The Supreme Court has become an institution with immense power in the American political system. The contemporary court bears little resemblance to the third branch that John Jay feared “would not obtain the energy, weight, and dignity” it needed to win the confidence of the American people and assume its proper role in the working of the national government. The Supreme Court’s power, of course, traces to both lifetime tenure of appointed judges and its exercise of the power of judicial review.
Today, most Americans perceive the Supreme Court to be at least as powerful the other two branches of the national government. Its decisions affect the operations of the other two branches of the national government and of the states, and they touch the rights and liberties of the people. What about limitations and checks on the exercise of judicial power? Are they adequate to keep the national judiciary in its proper constitutional place?
This segment first describes how the Constitution itself constrains federal judicial power. Then it turns to methods and examples of some of the ways in which Congress, the President, the states, and the people can check the exercise of judicial power. Some of the checks are institutional. They are part of the distinctive American approach to separation of powers that James Madison described in Federalist Paper #51, which give the legislative and executive branches “constitutional means and personal motives” to resist judicial encroachment. The division of governing authority between the national government and the states means that states also have a role in controlling the federal judiciary. Finally, the people themselves have both direct and indirect ways to check the exercise of federal judicial power.