I have been reading the GQ thread about judicial review and it reminded me of a longheld question. Just who has the power to rein in the supreme court? Liberals and conservatives alike over the years have complained about an activist court. Well, who can overrule the edicts of the supremes?
I really don’t care about any actual cases, I am looking for legislative or executive powers that could come to bear. Would it take a constitutional amendment? Personally I think that might be the answer.
There are several checks and balances on the Supremes, but there’s nothing in place to directly overrule a SC decision. They are appointed by the President and confirmed by the Senate, so there’s your first check. If the court rules that a law is unconstitutional, then new laws can be written that conform, or constitutional amendments can be passed via congress and the states. Finally, the House and Senate always have the ability to impeach individual justices for pretty much any reason they choose.
Congress always has the upper hand; a majority of the House and two-thirds of the Senate may remove any federal judge. Acting in concert with the President, they may replace the entire court in a week.
Two-thirds of each House and three-fourths of the state legislatures can also nullify Court decisions by means of amendment to the Constitution. This is, to take one example, how we have a national income tax. Article 1, Section 2, Clause 3 required that direct taxes be apportioned (assessed in ratio to states’ population), and an income tax was clearly not. Congress had passed an income tax, which the Supreme Court struck down as violative of the Constitution. (Pollock v. Farmers’ Loan & Trust).
In response, the Congress passed and the states ratified the Sixteenth Amendment, which provided that Congress had the power to lay and collect taxes on incomes, from whatever source they came, without apportionment among the states.
A lot of what the court decides isn’t based on the Constitution, just on ordinary laws passed by Congress. If the court decides that something isn’t consistent with the law, and Congress doesn’t like that, they can just pass a new law to make it consistent
Correct. To take one recent high-profile example, the Hobby Lobby decision rested on the federal Religious Freedom Restoration Act, not the First Amendment, and indeed would have produced a different result under existing First Amendment precedent. So to “overturn,” the Hobby Lobby decision would require only a new law passed by Congress.
That’s a good point, but I’m not sure “consistent” is the best word to use. The Court interprets the law a certain way, and if Congress thinks that interpreting is wrong, they can pass a new low. For example, if Congress passes a law that says: “Made in American means that at least 50% of the parts in a gadget are sourced from the United States”. But then the Courts say “parts” doesn’t apply to sub-assemblies. That is, all the parts might come from the US, but the sub-assembly is put together in Mexico. Congress can then change the law to specify that “subassemblies” count as a “part”.
The courts cannot write laws … that’s a pretty serious limit on their power …
I don’t know if this is an explicit rules or if it’s just habit … but courts do go into great detail about how they judge a case … so they will specifically say which part of the law is unconstitutional and exact why … and I believe there’s a dep’t in our State government who job is to notify the legislature about these issues …
Oh, Congress passes a new low quite frequently.
Ouch.
Congress can do something called jurisdiction stripping, which is less cool than it sounds. It means removing the supreme court from the appeals process of a given law. It can only do this in cases that do not involve a state and another state or foreign country.
So, when I read that the president or congress has been stymied by the Supreme Court, they normally have a recourse that they can use to get their way. It may be too difficult to do or politically imprudent, but there almost always is another way.
The President and Congress acting together? Absolutely.
Yeah, Jim’s bachelor party turned out a lot more boring than expected. I’ll never make that mistake again!
In addition to the legal mechanisms that have been discussed already, Congress and the executive can essentially ignore SCOTUS if they want to. The court has very little enforcement power.
There’s also a more important legal limitation on SCOTUS’ power - itself. The court self-imposes numerous restrictions, some of which are derived from the Constitution (e.g., standing, deference to political branches) and some of which are mostly made up.
Is there anything preventing the court from acting sua sponte if the court wishes? I mean, anything other than the court itself not wanting to.
Well they can, as in the cases of Roe v. Wade and Miranda. The congress can just write new laws that override those too.
Like stare decisis which is huge in SCOTUS rulings except when they choose to ignore it.
There’s one significant limitation on the courts that we haven’t discussed.
The courts can’t originate a case. And without a case, there is no ruling.
The president can violate the Constitution, Congress can pass a law which is clearly unconstitutional, individual states could literally go to war with each other. But if no one were to contest the action in the proper federal or state court, a judge wouldn’t be able to rule on the law or the action.
The Supreme Court cannot act sua sponte in the sense of issuing an opinion when there is no case or controversy already in front of it.
This precludes advisory opinions.
One other thing they can do is enlarge the court. Roosevelt tried that and that was a bridge too far for congress. But suddenly the court decided that maybe the New Deal was constitutional after all.