Checks and Balances on the Judicial Power of the Supreme Court

Presidential Checks on Judicial Power


Article III gives the President exclusive authority over nominations to the federal courts.  As noted above, judges on lower federal courts exercise considerable power over Supreme Court decisions when they apply the holdings from Supreme Court decisions to subsequent cases that come before them.   

All but four presidents to date (Harrison, Taylor, Andrew Johnson, and Carter) have been able to make at least one Supreme Court nomination.  All presidents have nominated judges to the lower federal courts.  The Senate shares power over who becomes a federal judge because of its responsibility to confirm nominees.   Over the years, the Senate has refused to confirm 12 Supreme Court nominees.  By failing to take action or by encouraging withdrawal, it has prevented the confirmation of 24 others.  The Senate’s practice of holding confirmation hearings at which nominees are expected to answer questions about their judicial philosophies began in 1955, shortly after the Supreme Court’s first school desegregation decision.   Southern senators attempted to use the process to block the appointment of John Marshall Harlan to the Supreme Court.   

Presidents always seek to advance their own policy choices through their nominees.  Judicial appointments by the outgoing Adams Administration after the election of 1800 are a clear example of the attempt Presidents make to tilt the federal courts in the direction the President wishes.  President Adams was able to pack the federal courts with his choices, however, only because the lame-duck Senate that confirmed them was dominated by members of his political party.  Presidents whose nominees require confirmation by a Senate dominated by the opposing party may choose not to nominate their top choices for judicial office because of the political embarrassment or certainty of having that nominee rejected by the Senate.  

Judicial nominations can become issues in presidential campaigns.  During the 1980 presidential campaign, for example, candidate Ronald Reagan promised to appoint “only those opposed to abortion and the judicial activism of the Warren and Burger Courts.”  Reagan’s opponents warned that Reagan could appoint as many as five justices if he were elected (several of the sitting justices were elderly) and thereby stack the court “against women, minorities, and social justice.”   (Reagan eventually made five nominations, including elevating Associate Justice William Rehnquist to be Chief Justice.  Four of his nominees were confirmed—O’Connor, Kennedy, Scalia, and Rehnquist.   The Senate rejected his nomination of Robert Bork.)

There are no guarantees that a judicial nominee, if confirmed, will meet a president’s expectations.  Joseph Story, for example, disappointed James Madison by becoming a staunch ally of nationalist John Marshall.  Dwight Eisenhower famously said that his nomination of Chief Justice Earl Warren was “the biggest damn-fool mistake I ever made,” in light of the Warren Court’s reputation for judicial activism on behalf of social change and the rights of the criminally accused.   Presidents Nixon, Reagan and Ford were disappointed by failure of the Burger Court to overrule Warren Court decisions in the areas of race relations, legislative reapportionment, and the rights of the criminally accused.  

Enforcement of Supreme Court Decisions

Presidents have discretion in choosing how and even whether to enforce Supreme Court decisions.  A famous example of presidential implementation occurred in 1957 in response to the Supreme Court’s desegregation decision in Brown v. Board of Education (1954).  Governor Orville Faubus had ordered the Arkansas National Guard to surround a public high school in Little Rock to prevent nine Black students from entering the school. President Dwight Eisenhower responded by ordering federal troops into Little Rock to insure that the students were allowed to enroll.  

An equally famous example is President Jackson’s defiance of the court’s decision in Worcester v. Georgia (1832).  In that case, the Supreme Court held that the federal government has complete, exclusive jurisdiction over Indian affairs.  The State of Georgia refused to recognize the decision and declared its intent to remove the Cherokee Indians from state lands.  The tribe turned to the United States for protection.  President Jackson responded that he had no power to protect the tribe from the laws of Georgia, contrary to the court’s holding in Worcester.  

During the Civil War, President Lincoln ignored an order by Chief Justice Taney that confirmed as unconstitutional the president’s suspension of the writ of habeas corpus.  There are recent examples as well.   In Gonzales v. Raich (2005), the Supreme Court held that Congress had authority under the Commerce Clause to prohibit the cultivation and use of marijuana for medical purposes.  State responses to that decision are described below.  In 2013, President Barack Obama announced that his administration would not enforce federal drug laws in states that had approved the use of marijuana for medical purposes.  

In 1974, the president himself had to decide whether to comply with a Supreme Court order.   In United States v. Nixon, the court ordered the president to comply with a subpoena from a special prosecutor investigating whether President Nixon had attempted to impede a probe into a burglary at the Democratic National Headquarters.  The court rejected the president’s claim that executive privilege shielded him from complying with the subpoena.  Within days of the court’s decision, the House of Representatives voted articles of impeachment against the president.  Thereafter, Nixon released transcripts and tapes that were so incriminating about his role in the burglary that he resigned three days later.  President Nixon’s decision to comply with the Supreme Court’s decision averted a serious constitutional crisis.

Directives to Executive Officers

In 1996, Congress enacted the Defense of Marriage Act (DOMA). Section 3 of the statute denied legally married same-sex couples most of the federal government benefits that are provided to married heterosexual couples, including survivor benefits.  Challenges to the constitutionality of the statute slowly worked their way through lower federal courts, resulting in an inter-circuit conflict.  In Windsor v. United States (2013), the Court declared section 3 of the Defense of Marriage unconstitutional.  Had the court upheld DOMA, a confrontation with the president appeared inevitable.  That is because, in 2011, President Obama had instructed the attorney general, whose Office of Solicitor General typically represents the United States in cases before the Supreme Court, not to defend DOMA.  

“Packing” the Court

Congress changed the size of the court several times before 1868, usually with a plausible explanation such as the need to modernize an outdated system or to make circuit riding less onerous for the justices of the Supreme Court.  Between 1862 and 1869, however, its choice to increase the size of the court appeared to be a blatant attempt to give President Lincoln an opportunity to give the court a pro-Union slant, while its decision to reduce the size of the court appeared to be a similarly blatant attempt to prevent President Andrew Johnson from making an appointment.

Only once has a president taken the lead in proposing changes in the size of the Supreme Court.  In 1937, President Franklin Roosevelt became so frustrated with Supreme Court decisions invalidating his New Deal programs that he advocated increasing by one the number of justices on the Court for every justice who refused to take senior status at age 70. He couched the proposal as an effort to help the court handle its crowded dockets without further overburdening its elderly justices.  No one was fooled.    

Vice-President John Nance Garner withdrew his support for what quickly became known as Roosevelt’s “court-packing plan.”  He informed the president that he could not advocate for the measure in his capacity as president of the Senate.  Although the Senate at the time was dominated by Democrats, most members of the Judiciary Committee also disapproved of the President’s blatantly political attempt to control the Supreme Court.  Public support lagged as well.  Roosevelt’s court-packing plan boomeranged: it had the effect of insulating the judiciary from partisan attacks by the other branches and of bolstering judicial independence.  

The Bully Pulpit

The office of the President provides its occupant with a unique opportunity to speak on any subject to a wide audience.  Whether a president’s critique of the Supreme Court has any influence on how the justices vote probably never will be known.  However, after months of President Franklin Roosevelt’s outspoken criticisms of the Supreme Court, Justice Owen Roberts switched his vote in cases involving the constitutionality of New Deal programs. West Coast Hotel v. Parrish (1937).  Thereafter, the Supreme Court upheld all New Deal legislation.