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The Supreme Court of the United States is the highest judicial body in the United States, and leads the federal judiciary. It consists of the Chief Justice of the United States and eight Associate Justices, who are nominated by the President and confirmed with the "advice and consent" (majority vote) of the Senate. Once appointed, Justices effectively have life tenure, serving "during good Behaviour", which terminates only upon death, resignation, retirement, or conviction on impeachment. The Court meets in Washington, D.C. in the United States Supreme Court Building. The Supreme Court is primarily an appellate court, but it has original jurisdiction over a small range of cases. The Supreme Court is sometimes informally referred to as the High Court, or by the acronym SCOTUS.
Eras of the history of the Supreme Court are named after the Chief Justice of that time.
The earliest Courts under Chief Justices Jay, Rutledge, and Ellsworth (1789–1801) heard few cases, and the Supreme Court's first decision was West v. Barnes (1791), a case involving a procedural issue. Further, the Court initially lacked a home of its own and any real prestige.
The Court lacked its own building until 1935; from 1791 to 1801, it met in Philadelphia's City Hall
That changed during the Marshall Court (1801–1835), which declared the Court to be the supreme arbiter of the Constitution (see Marbury v. Madison) and made several important rulings which gave shape and substance to the constitutional balance of power between the federal government and the states. In Martin v. Hunter's Lessee, the Court ruled that it had the power to correct interpretations of the federal Constitution made by state supreme courts. Both Marbury and Martin confirmed that the Court was entrusted with maintaining the consistent and orderly development of federal law.
The Marshall Court ended the practice of each judge issuing his opinion seriatim, a remnant of British tradition, and instead began issuing a single majority opinion. Associate Justice Samuel Chase was impeached by Congress within a greater power struggle between the Democratic-Republicans and the Federalists after the transition of power following the election of 1800. Chase's 1805 acquittal by the Senate has been cited as recognition by Congress of the principle of judicial independence.
The Taney Court (1836–1864) made several important rulings, such as Sheldon v. Sill, which held that while Congress may not limit the subjects the Supreme Court may hear, it may limit the jurisdiction of the lower federal courts to prevent them from hearing cases dealing with certain subjects. The Taney Court is primarily remembered for its ruling in Dred Scott v. Sandford, the case which may have helped precipitate the Civil War. In the Reconstruction era, the Chase, Waite, and Fuller Courts (1864–1910) interpreted the new Civil War amendments to the Constitution, and developed the doctrine of substantive due process (Lochner v. New York; Adair v. United States).
Under the White and Taft Courts (1910–1930), the substantive due process doctrine reached its first apogee (Adkins v. Children's Hospital), and the Court held that the Fourteenth Amendment applied some provisions of the Bill of Rights to the states through the Incorporation doctrine.
During the Hughes, Stone, and Vinson Courts (1930–1953), the court gained its own accommodation in 1935 and changed its interpretation of the Constitution in order to facilitate Franklin Roosevelt's New Deal (West Coast Hotel Co. v. Parrish, Wickard v. Filburn), giving a broader reading to the powers of the Federal Government.
The Warren Court (1953–1969) made many rulings, sometimes celebrated, sometimes controversial, expanding the application of the Constitution to civil liberties, leading a renaissance in substantive due process. It held segregation in public schools unconstitutional (Brown v. Board of Education); that the Constitution protects a general right to privacy (Griswold v. Connecticut); that public schools cannot have official prayer (Engel v. Vitale) or mandatory Bible readings (Abington School District v. Schempp); that many guarantees of the Bill of Rights apply to the states (e.g., Mapp v. Ohio, Miranda v. Arizona); found an equal protection clause is contained in the Fifth Amendment (Bolling v. Sharpe); and that the Constitution grants the right to a court-appointed attorney for those unable to afford one (Gideon v. Wainwright).
The Burger Court (1969–1986) ruled the Constitution protected a woman's right to privacy and control over her own body, thus striking down outright abortion bans (Roe v. Wade), reached controversial rulings on affirmative action (Regents of the University of California v. Bakke) and campaign finance regulation (Buckley v. Valeo); ruled the methods several states employed to implement the death penalty unconstitutional (Furman v. Georgia); but also held the death penalty itself was not unconstitutional (Gregg v. Georgia).
The Rehnquist Court (1986–2005) was noted for its revival of the concept of federalism, which included restrictions on Congressional power under both the Commerce Clause (United States v. Lopez, United States v. Morrison) and the fifth section of the Fourteenth Amendment (City of Boerne v. Flores), as well as strengthening state sovereign immunity (Seminole Tribe v. Florida, Alden v. Maine). It was also noted for its 5 to 4 decision in Bush v. Gore, which ended the electoral recount during the presidential election of 2000 and led to the presidency of George W. Bush. In addition, the Rehnquist court decriminalized homosexual sex (Lawrence v. Texas); narrowed the right of labor union organizers to enter an employer's property (Lechmere Inc. v. NLRB); altered the Roe v. Wade framework for assessing abortion regulations (Planned Parenthood v. Casey); and gave sweeping meaning to ERISA pre-emption (Shaw v. Delta Air Lines, Inc., Egelhoff v. Egelhoff), thereby denying plaintiffs access to state courts with the consequence of limiting compensation for torts to very circumscribed remedies (Aetna Health Inc. v. Davila, CIGNA Healthcare of Texas Inc. v. Calad); affirmed the power of Congress to extend the term of copyright (Eldred v. Ashcroft); and expanded the government's power of eminent domain (Kelo v. City of New London).
The Roberts Court (2005–present) began with the confirmation and swearing in of Chief Justice John G. Roberts on September 29, 2005, and is the current presiding court. The Roberts Court is seen as more conservative than the previous court. Some of the major rulings so far have been in the areas of abortion (Ayotte v. Planned Parenthood, Gonzales v. Carhart); anti-trust legislation (Leegin Creative Leather Products, Inc. v. PSKS, Inc.); the death penalty (Baze v. Rees, Kennedy v. Louisiana); the Fourth Amendment (Hudson v. Michigan); free speech of government employees and of high school students (Garcetti v. Ceballos, Morse v. Frederick); military detainees (Hamdan v. Rumsfeld, Boumediene v. Bush); school desegregation (Parents v. Seattle); voting rights (Crawford v. Marion County Election Board); the Second Amendment (District of Columbia v. Heller), and campaign finance (Citizens United v. Federal Election Commission).
Size of the Court
The United States Constitution does not specify the size of the Supreme Court, but Article III authorizes the Congress to fix the number of justices. The Judiciary Act of 1789 called for the appointment of six justices. As the country grew geographically, Congress increased the number of justices to correspond with the growing number of judicial circuits: the court was expanded to seven members in 1807, nine in 1837 and ten in 1863.
At the request of Chief Justice Salmon P. Chase, Congress passed the Judicial Circuits Act (1866) which provided that the next three justices to retire would not be replaced; thus, the size of the Court should have eventually reached seven by attrition. Consequently, one seat was removed in 1866 and a second in 1867. However, this law did not play out to completion, for in the Judiciary Act of 1869, also known as the Circuit Judges Act, the number of justices was again set at nine, where it has since remained.
President Franklin D. Roosevelt attempted to expand the Court in 1937, seeking to appoint an additional justice for each incumbent justice who reached the age of 70 years 6 months and refused retirement; under Roosevelt's proposal, such appointments would continue until the Court reached a maximum size of 15 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 pack the Court with justices who would support New Deal policies and legislation. This plan, usually called the "Court-packing Plan", failed in Congress and proved a political disaster for Roosevelt. The balance of the Court shifted with the retirement of Willis Van Devanter and the confirmation of Hugo Black in August 1937. By the end of 1941, Roosevelt had appointed seven Supreme Court justices and elevated Harlan Fiske Stone to Chief Justice.
Appointment and confirmation
Article Two of the United States Constitution gives the President power to appoint Justices "by and with the advice and consent of the Senate". Most Presidents nominate candidates who broadly share their ideological views, although a Justice's decisions may end up being contrary to what the nominating President anticipated. Because the Constitution does not set any qualifications for service as a Justice, the President may nominate anyone to serve. However, that person must receive the confirmation of the Senate.
In modern times, the confirmation process has attracted considerable attention from the press, and from advocacy groups, which lobby senators to confirm or to reject a nominee, depending on whether the nominee's track record aligns with the group's views. The Senate Judiciary Committee conducts hearings and votes on whether the nomination should go to the full Senate with a positive, negative or neutral report. The Committee's practice of personally interviewing nominees is relatively recent; the first nominee to appear before the committee was Harlan Fiske Stone in 1925, who sought to quell concerns about his links to Wall Street. However, the modern practice of questioning began with John Marshall Harlan II in 1955. A simple majority vote is required to confirm or to reject a nominee. Once the Committee reports out the nomination, the whole Senate considers it. Rejections are relatively uncommon; the Senate has explicitly rejected twelve Supreme Court nominees in its history. The most recent rejection of a nominee by vote of the full Senate came in 1987, when the Senate refused to confirm Robert Bork.
Not everyone nominated by the President has received a floor vote in the Senate. Although Senate rules do not necessarily allow a negative vote in committee to block a Supreme Court nomination, a nominee may be filibustered once debate on the nomination has begun in the full Senate. A filibuster indefinitely prolongs the debate, preventing a final vote on the nominee. While senators may attempt to filibuster a Supreme Court nominee in an attempt to thwart confirmation, no nomination for Associate Justice has ever been filibustered. However, President Lyndon Johnson's nomination of sitting Associate Justice Abe Fortas to succeed Earl Warren as Chief Justice was successfully filibustered in 1968. The President may also withdraw a nominee's name before the actual confirmation vote occurs. This usually happens when the President feels that the nominee has little chance of being confirmed: most recently, President George W. Bush withdrew his nomination of Harriet Miers before Committee hearings had begun.
Before 1981, the approval process of Justices was usually rapid. From the Truman through Nixon administrations, Justices were typically approved within one month. From the Reagan administration to the present, however, the process has taken much longer. Some believe this is because Congress sees Justices as playing a more political role than in the past.
Once the Senate confirms the nomination by an affirmative vote, the President must prepare and sign a commission, and have the Seal of the Department of Justice affixed to the document before the new Justice can take office. The seniority of an associate justice is based on the date of commissioning, not the date of confirmation or swearing-in.
When the Senate is in recess, the President may make a temporary appointment without the Senate's advice and consent. Such a recess appointee to the Supreme Court holds office only until the end of the next Senate session (at most, less than two years). To continue to serve thereafter and be compensated for his or her service, the Senate must confirm the nominee. Of the two Chief Justices and six Associate Justices who have received recess appointments, only Chief Justice John Rutledge was not subsequently confirmed for a regular appointment. No president since Dwight Eisenhower has made a recess appointment to the Supreme Court and the practice has become highly controversial even when applied to lower federal courts. During the 110th Congress, the Democratic leadership of the Senate specifically blocked Republican President George W. Bush from making any recess appointments with the use of pro forma sessions.
The Constitution provides that justices "shall hold their offices during good behavior" (unless appointed during a Senate recess). The term "good behavior" is well understood to mean Justices may serve for the remainder of their lives, although they can voluntarily resign or retire. A Justice can also be removed by Congressional impeachment and conviction. However, only one Justice has been impeached by the House (Samuel Chase, in 1805) and he was acquitted in the Senate. Moves to impeach sitting justices have occurred more recently (for example, William O. Douglas was the subject of hearings twice, once in 1953 and again in 1970), but they have not reached a vote in the House. No mechanism presently exists for removing a Justice who is permanently incapacitated by illness or injury, both unable to resign and unable to resume service.
