Checks and Balances on the Judicial Power of the Supreme Court

The Supreme Court & the Political Branches

Constitutional and Self-Imposed Checks on Federal Judicial Power

Cases and Controversies

Article III does not clearly define the “judicial power of the United States.”  However, Article III, section 2, describes the jurisdiction of the federal courts using two different but related terms, “cases” and “controversies.”  Both terms are words of limitation.  Courts cannot issue decisions simply because they choose to do so.  Rather, they can issue decisions only in the context of lawsuits in which the proper parties participate and for which the appropriate conditions are present throughout the litigation.  For example, if parties to a case decide to settle their dispute during the course of litigation, they no longer have a “live” controversy and the court therefore no longer has jurisdiction over the parties or the dispute.   

Over the years, the Supreme Court and lower federal courts have adopted complex guidelines governing the “case” and “controversy” requirement.  For example, parties must prove that they have “standing to sue,” which means they must have definite, concrete interests in the litigation and adverse legal positions.  Parties must satisfy the standards that Congress sets for litigating civil and criminal cases in federal courts by demonstrating that they have a statutory or constitutional right to litigate in federal court.  With rare exceptions, third parties cannot assert the rights of others.  Failure to satisfy any of the elements required for legal standing to sue can result in dismissal of a case.  

When the Cherokee Nation invoked the Supreme Court’s original jurisdiction in 1831, for example, seeking to prevent the state of Georgia from enforcing certain state laws on tribal lands, the court dismissed the case for lack of standing to sue.  It ruled that the Cherokee Nation was a dependent nation, with a relationship to the United States like that of a “ward to its guardian,” not a “foreign state” in the sense contemplated by Article III, Section 2.  Cherokee Nation v. Georgia (1831).  (A year later, the Court changed course.  In Worcester v. Georgia (1832), it held that the Cherokee Nation is a sovereign nation with standing to sue in federal courts.)   More recently, the court held that an environmental group lacked standing to represent the interests of the scenery, natural and historical objects, and the wildlife of the Mineral King Valley in California.  The group had filed suit challenging a proposed recreational development in the area.   Sierra Club v. Morton (1972).  

Another example of the case and controversy requirement relates to advisory opinions, which are non-binding interpretations of the law.  In 1793, President George Washington asked the Supreme Court for twenty-nine opinions on international law and neutrality related to the Franco-American Treaty of 1793.  In a letter to the president, Chief Justice John Jay said that principles of separation of powers made it inappropriate for courts to give advisory opinions.  The role of the courts was to decide lawsuits in cases properly before them.  Although the constitutions of several states permit state courts to issue advisory opinions, the federal courts never have done so.

Limited Federal Court Jurisdiction

Unlike state courts, federal courts are courts of limited jurisdiction.  That is, a party does not have a right to sue in federal court.  Rather, a party must prove that the United States Constitution or a federal statute confers power on a federal court to decide the case.  Federal courts, for example, lack jurisdiction to grant divorces.  A married person seeking to dissolve a marriage must file in the appropriate state court.  

The Supreme Court’s original jurisdiction, under which it sits as a court of both first and last resort, is limited to cases involving ambassadors and suits involving states as parties.  Congress has created a series of federal trial courts in each state, known as federal district courts, to exercise original or trial jurisdiction in other cases arising under the Constitution or federal law.  Not all federal statutes give rise to federal court jurisdiction, however.  The 2005 Detainee Treatment Act provides an example.  It states that “no court, justice, or judge shall have jurisdiction to consider the habeas application of a Guantanamo Bay detainee.”   The Supreme Court did not question the power of Congress to enact the statute.  In 2006, however, the court  interpreted the statute to apply only to cases filed in the future, not to cases that already were pending in federal courts when the 2005 statute was enacted.  Hamdan v. Rumsfeld (2006). 


In 1790, at the first meeting of the Supreme Court, the justices adopted rules to govern their operations under Article III.  Today’s Rule 10 demonstrates that the justices believe that the Supreme Court has a limited role in the federal judicial system.  Supreme Court review of a case is “not a matter of right.”  The court will not hear a case simply to correct factual findings or misapplication of a properly stated rule of law.  The court will exercise its discretion to decide a case only for “compelling reasons.”  Rule 10 identifies factors that the court typically considers in deciding whether to review the decision of a lower federal court or highest state court:    

  • A United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court’s supervisory power;
  • a state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals;
  • a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.

