9b2e02c/ LeahBethM (talk) 05:30, 4 October 2009 (UTC)

That image you've linked to is copyrighted by the Associated Press. Find a portrait that is public domain or licensed for Creative Commons, and I'm sure we'll have no problem updating the image within the article. -- Foofighter20x (talk) 05:43, 4 October 2009 (UTC)

I concur with Foofighter20x. The Associated Press is extremely vigorous in challenging unauthorized republication of their images. They have an ongoing agreement with a firm called Attributor which patrols the Web looking for any unauthorized use of AP content. --Coolcaesar (talk) 04:06, 6 October 2009 (UTC)

Cool to know about AP challenging unauthorized republication.--Tomwsulcer (talk) 16:01, 24 October 2009 (UTC)

Proposed rewrite of the criticism section

I kept much of the original material from the criticism section, but tightened it, referenced it as best I could, and added new ones; so the result is a somewhat longer, but well researched and straightforward section with plenty of references. One thing: there was a huge quote from Pat Buchanan; I shortened it considerably (I thought PB was too long to quote at such length). I'm putting the proposed revised section here, on the talk page, so other editors can have a look over, and add comments, before we decide to include it or not, or what should be done.--Tomwsulcer (talk) 04:01, 24 October 2009 (UTC)

Wow. First, I have to say, that looks like it was a lot of work, and I for one thank you for it. I've been unhappy with that section for a while but simply do not have the time to deal with it. Though I will of course now write a lot about what I don't like about your rewrite, let me preface it by saying that by and large I like it; I like the idea of setting it up as you do, and I think it is generally a very good write-up. That said... There are some minor stylistic/language issues (e.g., "Writer's have attacked judicial activism:" followed by the list feels wrong; better would be to say something like "Some writers that have attacked [a perceived liberal] judicial activism [on the current Court] include xx, yy, zz, and ww" and have the names of the books as footnoted referrences. (I'm also not sure Roy Moore is appropriately described as a "writer"; he had a rather large axe to grind on this particular issue). But those can be dealt with in situs. Of more concern are that some of the criticisms seem to lack the balance that is given in others, giving the impression that there is no reply to them; for example, Expanding federal power. I'm fairly sure I've read in a number of places that part of the purpose of the 14th was precisely to expand those powers. The 14th explicitly supercedes certain aspects of the 10th by explicitly giving Congress power to legislate in certain areas. Such replies, if they can be suitably referenced, ought to be there. On the other hand, the most common, by far, way in which federal power has been expanded is through the Commerce Clause, and there you can find lots of criticism (from, among others, the late Chief Justce Rehnquist and Justice Scalia). Finally, for that section, the final clause reads like a statement of fact that this is an example. You are, I assume, reporting someone raising this as an example: it should be identified as such, like the comments in the previous section are attributed. Defenses on this front should also be mentioned. On the "Secret Proceedings" section, "Justices" is more appropriate than "Judges", and I see no reason to single out Scalia and Thomas: Breyer, O'Connor, and Rehnquist all wrote books in the fairly recent past about the Court; all living justices, active or retired, with the exception of Souter gave extensive interviews on C-SPAN recently. In those interviews, there were many replies to this particular charge (including from reporters who cover the Court); they should be there. Those interviews also addressed the number of cases taken. Finally: there are a lot of opinions that you are writing up as the impersonal editor. For example, in the final section, "Every Supreme Court nomination is marked by endless speculation in the media about whether the judge leans to the left, middle, or right" seems to be reported as a statement of fact, when it actually seems to be the opinion of the writer quoted. (And quite clearly cannot refer but to relatively recent nominations... was such speculation around when Stevens was nominated?). Your table is missing Frankfurter, and most especially John Marshall Harlan, who was the first to volunteer to address the Committee on his judicial philosophy. And that's enough criticisms for now. Really, overall, great job! Magidin (talk) 04:42, 24 October 2009 (UTC)

Thanks for your comments. Generally I agree with your intelligent criticisms and please feel free to edit the text here on this talk page to make it better like you suggest. I'm not a lawyer but layman. Wondering whether we need a section praising the Supreme Court? Like, how SC acts as a balance to executive power? Like how the activist positions are sometimes right or good (like, Brown v. Board of Educ)? And what else is needed to get this chunk of text ready for prime time? Also, I was thinking the "judicial activism" section was too long, perhaps needs more tightening?--Tomwsulcer (talk) 15:11, 24 October 2009 (UTC)

Note as of 12:05 Sat Oct 24 eastern US time, I'm working offline to include Magidin's suggestions into the text chunk. I'll repost revisions here (to avoid editing conflicts).--Tomwsulcer (talk) 16:06, 24 October 2009 (UTC)

I put Magidin's suggestions into the chunk of text; so, wondering what others think. I'm still thinking the "judicial activism" section is a bit longish.--Tomwsulcer (talk) 18:38, 24 October 2009 (UTC)

You write the Frankfurter and Marshall Harlan were not questioned. In fact, Frankfurter appeared before the committee (at the Committee's request) to address certain libelous accusations against him. And Marshall Harlan was the first to appear before the Committee to discuss his judicial philosophy; Harlan volunteered for this (check the session on Confirmation in the article). Magidin (talk) 19:18, 24 October 2009 (UTC)

You're right; NY Times omitted them. How'd you know that? Fixed it. Good catch btw.--Tomwsulcer (talk) 21:56, 24 October 2009 (UTC)

