VIII.                 Checks on Judicial Power

1.         Judges aren’t elected, but that doesn’t mean they have no checks; they have no police or army, so their decisions can’t be enforced unless other enforce them for the courts.

                                                                i.      Decisions are usually resisted if doing so is easy and capture and prosecution is not imminent (school segregation, no praying or Bible reading in public schools, etc…).

                                                               ii.      If resistance will easily lead to prosecution, then decisions are quickly followed.

2.         Confirming different judges and impeaching them is another tool that Congress can use over judges.

                                                                i.      It can also increase/decrease the number of judges to let a president appoint judges that support him and his views or undo a Supreme Court decision on a law or amendment by changing, or rewriting that law or amendment (only the 11^th, 13^th-16^th, and 26^th Amendments have accomplished this).

                                                               ii.      Congress can also decide what the entire jurisdiction of a lower court and appellate jurisdiction (hearing cases passed up from lower courts) of the Supreme Court is.

a.         Theoretically, Congress can ban the Court from hearing whatever case Congress doesn’t want it to hear.

b.         Simply the threat of this may have changed decisions sometimes.

                                                              iii.      Of course, sometimes, denying the Court the right to decide on a case is tricky, because wording can be used against a legislator, and if he goes too far, then the public is against him.

3.         The courts do heed public opinion, even though their members are not elected, and they’ll keep in mind cases (*cough* Dred Scot cough) when ignoring public opinion nearly destroyed the Court’s legitimacy.

                                                                i.      Opinion can restrain and also energize the courts to do action.

4.         Public approval of the courts seems to parallel public approval of gov’t itself.

5.         Nixon and Reagan tried to create a conservative court by selecting such justices, and they somewhat succeeded, but some cases have gone against the expected.

6.         Judicial activism has basically grown because gov’t has grown, and because more and more people accept it today than in the past.