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Course: US government and civics > Unit 2
Lesson 10: Checks on the judicial branch- Executive and legislative disagreements with the Supreme Court
- Checks on the judicial branch
- State checks on the judicial branch
- Senate confirmation as a check on the judicial branch
- Judicial activism and judicial restraint
- Increased politicization of the Supreme Court
- Checks on the judicial branch: lesson overview
- Checks on the judicial branch: foundational
- Checks on the judicial branch: advanced
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Checks on the judicial branch: lesson overview
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
| Term | Definition |
|---|---|
| judicial review | The power of the judicial branch to nullify an act of Congress, executive action, or state law if it violates the Constitution. |
| life tenure | Holding a position for life as Supreme Court justices do, unless they resign or are impeached. |
| judicial activism | The belief that the role of a justice is to defend individual rights and liberties, even those not explicitly stated in the Constitution. |
| judicial restraint | The 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. |
| jurisdiction | The 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?
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?(4 votes)
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.(7 votes)
Do civil service workers have life tenures as well? Or is it just the Supreme Court justices that have life tenures?(3 votes)
From the author:Just Supreme Court justices! Civil service workers usually work for many years, across several presidencies, but they don't have life-pending-good-behavior terms like judges.(8 votes)
- What is the diffrence between judicial activism and judicial restraint?(3 votes)
- 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)
How does Congress check the Judicial Branch?(2 votes)
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)
1. Judicial appointments limit the Supreme Court's power because the judicial branch doesn't get to choose their own justices as the please, the President and the Legislative get to make that choice for them, and whoever the President nominates generally a member of their party, expanding the President's influence.
2. The difference between judicial activism and judicial restraint is that activism is the encouraged use of judicial review while restraint is the discouraged use. The judicial activism policy belief is that the court can and should overrule the other branches when needed because it is their role as the guardians of the Constitution. The judicial restraint policy belief is that the court shouldn't overrule the other branches unless absolutely needed and should leave most policymaking to the executive and legislative because those branches are elected by the people and most closely carry out the people's will, so silencing them is somewhat like silencing the people.
3. One legislative power that serves as a check on Court decisions is limiting the Court's jurisdiction. When the Legislative does this, they're setting a limit on the cases the Court can hear and are able to prevent the Court from making decisions on things they don't want them to.
4. One executive power that serves as a check on Court decisions is refusing to enforce a Court ruling or just putting in minimal effort to enforce it. The judicial branch has no police power so they basically depend on the Executive branch to make people listen to them, but if the executive chooses not to because they don't agree with the ruling, the judicial can't really do anything about it.(1 vote)- How can Congress limit judicial power(1 vote)
How was judicial review used in the past to check the power of the President?(1 vote)