I knew they appeared because I contributed part of that section, including those two facts, if I remember correctly; I figured your source had omitted them because you did not include them. I'm not a lawyer either, by the way. I'm going to take a hand at editing your stuff below a bit, especially those places were it seems to me that you are making assertions of fact when reporting opinions. Magidin (talk) 02:18, 25 October 2009 (UTC)

Well you're pretty sharp to catch the NY Times in an oversight. Kudos to you. I appreciate if you'd try to improve my writing; my style is somewhat choppy, boring, stop-and-start, simplistic. Best wikipedia writer I've come across is DCGeist on the United States page, but there are lots of Wikipedians who have good writing styles. Also, seems like people from Canada and Ireland I've run into (also the American south) have a way with language that I admire, also Indians from India (great facility with words) but I'm sticking to what I'm best at, researching, and fixing stuff. I also did a revamp of the "Visiting the court" section (below).--Tomwsulcer (talk) 03:03, 25 October 2009 (UTC)

                 ---- proposed section on "Criticism of the Supreme Court" ----

Sotomayor = liberal wing?

I have to agree with User:TJRC; it's odd to be saying that Sotomayor is considered part of any wing before she has even provided an opinion on a single case. bd2412 T 23:22, 18 September 2009 (UTC)

I didn't add the claim originally, but I think it's right. She is regarded, rightly or wrongly, as a member of the liberal wing of the court, and that's enough for us to say so. I think rightly so, too. Our liberal President understands the centrality of the court better than most, and I find it impossible to believe that he did not carefully vet his first appointment to ensure that she, too, is a liberal.

Here's the litmus test. Ask yourself this: can you really say, with a straight face, that Barack Obama would risk--would gamble--on going down in history as the President who supplied the fifth vote to overturn Roe-Casey? No. Yet that is something that one would be required to believe in order to believe that Sotomayor was not appointed to be a safe member of the liberal bloc. Obama understands the stakes, legally and politically, and it is simply inconceivable that he would have risked nominating a Justice Souter. We should be realistic about this. She is, and is regarded as, a member of the liberal bloc; that is her purpose. - Simon Dodd { U·T·C·WP:LAW } 23:40, 18 September 2009 (UTC)

The comment undoing my edit was "if Sotomayor wasn't to be considered a part of the court's liberal wing, she wouldn't even have been considered for the nomination." But recall that Eisenhower nominated Earl Warren expecting him to be a good conservative. Your speculations are interesting, and I tend to agree with them, but regardless, they're WP:OR and WP:CRYSTAL TJRC (talk) 23:43, 18 September 2009 (UTC)

Yes, Eisenhower nominated Earl Warren (Bill Brennan, too), but he was a general, not an HLS grad who taught conlaw (to one extent or another) as adjunct faculty at Chicago. Moreover, that was in the days before the Warren Court utterly transformed the landscape for Supreme Court appointments, and Roe (which postdates Nixon's appointment of Blackmun, who arguably belongs in the same category that you're envisioning) made the change all-but irrevocable. Since then, it can't be denied that Presidents have made mistakes, we've seen Kennedy and Souter, but neither Reagan nor Bush 41 were lawyers. Ford and Clinton, who were, did not make such mistakes. As Presidents go, Obama has a relatively sophisticated (albeit, in my own view, fundamentally flawed) understanding of the court and the legal system. He gets what is at stake in a very specific sense - not in the shallow, general sense that most politicians and lay activists talk about the court. It just isn't credible to pretend otherwise.

Nor does citing CRYSTAL do much work, I think. It does no work at all in regard to the simpler claim: whether or not she does belong to the liberal bloc, there is no doubt whatsoever that she is regarded--right now--as belonging to it. We can (and should) say at least that. That leaves the question of whether we can say that she is a member of the liberal bloc. Does that violate CRYSTAL? Not really. It would violate CRYSTAL to say that Obama's Presidency will go down as a failure, but it does not violate CRYSTAL to say that the sun will raise in the east tommorow. This is far closer to the latter, and to the extent it is not, see WP:COMMONSENSE. We are here to improve Wikpiedia, and Wikipedia is not improved by misleading readers to appease a strangely timorous aversion to stating what we know full well is the case. - Simon Dodd { U·T·C·WP:LAW } 00:47, 19 September 2009 (UTC)

I see no difference between this and saying that a newly drafted pro basketball player who has yet to play a game is considered one of the best point guards in the NBA. If sources are available to cite, we can say that experts expect her to be part of that wing, but we'll need at least a few actual opinions to point to before we can say that she is one.

Let me ask you this. Would it be accurate to say that Sotomayor is considered to be one of the hardest working Justices on the Court? One of the most vocal participants in oral arguments? Everything in her record indicates that this will be the case, but I'm sure we can agree it is premature to make such classifications. bd2412 T 00:51, 19 September 2009 (UTC)

I don't have any problem with a sourced statement by a reputable commentator that the commentator believes she will be part of a liberal wing, liberal bloc, or whatever. I do have a problem with an editor making his own determination that she is part of a perceived liberal wing, with no basis for it other than his reading tea leaves of how she might vote in future cases, and reporting it as a factual statement of "common sense" when it's actually the editor's opinion and speculation. TJRC (talk) 04:56, 19 September 2009 (UTC)

