Checks and Balances on the Judicial Power of the Supreme Court

Congressional Checks on Judicial Power

The Constitution provides for a Supreme Court.  It does not specify the size of the court.  It provides for the possibility of lower federal courts,  but it does not create them.  It states that federal judges serve for terms of “good behavior” with no diminution in their salaries while in office, but it is silent on how or whether the federal courts will receive other necessities (such as staff support, a reporter system, or facilities in which to meet).  It describes the Supreme Court’s original (or trial) jurisdiction and mentions but does not explain the court’s appellate jurisdiction or how it is to be exercised.  The Constitution leaves all of these important matters about the third branch to Congress.  Perhaps in a system of representative government it is not surprising that the legislative branch would have the most constitutional control over and opportunities to check the impact of judicial decisions. 

Size of the Supreme Court

Between 1789 and 1868, Congress, changed the size of the Supreme Court seven times.  The number fluctuated from a low of five to a high of ten.  Changes in the size of the court were motivated by partisan politics as well as by genuine concerns over the administration of justice.  The reduction of the court from six members to five by the outgoing Federalist Party in early 1801 was for the blatant purpose of either preventing or delaying Democratic-Republican Thomas Jefferson from being able to make an appointment.  After the Civil War, Congress set the number of justices at nine.  Congress has not altered the size of the court since then, but its constitutional power to do so has never changed.

Lower Federal Courts

In 1891, Congress created a series of federal district courts to try cases for which the Constitution or federal law create jurisdiction.  Today, there are 94 federal district courts, with at least one in each state.  In the same legislation, Congress also created a set of regional courts of appeals and created judgeships for those courts.  That statute officially ended the practice of Supreme Court justices also serving also as circuit court judges.  Presently, there are twelve regional circuit courts of appeal.  All are identified by number (First through Eleventh) except for the District of Columbia Circuit.  Each circuit court hears appeals from the district courts in its geographic area.  

Circuit courts of appeal do not always agree on the interpretation of federal law or of the United States Constitution.  As noted above, the existence of what are known as “inter-circuit conflicts” is an important criterion the Supreme Court considers in deciding whether to allow review in a case.  Sometimes the Supreme Court chooses to allow inter-circuit conflicts to persist.  Allowing “tolerable” inter-circuit conflicts to continue signals that the court does not believe that legal uniformity is required in all areas of American federal law.

In some fields of law, however, Congress has decided that federal law should be uniform at the court of appeals level.  In 1982, it created the Court of Appeals for the Federal Circuit by merging the United States Court of Customs and Patent Appeals and the appellate division of the United States Court of Claims. Congress gave the Court of Appeals for the Federal Circuit nationwide jurisdiction over subjects such as appeals from the United States Court of International Trade, the Patent Trial and Appeal Board, the Trademark Trial and Appeal Board, and decisions of the Governmental Accountability Office Personnel Appeals Board.  

Appellate Jurisdiction of the Supreme Court

Congress first exercised its authority to define the Supreme Court’s appellate jurisdiction in the Judiciary Act of 1789.  It chose at that time to give the Supreme Court only limited appellate powers over decisions of lower courts and top state courts.   For many years thereafter, Congress by law identified the categories of cases that either qualified for appeal to the Supreme Court or that required Supreme Court review.  

In 1925, Congress dramatically expanded the authority of the Supreme Court to decide for itself which cases it will review.  The process is known as certiorari.  A litigant who has not prevailed before a federal court of appeals or highest state court can submit a petition to the Supreme Court asking it to issue a writ of certiorari, which orders the lower court to send the record of the case to the Supreme Court for its review.  

In 1988, Congress eliminated virtually all categories of appeals, thereby giving the Supreme Court almost complete discretion to decide which cases it will hear through the certiorari process.  Current Supreme Court rules require four of the nine justices to agree to “allow cert.”  Deciding which cases to decide now is one of the most important responsibilities of the Supreme Court. Typically, the court allows review in fewer than 2% of the petitions for certiorari it receives each year.  In early 2015, after allowing conflicts to develop among the federal circuit courts, it allowed review in a case to decide whether the equal protection clause of the Fourteenth Amendment prohibits states from denying marriage licenses to same-sex couples.  Its decision to decide the case was itself a newsworthy event.

Congress has chosen to give the Supreme Court increasingly more control over its docket.  However, Congress retains the power to alter or even eliminate the court’s appellate jurisdiction.  An example of the exercise of that power occurred after the Civil War when relations between Congress and the Supreme Court were particularly strained.  Fearing that the Supreme Court might use its power under the Habeas Corpus Act of 1867 to strike down a controversial post-war Reconstruction statute, Congress repealed the Habeas Corpus Act. The repeal had the effect of stripping the Supreme Court of jurisdiction after it had heard oral arguments in a case.  In ex parte McCardle (1869)  the Court dismissed the case for lack of jurisdiction, writing:

We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution, and the power to make exceptions to the appellate jurisdiction of this court is given by express words.

