Talk:Supreme Court of the United States/Archive 5

Archive 1

←

Archive 3

Archive 4

Archive 5

Archive 6

Archive 7

→

Archive 9

Finished trimming of Criticism section; it's in a sandbox

I finished trimming down the "criticism of the SC" section; I tried to keep as much in as I could, but I cut out things I thought were repetitive, or redundant. the "judicial activism" section is slimmer. When there are multiple reference numbers following a line, I have a neat tool to clump them (I learned from User:Dcmacnut) which is quite amazing; I can do this after we put this section in. And, I think we should go ahead and put this section in the criticism section before we all get bored and forget about this, and it's also easier to do it one place rather than try to add bits to different sections.--Tomwsulcer (talk) 02:34, 29 October 2009 (UTC)

Here's the trimmed-down draft in a sandbox:

Talk:Supreme Court of the United States/sandbox

Comments? I urge User:Magidin and User:BD2412 to swap in the revised section.--Tomwsulcer (talk) 02:34, 29 October 2009 (UTC)

Alas, I'm horribly busy today and tomorrow (something called "real life", I think); I won't be able to take a good look until the weekend. I do think that some of the "criticisms" really belong in sundry sections: Specter's complaint that the court does not take enough cases should go into the Jurisdiction section that discusses what cases the Court takes. The parts on balance of power ("poor check on executive", "interference in political disputes") should go in the section on institutional checks (and I still don't find the section on 'poor check on the executive' to be terribly substantial; as I said earlier: we have a british scholar saying he doesn't like the US system and likes the british system better... Personally, I think that should either go or get very reduced and folded into the section on institutional checks and balances). Magidin (talk) 14:53, 29 October 2009 (UTC)

Well, what I've got at present, in my view, is much superior to the current "criticism" section. I'll put it in now (I think it's ready) and if people want to move sections around later, that's their prerogative. But, the "criticism section" should include all the major criticisms in my view; if you'd like to just mention a criticism in the criticism section, and talk about it at more length elsewhere, that's fine, but I don't think we should trim the list down too much more than I've done.--Tomwsulcer (talk) 15:10, 29 October 2009 (UTC)

I disagree about your assessment of the British scholar about the matter of "poor check on the executive". It's more than constitutionalized nationalism such as "Britain better than US", but a sincere criticism which I happen to see a lot of merit in. Tomkins is a Constitutional scholar who has studied the US and British systems in depth; he's well respected on both sides of the ocean. He wrote "Our republican constitution" (our=>Britain's). Excellent book, btw; I read it a while back. The essence of his criticism is this: that the judiciary IS a check on the legislature and executive (and serving as a check is good and necessary, according to this line of reasoning); but the judiciary lacks the executive's immediacy of action; the judiciary can't act immediately, but must wait for a court case (which may or may not happen) to come up through the ranks, a process which, as you know, can take years, decades. As a result, the US judiciary is in a poor position to prevent abuses of power by the executive (or legislative) branch. In Britain, the executive authority ONLY serves at the behest of Parliament, and in essence must keep asking for permission from Parliament to keep acting; a single "no confidence" vote is all it takes, by Parliament, to fire government ministers, including Prime Minister. The result is a much healthier democracy in Britain, with an ability to fix problems much sooner than the US (my POV); in America, by contrast, an inept president such as George W. Bush, who began an impartial war (Gulf War II) with little factual basis, ran roughshod over Congress, and despite popular discontent with the war for over six years, was able to keep prosecuting the war. In this instance, the Supreme Court did a poor job of checking the presidency, and it had HUGE implications, and I think this criticism is important.--Tomwsulcer (talk) 15:10, 29 October 2009 (UTC)

Okay: first, that is much more a indictment of the entire three-power structure of the US Government, not a criticism of the Supreme Court or the Federal Courts per se; as such, it doesn't entirely belong in this article. At best, the part that belongs in this article is that the Courts are too slow to act, requiring a case or controversy to step in, and certainly the "prefers the Parliamentary system" aside would need to go (again, that's not a criticism of the Supreme Court or federal judiciary, that is a criticism of the entire idea of the three-power check-and-balance structure). Second, and completely unrelated to this article, the idea that it takes a "single 'no confidence vote'" is something of an oversimplification: witness how Canada's Stephen Harper was able to effectively block such a move by a majority of his Parliament a few months back and stay in office, yet Canada has precisely the sort of government that Tomkins is advocating. And the idea of an executive subservient to the legislative power (which is exactly what you have in a Parliamentary system like Britain) was debated (and rejected) during the Constitutional Convention. But in any case: it seems to me that the only part of the criticism that is germaine to this article is that the Courts in general take too long to act since they must wait for an actual case, and the Supreme Court in particular takes, even in "expedited mode", at least a couple of years before it reaches a decision on specific legislation and action. The rest is not directed at the Court (or federal courts), but at the entire structure and theory of government; that would belong in that article, not this one. Magidin (talk) 16:26, 29 October 2009 (UTC)

I agree the essence of the criticism is directed at the three-power check-and-balance system of the US, and this comment deserves a place in other articles (such as Federal Govt of the US) but it does involve the Supreme Court, since it gets at what the Court is supposed to do (specifically: to check the other branches) and yet directly relates about how it does this (badly, since it's slow to act, like we agree). I agree we could probably remove the "prefers the British system"; but I don't see how much more we can trim without making the idea incomprehensible to readers (I thought about this -- look how much I trimmed from the other sections, trimmed to the bone). And I think we need some kind of example of this -- I'm thinking the Lincoln habeas corpus example is old; better to switch it with a Bush-in-office 8 years while his popular approval ratings hovered in the teens and twenties during much of it. Maybe the title of the criticism could be rephrased along the lines you suggest -- like "Slow to act".--Tomwsulcer (talk) 16:39, 29 October 2009 (UTC)

Bush being unpopular is not a good example; the idea of a term in office is intrinsical to the notion of most presidential systems, whether the president is popular or not at times later than the election; Truman was horribly unpopular for long times during his presidency as well. What exactly was the Supreme Court expected to do, or in which way could it have "acted quicker" about it? The Courts are not supposed to take action in that: they are not meant to be a check to the Executive that reflects public will (that's what Congress is for, not the Courts). Once again, you are talking about indicting the entire system of government, not the Court in particular. Find some specific action of the government that took effect, and was declared unconstitutional or invalid several years later, after it had already taken some effect. The Lincoln example is good because it is exactly that kind of example: the executive takes action, lives are greatly affected, and years later the Courts come back and say "oh, by the way, that was unconstitutional, you should not have done it". Or something like the Gideon case, where a man spent many years in jail before the Court could step in and order a retrial (where he was acquitted). Magidin (talk) 17:15, 29 October 2009 (UTC)

Maybe "popularity" isn't the right word. But the whole idea of government is for each branch to have checks on the others. If a president is impeached, the Chief Justice of the Supreme Court presides over the hearing -- clearly, the SC has a "check" in such an instance. And I'm sure you're well aware of the system of checks and balances as they're supposed to be, and there's no need to rehash them here. But clearly there were things done by presidents (and I'm not meaning to single out Bush; I'm non-partisan, but I have issues with both political parties). The Valerie Plame episode: a Bush staffer "outed" an American CIA agent over a political matter; later, the staffer (Scooter Libby) tried to cover it up, was tried and convicted. Bush then commuted Libby's sentence. Now, is this a proper role of executive authority? Bush commuting the sentence of criminals who happened to be former employees working for Bush. If these people were Wikipedians, there would be a giant WP:COI on all their user pages. Now, in all this, where was the Supreme Court? Out to lunch? It wasn't its fault, because it was merely playing by rules it has to work with (having to wait for a decision to bubble up before it can act), but with a weakened and corrupt Congress, Bush could get away with serious breaches -- presidential power was unchecked. Now I think what's happened is that essentially the presidency has taken over most of the government (legislative + executive functions) with minimal interference from a corrupt Congress; as a result of this imbalance, the Supreme Court is sometimes hoped to provide a "check" on executive power run wild, but it's poorly suited for this task; so, in any article on the SC, we need to say this. And if you think the Lincoln example is better than the Bush one, well, I don't think many people will even remember the Lincoln one. What about SC agreeing to Roosevelt's military decision to intern over a hundred thousand Japanese-American citizens (not German-American or Italian-American citizens since they "looked white") on the dubious grounds of possibly being spies or saboteurs. Did the SC do a good job of "checking" the executive authority here? In essence, the US imprisoned its own citizens and the SC upheld the dubious decision.--Tomwsulcer (talk) 18:44, 29 October 2009 (UTC)

Sigh. This is, first of all, completely unrelated to the Tomkins criticism that the check is weak because it is slow; now you are complaining that certain decisions are "bad" in the abstract, or "political", or "incorrect". That has nothing to do with whether it is a proper check on the executive or not. Sorry, but no: the internment is as much of a blot on history as was Plessy, but those were not problems with the suitability of the court to check or not check the executive, those were problems with the Court taking certain decisions and not others, and that is not what the criticism in question is about. The criticism in question is about the suitability due to delay and lack of power, not about abrogating its responsibilities. Congress abrograted its responsibilities vis a vis Bush, but that is not a problem about its suitability to check the executive, but its decision not to pursue it. And the whole thing about the Plame episode is also an enormous red herring as far as this is concerned. The misuse of power is not a question of suitability or of lacks of checks. You are, frankly, all over the place, and you are not making a case for supporting Tomkins's criticism, you are leveling one of your own based on disagreement with decisions. Magidin (talk) 20:29, 29 October 2009 (UTC)

