- Judicial review
- Citizenship for African Americans
- Congressional power over the courts
- Impeachment of Supreme Court Justices
The U.S. Constitution divides the powers of government into three branches: legislative, executive, and judicial. Generally speaking, the legislative branch, Congress, makes the nation's laws. The executive branch enforces the laws through the president and various executive offices. The judicial branch, made up of the Supreme Court and lower federal courts, decides cases that arise under the laws.
This division of government is called the separation of powers. The separation of powers is supposed to prevent tyranny. Tyranny is random or unfair government action that can result when one person has all the power to make, enforce, and interpret the laws.
In addition to the broad separation of powers into three branches, the Constitution keeps the judicial and legislative branches separate with various specific provisions. Article I, Section 5, says the chambers of Congress, namely the House of Representatives and the Senate, are the sole judge of who wins congressional elections and who is qualified to serve there. The same part of the Constitution gives the House and Senate sole authority to make their rules of operation.
Article I, Section 6, the so-called Speech and Debate Clause, says representatives and senators cannot be punished for speeches made in Congress, and cannot be arrested while in office, except for treason, felony, and breach of the peace. (Treason is defined as levying war against America or giving aid and comfort to its enemies. A felony is the most serious kind of crime, usually punishable by imprisonment for more than a year.)
Article III, Section 1, of the Constitution says judges of the Supreme Court and lower courts "shall hold their offices during good behavior." This means they cannot be removed from office except by impeachment and conviction for treason, bribery, or other high crimes and misdemeanors under Article II, Section 4. Article III, Section 1, says judges must receive a salary for their services, which Congress sets. Congress cannot lower a judge's salary during the judge's service on the court.
Checks and balances
The men who wrote the Constitution in 1787 wanted each branch's power to be separate, but not absolute. They considered absolute power, even over just a portion of the government, to be dangerous.
To prevent the power of any one branch from being absolute, the Founding Fathers wrote the Constitution to contain a system of checks and balances. These are powers that each branch has for limiting the power of the other branches. Some scholars say the system of checks and balances actually creates a government of shared powers instead of one with separated powers.
The judiciary's main powers over Congress are judicial review and judicial interpretation. Judicial review is the power to review congressional laws to determine if they violate the Constitution. Judicial interpretation is the power to decide what congressional laws mean and how they apply in specific cases.
Congress's main checks on the judiciary include the power to amend the Constitution, pass new laws, approve the president's appointment of judges, control the number of justices on the Supreme Court, and impeach judges guilty of treason, bribery, or high crimes and misdemeanors.
The Constitution says "the judicial power of the United States, shall be vested in one supreme court, and in such inferior courts as the Congress may from time to time ordain and establish." The Constitution defines the kinds of cases to which the "judicial power" applies, including cases arising under the Constitution, laws, and treaties of the United States. Beyond hearing and deciding such cases, however, the Constitution does not define what the "judicial power" is.
Constitutionality of judicial review
Scholars have debated whether the federal judicial power includes the power of judicial review. Judicial review means reviewing congressional laws (and executive action) to determine if they are valid under the Constitution.
The Constitution does not specifically give the federal judiciary the power of judicial review. Instead, the Supremacy Clause of Article VI says, "This constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land."
Some scholars believe that only the judicial branch can determine, on a case-by-case basis, whether congressional laws have been "made in pursuance" of, or in carrying out, the Constitution. Others believe that Congress and the president are responsible for deciding if their own actions are constitutional. Still others believe that the people of America, who elect Congress and, indirectly, the president, are ultimately responsible for deciding what is lawful under the Constitution and what is not.
Although the Constitution is unclear on judicial review, many of the men who wrote it in 1787 generally believed the judiciary would have this power. Foremost among them was Alexander Hamilton (1757804), who in 1789 became the first secretary of the treasury under President George Washington (1732799; served 17897). According to Joan Biskupic and Elder Witt in The Supreme Court & the Powers of the American Government, Hamilton wrote in No. 78 of The Federalist Papers in 1788:
Limitations [on Congress] . . . can be preserved in no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.... No legislative act, therefore, contrary to the Constitution, can be valid.... The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges as, a fundamental law. It therefore belongs to them to ascertain [determine] its meaning as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable [conflicting] variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents [in Congress].