The question to ask is: do you have a reliable source that places Justice Sotomayor in the liberal wing? I think that, right now, the answer is a definite no. We can probably find a reliable source saying she is expected to join the liberal wing, but at this point I would expect no reliable source to say she is part of that wing, simply because she has only participated in one in-chambers vote (on a death penalty case). Same for "hardest working", "one of the most vocal participants", etc. None of that should be added without a reliable source to back it up. And if you have a reliable source saying she is expected to join the liberal wing, then that's the wording that would belong on the article. That is the reason I have been reverting the additions. Remember: the threshold for inclusion in Wikipedia is verifiabily, not truth; whether or not Obama would or would not have nominated her, etc, is irrelevant. Is the claim verifiable or not? See the very first paragraph of Wikipedia's verifiability policy. Magidin (talk) 18:59, 19 September 2009 (UTC)

I fully concur with Magidin. There is a clear difference between what she is expected to be and what she will actually be as a justice. After what happened with Souter, no intelligent lawyer attempts to conclusively classify any newly sworn Supreme Court justice as part of the Court's liberal or conservative wings until that justice has sat on the Court for at least a year. Once a person has made it to the top and they have that lifetime tenure, they have the freedom to be much more aggressive in publicly voting for (and articulating) positions which they would not have taken while in private practice or while sitting on a lower court. It's like how people do crazy things when they realize they've been diagnosed with a terminal illness, or they just won the lottery and will be wealthy for life. Being set for the long run changes EVERYTHING. --Coolcaesar (talk) 04:04, 21 September 2009 (UTC)

Again, please note that I am not arguing realities, except insofar as stating my personal skepticism that a reliable source would go out on a limb and state categorically that Justice Sotomayor "is" part of the liberal wing before giving her time to settle down. I am arguing Wikipedia policies: verifiability, not truth, is the threshold for inclusion here. I am pretty sure that at one time the article said that Sotomayor was expected to join the liberal wing, but it was rightly erased for lack of reliable sourcing. Find reliable sources saying she is expected to join the liberal wing, and we can and should add that she is expected to join the liberal wing. Magidin (talk) 14:50, 21 September 2009 (UTC)

I think Sotomayor is a liberal (not sure about "wing" part though -- I remember reading sources saying she's mainstream-ish) and reliable sources will place her in the liberal camp. I'll try to find them. And yes it's possible that once appointed, she'll veer in a conservative direction, or a more liberal direction. And Coolcaesar is right about the lifetime tenure stuff (see section below). --Tomwsulcer (talk) 12:32, 24 October 2009 (UTC)

No reliable source can properly place her in any camp before she has issued a single opinion. A source that did that would be just guessing, not reliable. Imagine if Wikipedia had been around in 1990, and had declared David Souter to be in the conservative camp along with Scalia and Rehnquist. We'd look like fools for having said it. Souter did not really establish himself as part of the "liberal" wing until the mid-1990s. bd2412 T 14:24, 24 October 2009 (UTC)

Wall Street Journal identifies Sotomayor as "liberal mainstream". Time Magazine describes her as having a "moderately liberal mind". University of Tennessee political scientisty predict she'll be "the most liberal member of the court". The New York Times wrote: "If confirmed to succeed Justice David H. Souter, a mainstay of the liberal wing who is retiring, Judge Sotomayor would probably not change the court’s broad philosophical balance." So, I think the consensus is she's liberal, but moderate or mainstream, although one source suggests she'll be "most liberal"; this seems to be a reasonable assessment. Of course nobody can predict with 100% certainty what she'll do in twenty years, but I don't think we'll look like "fools" for making a statement that "Sotomayor is a mainstream liberal". It's what newspapers are saying.--Tomwsulcer (talk) 15:46, 24 October 2009 (UTC)

Providing sources that say she's been "a liberal" or in the "liberal mainstream" prior to her appointment to the court is fine, but it's a completely different thing than saying she's in the liberal wing of the Court. The analogy I drew above is to a great college basketball point guard. You can say all you want about how great they were at college ball, but history teaches that you can't really gauge their level of performance in the NBA until they've played a few games, and in some cases a few seasons. In the Supreme Court, the equivalent is in the opinions. bd2412 T 16:48, 24 October 2009 (UTC)

I think you're making a big deal about a teensy bit of language. Sotomayor is a mainstream liberal; she's on the Supreme Court. Newspapers support this. It's not WP:OR. I've detailed four solid references above. To make a big deal about the fact that she hasn't yet cast a vote regarding a decision seems, to me, making a mountain out of a mole hill. Yes, she could morph into a conservative; yes, sheep can take up hang-gliding. Let's be reasonable.--Tomwsulcer (talk) 18:07, 24 October 2009 (UTC)

Look, if you want to provide sources saying that she is a liberal, I have no problem with that. If you want to provide sources saying she is expected to be part of the liberal wing, that's fine as well. However, if you want to say that she is part of the liberal wing, then you'd be stating as fact something which has no basis in present fact, which would violate WP:OR and, in because it is a projection of a future development, WP:CRYSTAL. bd2412 T 01:46, 25 October 2009 (UTC)