OK, then let's look at the big picture, and here's how I see it. Let me back up a bit. (1) The Supreme Court is one of the three branches of government. (2) Each branch has a task of checking the power of the other two. This checking-task is vital. Therefore, the issue of how well or how badly the SC checks the other branches is fair game for criticism in an overall article about this branch. And Tomkins is saying the SC is hindered in this task because it must wait for court cases to happen; it can't just act; and whether we want to look at specific cases, or a general plan of government, or specific encounters with particular presidents or legislatures or situations, or however you want to angle this, that's the basic criticism: the SC, by design or by what-have-you, is a weak-checker, according to this critic. That's the point. And I think it's important and germane.--Tomwsulcer (talk) 21:31, 29 October 2009 (UTC)

There are two distinct, both valid, criticisms that are at issue. One is whether the Supreme Court actually does the job it is supposed to have in the United State's system of government, and how well it does it; criticisms about, say, the Japanese Internment decision, Plessy, and so on, those are criticisms that the Supreme Court did not its job appropriately. These go into things like whether the Supreme Court is too concerned or too little concerned with individual rights, whether it ignores its responsibility under the pressure of public opinion (or not), and so on. A separate criticism is whether, assuming that the Supreme Court does exactly what it is supposed to do when it is supposed to do it, the result is an appropriate check on the other two branches, or whether it is too strong or too weak in that role. If I understand your summary of Tomkins's position, he is addressing the latter criticism: that assuming the Supreme Court did exactly what it is supposed to do, it would end up being too weak a check on the executive because it cannot act quickly and it cannot act independently of cases and controversies; it takes too long to act, so it doesn't work as a check. The vast majority of your examples have to do with the former criticism: that the Supreme Court did not do its job of checking the executive in Korematsu, that it did it poorly in this or that decision, that it has not done so in Plame, and so on. That's why I'm saying that Bush being in an impopular war, or Korematsu, or Plessy, or Dred Scott, those would not be good examples that highlight Tomkins's criticism, because he isn't complaining that they aren't doing their job, or that they aren't doing their job properly, he is complaining that their job, even if done to its utmost, will not achieve the purpose for which it was created. Lincoln's example is a good one because everything happened exactly like it was supposed to, but the Court decision came too late to be an effective check on the Executive. Your other examples are not good examples because they are examples of the Court not doing its job (or allegedly not doing its job, depending on which side of the political divide you might be for any one of them). As to people not remembering the Lincoln case... well, link to it! (-: Now, all the criticisms except for this one are about the Supreme Court not doing its job well, or not doing it as well as it could. Tomkins's example is of an entirely different nature, which is why I am so unhappy with it. To me, it sticks out like a sore thumb; when you put in the comments about Parliamentary systems being better, it just makes it stick out more as 'out of step' and 'out of place'. The criticism that it is too slow to act and takes to long to be a good check on the executive is, at least, on the border between the two kinds of criticisms; so I'm willing (as if my will mattered, of course (-; ) to go along with having that. But the main criticism here is not directed at the Court or at how the Court does or fails to do its job, but rather at how the entire machinery of state is set up. And that seems to be somewhat off-topic for this, already lengthy page. Magidin (talk) 22:13, 29 October 2009 (UTC)

I'm in full agreement about your view of the two different kinds of criticisms. And I can see how you think that the examples I gave (such as Korematsu, Bush, Plame etc) are more directed to one type than the other. So I can see how you might think that one of my particulars is a digression from the more-structural point about broken checks-and-balances. For me, Korematsu, Plame, Bush all illustrate the general idea that the checks-and-balances system isn't working, and perhaps you're right that I can't point my finger specifically to blame the SC for these failings. But, for me, it's more evidence that Washington is highly dysfunctional (my POV which I can't say.) But that's where I'm coming from. These things seem outrageous to me: A president who "outs" an American CIA agent; a military that imprisons over 100,000 people for years without any court hearings; a president who starts an expensive war on flimsy evidence and keeps at it despite huge opposition; these are examples (to me) that the system of checks-and-balances is broken, because stuff like this shouldn't happen without some kind of consequence. But it does. Is it the SC's fault? Well, sometimes I think it is, or the whole system needs some kind of overhaul. The American Bar Assoc has the savvy to decry "signing statements" by presidents; but the SC remains mum. So that's kind of where I'm coming from. I think both types of criticisms belong in the article -- specific ones as well as structural. I don't mind cutting out the language about parliamentary systems being better, but I see this stuff is important.--Tomwsulcer (talk) 00:20, 30 October 2009 (UTC)

One other thing, and I don't think this criticism is mentioned specifically in there. Sometimes, given the current system, judges can time their exits to coincide when an ideologically-similar president is in office. They can hang on (despite failing health) until the presidency changes ideologically, then quit, and in this way, a departing justice can steer the future direction of the court, when the new president appoints a like-minded judge to the court. Departing justices shouldn't have this power, but they do; it's all highly reactionary.--Tomwsulcer (talk) 00:20, 30 October 2009 (UTC)

I don't necessarily agree with your final point, but if you can find a reliable source making that criticism, it will naturally be okay to quote it. I could mention Thurgood Marshall as someone who "bowed to the inevitable" and resigned because of failing health despite knowing full well his replacement would be ideologically very different from himself (of course, he stayed on too long as it was); or O'Connor, who resigned and was replaced by someone she does not particularly approve of (she's been critical of the recent Supreme Court), but resigned anyway because it was time to go. Naturally, Justices want to preserve their legacy in so far as they can; they have little or no control over their replacements. Most recent retirements seem to at least follow Justice White's suggestion that it be timed so there isn't more than one vacancy at a time, and so they do not coincide with election years (especially Presidential elections). But I honestly don't see the problem. As to "where you are coming from", the disfunctionality of Washington is a completely separate issue from what the Supreme Court is or is supposed to be. Your outrage (and trust me, I share an extremely large part of it) isn't grounds for including extraneous material on this page. "The SC remains mum" about signing statements... The Supreme Court is supposed to remain mum. It Supreme Court is not supposed to jump at every perceived injustice or illegal act, whether actual or not; it wasn't designed to do so. Call Pelosi and tell her that Congress needs to sue the Presidency for not executing the laws as legislated; that is her job, and she isn't doing it. The most the Court can do is signal, under the radar, that it would like to hear a case about this, but if no one bothers to take the issue to the courts, then it can't do anything: it's not supposed to. That's why it says "cases and controversies" on the Constitution; the Court is not supposed to engage in abstract analysis of laws or hypothetical discussions of constitutionality. It would seem that your issue is also not with whether the Supreme Court does or does not do its job properly, is that the Supreme Court is not doing a different job that you would like it to be doing. That's a complaint about the Constitution and the basic rules of the system you are living under, not about what the Supreme Court does or fails to do. Magidin (talk) 00:35, 30 October 2009 (UTC)

The more I think about it, the more I think that BD2412 is right; the criticisms need to be a separate article, with a two or three paragraph summary here, and a solid discussion elsewhere. Turn the list into sections and subsections, etc. It's just too much here. Magidin (talk) 00:37, 30 October 2009 (UTC)

More on the criticism

I just put a new break so it's easier for editing.--Tomwsulcer (talk) 01:38, 30 October 2009 (UTC)

In my view, I don't see the "criticism" section as overwhelming the article. It's only about an eighth or a tenth of it. Microsoft has a criticism section; Supreme Court needs one too. It's striving for WP:BALANCE and WP:NPOV to tell all sides of the story, and let readers make up their own minds. Removing criticism to a separate section, then probably other editors would argue to merge it back. If we merged out the criticism section, I'll still have major issues with the remaining article which is almost entirely positive (not quite an ad) as it is, focusing on topics like procedures, composition, pictures of smiling justices, court composition, past decisions. The article has few references, comparatively ("United States" has several hundred references; this one, less than 40 before the criticism suggestion was put in). So, without a criticism section, or a toned-down section, I'd argue for tags like "Article needs more references" and "Neutrality disputed". I've tried hard to keep my POV out, and put in solid facts supported by reliable sources (around 70 new ones); I think the rest of the article should be equally well sourced. I've listened and been responsive to other points of view, and gone out of my way to make sure others had a chance to look over and comment on new material, and to the best I could, I've listened to these suggestions. I'm trying to be reasonable.--Tomwsulcer (talk) 01:38, 30 October 2009 (UTC)

The section on "Judicial interference in political disputes" is overly divergent. The case regarding the death penalty for child rape was not a 'political' dispute at all, just a regular criminal procedure case revolving around constitutional limitations. It then became somewhat politicized by being raised in the ongoing political debate - but that can happen with any Supreme Court case deciding a touchy issue. Same with Edwards on the partial-birth abortion case. Bush v. Gore is a much better example of Supreme Court entry into a real political dispute, along with some apportionment/redistricting decisions and a handful of cases where the Court has been called upon to decide the winner of an election or whether a referendum had rightly been called as passed or failed. bd2412 T 02:01, 30 October 2009 (UTC)

I'm not saying "get rid of it" or "tone down". I'm saying that rather than go into all the details here, we go into all the details in a separate page and just summarize here with a pointer. Much like is done with How a case moves through the Court. Perhaps "three or four paragraphs" was a bit much, but perhaps you see what I mean?

