The power of the Judicial Branch...a question

This is in reference to an interesting subtext to an annoying as hell Pit thread.

I’d especially like the opinions of the legal types on the Board.
Is the law what the words on the paper say or is the law what the courts say?

Granted, most of the time, the courts interpret the law and there’s no real dichotomy between the two. I DO NOT want another Great Debate about the obvious examples where people would disagree about whether the court is making up stuff rather than interpreting the words on the paper so please limit your discussion to ONLY the following example:

Congress passes a law that says “Any person wearing blue tennis shoes will be jailed for five years.”

The law is tested in court and the court says that their interpretation of the law is “Any woman wearing red capri pants will be required to go out dancing with a judge.”

Obviously, this interpretation would be challenged and be overturned in a second (unless the woman was really hot or something :wink: ), but assume it wasn’t challenged and overturned for whatever reason.

What would the law be? What would policemen enforce? The clear intent (Please. Don’t draw parallels to real-world examples. I really don’t want a GD thread) of Congress was to jail blue sneaker wearers. The court has essentially created a new law saying hot chicks wearing red capri pants have to go out with judges. What happens next and what happens in the meantime?

For that matter, if the court made such a ludicrous statement as my example, do they have any power to enforce their will? The executive branch is ultimately in control of the police/military (police chiefs report to mayors/governers), congress controls the pursestrings…if the courts say “Jump” and the executive and legislative branches say “Blow it out your collective asses” what recourse does the court have?


Hey, I’m having fun in that Pit thread!

What you’re basically asking is how the different branches of the government would react when they differ over a particular point. And I have to say that it would depend on the particular point. The courts have little or no power to enforce their edicts–that is entirely up to the executive branch. So in a conflict between what the legislature says and what the courts say, the executive is going to have to choose sides, bearing in mind that its own authority with the public depends on choosing wisely.

Three examples: You may remember the Trail of Tears, where Andrew Jackson defied the ruling of the Supreme Court and marched the Cherokee from Georgia to present-day Oklahoma. On the other hand, you may notice that the police are still giving Miranda warnings to people under arrest, even though Congress said the Supreme Court was wrong and that the cops didn’t need to do so to avoid violating the Constitution. Or how about the Nixon tapes, which the Supreme Court ordered Nixon to turn over depite his claims of privilege? He complied, even though he thought about telling the Court to get stuffed.

So the answer to your question depends on how big a deal the cops and prosecutors thought it was for women to wear red capri pants, or for any person to wear blue tennis shoes.

Generally, the courts have to (or are supposed to) uphold the law that’s in front of them. It’s only when a Constitutional issue is raised that a court can overturn something.

On the other hand, I’ve seen some judges get creative on rulings so that an unfair result isn’t reached. Two examples come to mind. There’s a judge in…North Carolina, I think…who’s enforcing an old cohabitation statute that’s still on the books. However, he isn’t smacking cohabitating couples immediately; instead, he’s giving them a six month deadline to get married. In that regard, the law (the merits of it aside) is being respected without the accused being imminently harmed by it.

Another example comes from some legal research I’ve been doing all semester. There was a California case back in the early 90s where a couple used a surrogate mother to gestate their genetic child (they supplied the sperm and egg; she was only the carrier). Before the child was born, the surrogate demanded full payment on the contract or threatened to keep the child. The problem the court faced was that the statute allowed for either gestation or genetics as proof of maternity. If the court literally applied the statute, both women would have to be declared the mother. So the court got creative and decided that when a “tie” like that arose under the statute, the “intending” mother’s claim would supercede any other claimants. Hence, the genetic mother won because she was the intended parent of the child under the contract.

I actually didn’t like that decision, but I do appreciate when courts get creative within the law to come to reach a conclusion when our common sense says otherwise. Usually, that allows the court to respect the law of the legislature, but also apply common sense. (This kind of thing usually happens where a case arises that clearly wasn’t contemplated by the legislature. Case in point: the California statute above was written before surrogacy was invented, and really never contemplated the situation.)

