How is the US Supreme Court checked & balanced?

Factual Questions
1

I was explaining to my 9-year old son the rudimentaries of how the US government works, about the three branches and the checks and balances.

When I went into explaining the liks of vetos and veto overrides and how the court can rule on whether anything is Constitutional or not, the wife asked me what checks are on the Supreme Court?

I confidently said that the Constitution can be ammended. She said that was so exceedingly difficult and time-consuming that it essentially left a group of nine justices who are appointed for life a lot more power than the other bodies.

She is right… A veto from the executive branch takes as long as it takes for the President to say “no.” Overriding a veto is a little more time-consuming but generally can be accomplished relatively quickly. The recourse for dealing with a SCOTUS decision that strikes something down is something rarely done and is exceedingly time-consuming and feaught with uncertainty when it is.

Now, don’t get me wrong: I am a big fan that the Constitution is not easily ammended. However I was unable to answer my wife’s question as to the fact that the courts seem to be less able to be checked or balanced than the other two branches.

Am I missing other recourse available to the other two branches?

2

Well, the President gets to appoint justices and there’s the confirmation process. And in the past justices have been added. But yeah, there does seem to be something wrong with the idea of checks and balances where a body actually wrote a job description for itself in Marbury v. Madison.

3

The Congress makes laws, the President executes laws. The President also has limited lawmaking powers through the Executive Order. The Congrees and the president can each decide something should be done, and then do it. Go call up France and make a treaty. Tax and spend. etc.

The Supreme court has no law making power and the major check on it, is that it can never act on its own initiative. Someone has to bring a case before it, it cannot summon a case to its chambers or dispute anything that has not been placed in dispute before it by others.

4

I hate that we teach the term “checks and balances” as if they were a single item. No, some things are checks and some are balances. A balance for the SCOTUS is that the President and Congress just nominate and confirm justices. That puts the other branches in the SCOTUS’s business.

A check is that the SCOTUS is passive. I’m sure it’d like to make edicts and decrees on things, but it can’t unless two external parties dispute the thing. There’s another one that’s overlooked too often, I think…there are multiple justices. So it can disagree with itself on issues.

ETA: I also forgot to mention that Congress can create lower courts, which could presumably undercut the SCOTUS, and can impeach judges.

5

This is not strictly true. In a common law system, courts do make law. They have to. However, the law they make can in most cases be overridden by legislation.

6

Also note that a particular Supreme Court justice can be impeached by the legislative branch, under the right circumstances.

7

To be clear, when I said the Supreme Court has no lawmaking power, I meant no lawmaking power under it’s own initiaitive. The Supreme Court does create case law.

But they can’t look at some act of the President’s or Congress or any State government and say “hey! That’s illegal! quit it!” They sit passively until some citizen or other entity with standing argues that it violates their rights under the Consitution.

8

The lower courts can also be seen as checks as they may make rulings that prevent issues from being raised to the supreme court.

9

Also, while there are some issues on which the Supreme Court has original jurisdiction as defined in the constitution, the issues on which the Supreme Court has appellate jurisdiction is subject to regulation by Congress (Article 3, Section 2).

For example, an immigration law in the '90s stripped the courts of appellate authority over INS’s asylum decisions.

10

But supposed they tried. Suppose they took a look at the health care law and determined that it meant that people must by Broccoli. Clearly this would be unconstitutional, but wouldn’t it be up to the Supreme court to determine whether that was the case?

11

I think this is one of the main reasons why I prefer the UK’s system, whereby Parliament and the courts keep well out of each other’s way. It means the Commons is held to account for any negative effects from the laws that transpire.

12

Which is an interesting check, because Article III of the Constitution specifically authorizes a supreme court and lesser “Courts as the Congress may from time to time ordain and establish.”

So Congress could, in theory, take revenge by dismantling the judicial system of the U.S. and leaving the Supreme Court to handle everything.

In fact, the only judge mentioned by the Constitution is the Chief Justice, so Congress could simply determine there will only be one judge for the entire federal government.

