I’ve been taught that the US supreme court was all a part of those checks and balances, they are there to strike down any laws they find unconstitutional.
So (as the question states), what keeps these guys in check. Who or what makes sure that the laws they rule to be constitutional are actually constitutional? ie. If they were to rule that a law saying that more than two people can’t assemble at a time is constitutional, who reverses that?
Future courts might.
They might not get appointed in the first place if their views seem likely to go that way.
I believe there is an impeachment process for Justices, though the details escape me.
Well, the checks and balances come into play when the President nominates a new justice and the Senate confirms him. The reason behind an independent judiciary is evident: It’s not a political body; since the justices (and federal judges) aren’t elected, they are beholden to no one except themselves. (In theory, anyway; they do have political slants that are quite well-known.) And the Supreme Court is just that: It’s the highest court in the U.S. and as such can’t be overruled by a higher judicial body because there isn’t one.
As for the role of the courts, the judiciary is to interpret the law. Interpretation is by definition subjective. Justices disagree all the time on the constitutionality of various laws that come before them. It’s not a right-or-wrong answer. Sometimes the reasoning may be a little questionable (as in Bowers v. Hardwick, which was struck down recently).
All that said, Congress can pass a law reversing the SCOTUS decision, thus transferring the issue from the judiciary to the legislative, and it does so occasionally. For example, the SCOTUS declared flag burning constitutional (U.S. v. Johnson, if anyone cares), but that can’t stop Congress from trying to pass a flag-burning amendment.
I recommend a good book on the basics of American government.
Robin
Well, Congress and the states can ratify the Constitution, which would be a check on any SC decisions. The Executive branch nominates judges and the Legislature approves them, which shifts the power of the SC - it’s a long term solution, but it’s still a check.
Nobody. The Supreme Court is limited by the type of cases they are allowed to hear, and when they are allowed to hear them. They are limited by the authority given to Congress, and they are limited by the willingness of the Executive branch (the president and his subordinates) to enforce their rulings. Within those limitations, their authority to “say what the Law is” is absolute.
The Supreme Court can only be overruled by a successful Constitutional amendment. But if you’re imagining some scene wherein the Court, drunk with its own power, ignores the letter of the law and starts issuing wild opinions, forget it. If the Court became unreliable, people would stop listening – judges would stop citing their cases, presidents would ignore their orders, and the whole legal system would break down. It’s the need to maintain their own prestige that keeps the Court (mostly) honest.
They are NOT there to strike down laws that they find are unconstitutional. They are there to hear legal cases. Most of the cases involve constitutional questions, but they seldom involve striking down laws.
Munch, you mean “amend” the Constitution.
SC justices may be removed from office under Article III, section 1 of the Constitution which states in relevant part “The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour…” As to what would constitute “bad behaviour” on the part of a justice of the Supreme Court I don’t know. AFAIK no justice has been removed for bad behaviour. Here is some information on Alcee Hastings, a federal judge who was removed from the bench (and later won election to the House of Representatives); presumably similar conduct would get a SC justice removed from office as well.
Actually, Congress by itself can’t. It can try to pass legislation that falls within the confines of a Supreme Court decision, but if reversing the Court is the objective, it takes a Constitutional amendment, and that takes 2/3 of the Congress plus 3/4 of the state legislatures. Remember the Equal Rights Amendment? That sailed through Congress, but failed to muster the necessary state legislature vote.
I think it’s important to clarify that when the SCOTUS makes a constitutional ruling, Congress can only pass a constitutional amendment to reverse it (which is only the first step in the amendment process, btw). Or they can try to pass the same law with just enough variation to meet SCOTUS’s constitutional muster. But they can’t simply pass a law reversing a constitutional ruling.
Unlike the other two branches, the Court has no direct power to implement its decisions. Congress has control of funds and the president controls the machinery of government, but all the Court has is its word – it must depend upon the political branches to submit to its rulings. Therefore, the Court has always been aware that it must husband its political capital – if it pushes too far in a direction the popularly elected branches don’t like, they’ll simply disregard its pronouncements. If this happens very rarely and is seen by the electorate as irresponsible behavior on the part of the other branches, there will political consequences to those that defy the Court. But if the Court is running wild in the streets, it will not be able to depend on popular support when its holdings are in conflict with the desires of the political branches.
The most famous (and most outrageous) example of the political branches ignoring the Court was the removal of the Cherokee from Georgia in the 1830’s. The Court ruled that the Cherokee Nation was entitled to the land it held; President Jackson responded “The Supreme Court has made its decision – now let them enforce it” – Jackson then evicted the Cherokee from Georgia and about a quarter of the Nation died on the Trail of Tears.