Yes, let's be reasonable. There is no problem with accurately reporting what the sources say: this source or that says she's a liberal (mainstream or otherwise). Sources that say she is expected to join the liberal three should be quoted as saying that. But saying she is part of the "liberal wing" of the Court is more than just a "teensy bit of language". That talks about a certain ideological divide in the Court as evidenced by the way the Court divides in split votes. Sotomayor has not joined anyone on any decision yet, nor has she established a track, so Wikipedia should not say she is a part of the "liberal wing" without having a reliable source that makes that claim. And right now, no reliable source is making that claim precisely because it is not just a matter of a "teensy bit of language", but instead a rather strong statement. Find a source that says she is expected to join the liberal wing, we can write that. Quote your source saying that Sotomayor has been or is a liberal or in the liberal mainstream saying that. This is different from "joining the liberal wing." Frankfurter was a liberal, but was not a member of the "liberal wing" of the Court. Stevens is a member of the liberal wing of the Supreme Court, but he describes himself as a conservative. They are different things, and there is no reliable sourcing for placing Sotomayor in the liberal wing at this time. Probably plenty to call her a judicial liberal: if you have one, it would be perfectly fine to modify the current sentence "Recent appointee Justice Sotomayor has yet to cast a vote on a case." to something like "Recent appointee Justice Sotomayor has yet to cast a vote on a case; she is considered a judicial liberal/in the liberal mainstream<ref>add suitable reference</ref>. Magidin (talk) 02:14, 25 October 2009 (UTC)

Well, technically, given the way you put it, I'll agree she isn't yet a part of the "liberal wing". I'm still trying to learn to pronounce "sotomay-yore" without thinking how to stick those wonderful syllables in a song lyric. Say it fast: so-toe-may-yore. Cool.--Tomwsulcer (talk) 22:53, 27 October 2009 (UTC)

Proposed revamping of section "Visiting the Supreme Court"

Below is a proposed upgrading of the "visiting the court" section. I kept the basic idea, tightened the writing, found some new information, added references, and put three basic choices -- visitors to building, lectures not in session, and in session. Question: can I put informational phone numbers in an article like this one? Unsure about Wikipedia policy here.--Tomwsulcer (talk) 00:21, 25 October 2009 (UTC)

   --------- proposed revamping of "Visiting the Court" -----------

Visiting the Court

The Supreme Court is open to the public from 9am to 4:30pm weekdays and closed on Saturdays, Sundays and holidays. It is located behind the United States Capitol at One First Street NE and Maryland Avenue in Washington. Visitors are urged to call ahead.

• Self-guided building tours: Visitors can tour the building, not the courtroom, on their own. There's a cafeteria for breakfast and lunch, gift shop, exhibits, and a half-hour informational film.

• Not in session: Lectures are held every hour from 9:30am to 3:30pm. No reservations are necessary. Line up on the Front Plaza 10 minutes before the lecture. For lecture schedule, call 202-479-3211 (press 4, then 4 again). Visitor information number = 202-478-3211 (ext. 4). Another information number is 202-479-3000. Reserved tours are offered weekdays at 2pm for a maximum of six persons.

• In session: Arguments are held twice each morning on Mondays, Tuesdays, and Wednesdays in two-week intervals from October through late April, with breaks during December and February. Visitors are seated in the gallery on a first-come first-served basis. One estimate is there are about 250 seats available. Beginning 7:30am, place-holder cards numbered from 1 to 100 are offered to the first people in line; visitors receiving spots must return by 8:45am to enter the court at 9am for the first oral argument which begins at 10am. Visitors pass through security screening and must use coin-operated lockers to check "coats, hats, briefcases, books, umbrellas, cameras, radios, pagers, cell phones, tape recorders and other electronic equipment." Silence is required; pictures are not permitted; visitors must stand when justices enter; and visitors are discouraged from exiting during oral arguments. Then, visitors in the chamber can stay to hear the second argument, beginning 11am, or leave. Sometimes arguments are held during afternoons. Visitors without cards can wait in line on the plaza for chances to hear the second case; in addition, there's a second line for tourists to watch a five-minute segment of either case. The number of open seats varies from case to case. Visitors wishing to fully observe both arguments should arrive by 7am; for important cases, arrive the day before and wait through the night. In mid-May until the end of June, the court releases orders and opinions beginning at 10am, and these 15 to 30 minute sessions are open to the public. Children younger than six are discouraged from attending. Supreme Court Police are available to answer questions.

  -------------------- end of proposed section revamping --------------

Comments

Wondering what people think; if no problems, I'll switch it in a day or so.--Tomwsulcer (talk) 00:21, 25 October 2009 (UTC)

Note, it's been a few days now, and nobody said anything about the proposed "Visiting the court" section being switched in, so I'm going ahead to switching it in.--Tomwsulcer (talk) 22:44, 27 October 2009 (UTC)

Like Magidin's changes to "Visiting", btw, it's better, good job.--Tomwsulcer (talk) 03:18, 28 October 2009 (UTC)

Criticism of the Supreme Court

Generally, criticism of the Supreme Court falls into one of several categories:

• Judicial activism. The Supreme Court has been criticized for not keeping within Constitutional bounds by exercising judicial restraint. In short, judges make law. Judicial activism can be conservative or liberal. Senator Al Franken explained in 2009: "We hear a lot about judicial activism when politicians are running for office and talk about what kind of judge they want on the Supreme Court, but it seems that their definition of an activist judge is one who votes differently than they would like.". Former Supreme Court justice Thurgood Marshall justified judicial activism with these words: "You do what you think is right and let the law catch up." Historian Howard Zinn argues that the time between the Civil War and the Great Depression was marked by the court's conservative activism. An often-cited example is Lochner v. New York, a decision criticized by many prominent thinkers, including Robert Bork, and even Supreme Court justices themselves including Antonin Scalia.. Chief Justice John Roberts declared "You go to a case like the Lochner case, you can read that opinion today and it's quite clear that they're not interpreting the law, they're making the law." Critics have accused post New Deal courts of liberal judicial activism. One case cited as an example of this activism is Mapp v. Ohio (1961) which made police evidence, which was improperly obtained, inadmissible in court. Critics charged liberal-leaning judges with expanding rights they prefer while twisting the Constitution's original meaning. Another oft-cited case is Roe v. Wade (1973), which legalized abortion; they argue that judges used a circuitous reasoning regarding a "right to privacy" inferred from the Fourteenth Amendment. The Roe decision has been criticized by legal scholars, and justices themselves. That numerous presidential candidates routinely express agreement or disagreement with the decision is a sign that the Roe decision was highly political in nature; in the 2008 presidential election, candidates Hillary Clinton, Barack Obama, and John McCain expressed positions about upholding or overturning this decision. Zinn felt most 20th century courts leaned in a liberal direction, but not in all decisions. Since 1975, the court has leaned to the right. The decision in Brown v. Board of Education has been criticized by conservative commentators such as Patrick Buchanan. and presidential contender Barry Goldwater. Critics from both sides complain that activist-judges abandon the Constitution and substitute their own views instead. Past presidents from all political parties have attacked judicial activism, including Franklin Roosevelt and Nixon. Reagan said "courts that played fast and loose with the instrument the founding fathers devised." Reagan said: "Too many theorists believe that the courts should save the country from the Constitution. Well, I believe it's time to save the Constitution from them." Lincoln warned, refering to the decision on the Dred Scott case, that if government policy became "irrevocably fixed by decisions of the Supreme Court...the people will have ceased to be their own rulers." Former attorney general Edwin Meese III criticized the Court for "incoherent decisions based on the policy preferences of the justices in the majority" which defied "analysis by any strict standard" and lets it "roam at large in a veritable constitutional forest." Failed Supreme Court nominee Robert Bork wrote: "What judges have wrought is a coup d'état, – slow-moving and genteel, but a coup d'état nonetheless." Some writers that have attacked perceived judicial activism including Judge Andrew Napolitano, Phyllis Schlafly, Mark R. Levin, and Mark Sutherland. Critic and Pulitzer Prize-winning historian James MacGregor Burns suggests a president could refuse to obey the court on the grounds that "the power of judicial emasculation of legislation was not—and never has been—in the Constitution." Burns suggests the "court has used its self-appointed authority on behalf of powerful entrenched interests: railroads, the white Southerners who dismantled Reconstruction, free-marketeers, New Deal opponents, and, most recently, George W. Bush's presidential campaign." He wrote Americans "cannot expect leadership from unelected and unaccountable politicians in robes."

• Federal versus state power. Throughout America's historical debate about the power and size of national government, advocates of states' rights such as constitutional scholar Kevin Gutzman have criticized the Supreme Court for misusing the Fourteenth Amendment to ignore the Tenth Amendment and expand federal power to the detriment of state governments. For example, one critic wrote: "Judge-made constitutional law is the product of judicial review — the power of judges to disallow policy choices made by other officials of government, supposedly on the ground that they are prohibited by the Constitution. Thomas Jefferson warned that judges, always eager to expand their own jurisdiction, would twist and shape the Constitution as an artist shapes a ball of wax. This is exactly what has happened ... the great majority of Supreme Court rulings of unconstitutionality involve state, not federal, law; and nearly all of them purport to be based on a single constitutional provision, the 14th Amendment — in fact, on only four words in one sentence of the amendment, due process and equal protection. The 14th Amendment has to a large extent become a second constitution, replacing the original." While Framers such as James Madison and Alexander Hamilton argued in the Federalist Papers that their then-proposed Constitution would not infringe on the power of state governments, others argue that expansive federal power is good and consistent with what the Framers wanted, such as Chief Justice John Marshall, who believed "Congress's power over interstate commerce was "complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution." Modern day theorist Robert B. Reich suggests debate over the Commerce Clause continues today. There should be some discussion of the Commerce Clause debate here as well Magidin, is that what you're asking for?--Tomwsulcer (talk) 02:47, 28 October 2009 (UTC)

• Failing to protect individual rights. Court decisions have been criticized for failing to protect freedoms of citizens: the Dred Scott v. Sandford (1857) decision upheld slavery; Plessy v Ferguson (1896) upheld segregation under the doctrine of separate but equal; Kelo v. City of New London (2005) was criticized by prominent politicians, including New Jersey governor Jon Corzine as undermining property rights; the ruling "emboldened municipalities to condemn property under eminent domain laws to make way for private development," according to one account. A student criticized a 1988 ruling which allowed school officials "to block publication of a student article in the high school newspaper." Some critics suggest the 2009 bench with a conservative majority has "become increasingly hostile to voters" by siding with Indiana's voter identification laws which tend to "disenfranchise large numbers of people without driver’s licenses, especially poor and minority voters," according to one report. Senator Al Franken criticized the court for "eroding individual rights."

