What I have described above is the intellectual basis for the power that this most powerful of courts has. The question that now needs to be posed when deciding if the “judiciary is the most powerful branch of government. Discuss” is what kind of power this intellectual basis grants to the Judiciary and in particular the Supreme Court. In its power of judicial review does the Supreme Court get to simply act as arbitrator between branches of government and between the actions and acts of the executive and congress and the constitution. Is it the case that, as justice Roberts put it in his opinion when striking down the Agricultural Adjustment act of 1933 as unconstitutional, it is the job of the Supreme Court “to lay the article of the constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former.” Roberts paints a picture of the court that leaves it with ultimate governmental power (the power to judge against the constitution) but by no means the most powerful branch of government. For if the court simply took out its set square to see if all the sides of a statute really were ‘square’ with the constitution then there would be little room for the Court to positively create and implement public policy. In Roberts’ judicial landscape most cases would be settled quickly once and for all. Most would be so obvious that appeal to the highest court would not be necessary. The fact of the matter is that Justice Roberts, whether intentionally or not, is being naïve about the role that the court really performs.
Dworkin has already shown us how the constitution is not interpreted per se but rather the moral principles embodied in it are re-examined. Now we can see the judiciary in a new light. Justice Roberts’s bureaucratic body with little power for actually governing is replaced by a Judiciary with the power to alter the moral foundation on which laws are built. The judiciary in fact cannot propose public policy. What it can however do is, in terms of constitutionality, pick and choose between thousands of laws brought before it every term from all levels of government. I’ll use Roe as an example of the power that the court potentially has to govern. In Roe and in the following 30 years the court has set the national policy on abortion. What is more I think it could be argued that this policy has been independent, in any direct sense, of the wishes of the executive and the legislative branches both of whom have at times been opposed to Roe. This is the kind of power the court holds.
If the court had simply decided on a moral issue and come down one way or the other in Roe then I think the argument could be made that the Court has to govern represents a rather blunt instrument of public policy. But this I would argue is not the case and the court is powerful in setting very specific policy for the following two reasons.
The first is that subsequent to the 1973 decision statutes have been challenged as contravening Roe and the decision itself has been challenged. These cases have provided the Supreme Court to narrow the practical public policy implications of its original decision. We now have a situation where the court has created a complex public policy framework with many dimensions that both state and federal statutes must fall within. Of particular note are the cases of in which the court threw out the need for written spousal consent for abortion; In which the court ruled that the state ought not to be mandated to pay for abortions. And finally which has replaced Roe as the dominant precedent on abortion and allowed the court to define very specifically rights such as those of the parents in the case of abortion in a minor, and allowing limited (and politically popular) state regulation of abortion, yet effectively preserving the general access to abortion that was the goal of Roe.
The second is that the opinions laid down by the justices if the court in both majority an minority can be very specific in their implication. They will indicate to the relevant bodies just what the decision entails and how far the principle set down may be extended. Added to this are the remedies of the court. Normally these would be straightforward with a court setting out what it feels is necessary to correct any ‘wrongdoing’, for example forcing the loser of a case to pay the winner some amount in damages. But Supreme Court remedies often affect millions and clearly can be used to set public policy. Their basis is sometimes found in the constitution but is often found in the courts interpretation of Acts of Congress. As an example Gates v Collier, 349 (1972) in which the court set out a remedy based on the 1964 Civil Rights act that obliged San Francisco Schools to teach English to Chinese students unable to speak it. In effect then the Supreme Court, through its remedies, decides what acts of Congress actually mean in practice – no small ability. This and all the other actions of the court that make it so powerful are of course subject to checks which will be explored later.
The power of the court as explored through Roe was never used as much as by Chief Justice Earl Warren. His period in office provides the ultimate example of the Judiciary exerting power to govern. This period of Supreme Court history is noted as one of flagrant Judicial Activism – In Brown the court stepped ahead of public opinion in creating (if not initially being able to enforce policy) over desegregation. In Gideon v. Wainright (1963) the court provided for all citizens to have access to a lawyer if they cannot afford one,, and in Engle v Vitale (1962) school prayer was ruled to be unconstitutional. All these decisions represent important areas of public policy made by the court.
We have established that no matter how hard the nice Justices look at the text of the constitution the answer to the constitutionality of a particular act or action the answer to most constitutional questions is not “awaiting discovery by the discerning” (Stone in his Dissent in US v Butler). Rather a series of factors affect the Dworkian moral decisions the court makes. It is in these factors that we find the most important checks and limits on the decisions of the court and the power that the Judiciary has to govern America.
The first is the Justices themselves. Their nomination and approval introduces a democratic element into the selection of those who make the moral decisions in the first place. If the representatives of the people in the guise of the senate do not approve of the moral stance of a particular potential justice then they can reject his/her nomination. Nixon and Reagan for example both had two consecutive nominations rejected by the senate. Haynsworth and Caswell, and Bork and Ginsburg respectively.
This does however lead us onto the important point that the position of Supreme Court Justice is for life “during good behaviour”. Once appointed the Justices are independent of any direct force from the other two branches of government. How can the Senate predict what decision a justice may take 30 years hence? To highlight this point we only have to look at how vocal Presidents have been their regret over appointments. Of course there is Eisenhower and his appointment of Warren which he said was the worst mistake of his presidency. Then Nixon introduced Warren Burger onto the court and he proceeded to judge in favour of Roe. Bowles points us to the example of Truman’s views of Judge Tom Clark "It isn't so much that he's a bad man. It's just that he's such a dumb son of a bitch. He's about the dumbest man I think I've ever run across...I never will know what got into me when I made that appointment, and I'm as sorry as I can be for doing it" (Miller in Bowles p191).
