In Federalist, No. 78, Hamilton states, “…the Judiciary is beyond comparison the weakest of the three departments of power.” Nonetheless, as the country expanded, the President asserted more power and the size of government grew, the Court became more active in terms of interpreting laws. Judicial activism has had implications for the balance of power between Congress and the Courts.
Davidson, Oleszek, and Lee (2010) identify three ways in which the Court affects congressional action through constitutional interpretation. First, the Court’s decisions may uphold or extend legislative powers. Judges may state in their opinions that “Congress acted within its authority.” (Davidson, Oleszek and Lee 2010, p. 363) Second, the Court may check Congress’ power through judicial review by striking down a legislative act as unconstitutional. Beginning with Marbury v. Madison in 1803, the Court has invalidated over 170 laws passed by Congress. Judicial review was used only twice to invalidate federal laws before the Civil War, but grew with the increase in laws and regulations. Judicial review peaked between 1921 and 1936, when the Court invalidated twenty-nine laws. Third, the Court make act as a “catalyst” for legislative action. One example is the case of Brown v. the Board of Education (1954), where the Court struck down the separate-but-equal standard regarding state laws for segregating schools. The Court does not have independent power to enforce its decisions, but Congress acted over the next decade to pass legislation designed to end segregation and racial discrimination. The most notable examples are the Civil Rights Act of 1964 and the Elementary and Secondary School Act of 1965.
The Congress may reciprocate in checking the court in several ways, although they are used only occasionally. (Bazan, Killian and Thomas, 2005) For example, Congress rarely uses the power of impeachment, but it has impeached twelve judges and seven have been convicted and removed from office. In addition, during the 1990s, Congress cancelled previously mandated cost-of-living-adjustments to the salaries of federal judges that effectively froze pay for over a decade. After a series of challenges, the Court of Federal Claims issued a final ruling in 2013 that restored the salary increases.
Congress also has made few exceptions to the Court’s appellate jurisdiction Art III, Sec 2, Clause 2). Congress acted once to withdraw Supreme Court jurisdiction to review cases when it passed a law prohibiting the Court from reviewing the constitutionality of the Reconstruction Acts of 1867. In a recent example regarding federal district courts, the 109th Congress passed the Class Action Fairness Act, which (among other things) granted federal jurisdiction to large class action suits that involve citizens or laws from multiple states. In the 108th Congress, Republicans advanced several proposals to strip jurisdiction of federal courts over social issues, though none were passed into law. In 2003, the House voted to limit funds to enforce a decision to remove “one Nation under God” from the Pledge of Allegiance. The following year, the House passed the Pledge Protection Act, limiting the court’s jurisdiction to hear cases involving the Pledge of Allegiance. In the same year, the House passed the Marriage Protection Act, which sought to limit Federal court jurisdiction over the Defense of Marriage Act. Each of these was ultimately unsuccessful in the Senate, and attempts to strip federal court jurisdiction are rare. Congress traditionally has sought to protect the Judiciary’s independence. (Davidson, Oleszek and Lee, 2010)
Finally, Congress may respond to Court opinions by passing laws that address the Court’s objections, or by proposing constitutional amendments. Several constitutional amendments have been passed to overturn the results of a Court action.
The Eleventh Amendment, ratified in 1795, was a result of the Supreme Court’s decision to accept a law suit against a state by a citizen of another state. Congress quickly passed a resolution that became the Eleventh Amendment: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”
Section 1 of the Fourteenth Amendment, ratified in 1868: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside,” was a congressional response the Dred Scott decision (1857).
The Sixteenth Amendment, ratified in 1913, that gave Congress the power to “…lay and collect taxes on incomes…” was a response to the Court’s decision in Pollock v. Farmers’ Loan & Trust Co (1895), which found a law passed by Congress to tax incomes to be unconstitutional.
The Twenty-fourth Amendment, ratified in 1964, banning poll taxes was a congressional response to the Court’s decision to uphold state laws that contained poll taxes.
The twenty-sixth amendment, ratified in 1971, to establish a uniform voting age of eighteen was also a congressional response to the Court’s decision in the Voting Rights Act that Congress could only lower the voting age for federal elections.
Congress has passed numerous laws to address or change the results of a decision. In United States v. Lopez (1995), for the first time since the New Deal, the Rehnquist Court found that Congress exceeded its power to regulate interstate commerce by passing the Gun Free Schools Zone Act of 1990, a law banning guns near schools. Congress responded by reauthorizing the law to deal with the Court’s objection. The law has been upheld after several appeals. Nonetheless, Congress has had minimal success overriding Court decision with legislation. (Bazan, Killian and Thomas, 2005)
Overall, Congress has a variety of ways to check judicial power, but it also faces limitations in attempting to do so. Bazan, Killian and Thomas (2005, CRS 31) conclude that “Although the exact parameters of these limitations have not been established, it is likely that the Supreme Court would impose limitations on congressional legislation that did not comply with due process, equal protection, and the separation of powers.” Yet, as we have learned in Module 3, the Court has traditionally respected Congress’s enumerated powers and allowed Congress to exercise its implied powers.