I agree with bd2412 about all points (in the paragraph second to last). Now that it's pointed out, I have problems with the Edwards partial-birth stuff too, and maybe the whole "judicial interference" thing could be chopped (or reduced to the Bush v. Gore case, which got lots of criticism). About Magidin's comment; I think the criticism section is pretty tight as it is (although it could be trimmed further based on bd2412's comments). My sense is few will read a secondary section; that the main article is "Supreme court".--Tomwsulcer (talk) 04:20, 30 October 2009 (UTC)

It is still incomplete right now; you are forgetting all the stuff that is missing; most of the 'criticisms' are presented in a one-sided manner. Federal vs. States is relatively skimpy right now; no justification as of yet for the Commerce Clause stuff on the first sentence, no balancing opinions on the "misuse" of the 14th (of which there are many, including those of the framers of that amendment who explicitly said it was intended to make the Bill of Rights binding on the states), or things like Brandeis saying the states are the "laboratories" of the union (in support of states' rights). The section on failing to protect individual rights is still missing the claims that the Court is too protective of rights of prisoners or the accused (the constant complaint about the exclusionary rule, for example); Creating a culture of legal intimidation is entirely one-sided (didn't de Torqueville comment on this earlier? Hardly seems to be accurate to claim this is a new development, as the criticism implies); and the Court has too much power is also one-sided. Yes, the main article is Supreme Court, yet many of the sections split off into subsidiary articles that can go into adequate detail: History, Appointment and confirmation, Quarters, Jurisdiction, How a case moves through the Court all make reference to subsidiary articles while giving a summary in the main article. Magidin (talk) 04:37, 30 October 2009 (UTC)

So I kind of get what you're saying, that the section needs a pointer to an expanded "Main article", and I think it would be a good idea to have one. But a couple of comments. It's possible to point to any specific criticism, and criticize it as "one-sided"; you can point to any paragraph and criticize that as "one-sided"; but look at all the criticisms taken together, and it's much more balanced. For example, one point is that the court is too weak (poor check on power); another is that it's too strong (judicial activism etc); taken together, these different one-sided points make a multi-sided and fair assessment, and balance each other out. What I'm saying is that trying to balance every point, every paragraph, will make the writing confusing and wishy-washy, and give the reader a sense that the writer is unsure about everything, and I think the key here like always is to stick to WP's rules regarding WP:VERIFY, stick to facts supported by solid references, and the thing will balance itself out necessarily without a contrived feel. And what I did was really hone it down so there's less reading, but the information is more packed, and I'll be glad to help with an expanded section somewhere which fleshes out the points mentioned above in more detail.--Tomwsulcer (talk) 12:59, 30 October 2009 (UTC)

Generally I think all of the SC articles, taken as a whole, are pretty great, btw. I think previous editors have done a super job bringing it this far. So, applause, applause, to you people for getting it this far. And I agree with Magidin about lists being less good than prose. I'd like to rewrite a section within the sub-article "SC building" entitled miscellaneous to remove the lists (and post proposed revisions first to discussion page for review as is my usual practice.)--Tomwsulcer (talk) 12:59, 30 October 2009 (UTC)

But I wanted to let editors know (in case they don't) about traffic statistics:--Tomwsulcer (talk) 12:59, 30 October 2009 (UTC)

1. Supreme Court of the United States 5000 page views per day
2. List of United States Supreme Court cases by the Marshall Court 40 per day
3. List of United States Supreme Court cases prior to the Marshall Court 75
4. History of the Supreme Court of the United States 80
5. Procedures_of_the_Supreme_Court_of_the_United_States 60-200
6. United_States_Supreme_Court_Building 220

(average figures not super accurate but close btw)--Tomwsulcer (talk) 12:59, 30 October 2009 (UTC)

What I'm saying is these sub-articles are a nice addition, but not viewed much, that is, we should concentrate our excellent (unpaid! how come I haven't gotten my Wikipedia check yet?) volunteer efforts where there are the most eyeballs. :) --Tomwsulcer (talk) 12:59, 30 October 2009 (UTC)

All those stats tell us is that people are more interested in reading an overview of the Court than of reading about its procedures or its building, or a list of cases. It doesn't mean that, if we think the building is particularly important, we should stuff all the info on it into this article to force visitors to see it. That won't work anyway - we have no way of dictating what sections people read when they get to the page. I agree with Magidin's agreement with me. A summary of the criticisms raised along with a link to an expansive article on the subject will inform readers that the Court has its flaws (or at least perceived flaws), what they are, and that if they have an interest in knowing more about that there's a detailed article. bd2412 T 17:00, 30 October 2009 (UTC)

But in a real sense, any sub-article is marginalizing stuff. Yes, it's there for the super-interested. And, let's be frank, I doubt many people read more than the first paragraph or two of this article anyway, let alone wade through to the bottom. I don't think what should dictate what-goes-where should be our views of what's important, or our attempts to push people in any direction; rather, it's the more basic requirement of -- what fits? We don't want articles too long, else they get to be difficult to load, keep free of vandalism, etc. And so far, everything fits, and it isn't too long, so we're somewhat fine. And, then, if the topic is "What is the Supreme Court?" And some eighth grader needs data for a history quiz, then I think they need to know about the foibles, imperfections, criticisms -- it should be there. How much there? Tough call. But these eighth graders are growing up in a world ruled, to some extent, by these nine people, and they need to know about what they're emerging into, don't you think?--Tomwsulcer (talk) 01:18, 31 October 2009 (UTC)

That's why we leave a summary in the article. bd2412 T 02:36, 31 October 2009 (UTC)

Judicial activism vs. Legislating from the bench. I clarified the first sentence in the judicial activism part, and moved the link from the header to the body. There was also a short sentence about judges making law which I removed. There are two criticisms, often connected but actually separate: judicial activism is when a judge decides a case based on what he would like the outcome to be, and not based on the law and precedent; legislating form the bench is when the judges "make law". Though the two may be connected, they can also be unconnected. Legislating from the bench is often found not in the decision itself, but when the Court issues a "remedy". For example, Miranda had two parts: finding that the rights of Miranda were violated, and then what to do about it. Neither part engaged in activism, but the remedy dictated by the Court was in effect "legislating from the bench" (the Exclusionary Rule is a purely Court-based 'legislation' that determines that some evidence is not admissible in Court). Lochner v. New York was judicial activism, in that the decision was based on what the Horsemen felt was "good law" and "bad law". One nice example is Gore v. Harris and Bush v. Gore. In Gore v. Harris, the Florida Supreme Court engaged in legislating from the bench but not in activism; once it went up to the Supreme Court, the Supreme Court engaged in activism but not in legislating from the bench. The FSC ruled based on the Florida Constitution, precedent, and legislative intent, using standard statutory interpreations. Then it engaged in legislating from the bench by telling the counties and the state how they had to go about counting the votes, bypassing the existing procedures. It legislated from the bench, but it was not activist. The Supreme Court, on the other hand, overruled the Florida Supreme Court on its interpretation of Florida law (a supposed no-no, since precedent is that state Supreme Court decisions on the meaning of state constitutions and law are considered final by the Supreme Court), and engaged in a certain amount of activism in reversing and vacating the Florida order, but did not engage in legislating from the bench: it did not order how to proceed, it did not specify what needed to be done; it just struck down the FSC's order. Both decisions were described as both 'activism' and 'legislating from the bench' (by opposite sides, of course). (This is all my view, from a layman's point of view, mind you! I'm sure the lawyers would jump all over me for it). The point of my digression, though, is that "legislating from the bench" is distinct from (though often commingled with) judicial activism. Magidin (talk) 15:37, 30 October 2009 (UTC)

Hey, Magidin, the more I read your stuff, the more impressed I am with your fine fine mind. I never thought of this distinction before. I appreciate your intelligence and wisdom and knowledge and I think you're a better Wikipedia writer than any lawyer! Your fan from NJ! Btw, I found Adam Tomkins e-mail address and I emailed him; think he'll write back? Also, about the SC not being able to trump state court decisions, I stand corrected! But that's what's great about Wikipedia, that by doing stuff like this, we learn as we go, right?--Tomwsulcer (talk) 01:22, 31 October 2009 (UTC)

Fixes as per Magidin and bd2412

bd2412 -- The section on "Judicial interference in political disputes" is overly divergent. The case regarding the death penalty for child rape was not a 'political' dispute at all, just a regular criminal procedure case revolving around constitutional limitations. It then became somewhat politicized by being raised in the ongoing political debate - but that can happen with any Supreme Court case deciding a touchy issue. Same with Edwards on the partial-birth abortion case. Bush v. Gore is a much better example of Supreme Court entry into a real political dispute, along with some apportionment/redistricting decisions and a handful of cases where the Court has been called upon to decide the winner of an election or whether a referendum had rightly been called as passed or failed.

 Done Removed questionable stuff.Tomwsulcer (talk) 15:51, 30 October 2009 (UTC)

Magidin -- Federal vs. States is relatively skimpy right now

Somewhat agree; but maybe an expanded "Federal vs States" section goes in a sub-article?Tomwsulcer (talk) 15:51, 30 October 2009 (UTC)

Magidin -- no justification as of yet for the Commerce Clause stuff on the first sentence,

The Commerce Clause has been used to protect cave bugs.

 Done Put above stuff in. Tomwsulcer (talk) 15:51, 30 October 2009 (UTC)

Justice Alito said congressional authority because of the Commerce Clause is "quite broad."