The only avenue open for the removal of a Justice once approved is their impeachment under the ‘good behaviour’ clause. This has never been successfully attempted with a Supreme Court justice although it has with a number of federal Justices. This does not however provide any check on the power to govern that the Judiciary possesses within the confines of ‘good behaviour’.
Much like a British Prime Minister and his cabinet the Chief Justice and the court as a whole can be constrained from uncontrolled governmental power by concerned colleagues. If a decision is unanimous then it carries a far
All Justices appointed to the court have a legal background and as such have been indoctrinated with certain legal principles and in particular principles of the court. It could be posited that these act to constrain the Judiciary in policy ,making. The principle of stare decisis under which a court is supposed to obey legal precedent in theory prevents the court from exercising governmental power in so far as it can only decide upon an issue in the light of the judgement previously exercised. The Supreme Court is not however adverse to changing its mind. The cruel and unusual punishment clause is a good example. In 1972 in Furman v Georgia the Court ruled that the death penalty in certain forms constitute cruel and unusual punishment. Then in 1976 in Gregg v Georgia the death penalty was upheld. In these two cases the court is acting like a legislative body altering what was previously accepted and acting against the principle of stare decisis. Another of these legal principle said to constrain the court as a governing body is the idea that a case should be judged on the arguments put before the court. This is as with stare decisis inapplicable to the Supreme Court. Not only do the Justices do vast amounts of background work on the cases themselves, but the principle of Amicus Curiae
In Furman v Georgia Thurgood Marshall attacked the penalty more directly stating, "it is excessive, unnecessary, and offensive to contemporary values." This is an interesting incite into the ‘moral reading’ of the constitution that is so often denied by those in the legal profession and brings us onto one of the other limits of Supreme Court power. The decisions the justices make, so goes the argument, have to be in line with the prevailing morality of the time. The court cannot work outside of America’s moral zeitgeist. The problem with this argument is that it has in the past led public moral opinion in Brown for example. The court couldn’t however reintroduce the concept of segregation as constitutional now, so there are some limits produced by national moral feeling.
The above point and Brown in particular leads us onto the more formal constraints on the Court's power to govern after a decision has been taken most important the fact that the decisions it makes have to applied and enforced by agencies independent of it – not least the other two branches of the federal government. There is a complex relationship between the decisions the court makes the reaction of the people and the reaction of the executive and legislature. If a decision is going to be democratically unpopular then the elected branches will have a much stronger mandate to either attempt to overturn the decision or to refrain from its enforcement. The enforcement problem was summed up by Andrew Jackson in 1830. When denied jurisdiction over Cherokee land he said “John Marshall has made his decision now let him enforce it”. The authority of the court as “the source of governmental power” as the title of this essay suggests gives its decisions huge weight even where they are not immediately enforced they may set a standard which other bodies fall into line. Brown as Bowles points out remained largely un-enforced until the Civil rights and Voting rights acts of 1964 and 1965 respectively when congress finally acted on segregation. It is questionable whether, without Brown, Congress would have acted at all. It is difficult however to find evidence of this ‘check’ on the decisions of the Supreme Court because like so many I have described it is informal and acts upon the consciences of the justices. It is hard to show when a decision has not been made because it is considered by the justices as unenforceable, or likely to cause social unrest.
Congress has several options open to it after a decision has been made. Its first and most ;powerful; weapon is the amendment of the constitution. The Thirteenth Fourteenth and Fifteenth amendments In Pollock v Farmers Loan Trust (1895) the court ruled that federal income taxes were illegal. The 16th amendment reversed this decision, but only in 1913 a full eighteen years later. This measure is also subject to a 2/3 majority in congress and the approval of three quarters of the State legislatures and It is a tortuous process. If a decision concerning one of the moral principles of the constitution was so unpopular as to enable amendment of the constitution then I believe that the above informal factors concerning the decision making of the court itself would have prevented the decision in the first place. On technical issues amendment remains a theoretical possibility.
Congress also has control over the entire jurisdiction of the lower federal courts and over the appellate jurisdiction of the Supreme Court. Only once has the congress altered the jurisdiction of the Supreme Court in the exceptional circumstances of reconstruction in the south following ex parte Mccardle. To do so again outside of exceptional circumstances would be unthinkable.
When the executive and the Court came into conflict over the whole New Deal another congressional power was used by Roosevelt to affect a change in the courts thinking. In his ‘Court packing’ legislation he proposed an increase in the number Supreme Court Justices to nineteen. He would have been able to appoint all the new Justices subject to Senatorial approval. The bill played a part in the turnaround of the court on New Deal issues although it never became an act. Such congressional stunts need popular backing and could only be used very rarely where the court is wildly out of step with public and therefore congressional thinking.
The Supreme Court not only judges on constitutional issues, but as I have mentioned, interprets Federal Laws. This leaves another avenue open for congress to override a Supreme Court decision on one of its acts. It may amend the act or repass it so as to make it more palatable either in content or in wording. The additional affect of such an act is to reapply congressional and therefore democratic weight behind an act in an attempt to alter the decision of a subsequent Court.
The possibility also exists for the abolition of the Supreme Court. This is barely even worth considering as the tortuous constitutional amendment process would undoutedly lead to the rejection of such a scheme. The post decision checks I have described are “often blunt instruments that might not achieve their proponents aims” (Wilson American Government p308 5th edition 2000).
Combined with the predecision informal restraints that the court finds itself in they do however form a framework for Supreme Court action. There are certain decisions that are not the field of the judiciary, the court can only step so far outside the views of public moral consensus opinion and only for so long, the court has to act within the constitution itself. But the court so described is still one with enormous scope to govern on an enormous range of Issues. In no other democracy does a court hold so much political power and in particular power over public policy decisions.