Lesson Objectives:- Judicial review
- Checking the Court's power
When the court reviews laws and actions by other government branches to determine if they are constitutional, it is exercising the power of judicial review. This is part of the system of checks and balances put in place by the Constitution.
Ironically, the Supreme Court's first act of judicial review was establishing judicial review itself in the case of Marbury vs. Madison, stating, "It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to a particular case must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each."
Two different approaches to how judges use their power are Judicial Activism and Judicial Restraint. Judicial Activism is a doctrine holding that the federal judiciary should take an active role by using its powers to check the activities of governmental bodies when those bodies exceed their authority is judicial activism.
When Earl Warren was Chief Justice of the Supreme Court, that was an era of Judicial Activism. The Warren Court took an active role in propelling the civil rights movement forward by declaring unconstitutional the laws permitting racial segregation.
The other side of the coin is Judicial Restraint. Judges who believe in judicial restraint hold that courts should defer to the decisions made by the elected representatives of the people in the legislative and executive branches when possible. Such judges avoid interfering with the implementation of legislative acts and agency rules unless they are clearly unconstitutional.
Traditionally, judicial activism has been linked to liberals while judicial restraint seemed to be linked to conservatives. The reality is, that is not always the case. The Roberts Court of today appears to be turning increasingly activist over time.
For instance, Citizens United vs. Federal Election Commission was a decision that struck down long-standing campaign finance laws. Also, when Congress attempted to force states to expand their Medicaid programs, the Court blocked it, limiting the power of Congress, which was viewed by some observers as judicial activism.
Other terms used to describe a justice's philosophy include strict construction and broad construction. Strict Construction is when a justice looks to the "letter of the law" in interpreting the Constitution. Broad Construction is when a justice is more flexible, trying to determine the purpose of the law and put it in context.
When Rehnquist became the 16th Chief Justice in 1986, the balance of the Court's Ideology went conservative. But, Justices Sandra Day O'Connor and Anthony Kennedy offered an interesting twist. They gradually became what is known as "swing votes," leaning conservative on some issues and shifting to a more liberal stance on others.
When Rehnquist passed away, John Roberts became Chief Justice. A conservative Chief took the place of a conservative Chief so little changed.
Things then took a turn when Justice Sandra Day O'Connor decided to retire and was replaced with Justice Samuel Alito.
Alito is a strong conservative and the court's decisions since his appointment in 2006 have reflected that. For example, in the 2007 case Gonzales v. Carhart, the Court upheld a federal law banning partial birth abortion. This trend continued as the Roberts Court decided against a gun control measure and upheld a challenge to the lethal injection method, both decisions in alignment with conservative ideology.
The judicial system does enjoy a high level of independence, but it does not go unchecked. In addition to the executive and the legislative branches with their powers of checks and balances, the public and the judiciary branch itself can influence the actions of the Supreme Court.
One famous example is when Chief Justice John Marshall made an unpopular decision in Cherokee Nation v. Georgia. In response, President Andrew Jackson said, "John Marshall has made his decision; now let him enforce it." That is at the heart of the executive branch's ability to check the judiciary – the Supreme Court does not have any enforcement powers.
Judicial Implementation is the way in which court decisions are translated into action. It is not common for a president to refuse to enforce a Supreme Court ruling since that could result in a loss of public support and maybe even impeachment.
While the executive branch supplies the implementation of judicial decisions, the legislative branch has its own power -- funding. When Congress does not appropriate the funds to support the court ruling, it has been checked.
Another power Congress has is overturning court rulings by constitutional amendment. For instance, the Supreme Court once found income tax to be unconstitutional; however, the 16th Amendment ratified in 1913 overturned that decision and brought the income tax into reality for millions of Americans.
Also, Congress can rewrite laws or enact new ones. The Lilly Ledbetter Fair Pay Act changed a key principle concerning pay discrimination. In 2007, The Court had ruled that the statute of limitations for suing an employer for discriminatory pay began on the date that the parties agreed to the pay amount. In response to this decision, in 2009, Congress passed the Lilly Ledbetter Fair Pay Act which resets the statute of limitations every time an employer issues a discriminatory pay check. This has made it easier for employees to fight for equal pay.
The fact that courts have no authority to enforce their own rulings gives the public some power to check the legal system. If no one complains about a law not being enforced, there is little the court can do. That is the case with school-sponsored prayer in the South; it was banned in 1962 but many southern and rural districts ignore the ban to this day.
Also, judges themselves are often aware of and influenced by public opinion. They recognize social trends and attitudes and often take those into account as they conference and decide matters that apply to all of us.
Within the judicial system itself there are checks -- judges practice a great amount of self-restraint. As we have discussed in other lessons, the judiciary system has a body of Case Law in place that establishes precedent. There is a tradition of courts making decisions based on principles that are already in place.
Another way the court checks itself is that it will generally avoid ruling on cases where a political question is involved. In such issues, the Supreme Court will usually declare that the decision should be made by the executive or legislative branch.
This policy is based on the idea that law and politics are two different things even though they can seem intertwined at times. For instance, the issue of women in combat was found to be a political one and the court refused to rule on it. Eventually, the DOD lifted the ban on women in combat units.
We have already talked about how the Supreme Court can reverse a decision by the lower courts. The lower courts, however, sometimes ignore Supreme Court decisions by deciding that a Supreme Court ruling does not apply to the exact circumstances of a case they are deciding. In other cases, a lower court may claim that a Supreme Court ruling has an ambiguous meaning that leaves the door open to various interpretations.