2.11 Checks on the Judicial Branch

Two key characteristics of the Supreme Court—its practice of judicial review, and its Justices’ life tenure—can lead to debate over the legitimacy of the Court’s power, as well as attempts by the other branches to challenge and limit that power.

The debate over judicial activism and judicial restraint is a key issue in discussions around the power of the Supreme Court.

Some Justices favor a policy of judicial restraint 🤓, viewing their role as strict interpreters of precedent and the Constitution, and deferring decisions that impact policy making to the other elected branches of government.

But, other Justices believe in judicial activism 😎: that the Court should be bolder in upholding rights that may not be explicitly stated in the Constitution, and in striking down legislation that infringes those rights.

With a controversial ruling by the Court, the other branches may challenge its legitimacy and power, questioning either the Court’s right to exercise judicial review or the appropriateness of its Justices’ life tenures 👵🧓.

Both the legislative and executive branches can also employ checks that can limit the Court’s power, for example, via the nomination and confirmation of Justices.

In the event of a vacancy, the president is likely to nominate a Justice with whom they are at least somewhat ideologically aligned, which may in turn alter the ideological balance of the Court and decrease the likelihood of future majority opinions that conflict with the views of the president’s party.

Because federal judges serve life terms, these appointments can have long-lasting impacts after a president has left office.

Congress can pass legislation to attempt to limit the Court’s power by:

The president (and the states) may also choose to evade or ignore a Court decision; while not very common, this approach has been used in the past following some unpopular rulings.