The Judiciary: past, present, and future.

credits: 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 govern the country using the Articles of Confederation, which failed miserably. While planning and developing what would become the United States Constitution, the first iteration of the modern judicial system was created. Alexander Hamilton wrote Federalist Paper Number 78 to the people of New York in order to explain what he believed the Judicial branch become.

Hamilton started this federalist paper with the notion that justices should serve for life, with the stipulation that they must have "good behavior." The judicial branch needs protected from the legislative as it is designed to remain neutral to political opinion and policies. Since justices serve for life, they should not be appointed based on their political ideology and opinions of evolving political policies, but instead on how they interpret the Constitution. Without the life-long terms as protection against the legislative, judges could become swayed by political opinions, changing the nature of their decisions. Without this, the judicial branch could become susceptible to rapid changes in public opinions and unable to stop the Constitution from drastically changing in interpretation.

Furthermore, Hamilton outlines the judiciary as a branch incapable of acting independently. It can only act in reaction to the behavior of the legislative and executive branches as they are unable to enforce their own rulings.

Federalist No. 78 also established the concept of judicial review, or the power to declare policies and behavior as constitutional or unconstitutional. Hamilton highlights how some people may argue against the idea judicial review, saying it would make the judiciary the “boss” of the other two branches. However, he quickly resolves this argument by explaining that if a law is in conflict with the constitution, then it should most likely not be passed. Thus, judicial review is only protecting the integrity of the nation and Constitution. He also argues that should the power to declare constitutionality lie with the legislative branch, it would become too powerful and lack a check.

Once the Constitution was set into motion, the judicial branch became official pillar in United States. Article III outlines the judicial branch and is the birth of the Supreme Court of the United States, or SCOTUS.

Checks and Balances

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

Checks by Judiciary

The primary check by the Judicial Branch is 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 examine the laws passed and declare constitutionality. Should the law be unconstitutional, the judicial branch has the power to strike down said law. In relation to the executive branch, judicial review examines the actions within the branch and declares their constitutionality.

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. The legislative also could create legislation that overrules the Supreme Court 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. Furthermore, 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 through the Senate Judiciary Committee. Thus 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 as the judicial branch has no enforcement power. The executive can simply ignore the ruling of the Supreme Court or choose to what extent to enforce a ruling. Furthermore, the president has the unique power to pardon in the United States; 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 its 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 the 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 specific predicament they needed to take the case to the Supreme Court, and worked with her to create change. Inversely, Dobbs v Jackson gave the power to legalize abortion back to the states. Like Roe v Wade, it was the work of a group who wanted to chance the nation's policies on abortion. Both cases are great examples of the importance of the judiciary because they made a fundamental change in United States policy. The interpretation of the constitution was different at the time of the Roe v Wade and Dobbs v Jackson cases. The interpretation was so different, that the SCOTUS during Dobbs v Jackson overruled precedent. The nature and results of these cases truly highlight how the configuration of the bench and cases brought to the Supreme Court can change the political climate and policies of the United States.

Brown v Board of Education is another one of the most famous cases in United States history because of its integral role in the Civil Rights Movements. 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. It overruled the precedent of Plessy v Ferguson and essentially flipped the ideas of African Americans and segregation on its head: moving the nation towards equality

There are hundreds of cases that could be discussed in this section, but even just examining three illustrates how the judicial branch plays such and important role to life and policy in America. They really highlight this branch's power to generate 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. 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 No. 78.

Currently, the powers of the executive branch are being expanded through the increase in executive orders. The more vague the laws Congress passes, the more interpretation the president can have within the executive orders: 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 accepted by the majority of Congress. Should he laws be more specific they would most likely fail to 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: an integral power in the modern climate.

The only things standing between the executive, and unrestrained executive orders, is the Judiciary.