Marbury v. Madison
In 1803, fifteen years after adoption of the Constitution, the Supreme Court officially answered the question of whether the federal judiciary has the power of judicial review. It did so in the famous case of Marbury v. Madison. The case was part of a political battle between Federalists, led by Chief Justice John Marshall (1755835), and Democratic-Republicans, led by President Thomas Jefferson (1743826; served 1801) and Secretary of State James Madison (1751836).
In the election of 1800, the Federalists lost control of both Congress and the presidency to the Democratic-Republicans. Before leaving office, Congress created sixteen new federal judgeships and authorized Federalist president John Adams (1735826; served 1797801) to name as many justices of the peace in the District of Columbia as he wished. Adams, in turn, named Federalists to fill the sixteen new federal judgeships plus forty-two justice of the peace positions. He also appointed Marshall, then serving as his secretary of state, to be the chief justice of the Supreme Court. (The chief justice is the head of the Supreme Court.)
One of Marshall's last duties before leaving office as secretary of state was to deliver the commissions, or official orders, to the people appointed to be justices of the peace in the District of Columbia. Somehow he failed to deliver four of them, including one to an attorney named William Marbury. When President Jefferson took office in March 1801, Marbury asked Jefferson's secretary of state, Madison, to give him the commission. Under orders from Jefferson, Madison refused to give the commission to Marbury.
Marbury decided to sue Madison in the Supreme Court. The Judiciary Act of 1789 gave the Supreme Court power to issue writs of mandamus. A writ of mandamus is an official court order for a government official to do his or her job. Marbury asked the Supreme Court to issue a writ of mandamus to Madison, ordering him to deliver the commission to Marbury.
Marshall, the very man who had failed to deliver the commission in the first place, helped to decide the case in 1803 as chief justice of the Supreme Court. Writing the Court's official opinion in the case, Marshall agreed that Marbury should get the commission. He also agreed that a writ of mandamus was the proper tool for forcing Madison to deliver the commission. Marshall surprised everyone, however, by concluding that the Supreme Court did not have the power to issue a writ of mandamus. His reason was that the Judiciary Act of 1789, which gave the Supreme Court power to issue the writ, violated the Constitution. The Constitution did not give the Supreme Court power to issue writs in such cases, so a congressional law trying to give the Supreme Court that power was in violation of the Constitution.
In the course of his written opinion, Marshall announced that the judiciary has the power of judicial review:
It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant [offensive] to it. . . . It is, emphatically, the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound [explain] and interpret that rule. If two laws conflict with each other, the courts must decide on the operations of each. . . . If then the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.
The case was a political victory for Marshall and the Federalists. Although he declared the Court incapable of giving Marbury the commission, Marshall assumed the greater power to review, in cases before the Court, laws passed by the Democratic-Republican controlled Congress.
Marshall's opinion on judicial review still stands, and federal courts routinely review congressional laws in the cases before them. Americans would probably have to enact a constitutional amendment to strip the federal judiciary of the power of judicial review.
As of 2005, the Supreme Court has struck down only around 125 federal laws and executive orders as unconstitutional. The mere existence of judicial review, however, can affect the laws that Congress passes.
Deciding whether a law violates the Constitution is a part of the judiciary's job. Federal courts, however, do not engage in judicial view as often as they engage in judicial interpretation. This is the process of deciding what a law means and how it applies in a specific case.
Judicial interpretation becomes necessary for many reasons. Sometimes a situation arises that Congress did not envision when it wrote a law. Other times a law is written in a poor or confusing fashion. And in some instances, Congress purposefully writes a law in general terms, leaving it to the courts to apply the law to specific cases.
The judiciary has been called the least dangerous branch of the federal government in terms of how much power it has compared to the president and Congress. Judicial interpretation, however, can be very powerful. For example, in 1890 Congress passed the Sherman Antitrust Act. The act was meant to prevent business monopolies from dominating areas of commerce, or the economy. It declared that every contract, combination, or conspiracy that restrains trade is illegal. (A restraint of trade is something that interferes with the free operation of the economy.)
