# How is the US Supreme Court checked & balanced? **URL:** \ **Category:** Factual Questions\ **Created:** [April 5, 2012, 7:09pm UTC](https://boards.straightdope.com/t/how-is-the-us-supreme-court-checked-balanced/617935 "2012-04-05T19:09:10Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Musicat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/musicat/32/20189_2.png) [@Musicat](https://boards.straightdope.com/u/Musicat)\ **Post date:** [April 5, 2012, 11:06pm UTC](https://boards.straightdope.com/t/how-is-the-us-supreme-court-checked-balanced/617935/21 "2012-04-05T23:06:32Z")
I think the Framers’ idea was to emphasize stability and continuity over time, so they made the Supremes lifetime appointees, difficult to remove, and infrequently replaced, in contrast to both House, Senate and Executive. That’s a balance. Still, if a justice was egregious in misconduct or went way overboard, he could be impeached and removed. That’s a check. ---
**Author:** ![Jim\_s\_Son](https://avatars.discourse-cdn.com/v4/letter/j/e19adc/32.png) [@Jim\_s\_Son](https://boards.straightdope.com/u/Jim_s_Son)\ **Post date:** [April 5, 2012, 11:09pm UTC](https://boards.straightdope.com/t/how-is-the-us-supreme-court-checked-balanced/617935/22 "2012-04-05T23:09:58Z")
There is also the fact of what the public wants can sway some members. There was a justice in the 1930s named Owen Roberts who mainly sided with the “Four horsemen”( as they were known ) in striking down a lot of the New Deal legislation. But once the 1936 election happened with an overwhelming FDR landslide, Roberts sided a lot more with the pro New Deal justices. FDR did try to “pack” the Supreme Court by adding 7 new justices under the fib that with 7 of them over 70, they needed extra help. But that didn’t work and he lost much political capital. Nothing in the constitution says how many justices there has to be, it’s been 9 for about 140 years now. I don’t think the Founding Fathers foresaw how important the job would become. Some people who were offered seats like John Quincy Adams turned it down. It took John marshall, a late appointment by John Adams as Chief justice to put his mark on the court. Could it become high handed and abusive? Sure, it could. But in 1974 when the Court ordered Nixon to turn over the Watergate tapes he had to, knowing it meant the end of his Presidency. contrast that to a few years later in India when a court decision went against Indire gandhi and she declared martial law. ---
**Author:** ![John\_Stamos\_Left\_Ear](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_stamos_left_ear/32/3198_2.png) [@John\_Stamos\_Left\_Ear](https://boards.straightdope.com/u/John_Stamos_Left_Ear)\ **Post date:** [April 6, 2012, 12:42am UTC](https://boards.straightdope.com/t/how-is-the-us-supreme-court-checked-balanced/617935/23 "2012-04-06T00:42:55Z")
Many people are framing this question with the looming healthcare decision. And yes, in a case such as that - ruling on one specific piece of legislature - there are numerous ways to bypass a SCOTUS decision, usually through more legislature. However, my wife specifically asked about the recent ruling in [_Florence v. County of Burlington_](http://en.wikipedia.org/wiki/Florence_v._County_of_Burlington). The Court held that officials may strip-search individuals who have been arrested for any crime before admitting the individuals to jail, even if there is no reason to suspect that the individual is carrying contraband. Assuming I am a politician who feels that this ruling is tragically misguided and can open the door to people being repeatedly strip-searched for the most trivial of things, wow would this decision be overcome? Wouldn’t any laws written that prohibit searches unless specific thresholds (such as severity of the charge, reasonable suspicion of contraband, and limiting how often one can be strip-searched) be unconstitutional and therefore unable to be put into law? It seems exceedingly difficult to check that decision. One other thing that I have trouble explaining is how the SCOTUS will sometimes reverse itself. This has happened most famously with regard to slavery and other civil rights issues, but many are always threatening to take steps to have the new court reverse contentious decisions even today (such as Roe V. Wade and Citizens United). How does a court decide to take on something that is pretty much well established already? Must one wait over half a century, like it took for \*Brown v. Board Of Education \*to effectively overrule the _Plessy v. Ferguson_ decision that said separate but equal was just swell? And at what point does the SCOTUS decide to even hear a case that has technically already been settled? ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [April 6, 2012, 12:50am UTC](https://boards.straightdope.com/t/how-is-the-us-supreme-court-checked-balanced/617935/24 "2012-04-06T00:50:19Z")
You’re confusing “may strip search” with “must strip search”. The Court didn’t say that prisoners must be strip searched; they upheld a policy in a particular case where every new inmate was strip searched, saying the policy did not breach the 4th amendment. If the legislature in a particular state doesn’t like that, it could pass a statute setting restrictions on the use of strip searches. ---
