2.11 - Checks on the Judicial Branch

Judicial Philosophies

• Judicial Restraint: the Court should defer to elected branches or the states whenever possible, only overruling something that's clearly unconstitutional. Restraint-minded justices are less likely to overturn precedent or strike down other branches' actions. Most justices, including Chief Justice Roberts, describe themselves this way.

• Judicial Activism: the Court should use its power to correct the other branches when they're wrong, even if that means driving policy change and showing less deference to precedent. Critics call this "legislating from the bench." Both liberal rulings (Roe v. Wade, Obergefell v. Hodges) and conservative ones (Citizens United, Dobbs v. Jackson) have been labeled activist depending on who's criticizing.

• The required cases in this debate:
• Marbury v. Madison (1803): the debate starts here. Judicial review isn't written in the Constitution; the Court claimed it, so critics ask how far it should reach.
• Brown v. Board of Education (1954): overturned the precedent of Plessy v. Ferguson (1896) and struck down state segregation laws. In the 1956 Southern Manifesto, Southern members of Congress called it "a clear abuse of judicial power." Today it's seen as the Court correctly enforcing the Equal Protection Clause, which shows that "activism" is often in the eye of the beholder.

Constitutional Philosophies

• Strict Constructionism: interpret the Constitution literally, based on what's directly stated or clearly implied. Example: Jefferson opposed a national bank because the Constitution never explicitly allowed it. Tends to shrink federal power.

• Broad (Loose) Constructionism: a more flexible reading based on the Constitution's broader principles, tied to the idea of a "living Constitution" that evolves over time. Supports implied powers and a broad Commerce Clause, tends to expand federal power. Example: Hamilton argued for the national bank using the Necessary and Proper Clause.
• The Court adopted this reading in McCulloch v. Maryland (1819), upholding the national bank as "necessary and proper" even though the Constitution never mentions one.

• Originalism: interpret the Constitution based on the Framers' original intent, treating that as the most important factor. Like strict constructionism, this tends to shrink federal power, since the Framers didn't grant much explicit authority to the federal government and feared a too-powerful one.

Checks on Supreme Court Power

• Hamilton said as much in Federalist No. 78: the Court has "neither FORCE nor WILL, but merely judgment" and must "depend upon the aid of the executive arm even for the efficacy of its judgments." Even in Marbury v. Madison, Marshall avoided ordering Jefferson's administration to act, partly because it might have just ignored him.

• States delaying a ruling: after Brown v. Board (1954), many Southern states resisted desegregation for years. In 1957, President Eisenhower had to send federal troops to Little Rock, Arkansas, so nine Black students could attend Central High School. The Court can rule, but it depends on the president to enforce.

• Legislation to modify a ruling: after Ledbetter v. Goodyear (2007) made it harder to sue over pay discrimination, Congress passed the Lilly Ledbetter Fair Pay Act (2009) to undo the ruling's effect.

• Amendments: besides the 16th, the 26th Amendment (1971) set the voting age at 18 for all elections after the Court ruled in Oregon v. Mitchell (1970) that Congress couldn't do it by law for state elections.

• Removing jurisdiction: Article III lets Congress make "Exceptions" to the Court's appellate jurisdiction, so Congress can pass a law taking certain kinds of cases away from the Court. This is rarely used.

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