Another check on the Court’s power is the institutional nature of the Judicial Branch. The other two branches are centralized – sure, there are hundreds of Members of Congress, but when Congress does act, it acts as a unitary body. The Supreme Court, OTOH, must depend upon the lower courts to uphold and define its rulings. Furthermore, if the politically-elected branches (or other institutions of government) misread a Court pronouncement (whether willfully or by simple error), the Court has no easy means to address the issue. Congress and the president, if they are unhappy with the way their actions are implemented, simply amend the statute or regulation. The Court must wait patiently until a case arrives in which one person was demonstrably injured by the misinterpretation. The case must be otherwise free from procedureal defects and typically the facts of the matter must be close enough that the Court can make plain that the two cases address the same issue which it is now revising.
Ultimately, when you have a system of coordinate institutions, there has to be one that has the last word, and in the U.S. system it is the Supreme Court. However, as noted throughout this thread, despite the fact that no one can gainsay the Court, there are significant institutional features which fetter the Court’s discretion, not directly, but enough that the members of the Court have to be aware of the political will just as the other, more directly accountable branches do.
–Cliffy
MsRobyn was not incorrect, although she was unclear. Most of the Court’s rulings are not on constitutional questions – indeed, there is a long-standing Court practice that, if it can avoid a constitutional question by disposing of the case in another way it will. More of the Court’s cases revolve around issues of statutory construction – that is, what does a certain Act of Congress really mean, or how does it apply in a given situation that Congress didn’t originally consider. When the Court reviews a statute and comes up with a particular interpretation of it with which Congress is not happy, Congress can merely change the statute. Essentially, the Court is saying “We think that when Congress wrote this law, they meant X,” and then Congress can, if it so desires, respond by saying “No, no, we meant Y.” or “Now that we see what X means in real life, we’d rather do Y.” As long as the Court’s decision wasn’t addressing the content of the Consitution, Congress can simply amend the staute under consideration.
–Cliffy
MsRobyn is not incorrect, but may be a little optimistic. If a rogue court ruled one way, then Congress passed a crystal clear law to set it straight, the Court could still rule any way it wants to.
I think maybe a subtlety in all this is that checks are for individual justices, not the court as a whole, in real life.
This is going to be a little long and might be total hogwash, but I think those who say that the only check is that their decisions will be ignored if they contine to be " over the line" have got it right. And “over the line” isn’t a hard and fast barrier.
It seems to me that the proper operation of any politcal system depends mostly on the desire of those in power to make the system work for the maximum benefit of the collective whole of the population. In effect on their “good will.”
For example, I heard Justice Breyer on TV the other day discussing some effects of the USA Patriot Act. In response to a question about searches, he pointed out that the Constitution only forbids “unreasonable” search and “unreasonable” is subject to “reasonable” interpretation.
For example, the Constitution gives the Congress the power to provide for the common defense and later on authorizes the Congress to enact “all laws that are necessary and proper” to carry out that power. Therefore, in the case of the Patriot act search and seizure provisions, when Congress writes a law, seriously debates it and decides that it is “necessary and proper” that the law be passed in order to provide for the common defense in national emergencies it isn’t at all “unreasonable” for the Court to uphold that law.
I realize that there is considerable question as to whether Congress really “seriously debated” the USA Patriot act. Just the same, much as it galls me to say this, a court decision upholding it when the court agrees that there is an emergency situation isn’t really out of line. I think the test of the good will, if not the sanity, of Congress will be if the act is renewed when that time comes.
In my opinion the real danger to our system comes from panic. There have been numerous incidents in our past where the public at large was siezed by panic and elected officials responded with restrictive measures that wouldn’t otherwise even have been considered.
And, unfortunately within the system, in case of percieved national emergencies, there is a lot of room for restrictive official actions against the rights of the people. Just as there was in the case of Germany in 1932.
I apologize for being unclear. IANAL, and am not familiar with the subtleties involved.
Robin
And, of course, there is how the Court cannot just of its own initiative “declare constitutional” a law. They have to wait for a case has to be brought before them, by parties with standing, arguing the issue on appeal or revision from a lesser court, or on one of the limited set of “original jurisdiction” of the Court. And yes, of course they can make decisions that are “wrong” from a latter observer’s moral or political POV, but otherwise soundly presented, that stand for a long time and have long-lasting repercussions (e.g. Plessy v. Ferguson) . But as mentioned before, they have to choose their battles carefully. The Warren Court knew the historic time was right for many of its decisions to stick, they didn’t just get up one morning in a mood to turn the place upside down.
Pat Robertson and his prayer posse.
I would venture it’s a knight to queen’s pawn four. Assuming that means something in chesspeak.
Errr…are we being visited by the Zippy the Pinhead Fan Club or something? 