Judicial powers

Mandate to interpret and apply the law, granted to the Supreme Court under the U.S. Constitution.

When the Constitution was being drafted, the Founders gave consideration in the first three articles to the three branches of government they envisioned in such a way as to provide checks and balances and to make each branch of essentially equal importance. The branch that is in many ways most independent and most insulated from petty political considerations and concerns is the judicial, although many of its actions are fraught with political significance. The conscious intention of the Founders was that the judiciary be the least political branch of government.Separation of powers

The Composition of the Supreme Court

The Supreme Court initially consisted of six justices because the incumbents served both as justices and as circuit court judges, a role that they did not play in future years. The United States had three circuit court districts, each requiring the services of two justices. The number of justices was later reduced to five, then increased to seven, and in 1869 increased to nine justices, one of whom serves as chief justice.

The U.S. Constitution give the Supreme Court, housed in this Washington, D.C., building, the right to enforce and interpret the law.

(Library of Congress)

The Constitution did not stipulate the number of justices the Court would have. Changes were made as conditions and workloads warranted. Because justices do not run for election to office and “hold their offices during good behavior,” presumably for life, they enjoy a degree of independence that most public officials lack. Justices are nominated by the president, as directed by Article II of the Constitution, and must then be confirmed by the Senate.

Powers Granted by the Constitution

The Constitution clearly spells out many of the Court’s judicial powers. According to Article III, “The judicial power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.” It specifically includes cases involving ambassadors and other public ministers and consuls, all cases involving admiralty or maritime law, controversies to which the United States is a party, controversies between two or more states, controversies between a state and citizens of different states, between citizens of the same state claiming lands under grants to different states, and between a state or its citizens and foreign states or subjects.

Article III gives the court appellate power in all the cases it cites except for those affecting ambassadors, public ministers, or consuls. In such actions, the action may originate in the Court. In all other instances, cases must work their way through the hierarchy of lower courts before they can be considered for a hearing by the Court.

The Constitution states that trials for all crimes except impeachment shall be heard by juries. They shall be held in the state in which the offense was committed, but if the offense was not committed in any state, then the Constitution directs that it shall be tried at a site determined by Congress. Article III spells out what is meant by the term “treason,” declaring that no person shall be convicted of treason unless two witnesses verify that treason has occurred or unless the accused confesses to having committed a treasonous act. The power to decide on the punishment for treason rests not with the Court but with Congress.

A Definition

The term “judicial power,” as used in the Constitution, is usually construed as meaning the power that the Constitution grants specifically to courts as opposed to other governmental agencies. The term applies only to the federal government, not to the governments of individual states. The domain of states’ rights is zealously protected by the Constitution, which honors the sovereignty and individual differences cultural, social, and economic of the various states. The final power granted under the term “judicial power” is political power, for although the judicial branch is less political than the other branches, largely because its officers are appointed essentially for life rather than elected, this branch of government has the power to influence the policies that are enforced in the name of the U.S. government.

Some legal historians question whether judicial power, as spelled out in the Constitution and as envisioned by those who drafted that document, was meant to be interpreted as broadly as it has been through the nineteenth and twentieth centuries. The first major interpretation of this term grew out of the Court’s decision in Marbury v. Madison (1803), a landmark case. This complicated action was brought by William Marbury, appointed a justice of the peace in the District of Columbia by President John Adams at the very end of Adams’s term of office, a so-called “midnight appointment.”

When Thomas Jefferson took office in 1801, Marbury’s commission had not yet been delivered. James Madison, Jefferson’s secretary of state, refused to deliver the commission, whereupon Marbury asked the Court to issue a writ of mandamus to Madison, ordering him to deliver it. The hearing of this case was delayed until 1803. In the interim, the Judiciary Act of 1801 was repealed, and judges appointed under it were recalled.

The Court found that Marbury was entitled to the appointment President Adams had made and agreed that the writ of mandamus was the appropriate means for Marbury to employ in seeking redress, but it questioned whether this writ was available under Article III of the Constitution. In comparing Article III with the Judiciary Act of 1789, Chief Justice John Marshall found that the part of that act that deals with writs of mandamus was in conflict with the Constitution. Therefore, although Marbury had the right to his commission, the Court had to follow the Constitution and, on that technicality, deny his petition for appointment to the position he had been promised, an appointment that would likely have been rescinded by the Judiciary Act of 1801.