Now, what happens when you have an outright disagreement between the legislature, the executive and the judiciary? At that point you have a downright constitutional crisis. That’s when you grab your gun, band together with your neighbors, and wait for the silliness to pass.

Seriously, I have no idea. My Constitutional law textbook contemplated a situation where an Amendement to the U.S. Constitution is passed which the Supreme Court disagrees with. Under Marbury v. Madison, the implication is that the Supreme Court has the final say in what “constitutional” law is. On the other hand, I can’t imagine anything legally overcoming a constitutional amendment except another amendment. So, like I said, you end up with a constitutional crisis and you wait to see which side prevails. Oy.

The fact that Americans can even have this discussion is a testament to the whole checks and balances thing. When a discussion of who has the power in Washington comes up, fans of a particular branch will often claim that “arguably, the President/Congress/Supreme Court is the most powerful”. From what I’ve seen and read, the most stable governments are the ones with mechanisms in place to keep any one faction from gaining an advantage over the others. In countries with weak or corrupt legislators and courts, often the military, under control of a President or similar figure, simply grabs power.

If anyone in the U.S. has ultimate power, it would be a two-thirds majority of Congress, plus a two-thirds majority in three-fourths of the various state legislatures, who in theory could meet tomorrow and vote to dissolve the U.S. entirely.

In the OP’s example, though, legislation in the U.S. is not simply passed by Congress and then tested by the Supremes. The bill first has to be signed (or vetoed) by the President.

The most recent major consitutional crisis (and actually one of the biggest in U.S. history) would be Bush v. Gore in the 2000 election. The legislators were spinning madly to try to find some way to resolve it to match their party affiliations and it took the Florida and Federal Supreme Courts to impose a decision. Interestingly, for a branch of the government with no enforcement power, everyone seemed to go along peacefully (though grumblingly) with the judiciary’s decision. In most countries of the world, such a close election would have involved gunfire in the streets. In the U.S. they just had the normal 2nd-Amendment amount.

So what was your question again? Oh, yeah, shoes. I seriously doubt the Supreme Court would ever choose to “reinterpret” a bill in the manner you describe. More likely, they’d clobber the whole thing as unconsitutional, but give hints in the wording of the majority opinion about what specifically bugged them and what they’d prefer to see next time.

Of course, long before the Supremes get a shot at a piece of legislation, a defendant challenging the law (or a state challenging a judge’s interpretation) can appeal a verdict to a District Federal Court (of which there are 94 in the U.S. and protectorates) and then (if the decision is further challenged) to a Federal Circuit Court of Appeals (of which there are 13, representing regions of the U.S. and protectorates) I can’t easily find statistics on how many times the Circuit Courts have upheld or overruled a District decision (or just refused to review it, letting it stand) and stats on the Supremes’ upholding, over-ruling or ignoring Circuit decisions are also elusive, but somebody must be keeping track.

Individual judges, though, can find ways to toss cases if they feel the law is unjust or unenforcable. Already, some judges have risked sanctions and penalties for refusing to enforce “three-strikes” laws passed by various states. In those cases, the state files the appeals, trying to find a court that would let their legislation stand and order judges to comply. In the California example in the cite, it got as far as the state Supreme Court, who shot down a particular clause in the law 7-zip. Their decision did not eliminate the three-strikes law, but it did render it toothless by upholding a judge’s discretion whether or not to count a defendant’s earlier convictions as “strikes”. Judges are extremely disinclined to let legislatures restrict their discretionary sentencing powers, and the more courageous ones make bold decisions contrary to the letter and/or spirit of what they perceive is a bad law, and hope the higher courts back them up.

Ultimately, the judges carry a lot of respect and a legislature messes with them at its peril. The judges typically win because they’re appointed to long terms or for life, while a congressman or state assemblyman can be voted out of office every two years. Hence the major fuss kicked up whenever the President nominates a federal judge to any level of the Judiciary. That judge will be around for decades so Congress has to seriously consider whether or not to confirm the appointment. Checks and balances.