Because Justices have indefinite tenure, timing of vacancies can be unpredictable. Sometimes vacancies arise in quick succession, as in the early 1970s when Lewis Franklin Powell, Jr. and William H. Rehnquist were nominated to replace Hugo Black and John Marshall Harlan II, who retired within a week of each other. Sometimes a great length of time passes between nominations such as the eleven years between Stephen Breyer's nomination in 1994 and the departures of Chief Justice Rehnquist and Justice Sandra Day O'Connor (by death and retirement, respectively) in 2005 and 2006.
Despite the variability, all but four Presidents up to and including Barack Obama have been able to appoint at least one Justice. President William Henry Harrison died a month after taking office, though his successor (John Tyler) made an appointment during that presidential term. President Zachary Taylor likewise died early in his presidential term, although his successor (Millard Fillmore) also made a Supreme Court nomination before the end of that term. President Andrew Johnson was denied the opportunity to appoint a Justice by a contraction in the size of the Court (see Size of the Court above). President Jimmy Carter is the only President who completed at least one full term in office without making a nomination to the Court during his presidency.
Below is a table of current Supreme Court Justices. ("Conf. Vote" = Senate Confirmation Vote)
||Age at appt.
John G. Roberts (Chief Justice)
|January 27, 1955 (age 55) in Buffalo, New York
||George W. Bush
||September 29, 2005
||Circuit Judge, Court of Appeals for the D.C. Circuit (2003–2005); Private practice (1993–2003); Professor, Georgetown University Law Center (1992–2005); Principal Deputy Solicitor General (1989–1993); Private practice (1986–1989); Associate Counsel to the President (1982–1986); Special Assistant to the Attorney General (1981–1982)
John Paul Stevens
|April 20, 1920 (age 89) in Chicago, Illinois
||December 19, 1975
||Circuit Judge, Court of Appeals for the Seventh Circuit (1970–1975); Private practice (1948–1970); Lecturer, University of Chicago Law School (1950–1954); Lecturer, Northwestern University School of Law (1954–1958)
|March 11, 1936 (age 74) in Trenton, New Jersey
||September 26, 1986
||Circuit Judge, Court of Appeals for the D.C. Circuit (1982–1986); Professor, University of Chicago Law School (1977–1982); Assistant Attorney General (1974–1977); Professor, University of Virginia School of Law (1967–1974); Private practice (1961–1967)
|July 23, 1936 (age 73) in Sacramento, California
||February 18, 1988
||Circuit Judge, Court of Appeals for the Ninth Circuit (1975–1988); Professor, McGeorge School of Law, University of the Pacific (1965–1988); Private practice (1963–1975)
|June 23, 1948 (age 61) in Pin Point, Georgia
||George H. W. Bush
||October 23, 1991
||Circuit Judge, Court of Appeals for the D.C. Circuit (1990–1991); Chairman, Equal Employment Opportunity Commission (1982–1990); legislative assistant for Missouri Senator John Danforth (1979–1981); employed by Monsanto Company Inc. (1977–1979); Assistant Attorney General in Missouri under State Attorney General John Danforth (1974–1977)
Ruth Bader Ginsburg
|March 15, 1933 (age 77) in Brooklyn, New York
||August 10, 1993
||Circuit Judge, Court of Appeals for the D.C. Circuit (1980–1993); General Counsel, American Civil Liberties Union (1973–1980); Professor, Columbia Law School (1972–1980); Professor, Rutgers University School of Law (1963–1972)
|August 15, 1938 (age 71) in San Francisco, California
||August 3, 1994
||Chief Judge, Court of Appeals for the First Circuit (1990–1994); Circuit Judge, Court of Appeals for the First Circuit (1980–1990); Professor, Harvard Law School (1967–1980)
|April 1, 1950 (age 59) in Trenton, New Jersey
||George W. Bush
||January 31, 2006
||Circuit Judge, Court of Appeals for the Third Circuit (1990–2006); Professor, Seton Hall University School of Law (1999–2004); U.S. Attorney for the District of New Jersey (1987–1990); Deputy Assistant Attorney General (1985–1987); Assistant to the Solicitor General (1981–1985); Assistant U.S. Attorney for the District of New Jersey (1977–1981)
|June 25, 1954 (age 55) in The Bronx, New York
||August 6, 2009
||Circuit Judge, Court of Appeals for the Second Circuit (1998–2009), District Judge, District Court for the Southern District of New York (1992–1998), Private practice (1984–1991), Assistant District Attorney, New York County, New York (1979–1984)
As of March 18, 2010, the average age of the justices is 68 years, 9 months.
Currently, there are two living retired Justices of the Supreme Court, Sandra Day O'Connor and David Souter. As retired Justices, they may be designated for temporary assignments to sit with several United States Courts of Appeals. Nominally, such assignments are made by the Chief Justice; they are analogous to the types of assignments that may be given to judges of lower courts who have selected senior status, except that a retired Supreme Court Justice never sits as a member of the Supreme Court itself.
Research suggests that justices sometimes strategically plan their decisions to leave the bench, with personal, institutional, and partisan factors playing a role. The fear of mental decline and death often motivates justices to step down. The desire to maximize the Court's strength and legitimacy through one retirement at a time, when the Court is in recess, and during non-presidential election years suggests a concern for institutional health. Finally, if at all possible, justices seek to depart under favorable presidents and Senates to ensure that a like-minded successor will be appointed.
Seniority and seating
Many of the internal operations of the Court are organized by the seniority of the Justices; the Chief Justice is considered the most senior member of the Court, regardless of the length of his or her service. The Associate Justices are then ranked by the length of their service.
During Court sessions, the Justices sit according to seniority, with the Chief Justice in the center, and the Associate Justices on alternating sides, with the most senior Associate Justice on the Chief Justice's immediate right, and the most junior Associate Justice seated on the left farthest away from the Chief Justice. Therefore, the current court sits as follows from left to right when looking at the bench from the perspective of a lawyer arguing before the Court: Alito, Ginsburg, Kennedy, Stevens (most senior Associate Justice), Roberts (Chief Justice), Scalia, Thomas, Breyer, and Sotomayor. In the official yearly Court photograph, Justices are arranged similarly, with the five most senior members sitting in the front row in the same order as they would sit during Court sessions, and the four most junior Justices standing behind them, again in the same order as they would sit during Court sessions.
In the Justices' private conferences, the current practice is for Justices to speak and vote in order of seniority from the Chief Justice first to the most junior Associate Justice last. The most junior Associate Justice in these conferences is tasked with any menial labor the Justices may require as they convene alone, such as answering the door of their conference room, serving coffee, and transmitting the orders of the court to the court's clerk. Justice Joseph Story served the longest as the junior Justice, from February 3, 1812, to September 1, 1823, for a total of 4,228 days. Justice Stephen Breyer follows close behind, with 4,199 days when Samuel Alito joined the court on January 31, 2006.
For the year 2010, an Associate Justice is paid $213,900 and the Chief Justice $223,500.
Article III of the U.S. Constitution prohibits Congress from reducing the pay for Supreme Court justices.
While justices do not represent or receive official endorsements from political parties, as is accepted practice in the legislative and executive branches, jurists are informally categorized in legal and political circles as being judicial conservatives, moderates, or liberals. Such leanings, however, refer to legal outlook rather than a political or legislative one.
Six of the current justices of the court were appointed by Republican Presidents, while three were appointed by Democratic Presidents. It is popularly accepted that Chief Justice Roberts and Justices Scalia, Thomas, and Alito compose the Court's conservative wing. Justices Stevens, Ginsburg, and Breyer are generally thought of as the Court's liberal wing. Justice Anthony Kennedy, generally considered a conservative who "occasionally vote[s] with the liberals", is most likely to be the swing vote that determines the outcome of close cases. Recent appointee Justice Sotomayor has voted only in cases that were decided with at least seven votes, with two exceptions. Her first opinion for the Court was on a procedural issue; her second was on criminal appellate procedure; her third was on statutory interpretation of the Bankruptcy Code.
Justice Sotomayor has joined dissents in two cases: South Carolina v. North Carolina,, and Citizens United v. Federal Election Commission. In the former, she joined Chief Justice Roberts and Justices Thomas and Ginsburg in an opinion concurring in part and dissenting in part, written by the Chief Justice. In Citizens United, she joined part of the opinion for the Court (written by Justice Kennedy; the part joined by Justice Sotomayor was also joined all other justices except Justice Thomas), and dissented in part, joining the dissent written by Justice John Paul Stevens (which was also joined by Justices Ginsburg and Breyer). Other than these two cases, Justice Sotomayor has not joined any opinion that was not joined by at least six other justices, nor has she written any concurrences or dissents as of February 23, 2010 .
In an article about Justice Stevens for The New Yorker published in March 2010, Jeffrey Toobin stated: "So far, Sotomayor seems to be voting much like Souter, an ally of Stevens, whom she replaced."
The Supreme Court first met on 1 February 1790, at the Merchants' Exchange Building in New York City, which then was the national capital. Philadelphia became the capital city later in 1790, and the Court followed Congress and the President there, meeting briefly in Independence Hall, and then from 1791 to 1800 at Old City Hall at 5th and Chestnut Streets. After Washington, D.C., became the capital in 1800, the Court occupied various spaces in the United States Capitol building until 1935, when it moved into its own purpose-built home at One First Street Northeast, Washington, DC. The four-story building was designed in a classical style sympathetic to the surrounding buildings of the Capitol complex and Library of Congress by architect Cass Gilbert, and is clad in marble quarried chiefly in Vermont. The building includes space for the Courtroom, Justices' chambers, an extensive law library, various meeting spaces, and auxiliary services such as workshop, stores, cafeteria and a gymnasium. The Supreme Court building is within the ambit of the Architect of the Capitol. However, it maintains its own police force, the Supreme Court Police, separate from the Capitol Police.
Due chiefly to security concerns, the present building is being remodeled (2009) to allow installation of security monitors. The renovation will remove access to the building through the expansive and iconic front steps.
Visitors can tour the building on their own, though not the courtroom itself. The building is open to the public from 9am to 4:30pm weekdays but closed on weekends and holidays. It is located behind the United States Capitol at One First Street NE and Maryland Avenue There's a cafeteria, gift shop, exhibits, and a half-hour informational film. When the Court is not in session, lectures about the courtroom are held hourly from 9:30am to 3:30pm and reservations are not necessary. When the Court is in session the public may attend Oral Arguments, which 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 on a first-come first-served basis. One estimate is there are about 250 seats available. Sometimes, there are also afternoon argument sessions. The number of open seats varies from case to case. For important cases, some visitors 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 on a similar basis. Supreme Court Police are available to answer questions.
Inscription on the wall of the Supreme Court Building from Marbury v. Madison
, in which Chief Justice John Marshall (statue, foreground) outlined the concept of judicial review.
Section 2 of Article Three of the United States Constitution outlines the jurisdiction of the federal courts of the United States:
||The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
The jurisdiction of the federal courts was further limited by the Eleventh Amendment to the United States Constitution, which forbade federal courts from hearing cases "commenced or prosecuted against [a State] by Citizens of another State, or by Citizens or Subjects of any Foreign State." However, states may waive this immunity, and Congress may abrogate the states' immunity in certain circumstances (see Sovereign immunity). In addition to constitutional constraints, Congress is authorized by Article III to regulate the court's appellate jurisdiction: for example, the federal courts may consider "Controversies ... between Citizens of different States" only if the amount in controversy exceeds $75,000; otherwise, the case may only be brought in state courts.
Exercise of this power (for example, the Detainee Treatment Act, which provided that "'no court, justice, or judge' shall have jurisdiction to consider the habeas application of a Guantanamo Bay detainee") can become controversial; see Jurisdiction stripping.