This landmark case established the concept of judicial reviewJudicial review, which was not specifically addressed in the Constitution. It established the policy of assessing statutes in the light of what the Constitution stipulates. It alerted judges to the necessity of honoring constitutional norms and, in so doing, it limited significantly the jurisdiction of the lower federal courts. It has been argued that the power to declare laws constitutional or unconstitutional, thereby deciding whether to enforce given laws or not, is not essentially a judicial function, but in Marbury a precedent was set that has much influenced the legal functions of the Court ever since. Judicial review greatly enhances the Court’s powers.

Judicial Review

The Court’s unanimous vote in Marbury firmly established the concept of judicial review, despite the nagging question of whether such review exceeds the provisions of Article III. Clearly, the Supreme Court has the ability to expand or diminish the definition of judicial power. In this case, the Court, in order to include judicial review, expanded it considerably.

Congress, on the other hand, has the power to expand or diminish the jurisdiction of the Court and, under Article III, could go so far as to disband all the federal courts, which it is charged with establishing, not that such a possibility is reasonably anticipated. The Court and Congress sometimes engage in a tug-of-war involving their individual powers because judicial power, of which judicial review is a fundamental part, is clearly political power. Both the Court and Congress expand and contract the powers over which they have control to meet their own specific agendas, many of which are also clearly political.

The Role of Federal Judges

Federal judges and Supreme Court justices ideally serve as disinterested parties in matters that come before them. Their main duty is to assure the public they serve that the law, as spelled out in the Constitution, will be upheld in the light of that document. When a Court decision runs counter to what the majority of citizens in a specific venue desire, federal judges must act in accordance with what the Court has mandated. Personal predilections can have no place in their judicial decisions.

The Court, which serves as the final arbiter in constitutional matters, may alienate major geographical and ideological segments of the United States in its decisions, as it did, for example, in Brown v. Board of Education (1954), a decision that forbade racial segregation in public schools. This case presents an accurate depiction of the Court’s judicial power. Although much of the South deplored the Court’s decisions in this case, federal judges in the area, some of whom undoubtedly were personally committed to segregation, were bound by their oaths of office to uphold the Constitution. They had no recourse, under threat of impeachment, except to follow the law as it was spelled out by the Constitution as interpreted by the Court.

Throughout the racial strife of the late 1960’s, the Constitution, as clarified by the Court, was the ultimate force with which an often belligerent South had to deal. Court decisions that validated the rights of all citizens, including AfricaAfrican Americans;citizenship[citizenship]n Americans, were resisted strenuously throughout the South, often with loss of life during demonstrations and confrontations. In the end, however, the power of the Court was reinforced by the Department of Justice and other arms of the government so that, inevitably, the rule of law prevailed.

Standing, Ripeness, and Mootness

The Court originally had the power to dismiss cases in matters that deal essentially with timing, although this power was somewhat diminished between 1953 and 1969, when Earl Warren served as chief justice. The Warren Court relaxed many of the earlier restrictions involving standing, ripeness, and mootness in order to meet some of the extraordinary events of the tumultuous period during which Warren served.Standing

Under the concept of standing, only plaintiffs who are personally injured by the acts of government officials have the standing to bring an action. Actions brought by plaintiffs to redress ills done to other people or to question the legality of acts affecting other people’s legal rights have generally been dismissed because the person bringing the action lacked standing as defined by the Court.

The concept of ripenessRipeness involves cases in which a conflict has not yet reached the point of being sufficiently concrete for the Court to understand the interests involved well enough to reach a sound judgment or to understand the legal issues involved in the case. A case that fails the test of ripeness at one point may be quite ripe for adjudication at some future point.

MootnessMootness has to do with cases in which the cause for the original complaint no longer exists. For example, if a person is denied admission to medical school on the basis of race, which is a violation of his or her constitutional right to equal protection under Article XV of the Constitution, and the case is pending before the Court, it may become moot if the admission standards of the medical school in question are altered to meet the requirements of Article XV.

These three provisions ensure that the Court will hear only cases that deal with the rights of people before it. The details of their cases must be concrete and the disputes that have brought them to court real, not anticipated. The Court is not granted the power by the Constitution to render advisory opinions about the law except as such opinions are attached to decisions in the cases the Court adjudicates.