• Lifetime tenure. The constitutional provision for lifetime tenure was criticized even before the ratification of the Constitution. Alexander Hamilton responded to these criticisms in Federalist 78, writing that life tenure was necessary to prevent the judiciary from being unduly influenced by the political branches. Hamilton wrote "that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security". However, criticism was renewed from time to time. A proposal in the Judiciary Reorganization Bill of 1937, championed by President Franklin D. Roosevelt and referred to as a "Court-packing plan", would have allowed the President to appoint an additional Justice for each Justice who reached the age of 70½, had at least ten years of service, and had not retired, up to a maximum of six more justices (for a Supreme Court of 15). The ostensible justification for that provision, which was ultimately stripped from the bill, was that the judges having lifetime tenure were able to continue holding their positions after their ability to perform their duties had waned. Other criticisms are specific to the developments in the federal judiciary in the latter half of the Twentieth Century. Critic Larry Sabato wrote: "The insularity of lifetime tenure, combined with the appointments of relatively young attorneys who give long service on the bench, produces senior judges representing the views of past generations better than views of the current day." Sanford Levinson has been critical of Supreme Court justices who have stayed in office despite medical deterioration based on longevity; for example, Levinson criticized Chief Justice William H. Rehnquist for a "degree of egoistic narcissism" by declaring six weeks before his death of his intention to stay on. James MacGregor Burns states lifelong tenure has "produced a critical time lag, with the Supreme Court institutionally almost always behind the times." A variety of proposals have put forth as solutions to these asserted problems. Levinson has called for term limits for Supreme Court justices along with a growing list of "scholars across the ideological spectrum." Larry Sabato has called for nonrenewable term limits of 15 years for all federal judges. Richard Epstein has proposed imposition of a mandatory retirement age for Supreme Court Justices.

• Courts are poor check on executive power. British constitutional scholar Adam Tomkins believes courts are a poor check on executive or legislative authority since they must wait for court decisions to bubble up before they can act; Tomkins prefers a parliamentary system like Britain's as being "more suitable and more effective" at restraining governments, and sees flaws in the American system of having courts check executive power. This can be particularly troublesome during wartime; for example, Lincoln suspended the right of habeas corpus during the Civil War "even though the Constitution reserves that power for Congress," according to one writer, and the courts went along with this wartime decision.

• Judicial interference in political disputes. Court decisions are criticized by politicians as if they're legislative acts. When the Supreme Court ruled 5-4 regarding "the use of the death penalty in cases of child rape," rival politicians Barack Obama and John McCain criticized the court's decision soon afterwards. Presidential candidate John Edwards "criticized the Supreme Court's decision to uphold the ban" on partial-birth abortions. The Bush v. Gore decision, in which the Supreme Court intervened in the 2000 presidential election and effectively chose George W. Bush over Albert Gore, has been criticized extensively, particularly by liberals. Justice Felix Frankfurter critized in dissent the Court's decision in Baker v. Carr, which decided that Courts could rule on apportionment questions. Frankfurter argued that the Court should not wade into so-called "political questions".

• Secret proceedings. The court has been criticized for keeping its deliberations hidden from public view. Its inner workings are difficult for reporters to cover, like a closed "cartel", only revealing itself through "public events and printed releases, with nothing about its inner workings," according to a review of Jeffrey Toobin's expose The Nine: Inside the Secret World of the Supreme Court. The reviewer writes: "few (reporters) dig deeply into court affairs. It all works very neatly; the only ones hurt are the American people, who know little about nine individuals with enormous power over their lives." Larry Sabato complains about the court's "insularity." However, in recent years, many justices have appeared on television, written books, and made public statements to journalists. In a 2009 interview on C-SPAN, journalists Joan Biskupic (of USA Today) and Kyle Denniston (of SCOTUSblog) argued that the Court is a "very open" institution.

• Not choosing enough cases to review. Senator Arlen Spector said the court should "decide more cases." In a 2009 interview on C-SPAN, Justice Scalia noted that the number of cases the Court hears today is smaller than it was when he first joined the Court, though he asserted he has not changed his standards for deciding when a case should be reviewed. He atributed the high volume of cases in the late 1980s to a flurry of federal legislation that had been approved in the 70s and early 80s.

• Creating a culture of legal intimidation. Critic Philip K. Howard in The Death of Common Sense and Life Without Lawyers criticizes courts in general for promoting a culture in which "law is wielded as a weapon of intimidation rather than as an instrument of protection." It leads to "a nation paralyzed by fear, unwilling to assume responsibility, both overly reliant on authority and distrustful of it." Howard's criticism is aimed indirectly at the Supreme Court and more at America's legal culture.

• Supreme Court has too much power. This criticism is related to complaints about judicial activism. George Will wrote that the court has an "increasingly central role in American governance." The Supreme Court was criticized for intervening in bankruptcy proceedings regarding ailing carmaker Chrysler Corporation in 2009. A reporter wrote that "Justice Ruth Bader Ginsburg's intervention in the Chrysler bankruptcy" left open the "possibility of further judicial review" but argued overall that the intervention was a proper use of Supreme Court power to check the executive branch. Warren E. Burger, before becoming Chief Justice, argued that since the Supreme Court has such "unreviewable power" it is likely to "self-indulge itself" and unlikely to "engage in dispassionate analysis". Larry Sabato wrote "excessive authority has accrued to the federal courts, especially the Supreme Court."