The Constitution specifies that the Supreme Court may exercise original jurisdiction in cases affecting ambassadors and other diplomats, and in cases in which a state is a party. In all other cases, however, the Court has only appellate jurisdiction. It considers cases based on its original jurisdiction very rarely; almost all cases are brought to the Supreme Court on appeal. In practice, the only original jurisdiction cases heard by the Court are disputes between two or more states.
Criticism of the Supreme Court
Some criticisms leveled at the Supreme Court are:
- Judicial activism. The Supreme Court has been criticized for not keeping within Constitutional bounds by engaging in judicial activism, rather than merely interpreting law and exercising judicial restraint. Claims of judicial activism are not confined to any particular ideology. An often cited example of conservative judicial activism is Lochner v. New York, a decision criticized by many prominent thinkers, including Robert Bork,, Justice Antonin Scalia,, and Chief Justice John Roberts. An example of liberal judicial activism is Roe v. Wade (1973), which legalized abortion by using a circuitous reasoning regarding a "right to privacy" inferred from the Fourteenth Amendment, according to critics. Legal scholars, justices, and presidential candidates have criticized the Roe decision. The progressive Brown v. Board of Education decision has been criticized by conservatives such as Patrick Buchanan and former presidential contender Barry Goldwater. Lincoln warned, referring to the Dred Scott decision, that if government policy became "irrevocably fixed by decisions of the Supreme Court...the people will have ceased to be their own rulers." Former justice Thurgood Marshall justified judicial activism with these words: "You do what you think is right and let the law catch up." During different historical periods, the court has leaned in different directions. Critics from both sides complain that activist-judges abandon the Constitution and substitute their own views instead. Critics include writers such as Andrew Napolitano, Phyllis Schlafly, Mark R. Levin, and Mark Sutherland, as well as Pulitzer Prize-winning historian James MacGregor Burns. Past presidents from both parties have attacked judicial activism, including Franklin Roosevelt, Nixon, and Reagan. 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." Senator Al Franken quipped that when politicians talk about judicial activism, "their definition of an activist judge is one who votes differently than [the politician] would like."
- Federal versus state power. There has been debate throughout American history about the boundary between federal and state power. 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. The Supreme Court has been criticized for giving the federal government too much power to interfere with state authority. One criticism is that it has allowed the federal government to misuse the Commerce Clause by upholding regulations and legislation which have little to do with interstate commerce, but that were enacted under the guise of regulating interstate commerce; and by voiding state legislation for allegedly interfering with interstate commerce. For example, the Commerce Clause was used to protect non-commercial cave bugs within a state. Chief Justice John Marshall asserted 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." Justice Alito said congressional authority under the Commerce Clause is "quite broad." Modern day theorist Robert B. Reich suggests debate over the Commerce Clause continues today. Advocates of states' rights such as constitutional scholar Kevin Gutzman have also criticized the court, saying it has misused the Fourteenth Amendment to undermine state authority. Justice Brandeis, in arguing for allowing the states to operate without federal interference, suggested that "states should be free to serve as laboratories of democracy." One critic wrote "the great majority of Supreme Court rulings of unconstitutionality involve state, not federal, law." However, others see the Fourteenth Amendment as a positive force that extends "protection of those rights and guarantees to the state level."
- Judicial interference in political disputes. Some Court decisions have been criticized for injecting the Court into the political arena, and deciding questions that are the purview of the other two branches of government. The Bush v. Gore decision, in which the Supreme Court intervened in the 2000 presidential election and effectively chose George W. Bush over Al Gore, has been criticized extensively, particularly by liberals. Another example are Court decisions on apportionment and re-districting: in Baker v. Carr, the court decided it could rule on apportionment questions; Justice Frankfurter in a "scathing dissent" argued against the court wading into so-called "political questions."
- Failing to protect individual rights. Court decisions have been criticized for failing to protect individual rights: the Dred Scott (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. A student criticized a 1988 ruling that 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." However, others argue that the Court is too protective of some individual rights, particularly those of people accused of crimes or in detention. For example, Chief Justice Warren Burger was an outspoken critic of the exclusionary rule, and Justice Scalia criticized the Court's decision in Boumediene v. Bush for being too protective of the rights of Guantanamo detainees, on the grounds that habeas corpus was "limited" to sovereign territory.
- 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." It 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."
- Courts are poor check on executive power. British constitutional scholar Adam Tomkins sees flaws in the American system of having courts (and specifically the Supreme Court) act as checks on the Executive and Legislative branches; he argues that because the courts must wait, sometimes for years, for cases to wind their way through the system, their ability to restrain the other two branches is severely weakened.
- Not choosing enough cases to review. Senator Arlen Specter said the court should "decide more cases." On the other hand, although Justice Scalia acknowledged in a 2009 interview that the number of cases that the Court hears now is smaller today than when he first joined the Supreme Court, he also stated that he has not changed his standards for deciding whether to review a case, nor does he believe his colleagues have changed their standards. He attributed the high volume of cases in the late 1980s, at least in part, to an earlier flurry of new federal legislation that was making its way through the Courts.
- 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 Lyle Denniston (of SCOTUSblog) argued that the Court is a "very open" institution, with only the Justices' private conferences being inaccessible to others.
- Creating a culture of legal intimidation. Critic Philip K. Howard in The Death of Common Sense and Life Without Lawyers criticized the court 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 deplores a legal culture in which the "rights" of "whoever might disagree" have trumped common sense. Specifically, Howard criticized the Earl Warren court for too much "sympathy for the little man." He criticized the Conley v. Gibson decision for opening "the floodgates to abusive litigation."
- Lifetime tenure. 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 justices who stayed in office despite medical deterioration based on longevity. James MacGregor Burns stated lifelong tenure has "produced a critical time lag, with the Supreme Court institutionally almost always behind the times." Proposals to solve these problems include term limits for justices, as proposed by Levinson and Sabato as well as a mandatory retirement age proposed by Richard Epstein. However, others suggest lifetime tenure brings substantial benefits, such as impartiality and freedom from political pressure. Alexander Hamilton in Federalist 78 wrote "nothing can contribute so much to its firmness and independence as permanency in office."
- ^ "U.S. Constitution, Article III, Section 1". http://caselaw.lp.findlaw.com/data/constitution/article03/. Retrieved 2007-09-21.
- ^ See, in dicta Northern Pipeline Co. v. Marathon Pipe Line Co., 458 U.S. 50, 59 (1982); United States ex rel. Toth v. Quarles, 350 U.S. 11, 16 (1955).
- ^ "A Brief Overview of the Supreme Court" (PDF). United States Supreme Court. http://www.supremecourtus.gov/about/briefoverview.pdf. Retrieved 2009-12-31.
- ^ Ashmore, Anne (August 2006). "Dates of Supreme Court decisions and arguments, United States Reports volumes 2-107 (1791–1882)" (PDF). Library, Supreme Court of the United States. http://www.supremecourtus.gov/opinions/datesofdecisions.pdf. Retrieved 2009-04-26.
- ^ Scott Douglas Gerber (editor) (1998). "Seriatim: The Supreme Court Before John Marshall". New York University Press. ISBN 0-8147-3114-7. http://books.google.com/books?id=0tEkU5LiYsQC&pg=PA1&lpg=PA1&dq=The+Supreme+Court+before+John+Marshall&source=bl&ots=qsLKQOAaG0&sig=XiP1FCnotfStRiczfGf1TfN1sBw&hl=en&ei=UVvsSuaWEdGylAfi2dn_BA&sa=X&oi=book_result&ct=result&resnum=10&ved=0CCwQ6AEwCQ#v=onepage&q=&f=false. Retrieved 2009-10-31. "(page 3) Finally, many scholars cite the absence of a separate Supreme Court building as evidence that the early Court lacked prestige."
- ^ Garrett Epps (October 24, 2004). "Don't Do It, Justices". Washington Post. http://www.washingtonpost.com/wp-dyn/articles/A56446-2004Oct23.html. Retrieved 2009-10-31. "The court's prestige has been hard-won. In the early 1800s, Chief Justice John Marshall made the court respected"
- ^ Jeffrey Rosen (book review of "Packing the Court" by James MacGregor Burns) (July 5, 2009). "Black Robe Politics". Washington Post. http://www.washingtonpost.com/wp-dyn/content/article/2009/07/02/AR2009070202033.html. Retrieved 2009-10-31. "From the beginning, Burns continues, the Court has established its "supremacy" over the president and Congress because of Chief Justice John Marshall's "brilliant political coup" in Marbury v. Madison (1803): asserting a power to strike down unconstitutional laws."
- ^ "The People's Vote: 100 Documents that Shaped America -- Marbury v. Madison (1803)". US News & World Report. 1803. http://www.usnews.com/usnews/documents/docpages/document_page19.htm. Retrieved 2009-10-31. "With his decision in Marbury v. Madison, Chief Justice John Marshall established the principle of judicial review, an important addition to the system of “checks and balances” created to prevent any one branch of the Federal Government from becoming too powerful...A Law repugnant to the Constitution is void."
- ^ Cliff Sloan and David McKean (February 21, 2009). "Why Marbury V. Madison Still Matters". Newsweek. http://www.newsweek.com/id/185803. Retrieved 2009-10-31. "More than 200 years after the high court ruled, the decision in that landmark case continues to resonate."
- ^ "The Constitution In Law: Its Phases Construed by the Federal Supreme Court". New York Times. February 27, 1893. http://query.nytimes.com/mem/archive-free/pdf?res=9D0CEFDE1031E033A25754C2A9649C94629ED7CF. Retrieved 2009-10-31. "The decision ... in Martin vs. Hunter's Lessee is the authority on which lawyers and Judges have rested the doctrine that where there is in question, in the highest court of a State, and decided adversely to the validity of a State statute... such claim is reviewable by the Supreme Court ..."
- ^ JUSTICES GINSBURG, STEVENS, SOUTER, BREYER (2000-12-13). "Dissenting opinions in Bush v. Gore". USA Today. http://www.usatoday.com/news/vote2000/pres246.htm. Retrieved 2009-10-31. "Rarely has this Court rejected outright an interpretation of state law by a state high court ... The Virginia court refused to obey this Court's Fairfax's Devisee mandate to enter judgment for the British subject's successor in interest. That refusal led to the Court's pathmarking decision in Martin v. Hunter's Lessee, 1 Wheat. 304 (1816)."
- ^ a b "Decisions of the Supreme Court -- Historic Decrees Issued in One Hundred an Eleven Years". New York Times. February 3, 1901. http://query.nytimes.com/mem/archive-free/pdf?_r=1&res=9E03EED8133EE333A25750C0A9649C946097D6CF. Retrieved 2009-10-31. "Very important also was the decision in Martin vs. Hunter's lessee, in which the court asserted its authority to overrule, within certain limits, the decisions of the highest State courts."
- ^ a b "The Supreme Quiz". Washington Post. October 2, 2000. http://www.washingtonpost.com/ac2/wp-dyn?pagename=article&contentId=A58066-2000Oct2¬Found=true. Retrieved 2009-10-31. "According to the Oxford Companion to the Supreme Court of the United States, Marshall's most important innovation was to persuade the other justices to stop seriatim opinions -- each issuing one -- so that the court could speak in a single voice. Since the mid-1940s, however, there's been a significant increase in individual "concurring" and "dissenting" opinions."
- ^ Dan Slater (April 18, 2008). "Justice Stevens on the Death Penalty: A Promise of Fairness Unfulfilled". Wall Street Journal. http://blogs.wsj.com/law/2008/04/18/justice-stevens-on-the-death-penalty-a-promise-of-fairness-unfulfilled/. Retrieved 2009-10-31. "The first Chief Justice, John Marshall set out to do away with seriatim opinions–a practice originating in England in which each appellate judge writes an opinion in ruling on a single case. (You may have read old tort cases in law school with such opinions). Marshall sought to do away with this practice to help build the Court into a coequal branch."
