Based on the article below, is the judiciary really getting more powerful than the other branches of government or are the checks and balance still effective?...

2 Answers

kipling2448's profile pic

kipling2448 | (Level 3) Educator Emeritus

Posted on

The article does not make a persuasive case that the Judicial Branch of government has grown more powerful relative to the other two branches.  On the contrary, one can argue that the Executive Branch has grown more powerful by virtue of the use by Chief Executives (the President) of Executive Orders and Findings that can have the legal standing of laws passed by Congress but be the sole product of the Executive Branch.  The Supreme Court can interpret the Constitution in a way that undermines a law passed by the Legislative Branch and signed by the Executive, but its powers are largely limited to such interpretations.  The Judiciary is an essential check on the power of other branches of government, but lacks the powers of the other branches, especially the Executive Branch, to move policy forward or take action like the deployment of military forces abroad.

pohnpei397's profile pic

pohnpei397 | College Teacher | (Level 3) Distinguished Educator

Posted on

The article in the link provides us with only one piece of evidence.  It tells us that Congress is not overruling the Supreme Court as much as it once did.  On that basis, it claims that the Supreme Court is holding more power than the other branches because Congress is ideologically divided.  I would argue that this does not prove that the Supreme Court is getting more power than the other branches.

The first reason for this is that the one piece of evidence produced does not prove anything, at least not as it is portrayed in this article.  For example, we do not know how many statutes the Court has ruled on in the more recent period compared with the 1975 to 1990 time frame.  If the recent Courts have not ruled on as many issues of statutory law, the Congress cannot overrule them.  As an example of this, the article cites the Citizens United case.  Congress could not have overruled that because the Supreme Court made that ruling based on the First Amendment and the Congress can’t overrule the First Amendment.

The second reason for this is that the judiciary will never be stronger than the other branches.  It cannot rule on just any area of law.  It has to wait until cases are brought to it.  It cannot possibly rule, for example, to break the gridlock on the debt reduction or entitlement reform.  So long as it cannot do these things, it cannot be seen as more powerful than the other branches.