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How does the judicial branch check the other branches?

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The judicial branch checks the other branches by holding them accountable for any unconstitutional acts. As the guardians of the Constitution, the judiciary has the power to strike down actions and laws that it deems to be unconstitutional. This power is known as judicial review.

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In American politics, the US Supreme Court's most significant power, and the most important check that it has over the other two branches, is the power of judicial review. This has been in effect since the ruling in Marbury v. Madison (in 1803) and grants the Supreme Court the power...

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to judge the constitutionality of actions taken by the other two branches. Additionally, it should be noted that the power of judicial review is not limited strictly to the federal government but also applies to the state governments as well.

This power has played a critical role in shaping the evolution of the United States ever since the precedent was first established. Within recent memory, you can point towards the dismantling of segregation, the pro-choice movement's victory regarding abortion rights in Roe v. Wade, and the legalization of gay marriage, all of which were decided through the Supreme Court's application of judicial review.

Ideally, the notion of checks and balances was intended to prevent any one branch of government from becoming too powerful vis-à-vis the other two branches, to the point of its becoming a potential threat to the people's liberty and collective well being. The power of judicial review represents a powerful example of what this principle looks like when put into practice.

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Ever since the Supreme Court granted to itself the power of judicial review in the landmark case of Marbury v. Madison (1803), the judicial branch of the American government has had a very important role to play in acting as a check on the other branches. In its role as the arbiter of what is or is not constitutional, the Supreme Court is supposed to ensure that the other branches do not act in ways that violate the Constitution.

To that end, the Court has the power to strike down acts and laws that it deems to be unconstitutional. This gives it a very important role in the US system of government, allowing it to give life to the theory of checks and balances lying at the heart of American constitutionalism.

Over two centuries after Marbury, judicial review remains a highly contentious power. Some have argued that it is flagrantly undemocratic, as it represents the will of an unelected body of judges prevailing over the will of the majority. For instance, even if a particular piece of legislation enjoys widespread support both in Congress and among the American people at large, it can still be struck down by the Supreme Court if it is deemed to be unconstitutional.

Despite such controversy, however, it seems that the crucial role that the judiciary plays in enforcing the system of checks and balances means that the power of judicial review is here to stay for the foreseeable future.

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The Judicial branch has the ability to check the Legislative branch and the Executive branch by interpreting laws and actions and determining whether or not they violate or conform to the Constitution. This mechanism is known as judicial review. If Congress passes a law or the President issues an executive order that a party feels is a violation of constitutional rights, they may sue. If the courts (an essential part of the Judicial branch) take up the case, they can then decide whether or not the law or order is constitutional. If the courts decide that it is in violation of the Constitution, then the law or order is struck down.

This is a powerful check on the other branches, especially when the decision is made by the Supreme Court. The Supreme Court is the highest court in the country, and its decisions are final. A Supreme Court decision can only be overridden by another Supreme Court decision or by the passage of a constitutional amendment. Both these circumstances are very rare and difficult to execute.

The ability of the courts to overturn the acts of the other two branches was first put into practice in 1803 with the case of Marbury v. Madison. This case established in practice the Judicial branch's power to overturn an act by the other branches which it finds unconstitutional.

The US Supreme Court also has the power to check the power of the states. Since state laws must conform to the laws of the US Constitution, the federal courts can override a state or local law if it is found to be in violation of federal law. A recent example of this is the case of Obergefell v. Hodges, in which the Supreme Court ruled that states cannot limit the marriage rights of same-sex couples.

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The judicial branch checks the other branches of government by the fact that it is able to say that things they have done are unconstitutional.  When it does this, it prevents them from doing things that they are not allowed to do by the Constitution.

The Constitution sets various limits on what the government can do.  For example, the government may not make laws that infringe on freedom of religion.  However, it is possible for the legislative branch to make a law, or for the executive branch to write a rule, that does infringe on people’s freedom of religion.  In this case, the judicial branch is able to check the other branches by ruling that their action is unconstitutional and therefore has no force.

The judicial branch does not do this very often, but the fact that it can do so acts as a check on the elected branches of government, making them have to be careful of what they do.

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How can the judicial branch check the powers of the other two branches?

In theory the judiciary can indeed check the powers of the other branches of government. In that sense, the power of the judiciary (which it arrogated to itself in Marbury v Madisonto strike down unconstitutional laws is indeed significant. However, in practice, there are a number of problems with what may be called legal, as opposed to political constitutionalism, as exemplified by the Federal court system.

The first problem is that of enforcement. The courts can strike down unconstitutional laws, but can in reality do little to enforce their own rulings. This can allow court decisions to be ignored, or more likely, creatively re-interpreted to challenge the relevant court's decision in a surreptitious manner. The court must rely on the Federal authorities for enforcement, the very same authorities who may very well be in breach of the Constitution themselves.

Federal courts are also not in permanent session. They cannot then maintain a persistent check upon the alleged abuses of the other branches. Indeed, to some extent the courts are playing catch-up, inevitably responding to unconstitutional acts in a reactive, rather than a proactive way. And even when the courts do eventually rule, their judgements relate to specific cases and cannot provide the kind of general oversight required of administrative decisions.

Those who advocate a more strictly constructionist method of constitutional interpretation use this example to explain why the judiciary has been somewhat remiss in recent decades in reining in the dramatic expansion of the Federal government and its powers, going way beyond those expressly authorized by the Constitution. 

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How can the judicial branch check the powers of the other two branches?

Another very important check or limit the Federal courts have over the Congress and the President is that they are appointed for life.  Once they are nominated and approved by the President and the Senate, respectively, then they cannot be fired unless they commit a crime and are impeached.

In this way, they are an independent judiciary, and are immune to any pressure the Congress or the President might want to place on them to rule on cases in a certain, more favorable, way to them.  This is critical because it allows them to stay true to the Constitution without fear of reprisal from either the public or the other two branches.  Their jobs are secure regardless of their rulings.

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How can the judicial branch check the powers of the other two branches?

There is one main way that the judicial branch can check the powers of the other two branches in the American governmental system.  That is through the power of judicial review.  Judicial review is the power to declare acts of the other two branches to be unconstitutional.

This is a very serious check.  It is possible for the judicial branch to invalidate a law that has been passed by Congress and signed by the president.  If the judiciary rules that this law (or an action of the president) violates the Constitution, the law is no longer valid.  This gives the courts the power to, all on its own, throw out something the other two branches have done.

We may see this happen with the health care reform law passed this year.  One judge, at least, has ruled that it is unconstitutional and that Congress and the president may not require people to have health insurance.  If this happens, the judicial branch will be telling the other two branches that something they worked hard on and passed is illegal.

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