- ^ Claire Suddath (Dec. 19, 2008). "A Brief History Of Impeachment". Time Magazine. http://www.time.com/time/politics/article/0,8599,1867783,00.html. Retrieved 2009-10-31. "Congress tried the process again in 1804, when it voted to impeach Supreme Court Justice Samuel Chase on charges of bad conduct. As a judge, Chase was overzealous and notoriously unfair ... But Chase never committed a crime — he was just incredibly bad at his job. The Senate acquitted him on every count."
- ^ LINDA GREENHOUSE (April 10, 1996). "Rehnquist Joins Fray on Rulings, Defending Judicial Independence". New York Times. http://www.nytimes.com/1996/04/10/us/rehnquist-joins-fray-on-rulings-defending-judicial-independence.html. Retrieved 2009-10-31. "the 1805 Senate trial of Justice Samuel Chase, who had been impeached by the House of Representatives ... This decision by the Senate was enormously important in securing the kind of judicial independence contemplated by Article III" of the Constitution, Chief Justice Rehnquist said"
- ^ Edward Keynes, with Randall K. Miller (1989). "The Court vs. Congress: Prayer, Busing, and Abortion". Duke University Press. http://books.google.com/books?id=_Ebb2wsxkF4C&pg=PA115&lpg=PA115&dq=%22Sheldon+v.+Sill%22+taney+%22supreme+court%22&source=bl&ots=RCJZFyBZJv&sig=kAegDgeYgoF9qbQYzzcFdvwOrLw&hl=en&ei=HY7sSqu_BcPclAeJx-T_BA&sa=X&oi=book_result&ct=result&resnum=3&ved=0CBQQ6AEwAg#v=onepage&q=%22Sheldon%20v.%20Sill%22%20taney%20%22supreme%20court%22&f=false. Retrieved 2009-10-31. "(page 115)... Grier maintained that Congress has plenary power to limit the federal courts' jurisdiction."
- ^ Sherrilyn A. Ifill (May 27, 2009). "Sotomayor's Great Legal Mind Long Ago Defeated Race, Gender Nonsense". US News & World Report. http://www.usnews.com/articles/opinion/2009/05/27/sotomayors-great-legal-mind-long-ago-defeated-race-gender-nonsense.html. Retrieved 2009-10-31. "But his decision in Dred Scott v. Sandford doomed thousands of black slaves and freedmen to a stateless existence within the United States until the passage of the 14th Amendment. Justice Taney's coldly self-fulfilling statement in Dred Scott, that blacks had "no rights which the white man [was] bound to respect," has ensured his place in history—not as a brilliant jurist, but as among the most insensitive"
- ^ Irons, Peter; Howard Zinn (wrote foreword) (2006). A People's History of the Supreme Court: The Men and Women Whose Cases and Decisions Have Shaped Our Constitution. United States: Penguin Books. pp. 176, 177. ISBN 0143037372. "The rhetorical battle that followed the Dred Scott decision, as we know, later erupted into the gunfire and bloodshed of the Civil War (p.176)... his opinion (Taney's) touched off an explosive reaction on both sides of the slavery issue... (p.177)"
- ^ "Liberty of Contract?". Exploring Constitutional Conflicts. 2009-10-31. http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/libertyofk.htm. Retrieved 2009-10-31. "The term "substantive due process" is often used to describe the approach first used in Lochner--the finding of liberties not explicitly protected by the text of the Constitution to be impliedly protected by the liberty clause of the Fourteenth Amendment. In the 1960s, long after the Court repudiated its Lochner line of cases, substantive due process became the basis for protecting personal rights such as the right of privacy, the right to maintain intimate family relationships."
- ^ "Adair v. United States 208 U.S. 161". Cornell University Law School. 1908. http://www.law.cornell.edu/supct/html/historics/USSC_CR_0208_0161_ZS.html. Retrieved 2009-10-31. "No. 293 Argued: October 29, 30, 1907 --- Decided: January 27, 1908"
- ^ Bernard H. Siegan (1987). The Supreme Court's Constitution. Transaction Publishers. http://books.google.com/books?id=XABdIe1foccC&pg=PA146&lpg=PA146&dq=%22substantive+due+process%22+%22adkins+v.+children%27s+hospital%22&source=bl&ots=bv6GYikVyU&sig=_Q8srr9KbHJnfySfo1XQ-4tVAVQ&hl=en&ei=td3sSoHJNtCSlAfB3_X_BA&sa=X&oi=book_result&ct=result&resnum=7&ved=0CCAQ6AEwBg#v=onepage&q=%22substantive%20due%20process%22%20%22adkins%20v.%20children%27s%20hospital%22&f=false. Retrieved 2009-10-31. "In the 1923 case of Adkins v. Children's Hospital, the court invalidated a classification based on gender as inconsistent with the substantive due process requirements of the fifth amendment. At issue was congressional legislation providing for the fixing of minimum wages for women and minors in the District of Columbia. (p.146)" | pages = 146 | isbn = 0-88738-127-8
- ^ Bodenhamer, David J.; James W. Ely (1993). The Bill of Rights in modern America. Bloomington, Indiana: Indiana University Press. pp. 245. ISBN 978-0-253-35159-3. http://books.google.com/books?id=L-_9mFCeBSIC&pg=PA245&lpg=PA245&dq=%22fourteenth+amendment%22+%22incorporation+doctrine%22+%22bill+of+rights%22&source=bl&ots=Vmz7qoxHZL&sig=iuhnAq16mnXsUPJtDhJkdscAfsM&hl=en&ei=1t_sSuiaAdLhlAf4wNX_BA&sa=X&oi=book_result&ct=result&resnum=8&ved=0CCMQ6AEwBw#v=onepage&q=%22fourteenth%20amendment%22%20%22incorporation%20doctrine%22%20%22bill%20of%20rights%22&f=false. "... of what eventually became the 'incorporation doctrine,' by which various federal Bill of Rights guarantees were held to be implicit in the Fourteenth Amendment due process or equal protection."
- ^ Joan Biskupic (2008). "Supreme Court gets makeover". USA Today. http://www.usatoday.com/travel/destinations/2005-03-28-high-court-makeover_x.htm. Retrieved 2009-10-31. "The building is getting its first renovation since its completion in 1935."
- ^ Justice Roberts (September 21, 2005). "Responses of Judge John G. Roberts, Jr. to the Written Questions of Senator Joseph R. Biden". Washington Post. http://www.google.com/search?hl=en&safe=off&client=firefox-a&rls=com.ubuntu%3Aen-US%3Aunofficial&q=%22west+coast+hotel+co.+v.+parrish%22+(site%3Anewsweek.com+OR+site%3Apost-gazette.com+OR+site%3Ausatoday.com+OR+site%3Awashingtonpost.com+OR+site%3Atime.com+OR+site%3Areuters.com+OR+site%3Aeconomist.com+OR+site%3Amiamiherald.com+OR+site%3Alatimes.com+OR+site%3Asfgate.com+OR+site%3Achicagotribune.com+OR+site%3Anytimes.com+OR+site%3Awsj.com+OR+site%3Ausnews.com+OR+site%3Amsnbc.com+OR+site%3Anj.com+OR+site%3Atheatlantic.com)&aq=o&oq=&aqi=. Retrieved 2009-10-31. "A agree that West Coast Hotel Co. v. Parrish correctly overruled Adkins. Lochner era cases - Adkins in particular - evince an expansive view of the judicial role inconsistent with what I believe to be the appropriately more limited vision of the Framers."
- ^ SETH LIPSKY (October 22, 2009). "All the News That's Fit to Subsidize". Wall Street Journal. http://online.wsj.com/article/SB20001424052748704597704574486242417039358.html. Retrieved 2009-10-31. "He was a farmer in Ohio ... during the 1930s, when subsidies were brought in for farmers. With subsidies came restrictions on how much wheat one could grow—even, Filburn learned in a landmark Supreme Court case, Wickard v. Filburn (1942), wheat grown on his modest farm."
- ^ ADAM COHEN (December 14, 2004). "What's New in the Legal World? A Growing Campaign to Undo the New Deal". New York Times. http://www.nytimes.com/2004/12/14/opinion/14tue4.html. Retrieved 2009-10-31. "Some prominent states' rights conservatives were asking the court to overturn Wickard v. Filburn, a landmark ruling that laid out an expansive view of Congress's power to legislate in the public interest. Supporters of states' rights have always blamed Wickard ... for paving the way for strong federal action..."
- ^ United Press International (September 25, 1971). "Justice Black Dies at 85; Served on Court 34 Years". New York Times. http://www.nytimes.com/learning/general/onthisday/bday/0227.html. Retrieved 2009-10-31. "Justice Black developed his controversial theory, first stated in a lengthy, scholarly dissent in 1947, that the due process clause applied the first eight amendments of the Bill of Rights to the states."
- ^ "100 Documents that Shaped America Brown v. Board of Education (1954)". US News & World Report. May 17, 1954. http://www.usnews.com/usnews/documents/docpages/document_page87.htm. Retrieved 2009-10-31. "On May 17, 1954, U.S. Supreme Court Justice Earl Warren delivered the unanimous ruling in the landmark civil rights case Brown v. Board of Education of Topeka, Kansas. State-sanctioned segregation of public schools was a violation of the 14th amendment and was therefore unconstitutional. This historic decision marked the end of the "separate but equal" ... and served as a catalyst for the expanding civil rights movement..."
- ^ "Essay: IN DEFENSE OF PRIVACY". Time Magazine. July 15, 1966. http://www.time.com/time/magazine/article/0,9171,836012-3,00.html. Retrieved 2009-10-31. "The biggest legal milestone in this field was last year's Supreme Court decision in Griswold v. Connecticut, which overthrew the state's law against the use of contraceptives as an invasion of marital privacy, and for the first time declared the "right of privacy" to be derived from the Constitution itself."
- ^ NANCY GIBBS (Dec. 9, 1991). "America's Holy War". Time Magazine. http://www.time.com/time/magazine/article/0,9171,974430,00.html. Retrieved 2009-10-31. "In the landmark 1962 case Engel v. Vitale, the high court threw out a brief nondenominational prayer composed by state officials that was recommended for use in New York State schools. "It is no part of the business of government," ruled the court, "to compose official prayers for any group of the American people to recite.""
- ^ William R. Mattox Jr., Katrina Trinko (August 17, 2009). "Teach the Bible? Of course.". USA Today. http://blogs.usatoday.com/oped/2009/08/column-teach-the-bible-of-course-.html. Retrieved 2009-10-31. "Public schools need not proselytize — indeed, must not — in teaching students about the Good Book ... In Abington School District v. Schempp, decided in 1963, the Supreme Court stated that "study of the Bible or of religion, when presented objectively as part of a secular program of education," was permissible under the First Amendment."
- ^ "The Law: The Retroactivity Riddle". Time Magazine. June 18, 1965. http://www.time.com/time/magazine/article/0,9171,898882,00.html. Retrieved 2009-10-31. "Last week, in a 7 to 2 decision, the court refused for the first time to give retroactive effect to a great Bill of Rights decision—Mapp v. Ohio (1961)."
- ^ "Guilt and Mr. Meese". New York Times. January 31, 1987. http://www.nytimes.com/1987/01/31/opinion/guilt-and-mr-meese.html. Retrieved 2009-10-31. "1966 Miranda v. Arizona decision. That's the famous decision that made confessions inadmissible as evidence unless an accused person has been warned by police of the right to silence and to a lawyer, and waived it."