13

Buck Godot, the Supreme Court’s ruling on whether that law is Constitutional would not be relevant until/unless someone filed a lawsuit questioning said legal validity. They can’t arbitrarily file a ruling to preempt said lawsuits.

14

The US consitution gives them authority over “cases” which is to say “disputes.”

What do you mean by “what if they tried” They can’t try. They only have power to rule on a dispute. If they issued an opinion that was not about a case, at best they would simply be ignored. At worst, removed by Congress for bad behavior, which acting in excess of one’s Constitutional power surely is.

15

The Supreme Court can be overruled by Congress in many cases - i.e. Congress can pass a new law that achieves the same result as the overturned legislation, but through a different mechanism that passes constitutional muster.

For instance, it may very well strike down the individual mandate, but based on my understanding of the oral arguments, it would be likely perfectly constitutional for Congress to replace the “mandate” penalizing people for not having health insurance, with a “tax credit” rewarding them for carrying health insurance.

If the Supreme Court is clearly acting in bad faith, then Congress can impeach one or more of the justices - or pass a law increasing the number of justices on the court, like FDR tried to in the 1930’s.

16

Until a dispute is brought before them and it has gone through the proper appellate process, they are just 9 guys and gals in robes commenting on the news of the day. Their opinion or comments has no more legal weight than yours or mine. That’s a nice check, I suppose. Along with the impeachment thing.

17

There are many more situations in which Congress can overrule the Supreme Court. First of all, common law can be trumped by statutory law. Thus, if the Supreme Court decides a purely common law question, Congress may just change it by statute. Second, much of what the Supreme Court does is interpret statutes. If the court reaches an interpretation that Congress doesn’t like, it simply rewords teh statute to reverse the court.

18

That’s right. When it comes to statutory interpretation, right when Alito is screaming By the Power of Greyskull I HAVE THE POWER Congress can turn around and say “Oh up yours, windbag.”

See
Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007)
vs.
Lily Ledbetter Fair Pay Act of 2009

as an example of a situation where Congress overturned the Supreme Court’s interpretation of a law, by writing a new law.

19

It’s also important to note that the Supreme Court isn’t always ruling on constitutional issues. It’s very common for the Supreme Court to interpret federal statutes and regulations when the applicability of a law in a particular case is in dispute. Basically, if a law is somewhat ambiguous, the Supreme Court sometimes has to say “this is what Congress meant when they said X.”

If that ruling leads to a result that Congress doesn’t like, they can simply change the law in question, to make their intent more clear.

Here’s a fairly recent example: the Civil Rights Act of 1964 requires employers to pay male and female employees the same salary if they’re doing the same work.

A female employee sued her employer for an alleged violation of that law. The law in question had a 180 day statute of limitations. The employer argued that the employee’s lawsuit was barred because the statute of limitations had run. Their argument was that the clock started ticking when the first allegedly discriminatory paycheck was issued, and that was the employee’s only opportunity to bring an action under the law.

The employee argued that every discriminatory paycheck she received was, effectively, a new violation of the law, so the statute of limitations restarted every time she got paid.

The Civil Rights Act didn’t make it clear how the statute of limitations was supposed to be calculated.

The case was eventually appealed to the Supreme Court, which, in 2007, ruled in favor of the employer, holding that the statute of limitations runs out 180 days after the employee’s first paycheck, and never restarts.

Many people thought that this was a bad result, since it made it more difficult for employees to seek redress for violations of civil rights laws. In 2009, and in a direct response to that case, Congress amended the Civil Rights Act to make it clear that the 180 day statute of limitations restarts every time a discriminatory paycheck is issued.

So, basically, in a case where the Supreme Court rules “When Congress passed the law in question, they meant X”

And Congress can respond by saying “Actually, we meant Y,” and change the law to make that clear.

ETA: And I’ve been beaten. That’s what happens when you get up for coffee in the middle of typing a post, I guess.

20

Remember, also, that the Supreme Court has zero enforcement power. Remember the Andrew Jackson quote “John Marshall has made his decision now let him enforce it” If indeed he did really say that.