ETVT SCOTUS are the most powerful branch of government (30) Flashcards
Judicial review means they are
Judicial review is the power of the supreme court to declare legislative and executive actions as unconstitutional.
It is a self-given power under Marbury v Madison 1803 and Fletcher v Peck 1810, this is not a power that was given to them in the constitution.
This means they have the power to declare acts passed by congress and actions or executive orders passed by the federal government as unconstitutional, as they have enforcement powers this means they can make them void.
In 1990-99 they declared 23 federal laws unconstitutional, and 15 between 2010-19.
For example, Citizens United v FEC 2010 the court ruled that the 2002 bipartisan campaign reform act was unconstitutional and struck down several provisions that limited campaign spending.
2016 SCOTUS upheld the lower court’s decision to block the executive order to Deferred action for parents of Americans program in a 4-4 decision, removing the Obama executive order.
Trump v Vance and NLRB v canning are other examples.
Judicial review can be weak
Firstly they cannot initiate cases themselves and must wait for permission, parties who are not satisfied with a lower court decision can petition the Supreme court to hear their case, they ask the court to grant a writ of certiorari, usually the court will only here cases that are of national significance.
Ultimately it is congress and the executive that can far more easily pass legislation through a vote in both houses and the president signing of. This means they have in practise significantly more power over legislation.
Brown v Board 1954 was a directive that southern schools should desegregate with ‘all deliberate speed’. In 1957 the governor of Arkansas use a local militia to forcibly prevent black children from entering a high school. Sometimes the court has lack of enforcement powers on the branches.
Checks and balances are limited
In reality both constitutional amendments and impeachment is very rare, the last was passed in 1992, and due to ¾ of the states needing to agree it is unlikely, furthermore no justice has ever been impeached before and Samuel Chase for example was acquitted by the senate in 1805.
The checks that congress posses on the supreme court therefore in reality are relatively low and significant.
Congress and the president remain with signifcant checks on the court
Congress has the power of impeachment; this means that they can remove supreme court justices who have abused their power, this means that congress is able to exert power over the government.
One of the powers that is given to Congress, is they have the power to amend the constitution which the Supreme court do not have, this may be proposed by 2/3 of the house of congress, then ratified by ¾ of the state legislatures.
Congress can also alter the number of judges that sit on the court, there have been 9 justices since the 1869 Judiciary act was passed by congress, however congress has the power to change this, they could attempt to do this in order to pack the court with loyal justices and influence decisions in the president’s favour.
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