The Judiciary: past, present, and future.

Joe Frick Law

By: Madison Shanfeld

Recent events in the realm of American politics have highlighted the judicial branch. However, the judiciary has always been integral to the intricate balance of power between the three branches of government.

Beginning of America

When the United States was in its infancy, the founding fathers began to run the country with the Articles of Confederation, which failed miserably. During their plans to create the Constitution, this was the first outline of what became the judicial branch of the United States government. Alexander Hamilton wrote Federalist Paper Number 78 to the people of New York to share what he believed the Judicial branch should be.

He begins with the notion that justices should be able to serve for life as long as they have “good behavior” because it protects the branch from the legislative. They need protecting because the judicial branch is designed to remain as neutral to political opinion and policies as possible. Since justices serve for life, they will not be appointed based on their political ideology and opinions on newer politics, but instead how they interpret the Constitution. This was what was theorized to happen, not a guarantee during real life application. A result in this becomes the judicial branch being least susceptible to swaying with rapid changes in public opinions and protects the Constitution from sweeping changes.

Additionally, Hamilton outlined the judiciary as a branch of government incapable of acting independently. Instead, it can only react to the behavior of the legislative and executive branches. They are also incapable of enforcing their own rulings, instead relying on the executive branch.

Federalist No. 78 also established the concept of judicial review, or the power to declare policies and behavior as constitutional vs unconstitutional. Hamilton highlights how some people argued against judicial review since they felt it would make the judiciary the “boss” of the other two branches, however, he quickly resolves it by claiming that if a law is in conflict with the constitution, then it should not be passed. In addition, if the power to declare constitutionality was bestowed upon the legislative, they would become too powerful and lack a check of power.

Once the Constitution was set into motion, the judicial branch needed to become official in the United States. It is in Article III of the Constitution where the judicial branch and the Supreme Court, or SCOTUS, is created.

Checks and Balances

The United States government is built on the foundation of checks and balances, which are how the three branches of government are able to keep the others from becoming too powerful.

Checks by Judiciary

The primary check by the Judicial Branch is called Judicial review, or the power to declare constitutionality. Before the SCOTUS case, Marbury v Madison in 1803, judicial review was more of a concept rather than an established practice. However, once it was seen to work, it became an official check on the other branches.  

Within  the legislative branch, judicial review can take a second look at the laws passed by congress and examine whether they are constitutional. If they are not, the judicial branch can rule to strike the law down. For the executive branch, judicial review examines the actions within the branch and declares the constitutionality of them, from there they can check the powers of this branch by signaling an action as being unconstitutional.

Checks on Judiciary

Legislative branch: Should any judge, whether or not they are part of the Supreme Court, commit “high crimes or misdemeanors”, as classified in Article III, the legislative branch has the ability to impeach and remove the judge. In layman's terms, should the judge participate in unethical or illegal behavior, the legislative branch can hold them accountable. This branch also has the ability to create legislation that overrules the Supreme Court and/or limits the powers of judicial review. For example, if the legislative branch doesn’t like a ruling the Supreme Court makes, they could pass a Constitutional amendment to overrule it. Through the power of the purse, or power over the federal budget, the legislative branch can cut funding for infrastructure and staff within the judicial branch. Finally, the Senate has power over the confirmation of the Supreme Court Justices so they can have power over the ideology which enters the bench. 

Executive Branch: Since the President has the power to nominate the members of the Supreme Court, they have direct control over who makes it onto the bench should there be a position to be filled. Additionally, the executive branch enforces laws and since the judicial branch has absolutely no enforcement power, the executive branch can simply ignore the ruling of the Supreme Court or choose to what extent to enforce their ruling. The President has the unique power to pardon people in the United States, and by pardoning they can nullify the effects of a court’s ruling. Finally, executive orders could limit the effect of the rulings of the Supreme court, thus checking their power.

Important Historical Cases

Looking back at some of the cases in American history can highlight how important the judiciary is to seeing change within the United States and the relevance to the country in the modern climate.

The cases of Roe v Wade and Dobbs v Jackson are great examples of how changes get made in the United States through the judiciary. Roe v Wade was a Supreme Court case that legalized abortion. Roe was not just a woman who wanted to take her case to the Supreme Court. Instead, an organization which wanted to legalize abortion discovered Roe, a woman who had the predicament they needed to take the case to the Supreme Court, and worked with her to create change. Inversely, Dobbs v Jackson which gave the power to legalize abortion back to the states. Like Roe v Wade, it was the work of a group who wanted to give that power to the states not just one individual. These cases are great examples because of the exact opposite agendas with similar approaches. The large amount of time between the two cases shows how groups, like the ones who worked on Dobbs v Jackson, have to bide their time and work in politics to achieve their goals. These groups had to support candidates who could appoint members to the supreme court in order to influence the opinions of those on the bench in order to take a case to the Supreme court and overturn precedent. 

Brown v Board of Education is another one of the most famous cases in United States history since it desegregated schools. Like in both Roe v Wade and Dobbs v Jackson, it was an organization, NAACP, who worked with an individual to generate change by taking a case all the way to the Supreme Court.

All three of these examples took place far apart from each other but had similar approaches thus exemplifying how this approach is proven to be an effective way of creating large sweeping changes to law in the United States.

Why it is so important now

The judiciary branch has become increasingly more important as politics has become further polarized because unlike the executive and legislative branches, the judicial branch is the most disconnected from the rapid changes of public opinion, like Hamilton had wanted in Federalist 78.

Currently, the powers of the executive branch are being expanded through the increase in powers behind executive orders, which function as laws. In short, the more vague the laws Congress passes, the more interpretation the president can have within the executive orders, and the more interpretation, the more power they hold to shape United States law. 

Since the United States is currently so polarized, the laws being passed must be more vague in order to be passed by the majority of Congress, if the laws were more specific they couldn’t gain the majority. This then leads to the aforementioned more powerful executive branch.

So why is the judiciary so important? As discussed earlier, through the power of judicial review, the judicial branch can hold the executive branch accountable by examining the constitutionality of the executive orders.

With the current polarity of the United States political scene, the judiciary is the only true thing holding back the executive branch.