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The Judicial Branch

9e. The Power of the Federal Courts

Not everyone agrees on how much power the judicial branch should have. After all, federal judges and justices are appointed, not elected. As most Americans believe in democracy, shouldn't elected officials run the country?

On the other hand, perhaps American government would be fairer if judges had even more power. Because they do not have to worry about reelection, they are relieved of the outside pressure of public opinion.

After all, the majority is not always right. It is no accident that the Founders provided for elected officials in the legislature and appointed officials in the judiciary. They believed that freedom, equality, and justice are best achieved by a balance between the two branches of government.

Checks on Judicial Power

Trail of Tears
Although the Supreme Court ruled in favor of the Cherokee, its decision was not enforced. Nearly 4,000 Cherokee died on the Trail of Tears as a result of the Indian removals.

The president and Congress have some control of the judiciary with their power to appoint and confirm appointments of judges and justices. Congress also may impeach judges (only seven have actually been removed from office), alter the organization of the federal court system, and amend the Constitution.

Congress can also get around a court ruling by passing a slightly different law than one previously declared unconstitutional.

Courts also have limited power to implement the decisions that they make. For example, if the president or another member of the executive branch chooses to ignore a ruling, there is very little that the federal courts can do about it.

For example, the Supreme Court ruled against the removal of the Cherokee from their native lands in 1831. President Andrew Jackson disagreed. He proceeded with the removal of the Cherokee, and the Supreme Court was powerless to enforce its decision.

The Power of the Courts

Integration of Central High School, Little Rock, Arkansas, 1957
Will Counts/AP
The 1954 Supreme Court decision in Brown v. Board of Education of Topeka regarding integration of schools was not enforced until three years later, when Central High School in Little Rock, Arkansas, was integrated. Elizabeth Eckford, one of the first African American students to attend Central, was heckled on her way to school each morning.

The federal courts' most important power is that of judicial review, the authority to interpret the Constitution. When federal judges rule that laws or government actions violate the spirit of the Constitution, they profoundly shape public policy. For example, federal judges have declared over 100 federal laws unconstitutional.

Another measure of the Supreme Court's power is its ability to overrule itself. In 1954, the Supreme Court ruled in Brown v. Board of Education of Topeka that schools segregated by race were unconstitutional. This reversed the 1896 Plessy v. Ferguson decision that upheld the doctrine of "separate but equal."

For the most part, though, federal courts do have a great deal of respect for previous decisions. A very strong precedent called stare decisis ("let the decision stand") directs judges to be cautious about overturning decisions made by past courts.


An act of the legislature repugnant to the Constitution is void.... It is emphatically the province of the judicial department to say what the law is.John Marshall, Marbury v. Madison (1803)
Words which, ordinarily and in many places, would be within the freedom of speech protected by the First Amendment, may become subject to prohibition when of such a nature and used in such circumstances as to create a clear and present danger that they will bring about the substantive evils which Congress has a right to prevent. The character of every act depends upon the circumstances in which it is done.Oliver Wendell Holmes, Schenck v. the United States (1919)
The judgments below, except that, in the Delaware case, are accordingly reversed, and the cases are remanded to the District Courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases.Earl Warren, Brown v. Board of Education of Topeka (1955)
I shall not today attempt further to define the kinds of material [pornography] ...[B]ut I know it when I see it.Potter Stewart, Jacobellis v. Ohio (1964)
Charles Evans Hughes
Charles Evans Hughes was first appointed to the Supreme Court in 1910, but left the Court to run for president in 1916. He was reappointed to the Supreme Court as Chief Justice in 1930.

Judicial Activism versus Judicial Restraint

Judicial Activism versus Judicial Restraint

Should judges apply the Constitution as it was written, or should they interpret it in the context of modern-day problems?

As it was written

Adapt to modern problems

The lack of agreement regarding the policy making power of courts is reflected in the debate over judicial activism versus judicial restraint. Judicial activists believe that the federal courts must correct injustices that are perpetuated or ignored by the other branches.

For example, minority rights have often been ignored partly because majorities impose their will on legislators. Prayers in public schools support the beliefs of the majority but ignore the rights of the minority. The Constitution is often loosely interpreted to meet the issues of the present. In the words of former Justice Charles Evans Hughes, "We are under a Constitution, but the Constitution is what the judges say it is."

Supporters of judicial restraint point out that appointed judges are immune to public opinion, and if they abandon their role as careful and cautious interpreters of the Constitution, they become unelected legislators. According to Justice Antonin Scalia, "The Constitution is not an empty bottle....It is like a statute, and the meaning doesn't change."

Despite the debate over what constitutes the appropriate amount of judicial power, the United States federal courts remain the most powerful judicial system in world history. Their power is enhanced by life terms for judges and justices, and they play a major role in promoting the core American values of freedom, equality, and justice.

QUIZ TIME: The Judicial Branch

On the Web
Exploring Constitutional Conflicts: Right to an Abortion?
Could Roe v. Wade (1973), one of the most controversial decisions in judicial history, be overturned — or is it protected by stare decisis? Planned Parenthood v. Casey (1992) could have been the case that took away a woman's right to choose. The constitutional basis for both decisions is discussed here at the University of Missouri at Kansas City law site.
What Exactly Is Judicial Activism?
This scathing criticism of judicial activism doesn't pull any punches. The conservative article concentrates on the decisions of the Florida Supreme Court after the 2000 presidential election, then moves on to subjects such as Roe v. Wade and a recent Supreme Court decision regarding the Americans with Disabilities Act. Read this and the related articles for an interesting, if somewhat biased, take on judicial activism today.
Trade of Restraint
This Slate article takes issue with both Democrats and Republicans and their attitudes toward judicial activism. Tracing the 2000 election battle in the courts, the author believes that both parties call for judicial activism or judicial restraint depending on what suits their purposes at a given moment. Although the step-by-step walkthrough of the legal proceedings is a little complicated, the review of the political posturing that goes on with regard to the legal system is an interesting read.
A Case for Principled Judicial Activism
This paper from the Heritage Foundation defends judicial activism as a principle and encourages its use by conservative judges. Wade through this thick piece of scholarship as the author takes arguments in favor of restraint and picks them apart one by one. Although the reading here is a little heavy, this is one of the few works on the Net that promotes judicial activism.
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