- ^ "Road to the Brown decision". Chicago Tribune. May 16, 2004. http://www.chicagotribune.com/news/local/bal-pe.timeline16may16,0,3198737.story. Retrieved 2009-10-31. "1950: Bolling vs. Sharpe, the second of the cases that would become part of Brown, is filed by a group of black students seeking admission to a Washington, D.C., junior high."
- ^ a b "The Supreme Court: Now Comes the Sixth Amendment". Time Magazine. April 16, 1965. http://www.time.com/time/magazine/article/0,9171,841844,00.html. Retrieved 2009-10-31. "Sixth Amendment's right to counsel (Gideon v. Wainwright in 1963). ... the court said flatly in 1904: 'The Sixth Amendment does not apply to proceedings in state criminal courts." But in the light of Gideon ... ruled Black, statements 'generally declaring that the Sixth Amendment does not apply to states can no longer be regarded as law.'"
- ^ Karen O'Connor (January 22, 2009). "Roe v. Wade: On Anniversary, Abortion Is out of the Spotlight". US News & World Report. http://www.usnews.com/articles/opinion/2009/01/22/roe-v-wade-on-anniversary-abortion-is-out-of-the-spotlight.html. Retrieved 2009-10-31. "The shocker, however, came in 1973, when the Court, by a vote of 7 to 2, relied on Griswold's basic underpinnings to rule that a Texas law prohibiting abortions in most situations was unconstitutional, invalidating the laws of most states. Relying on a woman's right to privacy..."
- ^ "Bakke Wins, Quotas Lose". Time Magazine. July 10, 1978. http://www.time.com/time/magazine/article/0,9171,946798,00.html. Retrieved 2009-10-31. "Split almost exactly down the middle, the Supreme Court last week offered a Solomonic compromise. It said that rigid quotas based solely on race were forbidden, but it also said that race might legitimately be an element in judging students for admission to universities. It thus approved the principle of 'affirmative action'..."
- ^ "Time to Rethink Buckley v. Valeo". New York Times. November 12, 1998. http://www.nytimes.com/1998/11/12/opinion/time-to-rethink-buckley-v-valeo.html. Retrieved 2009-10-31. "...Buckley v. Valeo. The nation's political system has suffered ever since from that decision, which held that mandatory limits on campaign spending unconstitutionally limit free speech. The decision did much to promote the explosive growth of campaign contributions from special interests and to enhance the advantage incumbents enjoy over underfunded challengers."
- ^ a b Staff writer (June 29, 1972). "Supreme Court Justice Rehnquist's Key Decisions". Washington Post. http://www.washingtonpost.com/wp-srv/nation/rehnquist/rehnquist_key_decisions.html. Retrieved 2009-10-31. "Furman v. Georgia ... Rehnquist dissents from the Supreme Court conclusion that many state laws on capital punishment are capricious and arbitrary and therefore unconstitutional."
- ^ History of the Court, in Hall, Ely Jr., Grossman, and Wiecek (eds) The Oxford Companion to the Supreme Court of the United States. Oxford University Press, 1992, ISBN 0-19-505835-6
- ^ "A Supreme Revelation". Wall Street Journal. April 19, 2008. http://online.wsj.com/article/SB120856145124627875.html?mod=opinion_main_review_and_outlooks. Retrieved 2009-10-31. "Thirty-two years ago, Justice John Paul Stevens sided with the majority in a famous "never mind" ruling by the Supreme Court. Gregg v. Georgia, in 1976, overturned Furman v. Georgia, which had declared the death penalty unconstitutional only four years earlier."
- ^ LINDA GREENHOUSE (January 8, 2009). "The Chief Justice on the Spot". New York Times. http://www.nytimes.com/2009/01/09/opinion/09greenhouse.html. Retrieved 2009-10-31. "The federalism issue at the core of the new case grows out of a series of cases from 1997 to 2003 in which the Rehnquist court applied a new level of scrutiny to Congressional action enforcing the guarantees of the Reconstruction amendments."
- ^ LINDA GREENHOUSE (September 4, 2005). "William H. Rehnquist, Chief Justice of Supreme Court, Is Dead at 80". New York Times. http://query.nytimes.com/gst/fullpage.html?res=9E01E2DF1531F937A3575AC0A9639C8B63&sec=&spon=&pagewanted=5. Retrieved 2009-10-31. "United States v. Lopez in 1995 raised the stakes in the debate over federal authority even higher. The decision declared unconstitutional a Federal law, the Gun Free School Zones Act of 1990, that made it a federal crime to carry a gun within 1,000 feet of a school."
- ^ LINDA GREENHOUSE (June 12, 2005). "The Rehnquist Court and Its Imperiled States' Rights Legacy". New York Times. http://www.nytimes.com/2005/06/12/weekinreview/12green.html. Retrieved 2009-10-31. "Intrastate activity that was not essentially economic was beyond Congress's reach under the Commerce Clause, Chief Justice Rehnquist wrote for the 5-to-4 majority in United States v. Morrison."
- ^ LINDA GREENHOUSE (March 22, 2005). "Inmates Who Follow Satanism and Wicca Find Unlikely Ally". New York Times. http://query.nytimes.com/gst/fullpage.html?res=9A02E6DC1F3CF931A15750C0A9639C8B63. Retrieved 2009-10-31. "His (Rehnquist's) reference was to a landmark 1997 decision, City of Boerne v. Flores, in which the court ruled that the predecessor to the current law, the Religious Freedom Restoration Act, exceeded Congress's authority and was unconstitutional as applied to the states."
- ^ VIKRAM DAVID AMAR (July 27, 2005). "Casing John Roberts". New York Times. http://www.nytimes.com/2005/07/27/opinion/27amar.html. Retrieved 2009-10-31. "SEMINOLE TRIBE v. FLORIDA (1996) In this seemingly technical 11th Amendment dispute about whether states can be sued in federal courts, Justice O'Connor joined four others to override Congress's will and protect state prerogatives, even though the text of the Constitution contradicts this result."
- ^ LINDA GREENHOUSE (April 1, 1999). "Justices Seem Ready to Tilt More Toward States in Federalism". New York Times. http://www.nytimes.com/1999/04/01/us/justices-seem-ready-to-tilt-more-toward-states-in-federalism.html. Retrieved 2009-10-31. "The argument in this case, Alden v. Maine, No. 98-436, proceeded on several levels simultaneously. On the surface ... On a deeper level, the argument was a continuation of the Court's struggle over an even more basic issue: the Government's substantive authority over the states."
- ^ Charles Krauthammer (Dec. 18, 2000). "The Winner in Bush v. Gore?". Time Magazine. http://www.time.com/time/magazine/article/0,9171,998788,00.html. Retrieved 2009-10-31. "Re-enter the Rehnquist court. Amid the chaos, somebody had to play Daddy. ... the Supreme Court eschewed subtlety this time and bluntly stopped the Florida Supreme Court in its tracks--and stayed its willfulness. By 5-4, mind you, ..."
- ^ Michael A. Lindenberger (Michael A. Lindenberger). "The Court's Gay Rights Legacy". Time Magazine. http://www.time.com/time/nation/article/0,8599,1818504,00.html. Retrieved 2009-10-31. "The decision in the Lawrence v. Texas case overturned convictions against two Houston men, whom police had arrested after busting into their home and finding them engaged in sex. And for the first time in their lives, thousands of gay men and women who lived in states where sodomy had been illegal were free to be gay without being criminals."
- ^ LINDA GREENHOUSE, (January 28, 1992). "Supreme Court Roundup; Limits Placed on Union Organizers on Employers' Property". New York Times. http://www.nytimes.com/1992/01/28/us/supreme-court-roundup-limits-placed-on-union-organizers-on-employers-property.html. Retrieved 2009-10-31. "The Court ruled that organizers should be able to enter an employer's property only in 'the rare case' when the union could demonstrate that 'unique obstacles' prevented it from reaching potential members in any other way."
- ^ Justice Sotomayor (July 16, 2009). "Retire the 'Ginsburg rule' -- The 'Roe' recital". USA Today. http://blogs.usatoday.com/oped/2009/07/retire-the-ginsburg-rule-.html. Retrieved 2009-10-31. "The court's decision in Planned Parenthood v. Casey reaffirmed the court holding of Roe. That is the precedent of the court and settled, in terms of the holding of the court."
- ^ "SUPREME COURT ROUNDUP; JUSTICES DISALLOW LIMIT ON CONTRACEPTIVE ADS". NEW YORK TIMES. June 25, 1983. http://www.nytimes.com/1983/06/25/us/supreme-court-roundup-justices-disallow-limit-on-contraceptive-ads.html. Retrieved 2009-10-31. "The decision, Shaw v. Delta Air Lines, No. 81-1578, was an interpretation of two New York laws, the Human Rights Law and the Disability Benefits Law, in light of ERISA, the Federal Employee Retirement Income Security Act of 1974."
- ^ "Other Matters -- Divorce and Beneficiary Designations". ProfessorBeyer.com. 2009-10-31. http://www.professorbeyer.com/Case_Summaries/2001/Egelhoff.htm. Retrieved 2009-10-31. "Egelhoff v. Egelhoff, 121 S. Ct. 1322 (2001). The United States Supreme Court reversed holding that ERISA preempted state law and thus the ex-spouse was entitled to the proceeds of the life insurance and pension plan."
- ^ a b LINDA GREENHOUSE (June 22, 2004). "Justices Limit Ability to Sue Health Plans". New York Times. http://www.nytimes.com/2004/06/22/politics/22CARE.html. Retrieved 2009-10-31. "The Supreme Court on Monday unanimously rejected efforts by states to give patients in managed care a right that Congress has so far declined to provide: the ability to sue managed-care companies for damages for refusing to cover treatment that a doctor has deemed medically necessary."
- ^ "Supreme Court decision". NEW YORK TIMES. January 16, 2003. http://www.nytimes.com/2003/01/16/business/16BTEX.html. Retrieved 2009-10-31. "the Supreme Court decision today upholding the Copyright Term Extension Act of 1998, which added 20 years to all existing copyrights. The vote in the case, Eldred v. Ashcroft, was 7 to 2. Justice Ruth Bader Ginsburg wrote the majority opinion. Justices Stephen G. Breyer and John Paul Stevens dissented."
- ^ Charles Lane (June 24, 2005). "Justices Affirm Property Seizures". Washington Post. http://www.washingtonpost.com/wp-dyn/content/article/2005/06/23/AR2005062300783.html. Retrieved 2009-10-31. "The Supreme Court ruled yesterday that local governments may force property owners to sell out and make way for private economic development when officials decide it would benefit the public, even if the property is not blighted ... The 5 to 4 ruling provided the strong affirmation that state and local governments had sought for their increasing use of eminent domain ..."
- ^ Charles Babington and Peter Baker (September 30, 2005). "Roberts Confirmed as 17th Chief Justice". Washington Post. http://www.washingtonpost.com/wp-dyn/content/article/2005/09/29/AR2005092900859.html. Retrieved 2009-11-01. "John Glover Roberts Jr. was sworn in yesterday as the 17th chief justice of the United States, enabling President Bush to put his stamp on the Supreme Court for decades to come, even as he prepares to name a second nominee to the nine-member court."
- ^ LINDA GREENHOUSE (July 1, 2007). "In Steps Big and Small, Supreme Court Moved Right". New York Times. http://www.nytimes.com/2007/07/01/washington/01scotus.html. Retrieved 2009-11-01. "It was the Supreme Court that conservatives had long yearned for and that liberals feared ... This was a more conservative court, sometimes muscularly so, sometimes more tentatively, its majority sometimes differing on methodology but agreeing on the outcome in cases big and small."
