Possible checks on the supreme court's authority

First off I’d like to state for the record that nowhere in the constitution is the supreme court given the power of judicial review. This is important because when the system of checks and balances was setup nobody was looking for a way to check the judiciary on the subject of judicial review.
Second I think we can all agree that the judiciary having the sole right to interpret the constitution is a very powerful ability. By far it is the judiciary’s most powerful power. Short of a constitutional amendment there is no way to override the opinions of unelected judges.
So it seems to me that there should be someway to override the supreme court interpretaion without resorting to a constitutional amendment. Especially considering that judges hate overriding previous decisions. So we don’t have stupid rulings lasting for generations such as Dred Scott or Wickard v. Filburn.
Perhaps allowing a 2/3 majority of Congress to override supreme court decisions. Or allowing plebiscites.

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Article III, Section 2 says -

So Congress could remove the appellate jurisdiction from the Supreme Court for certain cases or classes of cases.

It’s never been tried, and no doubt the SCOTUS would rule that the Constitution doesn’t really say that, but it is an option.


Yeah, Roe v. Wade probably wouldn’t have lasted this long if Congress could have over-ridden it. Be careful what you wish for, because for every stupid decision that lasted too long, there have been a lot of good decisions that wouldn’t have lasted 5 minutes without that authority.

Another point: SCOTUS having this authority provides an out for politicians, who are able to give lip service to despicable points of view without being required to do anything to back them up. “Yes, ma’am, I sure think that there homosexual marriage is an abomination, but the Soo-preem Court has decided that issue and there’s just nothing we in Congress can do about it.”

Could we cut this bullshit? The President and Congress are both elected. It’s necessary to have the Supreme Court immune to the vote and societal pressures.

The current politicization, the demand that the Justices be of an extreme ideology is bad enough.

Also, it’s factually wrong: a justice can die or retire, another guy get appointed, and the new court could reverse the previous decision. A constitutional amendment is not the “only” way to reverse a decision.

And the President and the Senate have control over who gets onto the court in the first place, which is plenty of oversight and control!

While the OP is correct that the court is not explicitly authorized to interpret the constitution, neither is any other body. Without judicial review, the constitution becomes meaningless to be ignored when not convenient. But my main point is that a good case could be made that there is implicit authorization in the supremacy clause that says something like, “This constitution and laws and treaties made pursuant thereto are the supreme law of the land.” If a court decides that a law is not pursuant thereto, there is no reason to enforce it. To many, this is not a compelling argument, but it is good enough for me. YMMV

the court ruled in Marbury vs. Madison they could review laws passed by Congress.

So in effect they gave themselves the power to throw out a law.

I’m assuming everyone agrees that there has to be a review process. Otherwise, what’s the point in having a Constitution if it can be defied without consequence? Congress could enact any laws it liked, regardless of how blatantly those laws defied the Constitution, because there would be no means to declare a law to be invalid due to its unconstitutionality.

So the next question comes down to who has that power. Giving the power of review to Congress itself would be ridiculous. If Congress enacts a law, it’s not going to turn around and declare that law to be unconstitutional. You can’t reasonably expect Congress to regulate itself. You need an independent body to do that.

So it’s either the Supreme Court or the President. (There’s no real point in having a review body anywhere other than at the highest level because if that’s the case, the highest level can just override decisions it doesn’t like and become the de facto decision making body.)

Of those two choices, I feel the Supreme Court is the better one. First, it’s a collective body not a single individual, which means it has to work by some degree of consensus. Second, it’s a group of people who are expected to be familiar with the law, so they’re generally going to be more qualified to decide if a law is constitutional than a President who might not have a legal background. Third, the Supreme Court is otherwise fairly weak. The power to overturn laws is a big one so it’s probably better not to combine it with the other major powers the President has. It would make the President too powerful and unbalance the government.

We have an independent judiciary, and it’s independent all the way to the top. The Judicial Branch is a co-equal branch with the other two, and not subject to them except through the processes of appointment and impeachment. This basic idea, a court of last resort being independent of the rest of the government, is catching on to the extent that the UK has moved its highest court out of the House of Lords and into its own body, appointed by the Monarch on the advice of the Prime Minister.

(True, part of that was not tying your shoes in the melon patch, in that the Law Lords who actually sat on the old court were largely divorced from the normal political hurlyburly, and the normal Lords divorced from the court’s proceedings, but it was felt that having a truly separate court was important enough to make a fairly major constitutional change.)

So America is not alone in having an independent judicial system, and other countries in the Anglosphere have seen it to be a good idea as well.

Generally speaking, it’s actually very easy to determine if a law is constitutional. Does the Constitution specifically authorize the government to take a certain action? If yes, then it’s constitutional. If no, then almost certainly not.

You forgot the power of the purse. Congress could say, “We’re cutting your budget by 25%. But to compensate, we’ll give you free rein on how to spend it. Whether you pay law clerks or security guards is up to you.”

A lot of judicial minimalists seem to like the idea of state nullification. This is insane, of course, and was widely rejected even when Jefferson and Madison proposed it.

It wasn’t exactly a brand new idea, though. Vermont rejected nullification in 1799 and said its view was that the power to review laws passed by Congress was “exclusively vested in the judiciary courts of the Union.”

I guess the great ones just make it look hard.

Seriously, the cases which are obvious don’t make it to the Supreme Court. The Supreme Court is the place where they decide the cases that aren’t obvious. And they mange to find plenty of work.

It’s also a violation of the Supremacy Clause. Which has been pointed out to the nullifiers every time they try it.

There’s also packing the court. It only takes a majority of each house of Congress and the President to change the size of the court, and only a majority of the Senate and the President to seat new judges.

Also, a majority of the House and 2/3rds of the Senate can impeach and remove SCOTUS justices from office.

So, there are plenty of ways short of a constitutional amendment to make the Court do what elected officials want.

If anyone actually tried to do this, it would probably cause a constitutional crisis, but hey.

Many SCOTUS decisions are issues of statutory interpretation, not a ruling on the constitutionality of a law. In those instances the Congress and the President can act together to pass a new law that effectively overrules a SCOTUS decision.

The Hobby Lobby case is one such example that could have been ripe for legislative nullification given a cooperative membership in the Legislative and Executive branches.

One problem is that some government actions limit other government actions. If you minimize one, you increase the sway of the other.

Also, some actions are “negatives” of other actions. The constitution doesn’t say that the military is permitted to enlist gays…therefore they can’t? But the constitution also doesn’t say that the military is allowed to reject gays from enlisting, so they can’t do that, either.

The next problem is, who gets to say? You might believe that action X is not supported by the constitution, but another guy believes it is. Who gets his way, you or the other guy?

And, of course, the problem after that is who watches the watchmen? What if a corrupt President, a complacent Congress, and a conniving Court all conspire to…I dunno…kick all the gays out of the military?

Judicial review was discussed during the Constitutional Convention and during the state ratification conventions. This is an area that has been heavily researched and discussed in law review journals, with the consensus being that objections to the idea of judicial review was a minority view during the ratification process.

Moreover, in Federalist No. 78, Alexander Hamilton unequivocally wrote that Courts had the power to review the constitutionality of laws passed by Congress:

Marbury v. Madison is important because it was the first time the Supreme Court articulated its judicial review authority. But looking at the history of the Constitution and the ratification process it is clear that judicial review was not a controversial subject among the framers, and instead was something most of the delegates assumed the Court would naturally have under Article III of the Constitution.