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The Court in action: lesson overview

When the Supreme Court's decisions are controversial or unpopular, the other branches may question the Court's legitimacy and take actions to curb its influence.

Key terms

court-curbing measuresStrategies for reducing the power of the Supreme Court or the impact of its rulings.
implementationThe process of carrying out the Supreme Court’s rulings; for example, Presidents Eisenhower and Kennedy sent federal troops to integrate schools when southern states refused to implement Brown v. Board of Education.
judicial appointmentsThe President of the United States appoints Supreme Court justices and federal judges. Presidents attempt to use the judicial appointment process to influence the ideology of the Court for years to come.
jurisdictionThe field of authority a court has to make legal judgments and decisions.
legitimacy of the Supreme CourtThe public trust in, and willingness to accept the rulings of, the Supreme Court.

What happens when Supreme Court decisions are unpopular?

Every year, the Supreme Court hands down decisions on cases that affect the lives of millions of people. It strikes down laws that elected members of Congress enacted, often with the clear mandate of their constituents. Or, conversely, the Court might uphold a law—perhaps one enacted by the legislature of a small state—that the majority of Americans dislikes. Because Supreme Court justices have life tenure, they have the freedom to judge the constitutionality of laws without needing to please the public to retain their seats.
The Framers designed the structure of the Court this way to insulate it from the whims of the majority, but sometimes Court decisions are so unpopular or controversial that Congress and the President take, or threaten to take, court-curbing measures. There are a few ways that the other two branches can challenge the Court:
Future appointments - Presidents can change the ideological composition of the Supreme Court by appointing new justices who share their interpretations of the Constitution. Sometimes presidents have even suggested altering the number of justices sitting on the Court so they could shift the balance of votes in favor of their policies, like Franklin Delano Roosevelt did in 1937 with his “court-packing plan.”
Legislation changing the Court’s jurisdiction - Article III of the Constitution gives Congress the power to establish and abolish inferior courts, and the ability to determine the Supreme Court’s appellate jurisdiction (its role as a court of appeals for lower courts). Congress may pass acts that prevent the Supreme Court from hearing appeals in certain types of cases. For example, Congress has sometimes revoked the jurisdiction of the Supreme Court to hear appeals in cases that originated in military courts.
Refusing to implement decisions - The Supreme Court relies on the President to enforce its will; if presidents disagree with a decision they may do as little as possible to enforce the decision, or in rare cases ignore a decision altogether. For example, the Supreme Court struck down Abraham Lincoln’s decision to suspend
during the Civil War, but he continued the policy with Congress’s blessing.
Although the Court is independent, there is some evidence to suggest that the justices aren’t entirely immune to outside opinion. Legal scholars have noted that to maintain its legitimacy in the eyes of the public, justices are careful not to give the appearance of favoring one political party over another by ruling too often for or against liberal or conservative policies.

What do you think?

What circumstances, if any, would justify Congress or the President taking measures to curb the Supreme Court?
Should justices ever adjust their opinions in order to preserve the legitimacy of the Court in the eyes of the public?

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