2.11 Checks on the Judicial Branch

Introduction

The Judicial Branch of government is subject to checks and balances from other branches of government in order to maintain a separation of powers and ensure no one branch becomes too powerful. These checks include:

1. Legislative Branch
2. Executive Branch
3. Judicial Review

Checks on the Supreme Court

Legislative Branch

• The legislative branch has the power to impeach and remove federal judges, including Supreme Court Justices, for "high crimes and misdemeanors." This is a significant check on the power of the Supreme Court, as it provides a means for holding Justices accountable for unethical or illegal behavior.
• The legislative branch can also pass laws that overrule Supreme Court decisions or limit the scope of judicial review. For example, Congress can pass a law that contradicts a Supreme Court ruling, or it can pass a constitutional amendment that clarifies the meaning of a provision of the Constitution.
• The legislative branch also has the power of the purse, which it can use to limit the resources available to the Supreme Court, such as funding for staff or infrastructure.
• Additionally, the legislative branch has the power to confirm Supreme Court Justices, which can have a significant impact on the direction and ideology of the Court. The Senate must approve presidential nominations to the Supreme Court.

Executive Branch

• Appointments: The President has the power to nominate Supreme Court Justices, and the Senate must approve these nominations. The executive branch therefore has significant influence over the makeup of the Supreme Court, and can shape its direction and ideology through the appointment of Justices who share the President's views.
• Enforcement of Court Decisions: The executive branch is responsible for enforcing Supreme Court decisions, and has discretion over the extent to which it enforces these decisions. If the executive branch chooses not to enforce a Supreme Court ruling, it can limit the impact and authority of the Court.
• Pardons: The President has the power to grant pardons, including for individuals convicted by the Supreme Court. This power can serve as a check on the Court's authority, as the President can effectively nullify a Supreme Court ruling by granting a pardon.
• Executive Orders: The President has the power to issue executive orders, which can impact the authority of the Supreme Court. For example, an executive order that contradicts a Supreme Court ruling can limit the Court's authority and impact its ability to enforce its decisions.

Judicial Review

Judicial review is the power of the courts, particularly the Supreme Court, to interpret the Constitution and to declare laws and actions of other branches of government unconstitutional. This power serves as a check on the power of the legislative and executive branches, as it allows the Supreme Court to strike down laws or actions that infringe upon individual rights or violate the Constitution.

However, judicial review itself can also be subject to checks and balances. For example:

1. Appellate Review: Decisions of the Supreme Court can be reviewed by higher courts, such as federal appeals courts or state supreme courts. This provides a means for the Supreme Court's decisions to be challenged and revised, and serves as a check on the power of the Supreme Court to interpret the Constitution.
2. Public Opinion: Public opinion can also serve as a check on the power of the Supreme Court. When the Court makes decisions that are perceived as controversial or unpopular, it can lead to public criticism and pressure on the Court to reconsider its decisions.
3. Congressional Action: As mentioned earlier, the legislative branch has the power to overrule Supreme Court decisions through the passage of laws or constitutional amendments, which serves as a check on the power of the Court to interpret the Constitution.

Overall, while judicial review provides an important check on the power of the other branches of government, it is not absolute, and is subject to checks and balances from other sources.

Nominations

The President's power to nominate Supreme Court Justices is a significant way in which the executive branch can shape the direction and ideology of the Court. Because Justices serve life terms, the impact of these nominations can last well beyond a President's time in office.

This is why the nomination and confirmation process for Supreme Court Justices is often highly politicized and can become a source of significant controversy and debate. The Senate must approve presidential nominations to the Supreme Court, and the confirmation process can involve significant scrutiny and opposition from senators who disagree with the nominee's ideology or qualifications.

In recent years, the confirmation process for Supreme Court nominees has become increasingly contentious, with significant opposition from senators from the minority party and heated debates over the ideological views of nominees. This highlights the importance of the nomination process as a means for the executive and legislative branches to shape the direction and ideology of the Court.

Congress

Congress can pass legislation to attempt to limit the Court’s power by:

• changing the Court’s jurisdiction
• modifying the impact of a Court decision after it has been made
• amending the Constitution in relation to the Court

The president (and the states) may also choose to evade or ignore a Court decision; while not very common, this approach has been used in the past following some unpopular rulings.

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Activism vs. Restraint

Judicial activism and judicial restraint are two different approaches to interpreting the Constitution and making decisions in the courts.

Judicial activism refers to a more proactive role for the judiciary, where they take a more expansive view of their powers and actively seek to protect individual rights and liberties, even if these rights are not explicitly stated in the Constitution. This approach often leads to decisions that strike down laws or actions of other branches of government as unconstitutional.

Judicial restraint, on the other hand, emphasizes the importance of adhering to precedent and the text of the Constitution, and defers to the decisions of elected branches of government. This approach is often viewed as being more conservative, as it seeks to limit the role of the judiciary in making policy decisions and to preserve the balance of powers within the government.

Both approaches have their strengths and weaknesses, and the debate over which is the more appropriate approach continues to be a key issue in discussions about the role and power of the Supreme Court.