Judicial Power

What is the primary power of the federal judiciary?

The core power of the federal judiciary is vested in judicial review. This authority allows courts to determine the constitutionality of actions taken by the executive and legislative branches. A person or group can sue Congress or the President if they believe either has overstepped their constitutional authority or infringed on the public’s constitutional rights. After such a case has moved up through the federal judicial system (through appeals), the losing party may submit a writ of certiorari to the Supreme Court of the United States (SCOTUS) asking them to hear the case. If four of the nine justices approve the writ, the case will be heard. Once SCOTUS has made a decision, that decision is the law of the land in the United States.

Why does judicial review exist?

The principle of judicial review acts as a protective mechanism for constitutional rights and sustains a system of checks and balances within the government. The primary objective is to ensure that neither the executive nor the legislative branches of government surpass their constitutional boundaries or infringe upon individual liberties. The courts also use judicial review to decide whether individual rights are infringed by businesses, people, and other organizations. Of note, the power of judicial review is not granted to the courts in the Constitution. Rather, the Supreme Court gave itself the unique power to decide the constitutionality of laws in the 1803 Supreme Court case Marbury v. Madison. Outgoing President John Adams appointed several judges in an attempt to pack the courts, or in other words increase the number of justices on a court in an attempt to sway the outcome of decisions, before his political rival Thomas Jefferson took office. When Jefferson took office, he ordered Secretary of State James Madison not to deliver the commissions. One of the appointees, William Marbury, sued Madison for not delivering his appointment. Chief Justice John Marshall ruled in favor of Madison and, in his opinion, ruled the law unconstitutional, granting the courts the power of judicial review. Since this decision 220 years ago, the power of judicial review has not been contested.

How often does a federal court decide a law is unconstitutional?

The frequency with which a federal court declares a law unconstitutional fluctuates considerably. This variability is influenced by several factors, including changes in societal values, shifts in the political climate, alterations in the composition of the judiciary, and the number of cases questioning the constitutionality of laws. Nearly all SCOTUS decisions set a precedent that future courts must use to interpret future cases. Such precedents are rarely overturned. Since 1789, only 0.5% of SCOTUS opinions have been reversed. The tendency to reverse precedents has slightly increased since 1953 but is still below 1% of all decisions.

SCOTUS did not wield the power of judicial review as heavily early in the court’s history, focusing instead on building legitimacy over time. The court has since become more willing to exercise this power, although the use of judicial review is still relatively rare. For instance, SCOTUS has invalidated acts of Congress on average around once a year since 1789. SCOTUS is even less likely to overrule an executive action.

What are the limits of judicial review?

The limits on judicial review include the hierarchical structure of the judicial system, the appeals process, and the judge appointment procedure. The hierarchical structure of the system and the requirement for cases to pass through multiple layers of review can impose practical restrictions on challenging laws and policies. Going through multiple layers of legal challenges takes a lot of time and resources. It can be difficult for someone to navigate this process and take the time necessary to go through the system.

Additionally, the appointment process for judges can shape the ideological composition of the judiciary and impact the exercise of judicial review. The ideological or partisan preferences of judges may shape their approach to constitutional cases. Furthermore, delays or challenges in filling vacancies on the bench can affect the judiciary’s ability to address constitutional issues in a timely fashion. These limits highlight the importance of considering the structural and procedural aspects of the judicial system when examining the scope and effectiveness of judicial review.

Moreover, the executive and legislative branches of government can check the judiciary’s power. The President is responsible for nominating judges, and the Senate must confirm the President’s nominees. The congressional checks on the court can be broken into two categories: court curbing and decision reversals. Court curbing is when Congress passes legislation attempting to change the structure or functioning of the Supreme Court, such as by adding judgeships, changing appropriations, or other attempts to affect the court in this way. Decision reversals are used to modify the legal result or impact of specific decisions. Both of these checks are rare, but decision reversals are most common between the two and have increased along with SCOTUS scrutiny of acts of Congress. Finally, Congress has the power to impeach and remove judges. Congress has only impeached 15 federal judges over time, convicting 8 of them. Only one Supreme Court Justice (Samuel Chase) was impeached (in 1805), but he was not convicted.

In the Federalist Papers, Founding Father Alexander Hamilton referred to the Courts as the weakest branch of government. What did he mean?

In Federalist 78, Alexander Hamilton wrote that there was little to fear from the judicial branch, calling it the weakest branch because it had no force of will. Hamilton argued that the judicial branch only has the power to judge and must rely on the other two branches to adhere to any judgments. Hamilton highlights the executive’s power of the sword and the legislature’s power of the purse, pointing out the lack of either in the judiciary. Further, James Madison argued in Federalist 51 that the legislative branch is the dominant branch in a Republic. The judiciary relies on the other branches’ cooperation and the public’s respect for its decisions.

Do other countries have similar judicial systems?

Many countries have courts that perform judicial review. For instance, Germany’s Federal Constitutional Court can review legal acts. The world’s most prominent legal systems are civil and common law. The former relies on a comprehensive legal code containing all country laws. This system is used by most of Europe and South America. The latter relies on the precedents established by the courts or the legislatures for future decision-making. The United States, Great Britain, and Australia all use the common law systems.

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