 Done Ditto, put in.Tomwsulcer (talk) 15:51, 30 October 2009 (UTC)

I can't figure out what Alito's statement is supposed to mean. Is he complaining that the authority, as understood by the Courts, is too broad? That it is too much? That pragmatically it is what it has to be? Is he making a statement of fact, without making a judgement on whether this is good or bad? It seems to me that he is making one of the latter two points, but then this is no good in this section: it's not a criticism or a defense. It could be that he is saying that the authority has to be quite broad (i.e., defending it), but if so, it is rather equivocal... Magidin (talk) 17:07, 30 October 2009 (UTC)

Magidin -- no balancing opinions on the "misuse" of the 14th (of which there are many, including those of the framers of that amendment who explicitly said it was intended to make the Bill of Rights binding on the states),

However, others see the Fourteenth Amendment as a positive force which extends "protection of those rights and guarantees to the state level."

 Done Put in.Tomwsulcer (talk) 15:51, 30 October 2009 (UTC)

Magidin -- things like Brandeis saying the states are the "laboratories" of the union (in support of states' rights).

Justice Brandeis suggested "states should be free to serve as laboratories of democracy."

 Done Put in.Tomwsulcer (talk) 15:51, 30 October 2009 (UTC)

Magidin -- The section on failing to protect individual rights is still missing the claims that the Court is too protective of rights of prisoners or the accused (the constant complaint about the exclusionary rule, for example)

Justice Scalia criticized the Court's decision in Boumediene vs. Bush for being too protective of the rights of Guantanamo detainees and suggested habeas corpus was "limited" to sovereign territory.

 Done Put in.Tomwsulcer (talk) 15:51, 30 October 2009 (UTC)

Magidin -- Creating a culture of legal intimidation is entirely one-sided (didn't de Torqueville comment on this earlier? Hardly seems to be accurate to claim this is a new development, as the criticism implies

What Philip K. Howard is talking about is how America has become lawsuit-crazed to the point where kindergarten teachers are afraid to hug children (lest they be sued for being child perverts) and which principals and decision makers are stymied from using common sense to solve problems, lest they unwittingly cross some legal boundary that was made in a lawsuit years back. You've seen the crazy wordings on things, like "Caution! Contents of this Coffee Cup Are Hot!" which manufacturers like McDonald's are forced to do because of a crazy case, years back, in which a coffee drinker got burned, sued, and won. That's the gist here. And it's relatively new over the past 40, 50 years, according to Howard, really accelerating after the Civil Rights Movement, in his view. It's criticism of an overly litigious society, and with the SC being in ultimate last-word authority here regarding litigation, deserves some criticism. I'm not sure there's a clean-cut "other side to this" without getting involved in WP:OR.Tomwsulcer (talk) 15:51, 30 October 2009 (UTC)

I think it is a stretch to blame the SC; the major action of the SC in the arean of civil litigation for damages has been to restrict punitive awards (that would be another side; of course, since those who are hit with large punitive damage awards are usually large corporations, you don't see this being championed). They don't get involved in things like the McDonald's case. I've seen conservatives complain that rulings on separation of Church and State have made teachers and administrators fearful of lawsuits take things too far (which they have in some cases, like trying to forbid students from wearing visible religious paraphernalia; but in other cases they are about actions for which they ought to be fearful, like holding a graduation ceremony in a church under a large cross, or allowing the Gideons to pass out Bibles in the hallways), or the recent Firefighter's case, where the City threw out the results of their neutral exam for fear of being sued for discrimination. Of course, in that case, the SC actually ruled that "I'm afraid of litigation" is not a valid excuse for taking, or failing to take, action; whether this reinforces the fear or allays it is unclear at the moment (-: ("You're afraid of getting sued? I'll sue you for that!"). In any case, I do not see how anything other than potential restraint of government from acting can be laid at the feet of the SC; most of these cases never get there. Then again, there may be a public perception that it's the SC's fault... Magidin (talk) 16:25, 30 October 2009 (UTC)

I have to agree, this one can not reasonably be laid on the Supreme Court. The vast majority of personal injury cases (like the coffee cup case) are brought in state courts, and raise no federal issues all. The only role the Supreme Court has in such cases is to determine whether judgments reached under state statutes and state common law are somehow in violation of U.S. Constitutional protections. Of course, to render such a decision exposes the Supreme Court to accusations of prizing federalism over states' rights. An example is BMW of North America, Inc. v. Gore, where the Supreme Court found a $2,000,000 judgment for $4,000 worth of damage to a car to violate the Constitutional guarantee of substantive due process. Other than saying that the Constitution does or does not permit a suit to go forward, the Supreme Court plays very little role in societal litigiousness. bd2412 T 16:50, 30 October 2009 (UTC)

I searched more into the PK Howard stuff, and there are quotes in which he directly criticizes the SC in two instances. Howard is a prominent non-partisan critic who needs to be heard, and who is well respected as a lawyer, author. I added the new information to the text, with references. And this state court vs. federal court stuff -- I agree perhaps many cases don't ever get to the SC. But isn't the SC the nation's top court? Isn't the SC the ultimate arbiter in legal matters? Since the SC can overturn decisions by state courts, and can decide which cases to review or not review, I think the SC merits some criticism here. And I think it doesn't make sense to live in a lawsuit-fearful culture, where people are unwilling to take risks, where doctors routinely perform unnecessary operations to avoid possible lawsuits -- all this craziness has been going on for quite some time, and to somehow exempt the SC from criticism, when it is, after all, the nation's top court, seems unfair.--Tomwsulcer (talk) 17:24, 30 October 2009 (UTC)

Actually, no. The Supreme Court has the last word on federal/constitutional matters, but state supreme courts have the final word on the interpretation of state law. That is why, for example, the Iowa Supreme Court could rule that the Iowa Constitution permits same-sex marriage, and that decision could not be appealed to the U.S. Supreme Court. As I noted above, most personal injury cases (which are the ones that drive the litigious nature of society) are entirely beyond the review of the Supreme Court. bd2412 T 18:27, 30 October 2009 (UTC)

Isn't the SC the ultimate arbiter in legal matters? No, it's not. The SC has limited jurisdiction and is not really a "court of final appeal" (as the Justices made clear in their recent CSPAN interviews). It does not oversee lower courts in the sense that you are implying here, and it is not supposed to "overturn decisions by state courts" except when there is a federal issue at hand (listen to the oral arguments in Bush v. Gore: the most repeated question, asked several times, was "What is the federal issue here?"). The Supreme Court is not supposed to review decisions by state courts that involve only state laws; you are going by a common, but incorrect, perception of the Supreme Court. It's fine to take direct criticisms of the Supreme Court, but it seems, based on your words above, that there is also a certain amount of WP:OR going on, with you arguing that the criticisms can/should be extended to the Supreme Court; and of course, what we feel is fair or unfair is completely irrelevant. Magidin (talk) 18:29, 30 October 2009 (UTC)

Magidin -- and the Court has too much power is also one-sided.

The "too much power" is balanced by the "too slow to act" stuff.Tomwsulcer (talk) 15:51, 30 October 2009 (UTC)

One more general comment. The idea of the criticism section, in my view, is to balance out the rest of the article, which is almost entirely pro-Supreme Court and positive-sounding. So, being too wishy-washy on these particular criticisms, in a sense, is like shooting ourselves in the foot here, and undermines an overall effort towards WP:NPOV and WP:BALANCE. That is, criticisms should be critical. Just like the main article should be positive.Tomwsulcer (talk) 15:51, 30 October 2009 (UTC)

One other thing. The "Failed nominee Robert Bork" stuff -- well, I can't think of a better word either than "failed"; my problem is that it sounds like we're criticizing Bork as a failure, when I think we're really talking about the nomination as being rejected; but, I can't think of a better wording either.--Tomwsulcer (talk) 15:58, 30 October 2009 (UTC)

That is the standard way of describing nominees who are rejected by the Senate (as opposed to those who, like Miers or Ginsburg [not Ruth Bader, the other one] withdraw); the only other standard description is "rejected by the Senate". So the only alternative I can think of is "Judge Robert Bork, whose nomination to the Supreme Court was rejected by the Senate,..." Magidin (talk) 16:17, 30 October 2009 (UTC)

Poor check on the executive

I'm troubled by the current phrasing on the Lincoln suspension of the writ of Habeas corpus. First, it is inaccurate: the Courts did not go along with it. Look at Ex parte Merryman, in which Taney (though the CJ at the time, he was "riding circuit" and was sitting as a judge for the case) explicitly ruled that Lincoln did not have the power to suspend the writ. The problem here was not that the "Courts went along with it", but rather that Lincoln ignored the Court order (much like the infamous 'Marshall has made his decision, now let him enforce it'), and kept doing so until Congress formally suspended the writ two years later. But even assuming without conceding that the current phrasing is accurate, the example would not actually support the argument of Tomkins that the delay weakens the check; rather, that would be an example of the Courts bowing to public and politically pressure and making a politically expedient decision rather than a legal one that would check one of the other two powers. What you want is an example where the delay in the decision results in not being able to prevent the abuses or the actions from taking effect, not one in which the Court sides with the other sides because it is convenient, nor one in which the the other branches simply ignore the rulings. Magidin (talk) 16:45, 30 October 2009 (UTC)

