United States Government/The Judicial Branch-Criticism/Does the judicial branch upset the principle of checks and balances?
The Judicial Branch of the United States has the de facto role of evaluating both the legislative and executive branches of the United States Federal government. Laws which are passed by the legislative branch can be declared null and void by the Supreme Court, and the actions of a sitting president can be called into question by the judicial and legislative branches.
However, there is neither a formal nor informal check on the power of the judicial branch itself; decisions made by the Supreme Court are final and can only be overturned or modified by future Supreme Court justices and the principle of precedence. As such, it can be argued that the judicial branch can potentially operate contrary to or without the mandate of the electorate.
United States Supreme Court Justices are appointed by the president and confirmed by the Senate. In theory, this procedure allows both the executive and legislative branches to have some power over the judiciary and thus "check" the judicial branch's power. However, following confirmation by the Senate, all Supreme Court justices hold office for life unless they are impeached or they voluntarily retire.
The principle of checks and balances allows branches of government to be "isolated from each other so that no branch has total power over all functions of government...an attack on or abuse of power by individuals of a single branch will not lead to tyranny or the fall of the entire government." The judicial branch, however, holds the potential to nullify laws approved by the legislative branch, disregard the executive branch, and, in essence, control the rule of law in the United States in accordance to the opinions of its sitting justices.
While there have not been any historically prominent abuses, the United States has had a history of irregular and even hypocritical laws as justices rotate and the political atmosphere of the country changes.
There are several checks on the powers of the Judicial branch. First, they can only pronounce on those cases brought before them. Judges cannot make law. They can only interpret laws, treaties and the constitutions of the states and the United States. If Congress feels that a law has been misinterpreted, they can pass laws to clarify their meaning as has been done many times before. If enough people feel that the Constitution is wrong, it too can be amended as it has been 27 times to date. Judges are subject to impeachment and removal by the Congress, and Congress may, by law, establish how the courts operate and within some constitutional limits, Congress may decide which cases are heard by which courts and how large courts are.
Some people have proposed that judges be elected or their ruling subject to overrule. Elected judges are not independent. They will rule based on what is popular, rather than what the laws provide. Many rights that we now take for granted were once restricted based on majorities. Inter-racial marriage, restrictions on speech, and even a woman's right to work were once restricted based on popularly supported laws. An independent judge can make the tough decisions that an elected judge would be afraid to make.
In The Federalist No. 78, Alexander Hamilton wrote: "The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws."
Hamilton goes on to quote from Montesquieu's Spirit of Laws Vol. 1 that "there is no liberty, if the power of judging be not separated from the legislative and executive powers."
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