- ^ O'Connor, J. -- Supreme Court (2006). "AYOTTE, ATTORNEY GENERAL OF NEW HAMPSHIRE v. PLANNED PARENTHOOD OF NORTHERN NEW ENGLAND et al.". FindLaw. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=04-1144. Retrieved 2009-11-01. "Held: If enforcing a statute that regulates access to abortion would be unconstitutional in medical emergencies, invalidating the statute entirely is not always necessary or justified, for lower courts may be able to render narrower declaratory and injunctive relief."
- ^ CHARLIE SAVAGE (July 14, 2009). "Respecting Precedent, or Settled Law, Unless It’s Not Settled". New York Times. http://www.nytimes.com/2009/07/15/us/politics/15abortion.html. Retrieved 2009-11-01. "Gonzales v. Carhart — in which the Supreme Court narrowly upheld a federal ban on the late-term abortion procedure opponents call “partial birth abortion” — to be settled law."
- ^ JOSEPH PEREIRA (April 28, 2009). "State Law Targets 'Minimum Pricing'". Wall Street Journal. http://online.wsj.com/article/SB124087840110661643.html. Retrieved 2009-11-01. "Earlier this month, a federal judge in Marshall, Texas, citing the Supreme Court decision, dismissed the case of a leather-handbag retailer, Kay's Kloset, that sued a manufacturer, Leegin Creative Leather Products Inc., over its enforcement of a minimum-pricing agreement."
- ^ LINDA GREENHOUSE (April 18, 2008). "Justice Stevens Renounces Capital Punishment". New York Times. http://www.nytimes.com/2008/04/18/washington/18memo.html. Retrieved 2009-11-01. "His renunciation of capital punishment in the lethal injection case, Baze v. Rees, was likewise low key and undramatic."
- ^ LINDA GREENHOUSE (June 26, 2008). "Supreme Court Rejects Death Penalty for Child Rape". New York Times. http://www.nytimes.com/2008/06/26/washington/26scotuscnd.html. Retrieved 2009-11-01. "The death penalty is unconstitutional as a punishment for the rape of a child, a sharply divided Supreme Court ruled Wednesday ... The 5-to-4 decision overturned death penalty laws in Louisiana and five other states."
- ^ ADAM LIPTAK (October 7, 2008). "Justices Weigh Value of a Rule That Limits Evidence". New York Times. http://www.nytimes.com/2008/10/08/washington/08scotus.html?fta=y. Retrieved 2009-11-01. "Justice Scalia repeated his view, expressed in Hudson v. Michigan in 2006, that police departments are more professional than they used to be, reducing the need for the exclusionary rule."
- ^ "Defining `whistle-blower'". Los Angeles Times. June 2, 2006. http://articles.latimes.com/2006/jun/02/opinion/ed-whistleblower02. Retrieved 2009-11-01. "The high court was divided along ideological lines on the case. It held that the Los Angeles County district attorney's office did not violate the free-speech rights of Deputy Dist. Atty. Richard Ceballos by denying him a promotion because of his memo alleging that police officers lied to obtain a search warrant."
- ^ Stanley Fish (July 8, 2007). "Clarence Thomas Is Right". New York Times. http://fish.blogs.nytimes.com/tag/morse-v-frederick/. Retrieved 2009-11-01. "On June 25th the Supreme Court held in Morse v. Frederick that it was all right to discipline a high school student because he and some of his friends had unfurled a banner reading “Bong Hits 4 Jesus” at a school-sponsored event."
- ^ LINDA GREENHOUSE (June 29, 2006). "Supreme Court Blocks Guantánamo Tribunals". New York Times. http://www.nytimes.com/2006/06/29/washington/29cnd-scotus.html. Retrieved 2009-11-01. "The Supreme Court on Thursday repudiated the Bush administration's plan to put Guantánamo detainees on trial before military commissions, ruling broadly that the commissions were unauthorized by federal statute and violated international law."
- ^ JOHN YOO (June 17, 2008). "The Supreme Court Goes to War". Wall Street Journal. http://online.wsj.com/article/SB121366596327979497.html. Retrieved 2009-11-01. "Last week's Supreme Court decision in Boumediene v. Bush has been painted as a stinging rebuke of the administration's antiterrorism policies. From the celebrations on most U.S. editorial pages, one might think that the court had stopped a dictator from trampling civil liberties. Boumediene did anything but. The 5-4 ruling..."
- ^ PAUL E. PETERSON (July 24, 2007). "School Choice and Racial Balance". Wall Street Journal. http://online.wsj.com/article/SB118524106566875763.html. Retrieved 2009-11-01. "Schools that admit students on the basis of race run afoul of the Constitution, wrote Chief Justice John Roberts in the recent Supreme Court case, Parents v. Seattle. Over-subscribed schools may not use race as a tie-breaker when deciding which students to admit."
- ^ Robert Barnes (April 29, 2008). "High Court Upholds Indiana Law On Voter ID". Washington Post. http://www.washingtonpost.com/wp-dyn/content/article/2008/04/28/AR2008042800968.html. Retrieved 2009-11-01. "The widely awaited election-year case, Crawford v. Marion County Election Board, was the most sharply partisan voting rights issue the court has considered since Bush v. Gore decided the 2000 presidential election."
- ^ Robert Barnes (October 1, 2009). "Justices to Decide if State Gun Laws Violate Rights". Washington Post. http://www.washingtonpost.com/wp-dyn/content/article/2009/09/30/AR2009093001723.html. Retrieved 2009-11-01. "The landmark 2008 decision to strike down the District of Columbia's ban on handgun possession was the first time the court had said the amendment grants an individual right to own a gun for self-defense. But the 5 to 4 opinion in District of Columbia v. Heller..."
- ^ "A Bad Day for Democracy". The Christian Science Monitor. http://www.csmonitor.com/Commentary/Opinion/2010/0122/Supreme-Court-s-campaign-ruling-a-bad-day-for-democracy. Retrieved January 22, 2010.
- ^ 16 Stat. 44
- ^ Mintz, S. (2007). "The New Deal in Decline". Digital History. University of Houston. http://www.digitalhistory.uh.edu/database/article_display.cfm?HHID=479. Retrieved 2009-10-27.
- ^ Hodak, George (2007). "February 5, 1937: FDR Unveils Court Packing Plan". ABAjournal.com. American Bar Association. http://abajournal.com/magazine/february_5_1937/. Retrieved 2009-01-29.
- ^ "Justices, Number of", in Hall, Ely Jr., Grossman, and Wiecek (editors), The Oxford Companion to the Supreme Court of the United States. Oxford University Press 1992, ISBN 0-19-505935-6
- ^ "United States Senate. "Nominations"". http://www.senate.gov/artandhistory/history/common/briefing/Nominations.htm.
- ^ Balkin, Jack M.. "The passionate intensity of the confirmation process". Jurist. http://jurist.law.pitt.edu/forum/symposium-jc/balkin.php. Retrieved 2008-02-13.
- ^ See 5 U.S.C. § 2902.
- ^ 28 U.S.C. § 4.
- ^ Appel, Jacob M. (2009-08-22). "Anticipating the Incapacitated Justice". Huffington Post. http://www.huffingtonpost.com/jacob-m-appel/anticipating-the-incapaci_b_266179.html. Retrieved 2009-08-23.
- ^ http://news.yahoo.com/s/ap/us_sotomayor_senate
- ^ David N. Atkinson, Leaving the Bench (University Press of Kansas 1999)ISBN 0-7006-0946-6
- ^ See for example Sandra Day O'Connor:How the first woman on the Supreme Court became its most influential justice, by Joan Biskupic, Harper Collins, 2005, p. 105. Also Rookie on the Bench: The Role of the Junior Justice by Clare Cushman, Journal of Supreme Court History 32 no. 3 (2008), pp. 282–296.
- ^ "Breyer Just Missed Record as Junior Justice". http://www.law.com/jsp/article.jsp?id=1199873130560. Retrieved 2008-01-11.
- ^ "U.S. Supreme Court Justices". http://usgovinfo.about.com/blctjustices.htm. Retrieved 2010-01-29.
- ^ In a 2007 interview, Justice Stevens stated he considers himself a "judicial conservative", and only appears liberal because he has been surrounded by increasingly conservative colleagues.""The Dissenter"". The Times Magazine. New York Times. 2007-09-23. http://www.nytimes.com/2007/09/23/magazine/23stevens-t.html. Retrieved 2008-02-14.
- ^ Toobin, Jeffrey. The Nine: Inside the Secret World of the Supreme Court, Doubleday, 2007 ISBN 0-385-51640-1
- ^ Lane, Charles (2006-01-31). "Kennedy Seen as The Next Justice In Court's Middle". The Washington Post. http://www.washingtonpost.com/wp-dyn/content/article/2006/01/30/AR2006013001356.html?nav=hcmodule. Retrieved 2008-02-14.
- ^ Several per curiam decisions; eight unanimous decisions, one 8-1 decision, one 8-0 decision, three 7-2 decisions, one decision that was unanimous in part and 8-1 in part, and one decision that was 8-1 in part and 7-2 in part. The only exceptions so far is Citizens United v. Federal Election Comm'n, decided 8-1 in part and 5-4 in part, where Sotomayor joined the minority in the latter part, and an original jurisdiction decision, South Carolina v. North Carolina, where she joined an opinion concurring in part and dissenting in part, written by Chief Justice Roberts and also joined by Justices Thomas and Ginsburg.
- ^ Mohawk Industries, Inc. v. Carpenter; the Court was unanimous in judgement, though Justice Thomas joined only part of the opinion. "Slip opinion, Mohawk Industries, Inc. v. Carpenter" (PDF). http://www.supremecourtus.gov/opinions/09pdf/08-678.pdf.
- ^ Wood v. Allen, decided 7-2 with Justices Stevens and Kennedy in dissent. "Slip opinion, Wood v. Allen" (PDF). http://www.supremecourtus.gov/opinions/09pdf/08-9156.pdf.
- ^ Milavetz, Gallop & Millavetz. P.A. et al. v. United States, holding that attorneys who provide bankruptcy assistance to assisted persons are "debt relief agencies" under the Bankruptcy Code; the opinion was joined in full by six other justices, joined by Justice Scalia except for a footnote, and joined by Justice Thomas except for one part. "Slip Opinion, Milavetz, Gallop & Millavetz, P.A. v. United States" (PDF). http:////www.supremecourtus.gov/opinions/09pdf/08-1119.pdf.
- ^ "Slip opinion, South Carolina v. North Carolina" (PDF). http://www.supremecourtus.gov/opinions/09pdf/138Orig.pdf.
- ^ "Slip opinion, Citizens United v. Federal Elections Comm'n" (PDF). http://www.supremecourtus.gov/opinions/09pdf/08-205.pdf.
- ^ Toobin, Jeffrey (2010-03-22). "After Stevens. What will the Supreme Court be without its liberal leader?". The New Yorker. http://www.newyorker.com/reporting/2010/03/22/100322fa_fact_toobin. Retrieved 2010-03-16.
- ^ The Nine: Inside the Secret World of the Supreme Court
- ^ a b c d "Plan Your Trip (quote:) "In mid-May, after the oral argument portion of the Term has concluded, the Court takes the Bench Mondays at 10AM for the release of orders and opinions."". US Senator John McCain. 2009-10-24. http://mccain.senate.gov/public/index.cfm?FuseAction=VisitingWashingtonDC.PlanYourTrip#supremecourt. Retrieved 2009-10-24.
- ^ a b c d "VISITING THE COURT". Supreme Court of the United States. 2009-10-24. http://www.supremecourtus.gov/visiting/visiting.html. Retrieved 2009-10-24.