And yes, mea culpa when I said it was a good example earlier. I was misremembering the timing. I knew Taney had ruled the suspension was unconstitutional, but I thought the ruling had come in later and not prevented its application, so I misremembered it as an example of "justice delayed is justice denied", which seems to be part Tomkins's argument. But it's not, it's an example of the other two branches just ignoring the third. Magidin (talk) 17:03, 30 October 2009 (UTC)

Agreed. Will look for evidence in which the "delay in the decision results in not being able to prevent the abuses or the actions from taking effect" as put forth. Good analysis.--Tomwsulcer (talk) 17:34, 30 October 2009 (UTC)

Proposed revamping of "History" section is in sandbox; added references (60+); tweaked writing only a few times; wikified

I researched the "History" section, and added references (60+). I tweaked the writing in only a few instances; it's pretty much the same as it was before. And I wikified when possible (ie added more internal links to other Wikipedia articles.) Reading over the history section, my general thoughts are these:--Tomwsulcer (talk) 13:53, 1 November 2009 (UTC)

• Marbury v. Madison needs more emphasis; it's on equal billing with Hunter's Lessee.--Tomwsulcer (talk) 13:53, 1 November 2009 (UTC)
• The focus is almost entirely on cases with quick summaries of what they're about; I realize there's not much space, and that there are more detailed descriptions in the subsidiary article "History of the SC". But I'm kind of thinking we could drop some of the cases, and put in interesting stuff about the building's history (perhaps add a photo); interesting stuff such as FDR's court-packing plan; more focus on the bigger cases (Dred Scott, eg) and less focus on the less important ones.--Tomwsulcer (talk) 13:53, 1 November 2009 (UTC)
• Somewhat more information about the ideological swings of the court, from federalist, to anti-federalist, from pro-business to activist liberal, to conservative. An overview, not depth.--Tomwsulcer (talk) 13:53, 1 November 2009 (UTC)

Just my comments for perhaps future writers; but overall, I think the section is solid, and all the facts checked out, with two somewhat questionable ones (in my view): that the Dred Scott decision possibly helped instigate the Civil War (there are so many causes of the Civil War, that I think this is a dubious case); also, that the court was "entrusted" after the Marbury and Martin stuff; who did the trusting? But basically I think the gist is right. Here's the sandbox with the proposed revisions:--Tomwsulcer (talk) 13:53, 1 November 2009 (UTC)

Talk:Supreme Court of the United States/sandbox

If there are no problems, I'll swap it in in the next day or so.--Tomwsulcer (talk) 13:53, 1 November 2009 (UTC)

One other thing -- I found a picture of Old City Hall for consideration, although I'm not happy with the door, which looks boarded up.--Tomwsulcer (talk) 14:02, 1 November 2009 (UTC)

Sorry, but going into details, talking about "cool facts", that belongs in the special article about it; stuff on the building belongs in the section (and separate article) on the building. Discussion of the ideological swings... I think that also belongs on the separate historical article; anything more than a simple mention would be too long, and a simple mention would be a little too wishy-washy and simplistic. As to who did the entrusting... the entire edifice of government, by letting the Supreme Court do so and generally obeying the rulings, even when they disagreed with them (only two or three exceptions in the entire history of the Court, according to Justice Breyer). And Martin is at least as important as Marbury: the latter dealt with the fact that it is the Supreme Court who settles disagreements between the federal branches on the meaning of federal law and the constitution, and the former dealt with the fact that it is the Supreme Court who settles disagreements about the meaning of the Constitution as it applies to the states, among the states. They are two sides of the same coin. So, yes, it should be on equal footing with Martin v. Hunter's Lessee, in my lay opinion. P.S. You don't need to sign each paragraph, you know... Magidin (talk) 19:08, 1 November 2009 (UTC)

My comments about the "history" section were from the point of view of a writer. I know you don't like lists; but even though this doesn't have a list form, it is, essentially, a list. But it's solid and accurate, if a bit boring. I realize there are space constraints, so we can't talk about everything. But I think this section would be improved if we took this tactic -- what are the ten or twenty most interesting things about the Supreme Court's history? Stuff that's important, relevant, interesting. And we highlight the beauty of the SC. Don't you want people to read the whole article? I do. And I think, as writers, we can use the tactics of writers to encourage reading, specifically, make everything as interesting as we can while bringing out great stuff. You know, the general rule of "less is more". Right now, it's not really a "history", but rather a quick run-through of many major SC cases, and it packs in so many rulings that it doesn't have room to breathe, and doesn't have time to go into any of them in enough depth to make them interesting. And, yes, I know I don't have to sign every para, but there was a time in the past when it was unclear, so I do it routinely.--Tomwsulcer (talk) 00:48, 2 November 2009 (UTC)

About Marbury vs. Martin; you might be right from a logical point of view. But, my sense is after researching this, that Marbury was a HUGE decision, much written about, inspiring whole books and such; Martin may have been important too, but not on the level of Marbury, and I had trouble finding as many references to it. I tried to find sources to give me some sense that the two were "equally important"; I didn't find any; but I'll agree to leave it in in deference to your thinking about this.--Tomwsulcer (talk) 00:48, 2 November 2009 (UTC)

Last, I'll swap in the referenced history section into the current one (there aren't many changes in the writing) unless people suggest otherwise.--Tomwsulcer (talk) 00:48, 2 November 2009 (UTC)

Marbury is certainly the more famous one; there is no argument on that. But Martin is the one that establishes the Supremacy of both the Constitution over the States (keep in mind: these were still people who had lived under the Articles of Confederation), and also on just who gets to interpret the Constitution. In a sense, the argument in Marbury was, if there is disagreement between the Executive and the Legislative as to what the law is, whose view prevails? The answer given in Marbury was: neither, it's up to the Judiciary to make that decision. In Martin, part of the question was: so, it is up to the judiciary; which judiciary? If the Supreme Court of the United states disagrees with the State Supreme Court, whose view prevails? And the answer in Martin was: as far as the federal Constitution goes, the Supreme Court of the United States', even if it is for the purposes of how it applies to citizens of the State. This was really up in the air at the time, given how much autonomy the states were understood to have, and some of the views about the nature of the Constitution as a binding "contract" on the states (witness the Civil War: the southern states attempted to formally withdraw from the union via a process similar to that for enacting the constitution in the first place, and it was unclear, from a legal point of view, if they could; still is, the decision was essentially made by force of arms). It is only the two decisions together that really establish the supremacy of the Constitution and the Supreme Court as the ultimate arbiter of its meaning in all situations within the United States. Yes, Martin is less famous, and perhaps viewed as a lesser one generally: it would have been irrelevant in the absence of Marbury. But take away Martin, and it is up to the States to decide how the Constitution applies to their citizens. In that sense, they are, as I noted, two sides of the same coin. I would also note that you seem to be quite keen on informing the reader and making him aware of things they perhaps were not aware of; Marbury is all over the civics textbooks (or so I'm told; I didn't grow up in the U.S.), so you are letting them know something that is at least almost as important but which they may have been unaware of. Let me quote the final paragraph on this decision in the Oxford Guide: "Story's opinion was a landmark in the history of federal judicial supremacy. More than even Marshall, Story upheld federal judicial supremacy over the states. Without Story's decision, the Supremacy Clause of the federal Constitution would have lost much of its salience, since the states would not have been bound to conform their laws to a national constituitonal standard." In the paragraph before last, it says "Story's opinion, the most important of his thirty four years on the Court, rebuked Virginia for failing to comply with the Court's previous order. Story rejected the compact theory and Virginia's claim that it was equally sovereign with the United States." Sounds pretty darn important to me... Magidin (talk) 03:07, 2 November 2009 (UTC)

Well argued, Magidin. I agree. Martin is important, albeit less well known, and yes, we should keep it. I'll swap in the new "history" section (essentially the same but with loads of references), plus I found a reference for Tomkins (but no url, unfortunately -- it's in Oxford Journal of Legal Studies which costs $$ to view articles). (Tomkins emailed me back, btw -- now isn't that cool -- a renowned scholar emailing me, a handyman; this is what's great about Wikipedia.) If you'd like me to try rewriting the history section, I'd basically keep the same format and structure, and keep most of it as it is, but substitute out some of the (in my view) overly numerous court cases, and put in historical stuff which I felt was interesting, important, and improving-the-reading. But if you'd like me to do this, you'll need to bug me, since I'm going to be busy this week with other stuff. Also, there's a new book about the SC by Barry Friedman called The Will of the People which argues (I think) that the SC does conform to what people want. (ie a criticism of a criticism). --Tomwsulcer (talk) 14:24, 2 November 2009 (UTC)

Cool factoid: etymology of the word "court"

The Latin word "cohors" meant "farmland", which became the French "court" meaning "the king's lands or residence;" since judicial decisions were made there, the modern word "court" evolved.

FYI--Tomwsulcer (talk) 16:10, 1 November 2009 (UTC)

Semi-protected status?