As society changed rapidly and radically during the last half of the twentieth century, however, the Court was faced with more complex cases than those that had faced earlier courts. Matters of civil rights, criminal justice, legislative apportionment, and freedom of expression were intimately tied to the racial divisions that wracked the United States in the late 1960’s. The Warren Court was forced to reconsider the matters of standing and mootness in the light of the social upheaval that was taking place. In doing so, Warren demonstrated the judicial powers the Court had in affecting social change through its decisions.

In order to protect the rights African Americans had been granted under the Fourteenth and Fifteenth Amendments, the question of standing had to be relaxed. Class-action suits had to be brought in order to enforce the constitutional provisions of these two amendments. In the matter of standing, earlier courts demanded evidence that plaintiffs were asserting a “legal interest” that was protected under the Constitution. Because the definition of “legal interest” had not been entirely clear, that crucial term had to be redefined and expanded. Because the question of standing was usually introduced at the beginning of a trial, it would be virtually impossible to acknowledge a new legal interest before much of a case had been presented. By 1970, the Court was beginning to view the matter of standing as an “injury in fact” against plaintiffs.

Mootness also had to be reconsidered, and the Court had the legal power to reconsider it and to revise its former policies. In the case that tested a woman’s right to have an abortion, Roe v. Wade (1973), for example, the decision was not rendered until the plaintiff had delivered her child. The Court might have considered the matter moot and dismissed the case. In this instance, however, it permitted the plaintiff to continue litigation and ultimately reached a landmark decision in her favor. The Court, in Roe v. Wade, used its judicial powers to reinterpret and expand the law, in the process shaping a social policy that, although fraught with controversy, became the law of the land.

The Power to Interpret

The Court, whether liberal, moderate, or conservative in its composition, often arouses the ire of many citizens through its acts. During the early days of the administration of President Franklin D. Roosevelt,Roosevelt, Franklin D. who served from 1933 until 1945, the Court was loaded with the appointees of Republican presidents who supported a laissez-faire approach to economics. The Roosevelt administration, trying to stem the destructive tide of the Great Depression, sought to impose far-reaching economic policies, called the New DealNew Deal, upon the United States.

Faced with a Court filled with conservative holdovers from past administrations, Roosevelt suffered defeat nearly every time the Court ruled on the constitutionality of the sweeping measures he proposed. The “nine old men,” as the justices were called, interpreted the Constitution in highly restrictive ways, frequently citing the commerce clause and the due process clause of the Fifth Amendment. Roosevelt’s response to the Court’s intransigence was a request to Congress to increase the number of justices from nine to a maximum of fifteen, which would have permitted him to appoint a number sufficient to ensure the Court’s approval of New Deal policies. This plan to pack the Court was not approved in the Senate.

By this time, however, a few of the justices began to support some of the more important provisions of the New Deal, and there was hope that with deaths and retirements, Roosevelt would be able to appoint justices whose views were closer to those of his administration. Before his term of office was terminated by his death in 1945, President Roosevelt had appointed nine members to the Court, in essence changing the entire membership of that body.

The early deadlock between the Roosevelt administration and the Court illustrated clearly how much judicial power the Court has in determining the course of social and political action in the United States. The broad interpretations of the Warren Court also illustrate this power. Efforts by members of Congress to restrict the actions of the Warren Court usually failed because members of the Senate and of the House of Representatives realized that such efforts would not meet the constitutional tests that insulate the Court from many petty jurisdictional battles.

Further Reading

  • Paul Kens’s Judicial Power and Reform Politics: The Anatomy of “Lochner v. New York” (Lawrence: University of Kansas Press, 1990) discusses judicial powers by focusing on one key case, decided in 1905, that invalidated the New York law limiting workers in bakeries to ten-hour days and sixty-hour weeks. Robert Nagel is chiefly concerned with First Amendment rights and questions of censorship in Judicial Power and the American Character: Censoring Ourselves in an Anxious Age (New York: Oxford University Press, 1994), a carefully documented book that raises many complex questions about limitations on free expression. Judicial Power and the Constitution (New York: Macmillan, 1990) considers how various Courts have dealt with the Constitution and how they have exerted their judicial powers through their interpretations of it. Edward Keynes’s The Court vs. Congress: Prayer, Busing, and Abortion (Durham, N.C.: Duke University Press, 1989) is especially valuable in demonstrating how the balance of powers works in the U.S. political arena.

Court-packing plan

Judicial review

Judiciary Act of 1789

Judiciary Acts of 1801-1925

Marbury v. Madison

New Deal

Roe v. Wade

Roosevelt, Franklin D.

Separation of powers


Warren, Earl