One of the three equal but separate branches of our government is the Judicial Branch. Its purpose is inscribed above the entrance to the Supreme Court Building:
“Equal Justice Under the Law.”
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The Judicial Branch of our government currently consists of nine Supreme Court Justices and many federal court judges that are nominated by the President and approved by the Senate. These justices and judges may serve for life. The number of Supreme Court Justices are not prescribed by the Constitution, but an odd number is handy for breaking tied decisions, and nine have been the norm since the Judiciary Act of 1869.
Originally, the Constitution allowed the Supreme Court to hear any case of law. Over the decades, the sheer volume of contested laws has resulted in the practice of hearing only those high profile cases in which Constitutional law is contested. This became common after the Marbury vs. Madison case, in which Chief Justice John Marshall’s majority opinion declared that the Supreme Court has the right to judicial review. When a lower court judgment is contested on the basis that it is unconstitutional, the Supreme Court may accept a challenge to the previous decision, consider the evidence, and make a decision. This privilege is fraught with Constitutional overreach, however.
An odd number of justices is convenient to break a tie, and this is often necessary, especially in recent years. As our Presidents switch dramatically back and forth between the Democratic and Republican parties, Supreme Court Justices are nominated to reflect their Progressive or Conservative philosophies. But if the Justices are deciding whether something is constitutional or not, why don’t they all agree?
Some things are open to interpretation, and opinions often depend upon what perspective is used for judgment. Some of the Supreme Court Justices have a liberal perspective on the Constitution, meaning that they look at a lower court decision or other judgments and writings about the laws in questions and take all of those things into consideration with the opinion that the interpretation of Constitutional law can change over time.
Some of the Supreme Court Justices are strict constructionists, that is, they use the original wording of the Constitution to help them decide whether a lower court decision should be upheld or struck down.
Even Supreme Court Justices do not have the last word on whether a law or court decision is Constitutional.
Legislators may write a law that corrects what they think is a wrong decision by the Supreme Court. Congressmen, Senators, citizens, or a President may determine that one or more of the justices are not ruling according to Constitutional principles and begin the process to have that person impeached and removed from the bench. It is a difficult process, but it one that can be done, and is an important aspect of Checks and Balances.
Ultimately, it is We the People who hold our judges accountable to the rule of law. One of the best ways we can do that is to elect representatives, including Presidents, who understand the principle of Limited Government and the constraints of Constitutional Law and will nominate and confirm responsible judiciary representatives.
See other lessons in the Our Nation’s Foundations series here.