References

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If people have comments, please add them here. Also, is there a way to make the wikitable go off to the side somehow, or look prettier. Wondering.--Tomwsulcer (talk) 04:01, 24 October 2009 (UTC)

Responses

Note, as of Sat 0ct 24 2:34pm eastern time, I revised the proposed section along lines suggested by editor Magidin.--Tomwsulcer (talk) 18:36, 24 October 2009 (UTC)

The section is so lengthy it ought to qualify as its own article. At the same time, there is a great deal missing. Although the section covers a broad and even array of criticism, most the individual points are presented in a one-sided manner, which does not reflect the scholarly response which has been made to many of these criticisms. For example, as to erosion of individual rights, there are critics who contend that the court is too protective of individual rights in areas such as guaranteeing terrorism suspects the right to certain elements of due process (not to mention classifying abortion, sodomy, and most recently gun ownership as individual rights). With respect to lifetime appointments and secret proceedings, those aspects have been the target of criticism for the entire life of the court, and arguments have been made in defense of both (the lifetime appointments were even defended in the Federalist Papers, before the Constitution was ratified). With respect to the politicization of the nominating process, I wouldn't consider that a criticism of the court itself - perhaps we need an article on the process itself, and how it has changed over the years. bd2412 T 02:03, 25 October 2009 (UTC)

Excellent points. I urge you to fix it along the lines you suggest. If you need me to search references to support the points, let me know. I'm probably going to be working on other stuff for a while, like the Spinozaarticle. User:Magidin is fixing it up too, fortunately. Generally I think the editors who work on the government articles are high caliber types and it is good to work with you.--Tomwsulcer (talk) 03:10, 25 October 2009 (UTC)

I'll work on it, but it will take some time - I'm up to my neck in alligators, and still looking to drain the swamp! bd2412 T 04:37, 25 October 2009 (UTC)

Great, about your point about the court being too protective of rights; there's great thinking by Philip K. Howard in his books The Death of Common Sense about how rights have been elevated to such an extent that it undoes the power of decision makers (principals of schools, eg) to make common sense decisions about student behavior. A kid acting up in class, for example, since so many rights are involved, the situation can't be dealt with in a common sense approach by a decision maker like a teacher or principal; rather, teachers are stymied by rulings from past court cases about proper procedures, etc. It leads to a culture of fear in which teachers and principals are so afraid of being sued, that they'll put up with bad behavior lest they inadvertently cross some legal boundary. Kindergarten teachers are afraid to hug children lest they be accused of child molestation. So, I agree, this is part of it, but I'm not sure to what extent the SC is involved. And, you're right, there are arguments justifying lifetime tenure -- benefits being freedom to do what's right; and there's something to be said for this. One other thing which I left out -- how departing SC judges can time their exits to when there's a similar-thinking (ideologically compatible) president in office; in that way, departing justices can steer the future ideological direction of the court, sometimes, by choosing when to exit. And theorists like Sanford Levinson and Larry Sabato think departing judges shouldn't have such power; there are calls for term limits of 15 years or 18 years which, in their view, would solve the problem.--Tomwsulcer (talk) 13:43, 25 October 2009 (UTC)

I actually wrote about the problem of lifetime appointments in the context of longer lifespans a while ago in Demographics of the Supreme Court of the United States - another proposal is to have a mandatory retirement age. bd2412 T 17:16, 25 October 2009 (UTC)

As far as length: I seem to remember seeing in a Wikipedia Manual of Style recently that sections on "Criticisms" are not ncessarily the best way to go, and that folding the criticisms into the appropriate sections makes more sense. For example, the section on the Court not taking enough cases would more naturally fit into the discussion on the Jurisdiction section, as would the section on federalism and criticisms on the use of the 14th amendment and the Commerce clause. The sections on the Court being too slow or not a good enough check on Executive powers would more naturally fit into the section on Institutional powers and constraints. Lifetime tenure would of course go into the Tenure section. The section on secrecy into the section on How a case moves through the court. And so on. That would take care of the size issue, would prevent the duplication of information (compare the material already present about questioning by the Judiciary committee with the table), and would probably make things flow better. Magidin (talk) 17:13, 25 October 2009 (UTC)

The article is already of a substantial length, and working in additional material will lengthen the article no matter how its done. Perhaps there are existing sections of the article that should be broken out into smaller articles? bd2412 T 17:19, 25 October 2009 (UTC)

Perhaps; but certainly there is stuff here that belongs in other parts of the article rather than sticking out all by its lonesome in a "Criticism" sections; the stuff on being a "poor check" seems thin to me (we have a Brit saying the system should be more like the british system; quelle surprise), but if it belongs anywhere it belongs in the Institutional checks section. The stuff on lifetime tenure belongs in the Tenure section, not elsewhere. The stuff on not taking enough cases should be in the Jurisdiction section. Whether some of these sections should be summarized and farmed out is of course a separate issue, possibly worthy of consideration. Magidin (talk) 17:28, 25 October 2009 (UTC)

I propose that we take the sections on Nomination, Confirmation, and Recess appointments and make a separate article on the 'getting on the court' aspects, in which we can include criticisms of the politicization of nominations. bd2412 T 17:40, 25 October 2009 (UTC)

I've copied over those materials to Appointment and confirmation to the Supreme Court of the United States. If we can get that in good article shape, we can substantially trim the same materials in this article down to one section, and put in a "see main" tag. bd2412 T 18:08, 25 October 2009 (UTC)

Good deal. I would also suggest that the sections on How a case moves through the Court and Jurisdiction ought to be trimmed, given that there is a separate article dealing to which both already refer. Magidin (talk) 18:14, 25 October 2009 (UTC)

I would agree with such a trim. Basically, this article should be like an introductory chapter of a book on the SCOTUS, with sub-articles serving as the actual chapters. bd2412 T 19:03, 28 October 2009 (UTC)

Wondering what the status is here. I think it would be easier, simpler, to merely switch the new criticism section in where the old was; but is it ready for prime-time yet? We can always tinker with it once it's there too. Or, if specific chunks of the section go to specific parts, well, I'm less knowledgeable about the whole article, so I'll defer to others. --Tomwsulcer (talk) 23:00, 27 October 2009 (UTC)