In 1920, the U.S. Supreme Court heard a case that required interpretation of the Sherman Antitrust Act. The Court decided that the act does not prohibit every restraint of trade, but only "unreasonable" restraints of trade. Deciding what is reasonable and what is unreasonable gives the federal courts great discretion in Sherman Act cases. Engaging in judicial interpretation, the Supreme Court has also used the Sherman Act to defeat activity by labor unions trying to protect the rights of workers, even though Congress passed the act to prevent unfair business activity.
Some scholars and citizens believe judicial interpretation gives the courts too much power, allowing them to make policies that Congress should make instead. For instance, in 1866, Congress proposed, and in 1868 America adopted, the Fourteenth Amendment of the Constitution. The amendment says all Americans are entitled to equal protection of the laws. One purpose of the amendment was to prevent unequal treatment of African Americans, who had been freed from slavery in 1865 under the Thirteenth Amendment.
In the 1896 case Plessy v. Ferguson, however, the Supreme Court decided that the Fourteenth Amendment did not prevent states from requiring whites and blacks to use separate railway cars. The Court ruled that "separate but equal" facilities satisfied the "equal protection" requirements of the Fourteenth Amendment. This rule stood until 1954, when the Supreme Court unanimously decided in Brown v. Board of Education of Topeka that separate public services are not equal under the Fourteenth Amendment. The Fourteenth Amendment, however, did not change between 1896 and 1954; the Supreme Court's interpretation of it changed. Hence, it is sometimes hard to distinguish between the power of judicial interpretation and the power to make the laws.
Limitations on judicial review and interpretation
While judicial review and interpretation are powerful, they have limits. The strongest limit is the constitutional requirement that the Supreme Court decide only cases and controversies. Other limits have been created by the judiciary itself, which does not always abide by them.
Cases and controversies
Article III, Section 2, of the Constitution contains a list of the "cases" and "controversies" to which the judicial power extends, or applies. It includes:
- cases arising under the Constitution, laws, and treaties of the United States
- cases affecting ambassadors and other public ministers
- cases concerning the use of navigable, or crossable, waters
- controversies in which the United States is a party
- controversies between two or more states, between citizens of different states, and between citizens of the same state claiming lands under grants from different states
- controversies between a state (or its citizens) and a foreign state or nation (or its citizens or subjects)
The Supreme Court and lower federal courts have the power to resolve only those "cases" and "controversies" listed in the Constitution. This means that if someone files a federal lawsuit that does not come from this list of cases and controversies, the court cannot hear the case. It also means that if Congress passes a law of which the Supreme Court disapproves, the Court cannot strike down the law on its own. Instead, it must wait until someone files an appropriate "case" or "controversy" to challenge the law. Likewise, the Court cannot express an official opinion on a question from another branch of the government. It can only speak through the opinions it issues in real cases or controversies.
Friendly suits and test cases
Sometimes people who want to challenge a law or governmental action will create a lawsuit even though they do not have a real problem between them. The judiciary calls such lawsuits friendly suits or test cases.
Federal courts generally will not hear friendly suits or test cases. The reason is that such cases are not real "cases" or "controversies" under the Constitution. The Supreme Court and lower courts, however, occasionally break this rule, hearing friendly suits and test cases when the issues are important. This happened in the 1895 case of Pollock v. Farmers' Loan and Trust Co. In this lawsuit, a shareholder of a corporation sued the corporation to prevent it from paying an income tax passed by Congress. (A shareholder is a person who owns a portion of a corporation. An income tax is a tax on earnings.) The corporation and the shareholders both did not want to pay the tax, so there was no true dispute between them. The purpose of the lawsuit was to give the Supreme Court a chance to rule whether the income tax was lawful under the Constitution. The Supreme Court considered the case important enough to decide even though the lawsuit was really a friendly suit or test case. The Supreme Court declared the tax law unconstitutional, eliminating federal income taxes until the nation amended the Constitution to allow income taxes under the Sixteenth Amendment in 1913.
Ripeness and mootness
Ripeness and mootness are doctrines the judiciary uses to limit the kinds of cases it will consider. Under the ripeness doctrine, a court will not hear a case until the law that applies to the case has been enforced. The reason is that the way in which an enforcement agency enforces or interprets a law might affect the way a court decides a case. Until then, the case is not ripe, or ready, for consideration.