Note: the above essay probably invites nitpicking, because I didn’t feel like adding a ton of asterisks and spelling out every possible step in the appeals process and noting every exception. So sue me.

Concocting an outlandish example like this shows me that you only want commentary that supports a particular point of view. That point of view seems to me to be that the courts are not interpreting but rather are reconstructing the laws passed by the legislature.

I don’t really think a question about the courts’ performance that bars “real-world examples” from the discussion merits serious consideration.

Which, of course, would explain why I invited Minty by name: because, of course, Minty is such a strong opponent of the legal system. And of course, has such a shy, retiring nature that he’d go along even if he disagreed with this point.

And so, you just popped in to say this discussion isn’t worthy of you? What a great contribution! But since you don’t think the discussion is worthy of your valueable time, I’d like to assure you that there are plently of other threads in which you can spread your particular brand of sunshine. Please feel free to go post to one of them rather than waste your time here.

For the record though, I do NOT believe the courts are “reconstructing the laws passed by the legislature.” I was wondering what would happen if they did.

But thanks for playing.



:: shakes head sadly ::


Hmmm…here’s the thing: Each branch should have it’s own leverage, but I don’t see where the Court’s is:

Executive branch: military and police power. They can send cops/soldiers out to physically enforce their will.

Legislative branch: Controls the money: it’s hard for the executive branch to run amok with the military if the military isn’t getting paid.

Judicial branch: ? Bryan Ekers touched on one possible answer: the Judiciary carries a lot of weight with public opinion and it’s pert-near impossible to get rid of a judge (even ones who have to be elected tend to be re-elected for life), so maybe that’s part of it. I dunno.

Frankly, while I liked ** ResIpsaLoquitor**'s comment about “That’s when you grab your gun, band together with your neighbors, and wait for the silliness to pass.” there has to be a better solution, shouldn’t there?


Good points.

Just the same, I’ve a right to be pissed off and to register that whenever I choose, in any forum I choose, and in any manner (within the SDBB rules) I choose.

True, and as I am not a member of the SDMB Judiciary (the Mods), I don’t have any power to force you to leave the thread.

Of course, if the Mods are the judicial branch, the admins are the executive branch (since they’re the ones with the power to ban), the Chicago Reader is the (mostly passive) legislature- controlling the money and writing the law.

Which leads right back into the original question of what happens when the three groups are in conflict. But in this example, we’d have Cecil to resolve the issue. :slight_smile:


Just out of curiosity, is there some reason this isn’t in GD? It’s a good question, and one that could probably benefit from the more extended discussions you’re likely to get over there.

No, I think that’s precisely it. The courts have little inherent power. They act through the executive branch only. The authority they have is almost entirely moral; simple respect for the institutions is what gets citizens and officials to comply with the courts’ rulings. You may remember that a lot of people in Dec. 2000 were worried that the Supreme Court had squandered or sabotaged its moral authority with Bush v. Gore. I don’t think it’s turned out that way, but that danger is certainly there.

There is. Vote the rascals out.

What if the judiciary nullifies the vote? :smiley:

The judiciary is not completely without inherent power. Each of the 94 districts has a Federal Marshal. The United States Marshal Service, “America’s Oldest Federal Law Enforcement Agency”, claims to “pursue and arrest 55 percent of all federal fugitives, more than all other federal agencies combined.” They have 4100 “Authorized Positions,” while the FBI has almost 26,000.

The Marshals are under administrative control of the Department of Justice (from which these stats are derived), but they do the court’s bidding as they chase, arrest, transport and detain suspects if a federal judge signs a warrant. With a 2002 budget of $626 million, they get less than half as much funding as the DEA ($1.566 billion) and about a sixth of the FBI ($3.6 billion). The Marshals’ biggest expenditure is for “Protection of the Judicial Process” and they spend more that twice as much on it as they do on “Fugitive Apprehension.”

There sure is:"That’s when you grab yer guns, band with yer nei’bors, and go ta Washington.