- ^ "Visiting-Capitol-Hill". docstoc. 2009-10-24. http://www.docstoc.com/docs/11663498/Visiting-Capitol-Hill. Retrieved 2009-10-24.
- ^ "How The Court Works". The Supreme Court Historical Society. 2009-10-24. http://www.supremecourthistory.org/works/supremecourthistory_works_howthecourtworks_05.htm. Retrieved 2009-10-24.
- ^ Hamdan v. Rumsfeld (Scalia, J., dissenting)
- ^ a b c See for example "Judicial activism" in The Oxford Companion to the Supreme Court of the United States, edited by Kermit Hall; article written by Gary McDowell
- ^ a b c d DAMON W. ROOT (September 21, 2009). "Lochner and Liberty". Wall Street Journal. http://online.wsj.com/article/SB10001424052970204488304574427193229878748.html. Retrieved 2009-10-23.
- ^ PETER STEINFELS (May 22, 2005). "'A Church That Can and Cannot Change': Dogma". New York Times: Books. http://www.nytimes.com/2005/05/22/books/review/22STEINFE.html. Retrieved 2009-10-22.
- ^ David G. Savage (October 23, 2008). "Roe vs. Wade? Bush vs. Gore? What are the worst Supreme Court decisions?". Los Angeles Times. http://articles.latimes.com/2008/oct/23/nation/na-scotus23. Retrieved 2009-10-23. "a lack of judicial authority to enter an inherently political question that had previously been left to the states"
- ^ NEIL A. LEWIS (September 19, 2002). "Judicial Nominee Says His Views Will Not Sway Him on the Bench". New York Times. http://www.nytimes.com/2002/09/19/us/judicial-nominee-says-his-views-will-not-sway-him-on-the-bench.html. Retrieved 2009-10-22. "he has written scathingly of Roe v. Wade"
- ^ "Election Guide 2008: The Issues: Abortion". New York Times. 2008. http://politics.nytimes.com/election-guide/2008/issues/abortion.html. Retrieved 2009-10-22.
- ^ Pat Buchanan (July 6, 2005). "The judges war: an issue of power". Townhall.com. http://townhall.com/columnists/PatBuchanan/2005/07/06/the_judges_war_an_issue_of_power. Retrieved 2009-10-23. "The Brown decision of 1954, desegregating the schools of 17 states and the District of Columbia, awakened the nation to the court's new claim to power."
- ^ ADAM CLYMER (May 29, 1998). "Barry Goldwater, Conservative and Individualist, Dies at 89". New York Times. http://www.nytimes.com/books/01/04/01/specials/goldwater-obit.html. Retrieved 2009-10-22.
- ^ Abraham Lincoln (March 4, 1861). "First Inaugural Address". National Center. http://www.nationalcenter.org/LincolnFirstInaugural.html. Retrieved 2009-10-23. "At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal."
- ^ George F. Will (May 27, 2009). "Identity Justice: Obama's Conventional Choice". Washington Post. http://www.washingtonpost.com/wp-dyn/content/article/2009/05/26/AR2009052602348.html. Retrieved 2009-10-22. "Thurgood Marshall quote taken from the Stanford Law Review, summer 1992"
- ^ Irons, Peter. A People's History of the Supreme Court. London: Penguin, 1999. ISBN 0670870064
- ^ ADAM LIPTAK (January 31, 2009). "To Nudge, Shift or Shove the Supreme Court Left". New York Times. http://www.nytimes.com/2009/02/01/weekinreview/01liptak.html. Retrieved 2009-10-23. "Every judge who’s been appointed to the court since Lewis Powell...in 1971...has been more conservative than his or her predecessor"
- ^ Charles Babington (April 5, 2005). "Senator Links Violence to 'Political' Decisions". Washington Post. http://www.washingtonpost.com/wp-dyn/articles/A26236-2005Apr4.html. Retrieved 2009-10-22.
- ^ ADAM LIPTAK (February 2, 2006). "A Court Remade in the Reagan Era's Image". New York Times. http://www.nytimes.com/2006/02/02/politics/politicsspecial1/02conservatives.html?pagewanted=print. Retrieved 2009-10-22.
- ^ David G. Savage (July 13, 2008). "Supreme Court finds history is a matter of opinions". Los Angeles Times. http://articles.latimes.com/2008/jul/13/nation/na-scotus13. Retrieved 2009-10-22.
- ^ Andrew P. Napolitano (February 17, 2005). "No Defense". New York Times. http://www.nytimes.com/2005/02/17/opinion/17napolitano.html. Retrieved 2009-10-23.
- ^ Thomas B. Edsall and Michael A. Fletcher (September 5, 2005). "Again, Right Voices Concern About Gonzales". Washington Post. http://www.washingtonpost.com/wp-dyn/content/article/2005/09/04/AR2005090401338.html. Retrieved 2009-10-23.
- ^ Charles Lane (March 20, 2005). "Conservative's Book on Supreme Court Is a Bestseller". Washington Post. http://www.washingtonpost.com/wp-dyn/articles/A50246-2005Mar19.html. Retrieved 2009-10-23.
- ^ Sutherland, Mark; Dave Meyer, William J. Federer, Alan Keyes, Ed Meese, Phyllis Schlafly, Howard Phillips, Alan E. Sears, Ben DuPre, Rev. Rick Scarborough, David C. Gibbs III, Mathew D. Staver, Don Feder, Herbert W. Titus (2005). Judicial Tyranny: The New Kings of America. St. Louis, Missouri: The National Policy Center. pp. 242. ISBN 0-9753455-6-7. http://books.google.com/books?id=VBrjcQkzV94C&pg=PA96&lpg=PA96&dq=%22judicial+tyranny%22+sutherland+%22new+kings+of+america%22&source=bl&ots=PX10p4mCMH&sig=GQBTUDL9m2U8TPWZUc8Xq5zq2Fk&hl=en&ei=1mHiStGZNMSl8QbHmvX2AQ&sa=X&oi=book_result&ct=result&resnum=1&ved=0CA8Q6AEwAA#v=onepage&q=&f=false.
- ^ a b MICHIKO KAKUTANI (July 6, 2009). "Appointees Who Really Govern America". New York Times. http://www.nytimes.com/2009/07/07/books/07kaku.html. Retrieved 2009-10-27.
- ^ By Emily Bazelon (July 6, 2009). "The Supreme Court on Trial: James MacGregor Burns takes aim at the bench.". Slate Magazine. http://www.slate.com/id/2222028/. Retrieved 2009-10-27.
- ^ Special keynote address by President Ronald Reagan, November 1988, at the second annual lawyers convention of the Federalist Society, Washington, D.C.
- ^ STUART TAYLOR Jr. (October 15, 1987). "Reagan Points to a Critic, Who Points Out It Isn't So". New York Times. http://www.nytimes.com/1987/10/15/us/reagan-points-to-a-critic-who-points-out-it-isn-t-so.html. Retrieved 2009-10-23.
- ^ Kelley Beaucar Vlahos (September 11, 2003). "Judge Bork: Judicial Activism Is Going Global". Fox News. http://www.foxnews.com/story/0,2933,97117,00.html. Retrieved 2009-10-23. "What judges have wrought is a coup d’etat – slow moving and genteel, but a coup d’etat nonetheless."
- ^ a b c Naftali Bendavid (July 13, 2009). "Franken: ‘An Incredible Honor to Be Here’". Wall Street Journal. http://blogs.wsj.com/washwire/2009/07/13/franken-an-incredible-honor-to-be-here/. Retrieved 2009-10-22.
- ^ James Madison aka "Publius" (1789). "The Federalist Papers/No. 45 The Alleged Danger From the Powers of the Union to the State Governments Considered". Wikisource. http://en.wikisource.org/wiki/The_Federalist_Papers/No._45. Retrieved 2009-10-24. "the States will retain, under the proposed Constitution, a very extensive portion of active sovereignty"
- ^ Alexander Hamilton (aka Publius) (1789). "Federalist No. 28". Independent Journal. http://avalon.law.yale.edu/18th_century/fed28.asp. Retrieved 2009-10-24. "Power being almost always the rival of power; the General Government will at all times stand ready to check the usurpations of the state government; and these will have the same disposition toward the General Government."
- ^ James Madison (January 25, 1788). "The Federalist No. 44 (quote: 8th para)". Independent Journal. http://www.constitution.org/fed/federa44.htm. Retrieved 2009-10-27. "seems well calculated at once to secure to the States a reasonable discretion in providing for the conveniency of their imports and exports, and to the United States a reasonable check against the abuse of this discretion."
- ^ James Madison (February 16, 1788). "The Federalist No. 56 (quote: 6th para)". Independent Journal. http://www.constitution.org/fed/federa56.htm. Retrieved 2009-10-27. "In every State there have been made, and must continue to be made, regulations on this subject which will, in many cases, leave little more to be done by the federal legislature, than to review the different laws, and reduce them in one general act."
- ^ Alexander Hamilton (December 14, 1787). "The Federalist No. 22 (quote: 4th para)". New York Packet. http://www.constitution.org/fed/federa22.htm. Retrieved 2009-10-27. "The interfering and unneighborly regulations of some States, contrary to the true spirit of the Union, have, in different instances, given just cause of umbrage and complaint to others, and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became not less serious sources of animosity and discord than injurious impediments to the intercourse between the different parts of the Confederacy."
- ^ MADISON (January 22, 1788). "Federalist Papers". New York Packet. http://avalon.law.yale.edu/18th_century/fed42.asp. Retrieved 2009-10-27. "The regulation of commerce with the Indian tribes is very properly unfettered from two limitations in the articles of Confederation, which render the provision obscure and contradictory. The power is there restrained to Indians, not members of any of the States, and is not to violate or infringe the legislative right of any State within its own limits."
- ^ AKHIL REED AMAR (1998). "The Bill of Rights -- Creation and Reconstruction". New York Times: Books. http://www.nytimes.com/books/first/a/amar-rights.html. Retrieved 2009-10-24. "many lawyers embrace a tradition that views state governments as the quintessential threat to individual and minority rights, and federal officials--especially federal courts--as the special guardians of those rights."
- ^ Scott Gold (June 14, 2005). "Justices Swat Down Texans' Effort to Weaken Species Protection Law". Los Angeles Times. http://articles.latimes.com/2005/jun/14/nation/na-cavebugs14. Retrieved 2009-10-30. "Purcell filed a $60-million lawsuit against the U.S. government in 1999, arguing that cave bugs could not be regulated through the commerce clause because they had no commercial value and did not cross state lines. 'I'm disappointed,' Purcell said."
- ^ a b Robert B. Reich (September 13, 1987). "THE COMMERCE CLAUSE; The Expanding Economic Vista". New York Times Magazine. http://www.nytimes.com/1987/09/13/magazine/the-commerce-clause-the-expanding-economic-vista.html. Retrieved 2009-10-27.
- ^ FDCH e-Media (January 10, 2006). "U.S. Senate Judiciary Committee Hearing on Judge Samuel Alito's Nomination to the Supreme Court". Washington Post. http://www.washingtonpost.com/wp-dyn/content/article/2006/01/10/AR2006011001087.html. Retrieved 2009-10-30. "I don't think there's any question at this point in our history that Congress' power under the commerce clause is quite broad, and I think that reflects a number of things, including the way in which our economy and our society has developed and all of the foreign and interstate activity that takes place -- Samuel Alito"
- ^ ADAM COHEN (December 7, 2003). "Editorial Observer; Brandeis's Views on States' Rights, and Ice-Making, Have New Relevance". New York Times. http://www.nytimes.com/2003/12/07/opinion/editorial-observer-brandeis-s-views-states-rights-ice-making-have-new-relevance.html. Retrieved 2009-10-30. "But Brandeis's dissent contains one of the most famous formulations in American law: that the states should be free to serve as laboratories of democracy"
- ^ Lino Graglia (July 19, 2005). "Altering 14th Amendment would curb court's activist tendencies". University of Texas School of Law. http://www.utexas.edu/law/news/2005/071905_court.html. Retrieved 2009-10-23.