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [April 6, 2012, 2:56am UTC](https://boards.straightdope.com/t/how-is-the-us-supreme-court-checked-balanced/617935/25 "2012-04-06T02:56:04Z")
While it apparently doesn’t apply to the OP’s case, there is one check that I’m surprised hasn’t been mentioned: congress, along with the state legislatures and optionally the president, can amend the constitution. That’s what happened with the income tax, I believe. ---
**Author:** ![LilRoses](https://avatars.discourse-cdn.com/v4/letter/l/87869e/32.png) [@LilRoses](https://boards.straightdope.com/u/LilRoses)\ **Post date:** [April 6, 2012, 6:46am UTC](https://boards.straightdope.com/t/how-is-the-us-supreme-court-checked-balanced/617935/26 "2012-04-06T06:46:18Z")
> [@Hello\_Again](#): > > 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. I thought John Roberts actively sought out the case that made the disastrous Citizens United our new manner of political contributions. I’m likely misinformed. Probably not though since it smells of something he would do. ---
**Author:** ![Batfish](https://avatars.discourse-cdn.com/v4/letter/b/a3d4f5/32.png) [@Batfish](https://boards.straightdope.com/u/Batfish)\ **Post date:** [April 6, 2012, 11:04am UTC](https://boards.straightdope.com/t/how-is-the-us-supreme-court-checked-balanced/617935/27 "2012-04-06T11:04:16Z")
> [@hogarth](#): > > Also note that a particular Supreme Court justice can be impeached by the legislative branch, under the right circumstances. I think you mean under any circumstances that it can produce the votes. ---
**Author:** ![isaiahrobinson](https://avatars.discourse-cdn.com/v4/letter/i/85e7bf/32.png) [@isaiahrobinson](https://boards.straightdope.com/u/isaiahrobinson)\ **Post date:** [April 6, 2012, 11:54am UTC](https://boards.straightdope.com/t/how-is-the-us-supreme-court-checked-balanced/617935/28 "2012-04-06T11:54:26Z")
The nuclear option is for congress and the president to pass a bill expanding the number of justices who sit in the Supreme Court, then appoint their own choices of justice to the new positions. It was called [court packing](http://en.wikipedia.org/wiki/Judicial_Procedures_Reform_Bill_of_1937) when FDR tried it in the 1930s and his bill didn’t pass, mainly because of adverse public opinion. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [April 6, 2012, 12:34pm UTC](https://boards.straightdope.com/t/how-is-the-us-supreme-court-checked-balanced/617935/29 "2012-04-06T12:34:36Z")
> [@John\_Stamos\_Left\_Ear](#): > > One other thing that I have trouble explaining is how the SCOTUS will sometimes reverse itself. This has happened most famously with regard to slavery and other civil rights issues, but many are always threatening to take steps to have the new court reverse contentious decisions even today (such as Roe V. Wade and Citizens United). The Court didn’t reverse itself on slavery; the Congress and the states changed the Constitution in relation to slavery, via the 13th, 14th and 15th Amendments, which collectively overturned the constitutional position on slavery as set out by the Supreme Court in Dred Scott. The Court has followed those constitutional amendments. It’s a good example of the use of constitutional amendments by the elected branches of government as a check on the courts. ---
**Author:** ![Gary\_T](https://avatars.discourse-cdn.com/v4/letter/g/3ec8ea/32.png) [@Gary\_T](https://boards.straightdope.com/u/Gary_T)\ **Post date:** [April 6, 2012, 1:35pm UTC](https://boards.straightdope.com/t/how-is-the-us-supreme-court-checked-balanced/617935/30 "2012-04-06T13:35:35Z")
> [@BigT](#): > > While it apparently doesn’t apply to the OP’s case, there is one check that I’m surprised hasn’t been mentioned: congress, along with the state legislatures and optionally the president, can amend the constitution. Third paragraph of the OP. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 6, 2012, 2:22pm UTC](https://boards.straightdope.com/t/how-is-the-us-supreme-court-checked-balanced/617935/31 "2012-04-06T14:22:29Z")
> [@obfusciatrist](#): > > 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. This is another nuclear option of Congress. Pass a law tomorrow banning sodomy or outlawing free speech and in the same bill stripping federal courts of any appellate jurisdiction or district courts of original jurisdiction to review the constitutionality of the law. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [April 6, 2012, 2:28pm UTC](https://boards.straightdope.com/t/how-is-the-us-supreme-court-checked-balanced/617935/32 "2012-04-06T14:28:27Z")