Under the mootness doctrine, a court will not hear a case when the problem that resulted in the case has disappeared or has otherwise been resolved by the parties. Courts prefer to decide cases only when there is a problem to resolve. If the problem has been resolved, the case is considered moot, or dead.
Despite these doctrines, courts sometimes hear and decide cases that are moot or not ripe if the case is important enough to the judges or justices in charge.
Avoiding constitutional issues
If a federal court can decide a case without interpreting the Constitution, it generally will do so. This is because courts usually prefer to save constitutional interpretation for cases that cannot be resolved any other way. The practice is supposed to protect the Constitution from being interpreted in an unnecessary fashion. This can be frustrating for parties and other citizens who want the courts to answer constitutional questions.
Political question doctrine
Under the political question doctrine, a court will not review government action that is committed to the discretion, or sound judgment, of another branch. The political question doctrine comes from the separation of powers. The judicial branch usually believes that the separation of powers prevents it from reviewing discretionary action by the legislative and executive branches. An example of discretionary action in the executive branch is the decision to file or drop criminal charges against a suspected criminal. An example of discretionary action in the legislative branch is the decision to expel a senator or representative for misconduct.
Congressional power over the courts
Congress checks the power of the judiciary mainly through its power to propose constitutional amendments and pass new laws. Congress also has the power to confirm the president's appointments to the federal bench, change the number of justices on the Supreme Court, and impeach and convict judges who commit treason, bribery, or other high crimes and misdemeanors.
Proposed constitutional amendments
Congress is the only branch that can officially propose a constitutional amendment. An amendment is a change to the Constitution. As of 2005, the Constitution has been amended twenty-seven times since it was adopted in 1788.
To propose an amendment under Article V of the Constitution, either two-thirds of both chambers of Congress or two-thirds of the state legislatures must vote in favor of the proposal. A proposed amendment becomes part of the Constitution only if ratified, or approved, by either three-fourths of the state legislatures or three-fourths of the state constitutional conventions called to consider the amendment. Congress gets to determine whether ratification is by state legislatures or conventions.
The power to propose constitutional amendments can check the power of the judiciary when America ratifies an amendment that overturns a Supreme Court decision. As of 2005, America has ratified five constitutional amendments to overturn decisions of the U.S. Supreme Court. The Eleventh Amendment, adopted in 1798, overturned a Supreme Court decision that citizens of domestic and foreign states could sue state governments in federal court. The Fourteenth Amendment, adopted in 1868, overturned decisions that African Americans were not citizens and that Congress could not protect their civil rights. The Sixteenth Amendment, adopted in 1913, overturned a decision that Congress could not enact income tax laws. The Nineteenth Amendment, adopted in 1920, overturned a decision that women had no right to vote in elections. Finally, the Twenty-sixth Amendment, adopted in 1971, overturned a decision that Congress could not lower the voting age for state elections to eighteen. Previously, Congress had the power to require states to allow eighteen-year-olds to vote in national elections. A congressional law in the 1960s required states to register 18-year-olds for both federal and state elections. Oregon challenged the law, and the U.S. Supreme Court decided that Congress could not control the voting age for state elections. The Twenty-sixth Amendment reversed that.
Members of Congress frequently propose constitutional amendments, but such proposals rarely come to a vote in one chamber and even more rarely get passed by both chambers. This means the power to propose amendments is not a very useful tool for checking the power of the judiciary.
If the Supreme Court makes an error when it interprets a law, or simply interprets a law in a manner with which Congress disagrees, Congress can pass a new law with language that corrects the Court's interpretation. The ability to do this comes from Congress's basic lawmaking power under Article I, Section 8, of the Constitution. The power to pass a new law to change a judicial interpretation is very useful. Congress uses this power much more than it uses the power to propose a constitutional amendment.
The president of the United States has the power to nominate, or appoint, people to serve as judges on the Supreme Court and lower federal courts. This power comes from Article II, Section 2, of the Constitution. The same provision gives the Senate the power to either confirm or reject the president's nominations. A simple majority of senators must vote for a president's nomination to confirm it.
