In Federalist #51, Publius described the constitutional checks that each branch of the national government has over the others, and he remarked on the additional safeguard for liberty provided by America’s unique system of federalism. Nonetheless, he maintained, the primary control over government must be the people themselves. He had made a similar observation in Federalist #44: the people must “exert their local influence in effecting a change of federal representatives” when they perceive that government has overstepped its bounds.
What checks on federal judicial power do the people have? After all, federal judges are appointed, not elected, and they serve for life. They also exercise a power—judicial review—that is not provided for in the Constitution.
Congress and the President are the two branches of the national government with constitutional and political control over the federal courts. They are elected, directly or indirectly, by the people. Voters can have an indirect influence on the federal judiciary by voting for presidents and members of Congress who share their views on qualifications for judges or who express a commitment to responding to particular judicial decisions.
Elected officials must be responsive to those who elect them if they wish to stay in office. Contentious Supreme Court decisions frequently motivate constituents to contact their elected representatives requesting them to take some action in response. One recent example of constituent response to a Supreme Court decision is in the area of campaign finance. In Citizens United v. Federal Election Commission (2010), the Supreme Court held that limitations Congress imposed on the amount that unions and corporations can contribute to political campaigns violate the First Amendment. The opinion was unpopular across the political spectrum. Four years later, in McCutcheon v. Federal Election Commission (2014) the court held that aggregate limits an individual may contribute in a two-year campaign cycle also violate the First Amendment.
The court’s decisions in these cases galvanized those who seek to limit the influence of “big money” in American politics and to restore to Congress the power to regulate campaign finance. Some have pushed for legislation requiring candidates to disclose the amount and sources of their campaign contributions. In Citizens United stated that disclosure statutes would not violate the First Amendment. In addition, more than fourteen proposals for constitutional amendments have been introduced in Congress, many at the request of constituents, to overturn Citizens United and McCutcheon.
Scholars continue to debate whether public opinion influences judicial decisions. There is no clear answer and probably no real way to know. However, American history demonstrates that Supreme Court decisions that are badly out of step with a majority of the American people have little chance of being implemented successfully.
Recent public opinion polls reveal that public confidence in the American political system is at an all-time low. However, Americans seem to have more confidence in the third branch than they do in Congress or the President. In June 2014, for example, a Gallup Poll revealed that 39% of Americans have confidence in the Supreme Court as an institution, while only 29% have confidence in the President, and a mere 7% have confidence in Congress. These numbers may help explain why so many Americans turn to litigation rather than legislation to address problems that raise larger questions of public policy.