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Checks on the judicial branch: lesson overview

AP.GOPO:
CON‑5 (EU)
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CON‑5.B (LO)
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CON‑5.B.1 (EK)
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CON‑5.C (LO)
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Two key characteristics of the Supreme Court—its practice of judicial review, and its justices’ life tenure—can lead to debate over the legitimacy of the Court’s power, as well as attempts by the other branches to challenge and limit that power.

Key terms

TermDefinition
judicial reviewThe power of the judicial branch to nullify an act of Congress, executive action, or state law if it violates the Constitution.
life tenureHolding a position for life as Supreme Court justices do, unless they resign or are impeached.
judicial activismThe belief that the role of a justice is to defend individual rights and liberties, even those not explicitly stated in the Constitution.
judicial restraintThe belief that the role of a justice is to defer decisions (and thus policymaking) to the elected branches of government and stay focused on a narrower interpretation of the Bill of Rights.
jurisdictionThe extent of the power a court has to make legal judgments and decisions.

Key takeaways

Judicial activism and judicial restraint — The debate over judicial activism and judicial restraint is a key issue in discussions around the power of the Supreme Court. Some justices favor a policy of judicial restraint, viewing their role as strict interpreters of precedent and the Constitution, and deferring decisions that impact policymaking to the other, elected branches of government.
But other justices believe in judicial activism: that the Court should be bolder in upholding rights that may not be explicitly stated in the Constitution, and in striking down legislation that infringes those rights.
Challenging and limiting the Court’s power — In the wake of a controversial ruling by the Court, the other branches may challenge its legitimacy and power, questioning either the Court’s right to exercise judicial review or the appropriateness of its justices’ life tenures. Both the legislative and executive branches can also employ checks that can limit the Court’s power, for example via the nomination and confirmation of justices.
In the event of a vacancy, the president is likely to nominate a justice with whom they are at least somewhat ideologically aligned, which may in turn alter the ideological balance of the Court and decrease the likelihood of future majority opinions that conflict with the views of the president’s party. Because federal judges serve life terms, these appointments can have long-lasting impacts after a president has left office.
Congress can pass legislation to attempt to limit the Court’s power: by changing the Court’s jurisdiction; by modifying the impact of a Court decision after it has been made; or by 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.

Review questions

How can judicial appointments limit the Supreme Court’s power?
What is the difference between judicial activism and judicial restraint?
What is one legislative power that serves as a check on Court decisions? How does it check Court decisions?
What is one executive power that serves as a check on Court decisions? How does it check Court decisions?

Want to join the conversation?

  • leaf red style avatar for user Nadiyah Williams
    Do civil service workers have life tenures as well? Or is it just the Supreme Court justices that have life tenures?
    (3 votes)
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  • marcimus pink style avatar for user IZH1
    I thought that in an earlier video or article talking about the Supreme Court it was mentioned that Congress only has power over inferior courts, and cannot limit the
    Supreme Court's jurisdiction, but in this article it is saying they can limit the Supreme Court's jurisdiction. Which one is right?
    (3 votes)
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    • blobby green style avatar for user leahmarquez
      From the author:Great question! Congress has the power to change the Supreme Court's appellate jurisdiction, but it cannot interfere with the Court's original jurisdiction. Confusing, right?

      Original jurisdiction is the Court's jurisdiction as determined by Article III of the US Constitution. For example, if there is a conflict between two states, that case automatically goes to the Supreme Court. Inferior courts do not have the authority to hear those cases.

      Appellate jurisdiction refers to the Court's ability to hear cases on appeal from lower courts. Congress can limit the Court's appellate jurisdiction in a move called jurisdiction-stripping or court-stripping. For example, they can eliminate inferior courts which limits the number of cases they hear on appeal.
      (4 votes)
  • blobby green style avatar for user apadilla358
    What is the diffrence between judicial activism and judicial restraint?
    (3 votes)
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    • piceratops ultimate style avatar for user Hecretary Bird
      Judicial activism teaches that you should take active action to solve our nation's problems and question existing judicial precedents. With the times changing, previous rulings may be faulty and need to be interpreted in a lens that involves the contemporary world.
      Judicial restraint is another philosophy that says that judges shouldn't act unless they are absolutely sure that something is unlawful. It seeks to maintain precedents and limit the exercise of judicial power.
      (2 votes)
  • duskpin seed style avatar for user Adrianna
    How does Congress check the Judicial Branch?
    (2 votes)
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    • duskpin ultimate style avatar for user Joyce Liu
      Congress can either propose an amendment or court-pack. Because Supreme Court decisions are based off of the Constitution, an amendment to the Constitution will void the Court decision. Court packing is when Congress decides to increase the number of justices on the Court. This option however is not very commonly used.
      (4 votes)
  • blobby green style avatar for user Erin  Rose Weatherbie
    How can Congress limit judicial power
    (1 vote)
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  • starky seedling style avatar for user reagen reaves
    How was judicial review used in the past to check the power of the President?
    (1 vote)
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