Checks and Constraints on the Supreme Court in US Politics

Constraints

Legal constraints and court traditions

Judges can only decide on what matters that are brought to it and courts usually only decide matters that are considered important and which affect a number of people (they have no power of initiation)

Courts tend to stay out of foreign policy - it took over 2 years after 9/11 for it to hear a case of holding terror suspects without trial. It has not yet dealt with the constitutionality of the War Powers Act 1973

Lack of enforcement power

It took presidential action to enforce Brown v Broad

While Roberts court has questioned the holding of terrorist suspects without trial, many terrorist suspects are still being held without trial

Public Opinion

The court will weigh up amicus curiae statements that outline the views of interested parties in court cases

The court has stepped back from reversing popular decisions (death penalty) and is wary of intervening in divisive issues (affirmative action)

It has become involved in gay rights only recently, after it sensed a shift in opinion, ruled on this issue in United States v Windsor 2013: the Defence of Marriage act 1996 was ruled unconstitutional because it defined marriage as between a man and a woman

Checks by other branches of government

Checks by Congress

SCOTUS decisions can be overturned by constitutional amendments. The 16th amendment allowed the introduction of a federal income tax, after the court struck down earlier laws allowing it to do so

The Senate confirms appointments - they get the final say on who sits on the court (e.g. they rejected Merrick Garland)

Congress have the power of impeachment (Abe Fortes resigned rather than face impeachment)

Checks by the president

Power to nominate judges (this can change the nature of the courte e.g. Gorsuch makes the court conservative)

President can throw his political weight behind a decision e.g.Bush snr publicly described the courts decision in Texas vs Johnson 1989 as "wrong, dead wrong"

Self-Restraint

Judges do not automatically follow the political preference of those who elected them

Justice Roberts: "Judges are servants of the law" (shown when he sided with liberals over the Obamacare case)

David Souter - appointed by Bush snr but became one of the most liberal members of the SCOTUS

Eisenhower said about appointing Chief Justice Earl Warren- "It was the biggest damn fool mistake I ever made"

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