2.11 Checks on the Judicial Branch

The design of the judicial branch protects the Supreme Court’s independence as a branch of government, and the emergence and use of judicial review remains a powerful judicial practice 

Explain how the exercise of judicial review in conjunction with life tenure can lead to debate about the legitimacy of the Supreme Court’s power. 

• Political discussion about the Supreme Court’s power is illustrated by the ongoing debate over judicial activism versus judicial restraint. 

Explain how other branches in the government can limit the Supreme Court’s power.

• Restrictions on the Supreme Court are represented by:

checks and balances  The principles of the US Constitution - their effectiveness today 

•  Congressional legislation to modify the impact of prior Supreme Court decisions

Case study: Congress can limit the Supreme Court. 

•  Constitutional amendments 

•  Judicial appointments and confirmations 

• The president and states evading or ignoring Supreme Court decisions 

• Legislation impacting court jurisdiction 

• 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.

• 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.

Example 2024 US deports hundreds of Venezuelans despite court order: More than 200 Venezuelans alleged by the White House to be gang members have been deported from the US to a supermax prison in El Salvador, even as a US judge blocked the removals. 

• 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.

The Pardon Power 

• 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.

Executive Orders