As per recent vandalism, maybe this article should be semi-protected so only established users can edit it?--Tomwsulcer (talk) 16:25, 5 November 2009 (UTC)

Check the logs; it's neither unprecedented nor unmanageable at this point. It tends to spike from time to time, then goes dormant for a while. No need to start swatting flies with cannonballs. Magidin (talk) 16:31, 5 November 2009 (UTC)

Yes, but it's a nuisance and eats up our time, to fuss with teenagers playing games. And SC is an important article seen by thousands daily; why not let the vandals play with less-trafficked articles.--Tomwsulcer (talk) 16:45, 5 November 2009 (UTC)

Vandalism just happened again, in the minute after I posted the above comment. Such a nuisance.--Tomwsulcer (talk) 16:48, 5 November 2009 (UTC)

If it is the same vandal, and has received warnings, you can request a block at the appropriate administrator page; see the guidelines. Of course, you can go ahead and request semi-protection status, but look at the guide for semi-protection. I'll wager the request would be denied, but you are welcome to make it. P.S. That particular vandal has been blocked. Magidin (talk) 17:11, 5 November 2009 (UTC)

It's not that big of a deal to me. And generally I don't like to get involved in the whole war-on-wiki-vandals business, but I'd rather do what I enjoy, which is create articles, or revamp articles, or revamp chunks of stuff like in SC. What I'm saying is that people like you, like bd2412, and me and numerous others who contribute substantively, freely, who have the education and knowledge to do good stuff with important topics like SC -- our time is valuable and it doesn't make sense to have it squandered by fussing with teenagers looking for a laugh. So, I guess the way I'll deal with it is -- let others deal with the vandalism (and I may from time to time if I catch it). And if it becomes a bigger nuisance, then I'll possibly explore the semi-protection stuff.--Tomwsulcer (talk) 17:34, 5 November 2009 (UTC)

There's always Citizendium. Magidin (talk) 17:41, 5 November 2009 (UTC)

In my researching, I rarely came across "Citizendium" so it's success is minimal in comparison to Wikipedia in terms of readership; so, maybe the model is flawed, or it hasn't taken off yet. Or maybe it's too rigid? But, overall, I still like the idea of identified editors, and I think WP's policy of anonymous edits is, in almost all instances, a serious flaw in the Wikipedia model. But thanks for pointing out this to me.--Tomwsulcer (talk) 18:30, 5 November 2009 (UTC)

Should we get rid of "visiting the court" altogether?

This seems like a "how to" or "visitor guide" section, not a legitimate, informational section for inclusion in this article. In.Lumine.Tuo.Videbimus.Lumen 05:06, 30 November 2009 (UTC) —Preceding unsigned comment added by Inluminetuovidebimuslumen (talk • contribs)

I'd love to be able to query readers, and ask their feedback about this article, and wonder what they'd say. What was interesting? What was omitted? How could it be improved? But, lacking this feedback capability, we have to guess what people who read this article use it for. I imagine most are high school (and possibly college) students doing papers; reporters may use it for background information for stories (ie history of the court, current appointees, major decisions etc) but reporters also will use it to hunt for and check Wikipedia's sources; lawyers may use it too for some purposes, possibly for background information. And who else? And I think some travelers to DC use it for guidance about sight-seeing, and in this regard, the Visiting the court section would be helpful. I rewrote much of this section along with a few editors like Magidin. My sense is: it's tricky visiting the court, since rules are complex, and there are few trustworthy information sources elsewhere on the web which assemble this stuff as nicely as it has been done here. So, I think it's useful to have this section here. At the same time, if space becomes tight, I imagine this section could be one of the first ones chopped, or split off as a separate article.--Tomwsulcer (talk) 16:31, 30 November 2009 (UTC)

I don't think the section should go, any more than the section on the building itself (and no, I'm not advocating removal of both...) Personally, I don't think visiting the Court is "tricky" (I've done it twice myself, once attending oral arguments); all you need to do is show up at the door and follow the instructions. Perhaps what Tomwsulcer means is that people are not generally aware that it is possible to visit the Court or attend Oral Arguments, and in that respect I would agree. Personally, I found out one could do that reading the Let's Go Washington book many years ago. It could probably use a rewrite that is not so much a rehash of the Court's own Visitor's Guide, but the material should probably stay in some form. Magidin (talk) 16:51, 30 November 2009 (UTC)

I don't know. I'm just starting this editing thing (again, thank you Tomwsulcer) and so I'll definitely respect more experienced opinions. However, as someone fresh from the tutorial, I was reminded of this. "Wikipedia is not a travel guide." In.Lumine.Tuo.Videbimus.Lumen 22:14, 30 November 2009 (UTC)

You have a point. I'm kind of on the fence on this one, like I could chop it, or keep it, I don't know. Sorry to be so wishy-washy. I'm usually more defensive about stuff I've helped write! I still think this article could be more interesting, perhaps, with more references, but I'll defer to Magidin in this instance because Magidin knows a LOT about this stuff. And with or without the Visiting the court section, I'll still never get in to hear Oral Arguments.--Tomwsulcer (talk) 23:49, 30 November 2009 (UTC)

You give me too much credit. Again: the section probably could use a rewrite that makes it less of a rehash of the Supreme Court's own Visitor's Guide (which will take care of the "not a travel guide" issue). But the general information (it is possible to visit the building; which areas are open to the public, etc) should be somewhere. I would be tempted to include it in the section on the building, but for the material on attending Oral Arguments. Magidin (talk) 03:25, 1 December 2009 (UTC)

 Done Moved and tightened section to "Quarters" as per suggestion from Magidin and InLumine. --Tomwsulcer (talk) 14:18, 1 December 2009 (UTC)

"Special Interest"?

I'm not comfortable with the term "special interest" to describe the groups that lobby one way or another when someone is nominated for the court. The term "special interest" is used to dismiss the often legitimate positions of various lobbying organizations. Democrats may call the tobacco lobby a "special interest," while objecting to the same term for, say unions, while Republicans may do the reverse. While the term "special interest" isn't being used in a partisan manner in this article, I think the term has been subject to so much abuse that we should avoid it in Wikipedia. We could replace it with, say "political organizations" or something like that. --MiguelMunoz (talk) 21:23, 9 December 2009 (UTC)

I disagree. A term like "political organizations" seems, to me, like glossing over some unpleasant reality. And, for me, the term "special interests" is somewhat neutral in itself, and accurately describes what's happening -- there's a faction with a particular agenda either for or against a certain decision. The SC is a political organization; it makes political decisions; and when nominees are up for approval in the Senate, special interests lobby hard for or against the nomination. And to describe the tobacco lobby or unions as "political organizations" seems to me to be more inaccurate.--Tomwsulcer (talk) 21:42, 9 December 2009 (UTC)

The trouble is, I don't think "special interest" accurately describes what's happening at all. For example, the ACLU is interested in protecting the civil rights and liberties of the entire population, which is hardly a "special" interest. It's a term that's used in political debates to dismiss the concerns of many public interest organizations. Your objections to "political organization" are fine, but I'm still not comfortable with "special interest." —Preceding unsigned comment added by 75.5.14.125 (talk) 19:26, 10 December 2009 (UTC)

I think the dichotomy here is that of 'special interest' vs. 'public interest' groups. You raise a potentially valid point, though of course under that same argument you could say that pro-choice or pro-life groups are not 'special interest' because they are interested in protecting what they see as an important right and liberty for the entire population (they both cast their position that way, at any rate). Perhaps what we could do is to expand the line, changing "attracted attention from special-interest groups" to "attracted attention from special and public interest groups" ? By the by: if you end your comment with ~~~~ (four tildes), this will produce the appropriate signature in your comment. Magidin (talk) 20:11, 10 December 2009 (UTC)

The pro-choice and pro-life groups are both political organizations, which is why I originally suggested that term, although I wonder if "political lobby" would better describe them. —MiguelMunoz (talk) 20:26, 10 December 2009 (UTC)

You are confusing specific groups with the entirety of the position (or 'lobby', if you will). It is false to claim that "pro-life group[s] is a political organization", or even that the entire pro-life lobby is a political organization. Specific pro-life groups (like the National Right To Life, etc) are political organizations, but the lobby itself encompasses both political organizations, organizations that are not political but weight in on the debate (the Catholic curia, for example), etc. Same with pro-choice: speicific groups may be political groups, but "pro-choice" by itself is not a political group. Just like we don't conflate the ACLU with any and all groups that argue for civil liberties. If your concern is with the often dismissive tone and discrediting connotation of calling something a "special interest", then surely you must also object to the use of "lobby", given that it often has the same (if not worse) connotations in public discourse. In any case, what is your opinion of the suggested expansion, changing "special interest groups" to "special and public interest groups"? That would encompass think thanks, public policy groups, organizations like the ACLU, etc. Magidin (talk) 20:40, 10 December 2009 (UTC)

I agree with Magidin basically.--Tomwsulcer (talk) 20:51, 10 December 2009 (UTC)

No I'm really not confusing them. I wasn't trying to suggest that "political lobby" encompasses the entire spectrum of a political view. I was merely suggesting the use of the term "political lobby" somehow to describe those that take positions on supreme court nominees. And I don't think the word "lobby" was invented as a pejorative, like "special interest" is. A lobby is a specific term for a specific task, and I think it's a better word to use than "special" anything. Granted, it has taken on a negative connotation in recent years. We could describe pro-life or pro-choice organizations as "single issue" organizations, but even that is misleading, because many organizations that lobby for or against some nominee have a much more broad focus. The one common thread I can find is that they are all political organizations that lobby heavily. My point is that "special interest" is both misleading and inaccurate. The phrase "special and public interest groups" feels rather wordy, and I think we can come up with something better. —MiguelMunoz (talk) 11:37, 11 December 2009 (UTC)

