Re: Judicial Checks and Balances

Part 1 of 2

Your question reflects a landmark decison.

The case is Marbury v. Madison (1803); you should run an internet search and read about it.

Numerous checks and balance exist on the judiciary. The judiciary can apply only those laws that the

legislature passes. The judiciary cannot creatively contravene the law as passed by elected representatives (e.g., Congress and state level delegates).

Where a law does not exist to address a matter and a true case or controversy exists, the judiciary is free to decide on the basis

of common law or set precedent under case law. Common law is similar in constraint to statutes as passed by Congress.

The judiciary is not permitted to render advisory opinions. So, even though there may be a matter that the courts may want to address, if there is no case or controversy, the judiciary

is not permitted to render a decision.

Congress can, at any time, pass a law which changes case law as established by the courts. And, if congress sees fit, it can change a law completely. But if the law that it passes is unconstitutional then it will not be

legally effective.

Judges can be removed from office through impeachment. Judicial disabilities apply to discipline judges who act outside of the law.

The court is restricted by its own enforcement of precedent. And, erroneous decisions can be overturned through appeal. Also,

legislative acts can overturn a court decision (however this is seldom done).

The enforcement of laws is largely left to the Senate since, in a manner of speaking, it decides how much is to be spent for a law that

is passed. If little funding is provided the law is without teeth. Even though the judiciary may want to decide matters under the law, it cannot

do so where no enforcement is made.

The courts cannot act as an inquisitory body (with the exception of grand juries). Ours is an advesarial system and, unless a matter is brought to the court by one

of the opposing parties, the court cannot, of its own inititive, bring a matter forth.

Joe Holthaus (410) 799-9002

Re: Judicial Checks and Balances

Part 2 of 2

Operation of the courts is dictated by rules and procedure which, in and of itself, must be constitutional. The court cannot wield power and break rule or procedure at its whim.

The constitution preserves power to the people. Courts cannot act in disregard of constitutional protection. And, time and time again, where the legislature disagrees with the court's implementation, the Congress can pass

law to limit the courts.

Court's oversee each other. There is not only a separation between the executive, legislative, and judical branches of government but also a separation of power between the

Federal government and state governments. State rulings can be taken up to the Federal level if adversity is experienced by a party to a case or controversy. State governments may act on color

of law to the exclusion of the Federal government.

The Federal Constitution and state-level constitutions exist as a check and balance over the seperation of power between the Federal and state governments.

Powers are reserved to the executive branch, namely the power to grant a pardon.

Hope this helps.

If you should have a legal issue, the assitance of an attorney is advised.

Joe Holthaus (410) 799-9002

Re: Judicial Checks and Balances

There are powerful checks on the functioning of the judicial system, primarily the US Congress. Congress enacts the laws, the courts interpret them. If Congress doesn't like a court interpretation, then it can enact laws to overturn and correct it. Since citizens elect the Congress, ultimately we have the control by the decisions we make about who to send to do that job. We are the ultimate check and balance.

Re: Judicial Checks and Balances

As Mr. Aspinwal notes, the legislature's authority to pass new laws is one check on the judiciary's power. Another is that federal judges are only appointed after nomination by the President and confirmed by Congress before taking the bench, which is why there have been numerous political battles over pending nominations. (Most states have a similar system in place, though in some states judges are elected rather than appointed. Many states also require judges to either run for re-election or to face a retention election in which voters decide whether they remain on the bench.)

Yet another check on the judiciary is the fact that judges can be impeached. The fact that the judiciary has no authority to enact laws is also an important limitation on its power, as is the fact that it depends upon the other two branches of government to enforce its orders.

The ability to amend the Constitution is yet another check on the power of the judiciary. Several amendments have been added in response to specific Supreme Court rulings over the years.