Hamilton called the judiciary "the least dangerous" branch, since it has "neither FORCE nor WILL, but merely judgment" and depends on the executive to carry out its rulings (Federalist No. 78). Along with appointments, the other branches hold several more checks on the courts.
| Check | Who uses it | Example |
|---|---|---|
| Appoint and confirm judges | President and Senate | Every federal judge |
| Rewrite a statute after the Court interprets it | Congress and the President | Ledbetter v. Goodyear (2007) read a pay-discrimination deadline narrowly; Congress passed the Lilly Ledbetter Fair Pay Act (2009) |
| Amend the Constitution | Congress and the states | The Eleventh Amendment (1795) reversed Chisholm v. Georgia; the Fourteenth (1868) overturned Dred Scott; the Twenty-sixth (1971) followed Oregon v. Mitchell (1970) |
| Set the size of the Court and the lower courts | Congress | Nine justices since 1869; a 1937 plan to add up to six justices failed in the Senate |
| Set some of the courts' appellate jurisdiction | Congress | Ex parte McCardle (1869) |
| Impeach and remove judges | House and Senate | Justice Samuel Chase was impeached in 1804 and acquitted in 1805 |
| Carry out (or delay) rulings | the executive and the states | In 1957 President Eisenhower sent the 101st Airborne to enforce desegregation in Little Rock |
Why it works
Why so many checks on unelected judges? Courts protect rights even against majorities, but in a democracy their power still answers, slowly, to the people: through the officials who choose judges, the laws Congress writes, and amendments. Which tool fits depends on what the Court decided. If it read a statute, Congress can simply change the statute. If it read the Constitution, only an amendment, or a later Court, can change the result.
Key idea
Courts are checked by appointments, new laws after statutory rulings, constitutional amendments, Congress's control of courts' size and jurisdiction, impeachment, and their reliance on others to enforce rulings.
Worked example: Statute or Constitution?
The Court rules that a federal law's word "employee" does not cover interns. Congress disagrees. What can it do?
- The Court interpreted a statute, not the Constitution.
- Congress can pass a new law saying "employee" includes interns.
- No amendment is needed.
Answer: Amend the statute by ordinary law.
Worked example: Overturning a constitutional ruling
In Oregon v. Mitchell (1970) the Court held that Congress could not set an 18-year-old voting age for state elections. How was that changed?
- The ruling read the Constitution, so a statute could not undo it.
- Congress proposed the Twenty-sixth Amendment, and the states ratified it in 1971.
Answer: By constitutional amendment.
Common mistake
Thinking a Supreme Court ruling can only be undone by a constitutional amendment. That is true when the Court reads the Constitution. When it reads a statute, Congress can amend the statute, as it did after Ledbetter. Check: what text was the Court interpreting?