The Supreme Court uses Rule 10 as a guide, not as an ironclad rule.  Four justices must agree to allow a case for review.  In 2012-13, the court was asked to review 7,508 of more than a million cases decided by federal courts and top state courts throughout the United States.  (The court had only one petition under its original jurisdiction.)  The court allowed review in 77 cases, leading to written opinions in 73 cases.  Most of the decisions did not require the court to interpret the United States Constitution.  The few constitutional decisions that did emerge, however, were noteworthy.  For example, it decided two cases involving the use of police dogs in drug searches.  In Florida v. Harris (2103), the court held that a drug-detection dog can give police probable cause to conduct a search without a warrant for drugs inside a vehicle that is detained during a routine traffic stop.  In Florida v. Jardines (2013), by contrast, it held that police must obtain a search warrant before they can search a private residence even though a drug-detection dog has “alerted” them to the presence of drugs inside the home. 

Lower Federal Courts

An additional check on the power of the Supreme Court comes from within the federal judiciary itself.  All federal court judges serve during terms of good behavior.  They can demonstrate considerable independence in their responses to Supreme Court decisions when applying the rules from Supreme Court decisions to the facts of cases that subsequently come to the lower courts.  Sometimes lower federal courts disagree with Supreme Court holdings and refuse to follow them.  Their disagreement may be a factor in persuading the Supreme Court  to reconsider a holding, overrule it, or modify it.

Affirmative action, a policy of awarding positions to groups that previously have suffered from discrimination, provides an example of the interaction among federal courts on questions of constitutional interpretation.  In 1978, in Regents of California v. Bakke, the Supreme Court held that, in some circumstances, public universities may take race into account in making admissions decisions.  It held that doing so does not violate the equal protection clause of the Fourteenth Amendment, so long as universities do not set racial quotas in making those decisions.  The Court of Appeals for the Fifth Circuit disagreed with the Supreme Court.  In Hopwood v. Texas (1996), the Fifth Circuit held that the University of Texas law school “may not use race as a factor” in making admissions decisions.  Thereafter, a federal district court in Michigan also held that considerations of race in law school admissions are unlawful.   

In 2003, in Grutter v. Bollinger, the Supreme Court reversed the Michigan district court.  In doing so, however, it modified its analysis in Bakke.  It held that a race-conscious admissions program serves a law school’s compelling interest in a diverse student body.  But it added: “The Court takes the Law School at its word that it would like nothing better than to find a race-neutral admissions formula and will terminate its use of racial preferences as soon as practicable.  The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”   Grutter had the effect of nullifying Hopwood.    Ten years later, the Supreme Court imposed an even more rigorous standard for evaluating race-based admissions standards: consideration of race in undergraduate admissions decisions is presumed to be unconstitutional and will be subjected to the strictest judicial scrutiny.  Fisher v. University of Texas (2013).

Lower federal courts played an important role in keeping the controversy over race-based admissions programs on the Supreme Court’s agenda.  Meanwhile, changes in the make-up of Supreme Court between 1978 and 2013 resulted in different perspectives on the requirements of the Fourteenth Amendment in the context of college admissions policies.    

“Self-Inflicted Wounds”

The line between law and politics is not always clear.  On occasion, the Supreme Court issues decisions that undermine its status and authority.  Virtually all authorities agree that Dred Scott v. Sandford (1857) is an instance in which the court issued an opinion that was poorly reasoned and decided primarily for political reasons.  In 1927, Chief Justice Charles Evans Hughes described the decision as a “self-inflicted wound” that almost destroyed the Supreme Court as an institution.    

During the Great Depression the Supreme Court was so out of step with public opinion that its prestige was diminished and its legitimacy again was questioned.  The court repeatedly struck down both state and federal statutes aimed at regulating the economy.  The regulations had strong public support.  Fortunately for the court, President Roosevelt’s proposal to “pack” the court in 1937, discussed further below, was seen as such a blatant attempt to politicize the judiciary that public disapproval shifted to the President.

More recently, the court has been criticized for being out of step with the American public on issues such as abortion, school prayer, legislative apportionment, and campaign finance. Although it is impossible to know whether public opinion influences Supreme Court decisions, most scholars acknowledge that the integrity and prestige of the Supreme Court depend on the justices issuing constitutional decisions that are neither too far behind nor too far ahead of public opinion.   Chief Justice John Roberts, at the end of his first term as the court’s leader, also emphasized the importance of the court’s “credibility and legitimacy as an institution.”