What, then, is the effect of the repealing act upon the case before us? We cannot doubt as to this. Without jurisdiction, the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and, when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.  

The constitutional authority of Congress to both grant and take away the appellate jurisdiction of the Supreme Court and lower federal courts remains a powerful tool for checking the exercise of federal judicial power. 


The Constitution provides two bases for impeaching sitting federal judges and removing them from office.  The first is in Article II, section 4.  A federal judge is a “civil officer of the United States” who is subject impeachment by the House and removal from office by the Senate if found guilty of “treason, bribery, or other high crimes and misdemeanors.”   The second is under Article III, section 1.  It provides that federal judges serve for terms of “good behavior.”  The Constitution does not define the meaning of “good behavior,” which leaves the determination to Congress employing a political judgment in deciding whether to impeach a federal judge using this standard.  

To date, the House has impeached fifteen federal judges.  The Senate has convicted eight, and it has acquitted four.  Three judges resigned during their impeachment trials.  The first judge to be convicted and removed was district judge John Pickering in 1803 for “mental instability” and being drunk on the bench (Congress acted under Article III, section 1).  The most recent judge to be impeached was District Judge Thomas Porteous from the Eastern District of Louisiana, who was convicted in 2010 for accepting bribes and making false statements under oath (Congress acted under Article II, section 4)

The only Supreme Court Justice to be impeached was Samuel Chase in 1804.  Chase raised the ire of Jeffersonian Republicans for many reasons, including his vigorous enforcement of the Alien and Sedition Acts as a circuit judge.  Chase’s acquittal in the Senate established the precedent that impeachment under the “good behavior” standard should not be for the partisan political reason of disagreeing with a judge’s decisions.   

Demands for impeachment remain fairly common even if not successful.  Some called for the impeachment of Chief Justice Earl Warren after his school desegregation opinions, for example.  Others attempted to impeach William O. Douglas for issuing a brief stay of execution in a criminal case in the 1950s.  More recent calls for impeachment also have failed to gain traction in the House:  Chief Justice John Roberts (for his opinion allowing corporations and unions to use their general treasures for unlimited campaign spending), Justice Clarence Thomas (for alleged perjury during his confirmation hearings), and Justice Sonia Sotomayor (for disparities between her testimony during her confirmation hearing about the right to keep and bear arms and her subsequent voting record on gun rights).  

Budgets and Appropriations

Except for lacking the power to reduce the salaries of federal judges while they are in office, Congress controls the budget of the federal courts.  Budgetary considerations affect the number of federal district and circuit court judgeships as well as staff support for the judiciary and the facilities in which the courts sit.  In the early 19th century, Congress created an office to report Supreme Court decisions in volumes known as the United States Reports.  Not until the 20th century, however, did Congress fund a separate facility for the Supreme Court.  The Supreme Court building opened in 1935. 

Budget decisions can have a significant impact on the operation of the federal courts.  In 2012, for example, as part of the federal government shut-down that occurred when Congress was unable to agree on a budget package, federal courts were required to make operational cuts.  Those cuts resulted in delays in scheduling trials in civil cases because of the constitutional requirement for speedy trials in criminal cases, elimination of some court security, reduction in support staff, and deferred maintenance of federal court facilities.  Congress will decide how and when court budgets will be restored.

The power of the purse also can be important in how Congress responds to judicial decisions.  Congress can choose to help carry decisions into effect or to stymie them through its appropriations power.  The Civil Rights Act of 1964 is an example of congressional agreement with the Supreme Court’s decisions regarding public school desegregation.  That law gave the Department of Justice the power (and money) to bring lawsuits against school districts that failed to comply with Brown v. Board of Education (1954) and subsequent decisions about implementation of Brown.  One section of the act provided that federal education funds would not be given to public school districts that refused to comply with the court’s desegregation orders.  A year later, the Elementary and Secondary Education Act provided considerably more federal funding for education.  Congress again refused to make that money available to districts that persisted in maintaining segregated public schools.

Congress was not required to enact those statutes.  Its choice to do so demonstrates that it agreed with the Supreme Court about the need to eliminate school segregation practices in the states. Threatening to withhold federal funds provided a significant incentive to state and local school districts to comply with the court’s desegregation decisions.  