- ^ Jacob C. Hornberger (2009-10-30). "Freedom and the Fourteenth Amendment". The Future of Freedom Foundation. http://www.google.com/search?hl=en&safe=off&client=firefox-a&rls=com.ubuntu%3Aen-US%3Aunofficial&q=%22misused+the+fourteenth+amendment%22&aq=f&oq=&aqi=. Retrieved 2009-10-30. "Fourteenth Amendment. Some argue that it is detrimental to the cause of freedom because it expands the power of the federal government. Others contend that the amendment expands the ambit of individual liberty. I fall among those who believe that the Fourteenth Amendment has been a positive force for freedom."
- ^ David G. Savage (October 23, 2008). "Roe vs. Wade? Bush vs. Gore? What are the worst Supreme Court decisions?". Los Angeles Times. http://articles.latimes.com/2008/oct/23/nation/na-scotus23. Retrieved 2009-10-23. "UC Berkeley law professor Goodwin Liu described the decision as 'utterly lacking in any legal principle" and added that the court was "remarkably unashamed to say so explicitly.'"
- ^ reporter from the Baltimore Sun (September 5, 2005). "Here are eight people who could be considered the fill the Supreme Court seat vacated by the death of Chief Justice William H. Rehnquist -- MICHAEL McCONNELL (biography)". Chicago Tribune. http://www.chicagotribune.com/news/nationworld/bal-scotus-candidates0905,0,2713818.story. Retrieved 2009-10-22. "criticized the Supreme Court for its decision in Bush v. Gore"
- ^ CQ Transcriptions (Senator Kohl) (July 14, 2009). "Key Excerpt: Sotomayor on Bush v. Gore". Washington Post. http://voices.washingtonpost.com/supreme-court/2009/07/key_excerpt_sotomayor_on_bush.html. Retrieved 2009-10-23. "Many critics saw the Bush v. Gore decision as an example of the judiciary improperly injecting itself into a political dispute""
- ^ ADAM COHEN (Opinion section) (March 21, 2004). "Justice Rehnquist Writes on Hayes vs. Tilden, With His Mind on Bush v. Gore". New York Times. http://www.nytimes.com/2004/03/21/opinion/21SUN4.html. Retrieved 2009-10-23. "The Bush v. Gore majority, made up of Mr. Rehnquist and his fellow conservatives, interpreted the equal protection clause in a sweeping way they had not before, and have not since. And they stated that the interpretation was 'limited to the present circumstances,' words that suggest a raw exercise of power, not legal analysis."
- ^ a b c Kevin McNamara (letter to the editor) (June 3, 2009). "Letters -- Supreme Court Activism?". New York Times. http://www.nytimes.com/2009/06/04/opinion/lweb04douthat.html. Retrieved 2009-10-23.
- ^ DAVID MARGOLICK (September 23, 2007). "Meet the Supremes". New York Times. http://www.nytimes.com/2007/09/23/books/review/Margolick-t.html?pagewanted=print. Retrieved 2009-10-23. "Beat reporters and academics initially denounced the court’s involvement in that case, its hastiness to enter the political thicket and the half-baked and strained decision that resulted."
- ^ CQ Transcriptions (January 13, 2006). "U.S. Senate Judiciary Committee Hearing on Judge Samuel Alito's Nomination to the Supreme Court". Washington Post. http://www.washingtonpost.com/wp-dyn/content/article/2006/01/13/AR2006011300802.html. Retrieved 2009-10-28. "...Baker v. Carr, the reapportionment case. We heard Justice Frankfurter who delivered a scathing dissent in that..."
- ^ WILLIAM SAFIRE (April 24, 2005). "Dog Whistle". New York Times Magazine. http://www.nytimes.com/2005/04/24/magazine/24ONLANGUAGE.html. Retrieved 2009-10-22.
- ^ David G. Savage (October 23, 2008). "Roe vs. Wade? Bush vs. Gore? What are the worst Supreme Court decisions?". Los Angeles Times. http://articles.latimes.com/2008/oct/23/nation/na-scotus23. Retrieved 2009-10-23.
- ^ LAURA MANSNERUS (October 16, 2005). "Diminished Eminence In a Changed Domain". New York Times. http://query.nytimes.com/gst/fullpage.html?res=9802EED9173FF935A25753C1A9639C8B63&sec=&spon=&pagewanted=all. Retrieved 2009-10-22.
- ^ RONALD SMOTHERS (October 16, 2005). "In Long Branch, No Olive Branches". New York Times. http://query.nytimes.com/gst/fullpage.html?res=9A03EED9173FF935A25753C1A9639C8B63. Retrieved 2009-10-22.
- ^ David Templeton (March 12, 2006). "Reporter fights to air her story -- Article on choking game pulled from student newspaper". Pittsburgh Post-Gazette. http://www.post-gazette.com/pg/06071/667880-58.stm. Retrieved 2009-10-22.
- ^ ADAM COHEN (January 15, 2008). "Editorial Observer -- A Supreme Court Reversal: Abandoning the Rights of Voters". New York Times. http://www.nytimes.com/2008/01/15/opinion/15tue4.html. Retrieved 2009-10-23.
- ^ David G. Savage (July 13, 2008). "Supreme Court finds history is a matter of opinions". Los Angeles Times. http://articles.latimes.com/2008/jul/13/nation/na-scotus13. Retrieved 2009-10-30. "This suggests that the right of habeas corpus was not limited to English subjects ... protects people who are captured ... at Guantanamo ... Wrong, Justice Antonin Scalia wrote in dissent. He said English history showed that the writ of habeas corpus was limited to sovereign English territory"
- ^ George F. Will (May 27, 2009). "Identity Justice: Obama's Conventional Choice". Washington Post. http://www.washingtonpost.com/wp-dyn/content/article/2009/05/26/AR2009052602348.html. Retrieved 2009-10-22.
- ^ a b JAMES TARANTO (June 9, 2009). "Speaking Ruth to Power". Wall Street Journal. http://online.wsj.com/article/SB124456827959598503.html. Retrieved 2009-10-22.
- ^ Woodward, Bob; Scott Armstrong (1979). The Brethren: Inside the Supreme Court. United States of America: Simon & Schuster. pp. 541. ISBN 978-0-7432-7402-9. http://books.google.com/books?id=6JtJ23GmD3AC&dq=%22Bush+v.+Gore%22+critic%3F+%22Supreme+Court%22+(site:newsweek.com+OR+site:post-gazette.com+OR+site:usatoday.com+OR+site:washingtonpost.com+OR+site:time.com+OR+site:reuters.com+OR+site:economist.com+OR+site:miamiherald.com+OR+site:latimes.com+OR+site:sfgate.com+OR+site:chicagotribune.com+OR+site:nytimes.com+OR+site:wsj.com+OR+site:usnews.com)&printsec=frontcover&source=in&hl=en&ei=NyviSpr6CJDN8Qbq84n6AQ&sa=X&oi=book_result&ct=result&resnum=11&ved=0CCcQ6AEwCg#v=onepage&q=&f=false. "A court which is final and unreviewable needs more careful scrutiny than any other"
- ^ a b c d Larry Sabato (September 26, 2007). "It's Time to Reshape the Constitution and Make America a Fairer Country". Huffington Post. http://www.huffingtonpost.com/larry-sabato/its-time-to-reshape-the-c_b_66030.html. Retrieved 2009-10-23.
- ^ Christopher Moore (November 1, 2008). "Our Canadian Republic -- Do we display too much deference to authority ... or not enough?". Literary Review of Canada. http://reviewcanada.ca/essays/2008/11/01/our-canadian-republic/. Retrieved 2009-10-23.
- ^ Tomkins, Adam (2002). "In Defence of the Political Constitution". United Kingdom: 22 Oxford Journal of Legal Studies 157. "Bush v. Gore"
- ^ a b c "C-SPAN Supreme Court Week". CSPAN. 2009-10-04. http://supremecourt.c-span.org. Retrieved 2009-10-25.
- ^ James Vicini (April 24, 2008). "Justice Scalia defends Bush v. Gore ruling". Reuters. http://www.reuters.com/article/newsOne/idUSN2443345820080424. Retrieved 2009-10-23. "The nine-member Supreme Court conducts its deliberations in secret and the justices traditionally won't discuss pending cases in public"
- ^ James Vicini (April 24, 2008). "Justice Scalia defends Bush v. Gore ruling". Reuters. http://www.reuters.com/article/newsOne/idUSN2443345820080424. Retrieved 2009-10-23. "Scalia was interviewed for the CBS News show "60 Minutes"
- ^ a b Alex Altman (book reviewer) (Jan. 27, 2009). "Life Without Lawyers: Liberating Americans From Too Much Law By Philip K. Howard". Time Magazine. http://www.time.com/time/nation/article/0,8599,1874370,00.html. Retrieved 2009-10-23.
- ^ PHILIP K. HOWARD (JANUARY 26, 2009). "How Modern Law Makes Us Powerless". Wall Street Journal. http://online.wsj.com/article/SB123293018734014067.html. Retrieved 2009-10-28. "The idea of freedom as personal power got pushed aside in recent decades by a new idea of freedom -- where the focus is on the rights of whoever might disagree."
- ^ Peter Friedman (March 26th, 2009). "Taking care of people and keeping standards high". Geniocity.com. http://blogs.geniocity.com/friedman/tag/philip-k-howard/. Retrieved 2009-10-30. "Nor does Howard dig deep enough to explain the excesses of American tort law and the eagerness to seek vast damages for civil injuries. He blames the overreaching of Earl Warren’s Supreme Court in its sympathy for the little man, and the mood of antipathy to large institutions starting in the 1960s."
- ^ "Philip K. Howard, New York Sun". Common Good. June 4, 2007. http://commongood.org/learn-reading-cgpubs-opeds.html. Retrieved 2009-10-30. "Common Good Chair Philip K. Howard discusses the Supreme Court's recent repudiation of Conley v. Gibson, a 1957 case which opened the floodgates to abusive litigation, and argues that the Court should take responsibility for a shift in judicial approach towards affirmative assertion of values of reasonableness"
- ^ Linda Greenhouse (September 10, 2007). "New Focus on the Effects of Life Tenure". New York Times. http://www.nytimes.com/2007/09/10/washington/10scotus.html. Retrieved 2009-10-10.
- ^ Sanford Levinson (9 February 2009). "Supreme court prognosis -- Ruth Bader Ginsburg's surgery for pancreatic cancer highlights why US supreme court justices shouldn't serve life terms". guardian.co.uk. http://www.guardian.co.uk/commentisfree/cifamerica/2009/feb/09/supreme-court-ruth-bader-ginsburg. Retrieved 2009-10-10.
- ^ See also Arthur D. Hellman, "Reining in the Supreme Court: Are Term Limits the Answer?", in Roger C. Cramton and Paul D. Carrington, eds., Reforming the Court: Term Limits for Supreme Court Justices (Carolina Academic Press, 2006), p. 291.
- ^ Richard Epstein, "Mandatory Retirement for Supreme Court Justices", in Roger C. Cramton and Paul D. Carrington, eds., Reforming the Court: Term Limits for Supreme Court Justices (Carolina Academic Press, 2006), p. 415.
- ^ Alexander Hamilton (June 14, 1788). "The Federalist No. 78". Independent Journal. http://www.constitution.org/fed/federa78.htm. Retrieved 2009-10-28. "and 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."
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