The discussion is moot. The term "special interests" doesn't appear in the SC article as of Dec 11 2009 (except in a reference). But I'll agree we should keep watch over our choice of terms here, and that no one term seems to be the best. My sense of a "special interest" is, for example, realtors, who band together to push Washington for legislation or rules favorable to realtors. It's a narrow group fighting for a slice of the pie, sometimes fairly, sometimes not. I think we'll agree that there are lots of special interests in Washington in my view. And I see Washington, essentially, as a political brawl of all sorts of special interests for economic advantage. But I don't see the ACLU, for example, as advocating for everybody; rather, they're a left-leaning organization allied with Democrats and environmentalists with a somewhat radical agenda. Is the ACLU a "special interest"? This doesn't sound right, so I guess I agree. Does the ACLU lobby the government? Extensively. So do non-partisan groups like FairTax. But what do we call the ACLU and FairTax? Political lobbies? Political organizations? Political forces? Groups with a political agenda? Lobbies plus? I agree we should keep a lookout for terms which might be more accurate.--Tomwsulcer (talk) 13:16, 11 December 2009 (UTC)

(De-indenting for readability) You are mistaken, Tom, the term does still appear in the article. It is in the second paragraph of the Appointment and Confirmation subsection, which is exactly what this discussion has been all about. I suspect you did a search and did not find it because, for some reason, it has a hyphen in it. The sentence in question reads: "In modern times, the confirmation process has attracted considerable attention from special-interest groups, [...]" Now, I don't want this to get away from a discussion of improving that sentence, but, Miguel: "lobby" may not have been invented as a pejorative; neither was "special interest". But they are both used pejoratively in certain areas of public discourse. Is it unfair? Probably. If the objection is about the innuendo that the words usually carry, then I'm going to have to object to "lobby" on the same grounds that you object to "special interest". That's why I'm suggesting taking away the possible innuendo of "people looking out for nobody but themselves" (special interest) or "hired guns looking out for nobody but those who line their pockets" (lobbyists) by tempering the statement with "special and public interest groups". Disclaimer: no, I do not think that's what the terms mean, but that is the innuendo when the terms are used dismissively; in that much I think we agree. So, rather than get into an argument as to the origin and meaning of words, let me say that I do not see why "special and public interest groups" is "wordy", but if you can come up with a four-or-fewer-word description that carries all the nuances you seem to believe are warranted for that line, please suggest it. Personally, I cannot. Magidin (talk) 16:28, 11 December 2009 (UTC)

You're right Magidin. I searched without the hyphen. I presumed the two words must have had wordcourse by now with the hyphen long since broken, but it's still intact. I agree generally with the gist of your comment above.--Tomwsulcer (talk) 18:32, 11 December 2009 (UTC)

My point about the word "lobby" is that it's a professional term used in government that's pretty neutral when it's used by professionals, which is why I prefer it to "special interest," which is only used for the baggage it brings. It's true that "lobby" gets use pejoratively, but we don't need to use it that way. We can use the word in a neutral manner: "... the confirmation process has attracted ... attention from political lobbies, ..." or "... from political organizations, ..." "Special" is both misleading and often inaccurate. But frankly, if you can come up with a better word than, please do so. I just want to remove the term "special." —Preceding unsigned comment added by MiguelMunoz (talk • contribs) 23:38, 13 December 2009 (UTC)

While "lobby" may have a technical legal meaning, it is unlikely to be read that way. While we may be "using it" neutrally, I simply do not think it would be read neutrally. As for "political organizations", not everyone who chimes in is a "political organization". I would find that both "misleading and often inaccurate". I know you want to remove the term "special", but frankly, I don't find the alternatives you are proposing any good, nor free of precisely the same objection you are raising to it. You object to "special" because of how it seems, but seem to think that we could use "lobby" and not have to worry about how it seems. I just don't see how that could be. 'Special and public interest' seems to achieve the overall objective, except it doesn't get rid of the one word you don't like (well, and you think it is "wordy"; but nothing is going to achieve the nuance and neutrality you want in three words or less). Magidin (talk) 02:48, 14 December 2009 (UTC)

It occurs to me that perhaps we can achieve the desired result not by being more precise, but by being less precise. I've changed the sentence from "...special-interest groups, many of which lobby..." to "... from the press, and from many groups which lobby..." Would that suit everyone? Magidin (talk) 16:15, 14 December 2009 (UTC)

All right, I certainly find that far less objectionable than the older text. I'm not sure we need to mention the press, since that's kind of implicit, but aside from that rather minor point, I'm fine with the change. I will say that, while not everyone who chimes in may be an "organization," they are all certainly political, and they are all certainly organized enough to catch the ear of the Senate. And my objection to special wasn't about how it "seems." —MiguelMunoz (talk) 19:53, 14 December 2009 (UTC)

The reason I mention the press is that the involvement of the press has a lot to do with the public perception of the hearings, and with how the hearings themselves have become more of an empty ritual than any serious probing into the nominee (something several senators have complained about); this involvement has grown over the years. As for the rest, at this point it is clear we will not convince each other, but in any case we seem to have found an acceptable consensus (as usual, something neither side is entirely happy with, but is willing to live with). Magidin (talk) 20:18, 14 December 2009 (UTC)

How about "advocacy groups" ? Magidin (talk) 17:23, 17 December 2009 (UTC)

"Advocacy groups" would be fine. —MiguelMunoz (talk) 18:03, 17 December 2009 (UTC)

Jazzing Wikipedia with animations

What I think is really cool about an online encyclopedia is not just the wonderful ability to mix text with great pictures, and link everywhere, but be a dynamic environment. Check out my latest article Philosophy of Spinoza; a rather dry topic like rational philosophy can be brought to life with wonderful pictures and emotions. What I'm saying is: is there a way to make this Supreme Court article more lively with better animations and pictures?--Tomwsulcer (talk) 16:11, 11 December 2009 (UTC)

Frankly, I think it's way overdone. I don't think it's really appropriate for the Spinoza article, and I don't think such a thing would be appropriate for this article, unless the animations were of a the Justices hearing arguments, or perhaps of protesters outside the Court. bd2412 T 21:30, 11 December 2009 (UTC)

Sotomayor's "judicial leanings"

I'm trying to keep up by listing all the opinions that Sotomayor has participated in, but this will soon become untenable. For now, it seems to still be okay. At this time, I think the important points are: (i) She has not yet been in dissent at all; (ii) she has yet to join an opinion with fewer than seven votes total; (iii) her two opinions for the Court have been on procedural issues. All these are mentioned right now, as well as specific cases listed in the references. It is the latter that will soon have to go, I think. Of course, as soon as she votes on a close case, the paragraph will have to be rewritten. Magidin (talk) 16:35, 20 January 2010 (UTC)

And sure enough, today she voted with a four member minority in Citizens United v. Federal Election Commission on most of the decision (one part was decided 8-1). Magidin (talk) 20:11, 21 January 2010 (UTC)

I added reference to an aside made by Jeffrey Toobin in his article about John Paul Stevens for The New Yorker (very interesting read in and of itself, by the by), indicating that Sotomayor so far has been voting like Souter. The statement is parenthetical in the original, and is clearly made tentatively, so I don't think it is enough to throw her explicitly into the "liberal wing" of the Court, but possibly enough to merit mention. I put it at the very end of the section, after the summary of her votes so far. On the other hand, it may be a bit too tenuous to merit inclusion at this point. Any thoughts? Magidin (talk) 15:48, 16 March 2010 (UTC)

The straw that broke the camel's back

I think that today's fractured opinion in Shady Grove v. Allstate is the straw that breaks the camel's back on the paragraphs on Sotomayor's "judicial leanings" as they now stand. Four exceptions seems a bit too many. I think I'll rewrite that whole section now. There are still no reliable sources to put her in the liberal wing, with only one case dividing the Court along the commonly perceived "ideological lines" (Citizens United). The closest we have is Toobin's statement that she has "so far" been voting like Souter. I will put Citizens United first, with the caveat that it is the only one (out of however many others) so far that has divided the court along ideological lines. Then a recap of her three opinions for the court so far, the other lopsided cases she has participated in, and then her dissent and the two dissents she has joined. I hope this meets with general approval. Magidin (talk) 15:07, 31 March 2010 (UTC)

Default sort?

Wouldn't it be better to change the default sort to "United States Supreme Court"? When one clicks on a category such as "National Supreme Courts", shouldn't we find this article in the U section? Vidor (talk) 00:37, 9 April 2010 (UTC)

"First day" in justice list

Some time ago, User:BoBo changed Justice Sotomayor's "first day" to August 6 from August 8. The logic was that a justice's tenure begins with commissioning, and used 28 USC Sec. 4. In particular, it was argued that "Associate justices shall have precedence according to the seniority of their commissions" means that terms begin at commission. However, that does not follow. The statute also says that if their commission date is the same, justices base seniority on age. This is entirely about seniority and not about when a justice becomes a justice. While commissioning would be a possible date to begin service with, it is not the only possibility. In fact, the Supreme Court's biographies of the justices uses the date they took their oaths, and the timeline of members refers to oath dates and doesn't mention commission dates.

Also, information at the FJC website makes it impossible for me to believe that terms start with commissioning. Justice Sotomayor, again, received her commission on August 6, but her tenure as a circuit judge didn't end until August 7. Justice Ginsburg received her commission on August 5, 1993, her tenure as a circuit judge ended on August 9, and she took the oath as a supreme on August 10. For Justice Kennedy, the dates were February 11, 1988, February 17, and February 18, respectively. For Justice Stevens, they were December 17, 18, and 19, 1975.