Congress is not always aligned with the court.  Decisions striking down  prayer or Bible reading in public schools, Engel v. Vitale (1962) and Abington School District v. Schemp  (1963),  resulted in proposals for constitutional amendments ranging from re-writing the Preamble to the Constitution to recognize the sovereignty of God in the formation of the United States to an amendment guaranteeing religious freedom.  The decisions also influenced congressional bills to facilitate creation of private charter schools.  After the decision in Roe v. Wade (1973), recognizing the right of a woman to terminate her pregnancy during the first trimester, Congress enacted laws that prohibited the use of Medicaid and other federal funds to pay for abortions except when the life of a pregnant woman would be endangered by carrying the pregnancy to term.  Laws and resolutions since then have continued to reflect Congressional hostility to abortion.

Sidestepping Decisions

Sometimes Congress finds ways to circumvent the impact of Supreme Court decisions.  An example relates to what is popularly known as the legislative veto.

In the 1930s, Congress began creating large numbers of executive agencies to administer its growing number of statutes, many passed in response to the Great Depression.  Agencies are required to adopt rules to guide their administration of congressional statutes.  As a tool for overseeing and controlling the power that it has delegated to executive agencies, Congress devised a scheme requiring agencies to submit their proposed rules to one or both houses of Congress or to particular congressional committees for their approval or rejection before the rule went into effect.  The practice of disapproving proposed rules became known as the “legislative veto.”  Decisions to reject proposed rules were not submitted to the President for his veto or signature.  By the mid-1980s, provisions requiring agencies to submit proposed rules to one or both houses of Congress appeared in more than 200 statutes.  

In INS v. Chadha (1983), the Supreme Court ruled that this method of holding executive agencies accountable violates the “presentment” clause of Article I, section 7, of the Constitution.  The court ruled that any congressional action that has the “purpose and effect of altering the legal rights, duties, and relations” of persons outside the legislative branch must be taken by both houses of Congress through adoption of a statute or resolution.  Then the statute or resolution must be presented to the President for approval or veto.   

In response to Chadha, Congress redesigned the process for reviewing proposed agency rules so that it now operates more informally: Administrative agencies submit proposed rules to appropriate committees or subcommittees for their approval, not to the full House or Senate.  Executive agencies and congressional committees apparently have developed an informal system of review that satisfies the interests of Congress with respect to its oversight responsibilities and the interests of administrative agencies with respect to their independence from the legislative branch.  

Constitutional Amendment

If Congress believes that a constitutional decision of the Supreme Court is wrong, it can initiate the process of amending the Constitution, using its power under Article V of the Constitution.  Congress also can decide the “mode” of ratification of proposed amendments—by state legislatures or by a special convention.

Since 1789, Congress has proposed 33 constitutional amendments (including the Bill of Rights), of which 27 have been ratified by the states.  At least seven of those amendments have been aimed directly or indirectly at overturning constitutional decisions of the Supreme Court, and all have been ratified: 

Eleventh Amendment:  Overturned Chisholm v. Georgia  (1793) and restored state immunity to suit in federal courts.

Thirteenth and Fourteenth Amendments:  Overturned Dred Scott v. Sandford (1857) by abolishing slavery, establishing national and state citizenship, and providing equal protection and due process guarantees against certain state actions.

Sixteenth Amendment:  Overturned Pollock v. Farmers’ Loan and Trust Co. (1895) and gave Congress power to levy a progressive income tax.

Nineteenth Amendment:  Overturned Minor v. Happersett (1875) and prohibited denying the right to vote solely on account of gender.

Twenty-Fourth Amendment:  Overturned Breedlove v. Suttles (1937) and prohibited payment of poll taxes as a condition of registering or voting in federal elections. 

Twenty-Sixth Amendment:  Overturned part of Oregon v. Mitchell (1970) by providing that the right of citizens who are eighteen years of age or older to vote shall not be abridged on account of age.   

Other amendments have been proposed to overturn Supreme Court decisions.  Most have been originated by constituents or lobbying groups.  Opposition to the Supreme Court’s legislative apportionment decisions in the 1960s and 1970s, for example,  requiring legislative districts to be apportioned using the principle “one person, one vote,” resulted in several calls for a constitutional amendment.  Opponents of the court’s decisions starting with Row v. Wade (1973) relating to a woman’s right to abortion in the first trimester of pregnancy have proposed a “sanctity of life” amendment providing that life begins at conception.  

Two recent decisions involving campaign spending, Citizens United v. Federal Election Commission (2010) and McCutcheon v. Federal Election Commission (2014) also have generated various proposals for constitutional amendments.  Some of the proposals contain very broad wording that includes overturning long-standing holdings that corporations are persons.  Others simply would give Congress power to regulate campaign financing.  To date, none of these proposals for amendments to overturn Supreme Court decisions has made its way through Congress.