> [@isaiahrobinson](#): > > The nuclear option is for congress and the president to pass a bill expanding the number of justices who sit in the Supreme Court, then appoint their own choices of justice to the new positions. It was called [court packing](http://en.wikipedia.org/wiki/Judicial_Procedures_Reform_Bill_of_1937) when FDR tried it in the 1930s and his bill didn’t pass, mainly because of adverse public opinion. This is highly unlikely to happen for at least two reasons, the first being the memories of the political backlash against Roosevelt, and the second being the knowledge that if one party can get the votes to pack the court this time around that it’s almost guaranteed that when the other party eventually gets the votes, they’ll be packing in return. > [@jtgain](#): > > This is another nuclear option of Congress. Pass a law tomorrow banning sodomy or outlawing free speech and in the same bill stripping federal courts of any appellate jurisdiction or district courts of original jurisdiction to review the constitutionality of the law. But the Congress cannot strip the Supreme Court of its jurisdiction over constitutional questions, not without a major change to the constitution that would essentially remake our governmental system. The plaintiffs in that case could simply petition the Supreme Court directly and they could decide to grant a writ of certiorari regardless of whether any district court or appeals court has ruled on the question. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 6, 2012, 2:37pm UTC](https://boards.straightdope.com/t/how-is-the-us-supreme-court-checked-balanced/617935/33 "2012-04-06T14:37:00Z")
> [@Acsenray](#): > > But the Congress cannot strip the Supreme Court of its jurisdiction over constitutional questions, not without a major change to the constitution that would essentially remake our governmental system. The plaintiffs in that case could simply petition the Supreme Court directly and they could decide to grant a writ of certiorari regardless of whether any district court or appeals court has ruled on the question. [QUOTE=COTUS] In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the Supreme Court shall have original Jurisdiction. In all other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. [/QUOTE] Let’s say Congress passes a law banning free speech. The Supreme Court cannot have original jurisdiction because it doesn’t affect an ambassador, other public ministers and consults, nor is a state a party. They cannot hear the case. They can hear an appeal from a lower court (if Congress even gives the lower court the power to hear it) but can only do so under “such Regulations as the Congress shall make.” Such a regulation would include, “You can’t hear any free speech cases.” ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [April 6, 2012, 2:47pm UTC](https://boards.straightdope.com/t/how-is-the-us-supreme-court-checked-balanced/617935/34 "2012-04-06T14:47:11Z")
The point that **Acsenray** (I think) is making is that if Congress passes a law stripping all jurisdiction from the SC, it will take the Supreme Court about 5 minutes after coming into force of that law to decide that the Constitution gives it an inherent power of Review and to take said case anyway despite what Congress says While this may be a hypothetical in the US, it happened quite often in Colonial courts in the commonwealth. Legislatures would attempt to say that “no recourse to Courts shall be had” and the Courts would simply find such a power and hear the cases anyway. In addition, ouster clause are universally given very narrow readings so even without discovering such a power, they could hear the case through such interpretation. ---
**Author:** ![Billdo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/billdo/32/315_2.png) [@Billdo](https://boards.straightdope.com/u/Billdo)\ **Post date:** [April 6, 2012, 2:48pm UTC](https://boards.straightdope.com/t/how-is-the-us-supreme-court-checked-balanced/617935/35 "2012-04-06T14:48:57Z")
> [@John\_Stamos\_Left\_Ear](#): > > However, my wife specifically asked about the recent ruling in [_Florence v. County of Burlington_](http://en.wikipedia.org/wiki/Florence_v._County_of_Burlington). The Court held that officials may strip-search individuals who have been arrested for any crime before admitting the individuals to jail, even if there is no reason to suspect that the individual is carrying contraband. > > Assuming I am a politician who feels that this ruling is tragically misguided and can open the door to people being repeatedly strip-searched for the most trivial of things, wow would this decision be overcome? Wouldn’t any laws written that prohibit searches unless specific thresholds (such as severity of the charge, reasonable suspicion of contraband, and limiting how often one can be strip-searched) be unconstitutional and therefore unable to be put into law? If you are, for instance, a county legislator you can pass a county law that says that in your county’s jails, inmates brought in for specified classes of minor crimes will not be strip searched absent reasonable suspicion. That would do it for your county. If you want to do it state-wide, get yourself elected to the state legislature. If you want to do it nationally, get yourself elected to Congress. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 6, 2012, 2:56pm UTC](https://boards.straightdope.com/t/how-is-the-us-supreme-court-checked-balanced/617935/36 "2012-04-06T14:56:39Z")
