And the executive branch (read here), which leaves just one final branch—the judicial branch of government. Once again, let’s start by defining what the judicial branch entails. The judicial branch is headed by the US Supreme Court with the lower level civil and criminal courts below it. Broadly, the purpose of the judicial system is the interpret and apply the law. Typically, most court cases begin in the lower courts with judges applying their own interpretation of the laws and the Constitution. No matter the outcome of the lower court’s ruling, the losing party can appeal that decision to a higher court—all the way up to the US Supreme Court. At that point in time, the justices of the Supreme Court will look at all the cases that have made it to the highest court and will decide if they will hear the case or leave the ruling of the lower courts in effect.
If the justices believe the case is worth hearing, arguments before the court are scheduled from October to April each year. The court hears arguments, asks questions, and sometimes, includes their own opinions in the questioning. Later, they come to a conclusion on the constitutionality of each case with a vote or series of votes. All 9 justices (odd number to decrease possibility of a tie) will vote based on their interpretation of the laws and the Constitution. Then, one of the justices will write a majority opinion, and one or more will write a dissenting opinion if the decision is not unanimous. By the end of June, all cases heard by the court will be ruled upon by the justices, and the majority and dissenting opinions are released. At this point in time, the court’s ruling is final…unless the Constitution is amended, or the court reconsiders its opinion and changes it (which is extremely rare).
Article III of the Constitution states what powers the Supreme Court is allowed:
“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;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;– to Controversies between two or more States;–between a State and Citizens of another State;–between Citizens of different States;–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.”
Interestingly enough, the Constitution does not grant the power of judicial review (where the constitutionality of laws is interpreted), but that power has been in practice since the early 1800s without any legitimate challenge to the authority.
Let’s take a real world example to provide some context here. In 2010, President Obama signed the Patient Protection and Affordable Care Act (aka Obamacare) into law. Part of that legislation included a mandate that all people have health insurance or pay a penalty when they file their taxes each year. Many argued that this mandate was unconstitutional and outside of the powers granted to Congress in the Constitution. A lawsuit was filed against the mandate in Florida, and the District Court agreed that it was not constitutional. The government appealed that decision to the 3-judge panel of the 11th District Court of Appeals, who agreed with the lower court 2-1 that the mandate was unconstitutional. The government then appealed that decision to the US Supreme Court, and arguments were heard in March 2012.
The Supreme Court was divided on its ruling, but in a 5-4 decision, it stated that the individual mandate was constitutional by declaring it a tax rather than a penalty.
This 5-4 ruling by the Court is somewhat unprecedented. It actually changed the law that was passed by Congress and signed by the President rather than deciding if it was constitutional. The original powers granted to the Supreme Court in the Constitution do not allow them power to change laws; that power is given only to the legislative branch.
History has very few instances where the court has overstepped its power to rule…at least, until the last decade or so. Most recently, another example of judicial overreach has hit the news. In 2015, the Court ruled that the ban on gay marriage was not only unconstitutional, but they also legalized it in every state, ignoring what the individual state had to say about it. This is another incidence where the Court’s power was seen by many to be abused beyond what it was given.
If the court thought that the laws of the US or a state were not in compliance with the Constitution, they have every right to remove it, but they have not been given a power to make their own laws after invalidating another. They are also not allowed to rewrite a law so that it becomes constitutional; that is the responsibility of the legislature. In such a case, the Court should give its ruling to invalidate a law, and then, Congress can decide what it wants to do with the issue at hand.
There is a fine line between using and abusing powers granted by the Constitution, and lately, the Court has been teetering on the wrong side of its granted powers. As with the legislative and executive branches, the extra powers that the judiciary has taken upon itself will be very difficult to remove due to the precedence that has been set for future justices and judges.
Chief Justice John Roberts