You can't be a Supreme Court justice and an circuit judge at the same time. Since all of those continued to be circuit judges after receiving their commissions, it strikes me that receiving a commission does automatically place a judge on the Court.

Finally, even if the commission date were the proper start date, just changing Sotomayor, but not the other 10 (justices and former justices), was not the correct way to go about it. -Rrius (talk) 22:22, 9 April 2010 (UTC)

Article for Deletion

The following AfD may be of interest to editors here: Wikipedia:Articles for deletion/Sessions of the United States Supreme Court -Rrius (talk) 01:55, 10 April 2010 (UTC)

Split off Sotomayor in the Judicial Leanings section?

Despite the amount of work I've put into giving as balanced and complete an overview of Sotomayor's ideological position within the Court at this time (with only one reliable source giving us substantive comment so far), I am pretty unsatisfied with the section as it stands or is likely to develop until the end of the term. The section is currently five paragraphs long, one of them substantially longer than the rest. The Sotomayor material covers about two thirds of that length, and may very well have crossed over into too much detail territory by now. However, I would be loath to just drop all of that material that gives some context to this first term. Eventually (at the end of the term), final statistics may be possible (indicating who she has voted with the most, or how many closely divided cases occurred with the other eight dividing the expected way, and how she voted) which would shorten the section considerably, but that's a couple of months away at best. One possibility might be to move Toobin's comment ("seems to be voting much like Souter") to follow directly the description of Kennedy, and then split off the rest of the stuff into a sub-subsection specifically about Sotomayor. Or summarize with one or two sentences and move the information over to footnotes, suitably shortened. Or if enough editors think most of that is unnecessary or too much detail, remove it entirely. But I don't think it can stand as it is for much longer, and I am growing increasingly unhappy with it. Magidin (talk) 15:06, 28 April 2010 (UTC)

I don't see that we need two thirds of the section to focus on Sotomayor. A much shorter summation would suffice, and the rest of that material can be moved to her own article. bd2412 T 22:26, 24 May 2010 (UTC)

I agree. The section has way too much material on Sotomayor. It is a worthy topic, but does not belong here. — JPMcGrath (talk) 23:34, 24 May 2010 (UTC)

I'll see what I can do. Magidin (talk) 01:43, 25 May 2010 (UTC)

How's that? Of course, we'll have to go through this kind of thing again next year... Oy. Magidin (talk) 01:57, 25 May 2010 (UTC)

Much better. Now to move that material to the Sotomayor article. bd2412 T 14:22, 26 May 2010 (UTC)

Recent insertion by User:Donncha1

I have a concern with the following text, recently inserted by User:Donncha1 and repeatedly reinserted despite being removed by two other editors:

In Denis Linehan v. Harvard University, 1974, a petition for certiorari was denied without Harvard being required to plead, without an oral hearing and without reasons being given. The Chief Justice, William Rehnquist, and a majority of the court, were Harvard alumni.(Reference:Public Record).

Although numerous objections could be raised to this wording, there are two key concerns: (1) there is no real reference for any of the information; although the fact that a petition for cert was filed and denied could easily be verified, none of the other circumstances asserted in the text are verified; and (2) the text clearly contains a POV insinuation that the petition was denied because several Justices were Harvard alumni, which is inherently unverifiable and unbalanced. The editor responsible for this text (and I have no specific evidence that this editor is named "Denis Linehan") so far has refused to discuss his/her reasons for inserting it. --R'n'B (call me Russ) 13:28, 5 May 2010 (UTC)

The text is certainly unsourced and unverified. Moreover, it contains factual errors: Rehnquist was not the Chief Justice in 1974: he was still an Associate Justice under Burger. Justices with connections to Harvard at the time were Rehnquist (a Master's in between a bachelor's and law degree from Stanford), Brennan (law degree), Blackmun (bachelor's and law degree), and Powell (a Master's in between a bachelor's and a law degree from Washington and Lee). The other members of the Court were CJ Burger (University of Minnesota and William Mitchell College of Law), William O. Douglas (Whitman and Columbia), Potter Stewart (Yale), White (University of Colorado and Yale), and Thurgood Marshall (Lincoln University and University of Maryland). Even calling Rehnquiest and Powell "Harvard alumni", by my count that's still short of "a majority of the court". This is an unsourced, verifiably untrue, personal allegation, not a criticism from a reliable source. I wholly agree with removing it, and if the editor continues to insert it and refuses to discuss, I would support getting him at least temporarily blocked. Magidin (talk) 14:46, 5 May 2010 (UTC)

I see the editor has turned to doing the edit anonymously, after getting embroiled in similar edit wars in Supreme Court of Ireland, Harvard Law School, and Bryan MacMahon. This is ridiculous; nobody is required to "plead" in a petition for cert; the vast majority of certs are denied without argument and without comment, not to mention the factual errors. This is rather obviously something that deserves the attention of administrators. Magidin (talk) 16:35, 5 May 2010 (UTC)

Heh. It appears the case is actually from 1994, not 1974 (that would mean that Rehnquist was the Chief Justice at the time). The case was dismissed because the 3-year statute of limitations had expired; the dismissal was affirmed by the First Circuit in a 10 paragraph Per curiam decision, which notes in passing that there were other problems with the complaint. I assume it was this affirmation that was denied cert by the Supreme Court. The summary of the case as given by the First Circuit:

The complaint alleges that between March and May, 1987, while plaintiff was enrolled in a graduate studies program at Harvard Law School, defendant subjected him to sonic abuse from a remote controlled device installed in close proximity to his dormitory room. Plaintiff claims that defendant's wrongful actions were motivated by a vendetta that had its origin in an employment dispute between the plaintiff and University College Cork in Ireland.

Here is the link to the Circuit decision, (29 F.3d 619) in case anyone is interested. Magidin (talk) 19:24, 5 May 2010 (UTC)

Recent insertion, "religious persuasions"

I reverted the following addition, placed after Judicial leanings, entitled Religious persuasions:

As justices do not represent or receive official endorsements from religious groups, churches, or denominations, religion is just one aspect of character. While there is no such thing as a "Catholic judge" or "Protestant judge," in its history the Supreme Court has never reflected the country's diversity—not even close. The first Supreme Court convened in 1790. It had six rather than today's nine judges. All six of those original jurists were Protestants—four Episcopalians, a Presbyterian and a Unitarian. Today, the court is made up of six Roman Catholics, two Jews and retiring Justice John Paul Stevens, the only Protestant on today's Court. Protestants still comprise over half of the Congress.[96] With just five exceptions, every member of the Supreme Court in U.S. history has been a white male, like Justice John Paul Stevens. As of June 2010, the short list of candidates to succeed Justice Stevens includes two Jews, Solicitor General Elena Kagan and Judge Merrick B. Garland of the United States Court of Appeals for the District of Columbia Circuit, and one Protestant, Judge Diane P. Wood of the United States Court of Appeals for the Seventh Circuit, in Chicago.[96] Particularly conspicuous by their absence on either the present or proposed court is any Evangelical Protestant representation. Some have wondered how this came to pass culturally, not just politically.[97]

• 96: Liptak, Adam. "Stevens, the Only Protestant on the Supreme Court." The New York Times, 9 Apr 2010.[1]
• 97: "Supreme Court religion: Evangelicals see no one familiar." USA Today,16 May 2010. Web: [2]

My reasons: the first three sentences are unsourced and contain personal commentary. The reference to the short list is woefully out of date. The last two sentences are somewhat problematic as well, with weasel words that don't go anywhere ("Some have wondered..."), some unsourced assertions, and there seems to be some personal commentary as well ("Particularly conspicuous by their absence..."). At best, I can see some version of the final two comments being added to the Criticisms section, provided they were amplified by other criticisms of the Court as not being representative of the country, but it does not seem to me that this paragraph belongs in the article, or certainly not with the same billing and prominence as the section on the judicial leanings of the seating justices. Magidin (talk) 06:34, 2 June 2010 (UTC)

We have an article with a substantial section already covering this issue. Demographics of the Supreme Court of the United States. bd2412 T 00:25, 3 July 2010 (UTC)

All the more reason to keep the substandard insertion out, then. Thanks for the pointer. Magidin (talk) 00:44, 3 July 2010 (UTC)

Seating

This is only interesting for a little while, but... As I understand it, should the Court convene before Stevens's successor is confirmed, the Justices would not move from their current seating and Stevens's seat would be left vacant; it is only after the successor is confirmed that the shuffling of the seats occurs. Anyone know if this is accurate? Magidin (talk) 16:26, 7 July 2010 (UTC)

I'm trying to find out how this works. If I find something out, I will let everyone know. Unfortunately, what I find out may not be citable, so I'm not sure how much good it will do anyone, but I'm still slightly curious.--Bbb23 (talk) 16:54, 7 July 2010 (UTC)

I'm curious too. I'm pretty sure that this is what happens when a Justice dies in office (Cardozo's seat was draped with black fabric after his death, and until the confirmation of Frankfurter; I think there's a photograph in Atkinson's "Leaving the Bench", but I'm away from home and cannot check the book); but I don't know what happens with retirement. Then again, before Souter and Stevens, most recent retirements were "until confirmation of a successor", so the issue did not arise.

The only reason I bring it up is that an anonymous editor changed the seating description in the page; I had simply replaced Stevens with a vacant seat, but the editor moved the vacant seat to the far right (as viewed by the attorneys). It probably won't matter after the end of July, but like you I am curious. Magidin (talk) 17:23, 7 July 2010 (UTC)