I was just reading a new book by James MacGregor Burns, Packing The Court, where Burns says that the next time the Court comes down with a constitutional decision that the President doesn't like which requires action on the part of the executive, the President should just refuse to obey on the grounds that "Judicial review" is not found in the Constitution. Burns also talks about the problems of life tenure and the tendency of judges to go out "feet first". bd2412 T 23:47, 27 October 2009 (UTC)

Good find. I added three lines to the "judicial activism" above, in the talk page, (about JM Burns) section based on your find. But now I'm thinking the judicial activism section is getting long.--Tomwsulcer (talk) 01:48, 28 October 2009 (UTC)

It might be nice to see something which better elaborates criticisms that federal judges supposedly are more willing to side with the federal government in its conflicts with state exercises of powers, and how states view this as an inherent conflict of interest. I don't quite remember who made the argument: it was either John Taylor of Caroline, John C. Calhoun, or Abel P. Upshur... -- Foofighter20x (talk) 02:58, 28 October 2009 (UTC)

Agree with Foofighter20x. I'll hunt for it. But I'm wondering if I can take the current text, trim it (while keeping the meat) and post it on a sandbox page, perhaps, for others to have a look-see. The thing keeps growing like some kind of sea creature.--Tomwsulcer (talk) 03:10, 28 October 2009 (UTC)

I could be mistaken, by the way. It may have been Jefferson and Madison making the arguments in connection with the V&KRs and the ideas of interposition and nullification. *shrug* -- Foofighter20x (talk) 04:17, 28 October 2009 (UTC)

Regarding the Federal vs. State and my mention of the Commerce Clause; no that is not exactly what I had in mind. To be specific: according to the Oxford Guide (under "Commerce Power"), the Commerce clause generated more litigation between 1789 and 1950 than any other clause in the Constitution (you are quoting from Gibbons v. Ogden, I believe). But until the Interstate Commerce Act of 1887 and the Sherman Antitrust Act of 1890, the federal government rarely resorted to the Commerce Clause as authority for its right to pass regulation; the litigation that reached the court during the first century was about state regulation that unconstitutionally burdened interstate commerce. But starting in the 20th century, Congress began to legislate on behalf of public health, moals, safety, or welfare, using the Commerce Clause as its authority. You had the Mann Act (1910), the Automobile Theft Act of 1915 (making it illegal to knowingly drive a stolen car across a state line), and so on; regulations that ostensibly had little to do with commerce. Starting with the New Deal, Congress began to issue a lot of regulations based on the authority of the Commerce Clause, often regulation aimed at intra-state commerce. This was criticized explicitly, at least since the 70s, saying that the Commerce Clause was being used as a pretext, an excuse, and that in reality you had the Federal Government unconstitutionally encroaching on State rights, under the guise of regulating interstate commerce (the Civil Rights Act of 1964 claims to be passed under the commerce clause authority); for example, then-Associate Justice Rehnquist was very vocal in the 70s in this criticism. Rehnquist wrote the opinion in National League of Cities v. Usery (426 US 833, 1976), which was the first time in 40 years that the Court struck down legislation passed under the Commerce Clause authority on the grounds that it was not really about commerce, and thus encroached on state's rights. That was the same criticism behind the decision, now with Rehnquist as Chief Justice, that struck down the "gun-free zone" around schools (which had been enacted under commerce clause authority). Thomas made some noise in the recent partial-birth abortion ban case, because that federal law was passed claiming Congress was regulating interstate commerce. In short: there has been a lot of criticism that the Supreme Court has interpreted the Commerce Clause much too broadly, so broadly that it is essentially a carte blanche for the Federal Government to legislate on pretty much anything it wants on the excuse of regulating interstate congress. As I understand it, this is one of the major "battlefields" of the state vs federal rights (but bear in mind I'm not a lawyer). I think it should be possible to have better, and clearer, description of the criticisms than just quoting Marshall and Reich, and explain how this fits in that particular issue. Magidin (talk) 04:32, 28 October 2009 (UTC)

Well put. Magidin I had thought you wanted debates about the commerce clause that had happened during the Constitutional Convention, or during ratification. I had searched, but couldn't find exactly this. But I've come across much information relating to your point immediately above. Tonight, perhaps beginning 7am eastern time, I'll take the current chunk, and trim it down, and post it to a sandbox page; so if others want to add things, please do so now (Wednesday 10am eastern US time to 7pm) and I'll pick up the chunk from then, and trim it. Particularly long, multi-sentence quotes will go first, but I'll try to keep references in, and fix the references so the template-thingie is working properly too if I have time.--Tomwsulcer (talk) 14:21, 28 October 2009 (UTC)

I added lines to my standard reference "| quote = " (stuff within the quotes) which means I can put quotes in the references without having them turn blue as the wikilink. Convenient feature. Thanks, Magidin.--Tomwsulcer (talk) 18:15, 28 October 2009 (UTC)

It occurs to me that the section, "Courts are poor check on executive power" seems to counter the section on the court having too much power, since the court is slow to act, and could potentially be ignored in an emergency. bd2412 T 19:30, 28 October 2009 (UTC)

Not necessarily run counter; rather, they are all aspects of the same issue: how the Court fits within the separation of powers and check and balances, and whether it is appropriately balanced. Magidin (talk) 19:40, 28 October 2009 (UTC)

I'm trimming the chunk down as of 8:20pm eastern US time; I'll post the new version to a sandbox page. I'm keeping in mind your comments above.--Tomwsulcer (talk) 00:20, 29 October 2009 (UTC)