> [@AK84](#): > > The point that **Acsenray** (I think) is making is that if Congress passes a law stripping all jurisdiction from the SC, it will take the Supreme Court about 5 minutes after coming into force of that law to decide that the Constitution gives it an inherent power of Review and to take said case anyway despite what Congress says > > While this may be a hypothetical in the US, it happened quite often in Colonial courts in the commonwealth. Legislatures would attempt to say that “no recourse to Courts shall be had” and the Courts would simply find such a power and hear the cases anyway. > > In addition, ouster clause are universally given very narrow readings so even without discovering such a power, they could hear the case through such interpretation. Then we would be in a Constitutional pickle. (We would already be there anyways if Congress was banning free speech.) In that case, it would be up to the President to break the tie. Will he continue arresting people for freely speaking and ignoring court habeas writs, citing their lack of jurisdiction on the matter? Will he arrest Justices who “violate” the law? (Like Lincoln almost did to Taney) Or will he abide by the order, let the Court win, and then face the wrath of Congress? ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [April 6, 2012, 4:31pm UTC](https://boards.straightdope.com/t/how-is-the-us-supreme-court-checked-balanced/617935/37 "2012-04-06T16:31:06Z")
> [@jtgain](#): > > Then we would be in a Constitutional pickle. (We would already be there anyways if Congress was banning free speech.) In that case, it would be up to the President to break the tie. Will he continue arresting people for freely speaking and ignoring court habeas writs, citing their lack of jurisdiction on the matter? Will he arrest Justices who “violate” the law? (Like Lincoln almost did to Taney) Or will he abide by the order, let the Court win, and then face the wrath of Congress? I think it was a British Law Lord who said that the law was what the House of Lords said it was, not what Parliament had enacted. So if a statute said black, and the Lords ruled that by “black” the Parliament meant “white”, the law would be white not black and everyone must follow. I don’t think there is any issue. THe ultimate arbiter of Law in the US is the Supreme Court and all are bound by it and so would such a President. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [April 6, 2012, 5:09pm UTC](https://boards.straightdope.com/t/how-is-the-us-supreme-court-checked-balanced/617935/38 "2012-04-06T17:09:10Z")
> [@John\_Stamos\_Left\_Ear](#): > > However, my wife specifically asked about the recent ruling in [_Florence v. County of Burlington_](http://en.wikipedia.org/wiki/Florence_v._County_of_Burlington). The Court held that officials may strip-search individuals who have been arrested for any crime before admitting the individuals to jail, even if there is no reason to suspect that the individual is carrying contraband. > > Assuming I am a politician who feels that this ruling is tragically misguided and can open the door to people being repeatedly strip-searched for the most trivial of things, wow would this decision be overcome? Wouldn’t any laws written that prohibit searches unless specific thresholds (such as severity of the charge, reasonable suspicion of contraband, and limiting how often one can be strip-searched) be unconstitutional and therefore unable to be put into law? After _Kelo v New London_, many states changed their state constitution/laws on eminent domain to make such an interpretation illegal as far as the state/counties/cities were concerned. To answer the OP, SCOTUS only has appellate juridiction because Congress has allowed it. Congress could prevent SCOTUS from hearing appellate cases and limit it to only its original jurisdiction. ---
**Author:** ![suranyi](https://avatars.discourse-cdn.com/v4/letter/s/e36b37/32.png) [@suranyi](https://boards.straightdope.com/u/suranyi)\ **Post date:** [April 6, 2012, 5:13pm UTC](https://boards.straightdope.com/t/how-is-the-us-supreme-court-checked-balanced/617935/39 "2012-04-06T17:13:12Z")
> [@Musicat](#): > > I think the Framers’ idea was to emphasize stability and continuity over time, so they made the Supremes lifetime appointees, difficult to remove, and infrequently replaced, in contrast to both House, Senate and Executive. > > That’s a balance. > > Still, if a justice was egregious in misconduct or went way overboard, he could be impeached and removed. > > That’s a check. And eventuallly, any justice will retire or die, and his/her replacement will be appointed by the president with approval by the senate. That’s another check. ---
**Author:** ![etv78](https://avatars.discourse-cdn.com/v4/letter/e/d78d45/32.png) [@etv78](https://boards.straightdope.com/u/etv78)\ **Post date:** [April 6, 2012, 5:17pm UTC](https://boards.straightdope.com/t/how-is-the-us-supreme-court-checked-balanced/617935/40 "2012-04-06T17:17:15Z")
> [@Northern\_Piper](#): > > The Court didn’t reverse itself on slavery; the Congress and the states changed the Constitution in relation to slavery, via the 13th, 14th and 15th Amendments, which collectively overturned the constitutional position on slavery as set out by the Supreme Court in Dred Scott. The Court has followed those constitutional amendments. It’s a good example of the use of constitutional amendments by the elected branches of government as a check on the courts. I think the reference is to _Plessy_ being overturned by _Brown_. [Previous page](https://boards.straightdope.com/t/how-is-the-us-supreme-court-checked-balanced/617935.md?page=1) [Next page](https://boards.straightdope.com/t/how-is-the-us-supreme-court-checked-balanced/617935.md?page=3)