Confirmation or rejection of a Supreme Court nominee can affect the result the Court reaches in future cases, because the Court decides cases by a simple majority vote of the nine justices who serve on it. As of March 2005, the Senate has rejected 28 of the 148 people presidents have nominated to serve on the Supreme Court since 1789.
The Senate also gets to confirm appointments to the lower federal courts. The process is guided by an informal practice called senatorial courtesy. Under this practice, the president checks with senators from the president's own political party before nominating a federal judge to serve on a federal court in the senators' state. Failure to employ senatorial courtesy reduces the chances of a president's nominee being accepted. In practice, the Supreme Court rejects nominations to the lower federal courts less frequently than it rejects nominations to the Supreme Court.
Number of Supreme Court justices
The Constitution created a Supreme Court but did not specify the number of justices to serve on it. Instead, Congress sets the number by law under its power to make all laws necessary for the government to function.
In the Judiciary Act of 1789, Congress set the number of Supreme Court justices at six. Between then and 1869, Congress raised or lowered the number seven times, finally settling on nine
Supreme Court justices decide cases by a simple majority vote. Congress has occasionally considered changing this practice to require either greater majorities or even unanimous votes for Court action. None of these proposals has come close to passing in Congress.
Judges on the Supreme Court and lower federal courts are appointed for life. Under Article II, Section 4, of the Constitution, the only way to remove a judge from office is by impeachment and conviction for treason, bribery, or other high crimes and misdemeanors.
The Constitution defines treason as levying war against America or giving aid and comfort to its enemies. Bribery is the act of giving money or something else of value to influence government conduct. The Constitution does not define the phrase "high crimes and misdemeanors." This essentially gives
The Constitution gives the House of Representatives the sole power to impeach a federal judge (or any other federal officer). Impeachment is a formal accusation that a judge has committed an impeachable offense. Once impeached, a judge faces trial in the Senate, which has the sole power to convict a judge (or any other federal officer) who has been charged by the House with an impeachable offense. Conviction by the Senate results in removal from office, and can result in being banned from serving in federal office in the future.
The House has impeached only one Supreme Court justice, Samuel Chase (1741811), in 1804. The Senate, however, voted not to convict Chase. As of 2005, the House has impeached only twelve lower court judges, and the Senate convicted just seven of them. The three most recent convictions were of Nevada federal district court judge Harry Claiborne (1917004) in 1986, Florida federal district court judge Alcee L. Hastings (1936 in 1989, and Mississippi federal district court judge Walter L. Nixon Jr. in 1989.
Constitutional limitations on congressional power
The Constitution contains provisions that specifically limit Congress's power to check the judiciary. They include the preservation of writs of habeas corpus, prohibition of bills of attainder, and protection of the right to jury trials.
Writ of habeas corpus
"Habeas corpus" is a Latin term meaning "to have the body." Habeas corpus procedures allow a prisoner to ask a court to investigate whether the prisoner is being held illegally. If so, the court can issue an order, a writ of habeas corpus, that the prisoner be released.
Article I, Section 9, of the Constitution says, "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." This means Congress cannot deprive the federal judiciary of its power to issue writs of habeas corpus, except during rebellions or invasions. As of 2005, the habeas corpus procedure has been suspended officially only four times: during the American Civil War (18615); in South Carolina during Reconstruction (18657) after the Civil War; in the Philippines in 1905 during American occupation of the nation subsequent to the Spanish-American War (1898); and in Hawaii during World War II (19395).
Bills of attainder
Article I, Section 9, of the Constitution also prohibits Congress from passing bills of attainder. A bill of attainder is a law that inflicts punishment on someone without a trial. This provision checks Congress by protecting the right to jury trials in federal courts.
Jury trials and location
Besides the prohibition of bills of attainder, other provisions in the Constitution protect the right
to jury trials in federal courts. Article III, Section 2, says, "The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed." This provision is reinforced by the Sixth Amendment, which says, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed." These provisions prevent Congress from eliminating jury trials in criminal cases.
The Seventh Amendment protects the right to jury trials in civil cases, which are cases between private citizens, businesses, or organizations. It says, "Where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." As of 2005, however, Congress has passed a law that prevents parties with state law claims from suing in federal court unless the amount in controversy exceeds $75,000. Parties with federal law claims generally do not have to satisfy this requirement to sue in federal court.
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