How does Publius clarify the Supreme Court’s role of checking the executive and legislative branches, and what guidelines must the courts follow?

Two key characteristics of the Supreme Court—its practice of judicial review, and its justices’ life tenure—can lead to debate over the legitimacy of the Court’s power, as well as attempts by the other branches to challenge and limit that power.

Key terms

TermDefinition

judicial reviewThe power of the judicial branch to nullify an act of Congress, executive action, or state law if it violates the Constitution.

life tenureHolding a position for life as Supreme Court justices do, unless they resign or are impeached.

judicial activismThe belief that the role of a justice is to defend individual rights and liberties, even those not explicitly stated in the Constitution.

judicial restraintThe belief that the role of a justice is to defer decisions (and thus policymaking) to the elected branches of government and stay focused on a narrower interpretation of the Bill of Rights.

jurisdictionThe extent of the power a court has to make legal judgments and decisions.

Key takeaways

Judicial activism and judicial restraint — The debate over judicial activism and judicial restraint is a key issue in discussions around the power of the Supreme Court. Some justices favor a policy of judicial restraint, viewing their role as strict interpreters of precedent and the Constitution, and deferring decisions that impact policymaking to the other, elected branches of government.

But other justices believe in judicial activism: that the Court should be bolder in upholding rights that may not be explicitly stated in the Constitution, and in striking down legislation that infringes those rights.

Challenging and limiting the Court’s power — In the wake of a controversial ruling by the Court, the other branches may challenge its legitimacy and power, questioning either the Court’s right to exercise judicial review or the appropriateness of its justices’ life tenures. Both the legislative and executive branches can also employ checks that can limit the Court’s power, for example via the nomination and confirmation of justices.

In the event of a vacancy, the president is likely to nominate a justice with whom they are at least somewhat ideologically aligned, which may in turn alter the ideological balance of the Court and decrease the likelihood of future majority opinions that conflict with the views of the president’s party. Because federal judges serve life terms, these appointments can have long-lasting impacts after a president has left office.

Congress can pass legislation to attempt to limit the Court’s power: by changing the Court’s jurisdiction; by modifying the impact of a Court decision after it has been made; or by amending the Constitution in relation to the Court. The president (and the states) may also choose to evade or ignore a Court decision; while not very common, this approach has been used in the past following some unpopular rulings

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