The Power of The Judiciary


Albert Lairson
Professor Mitchell


When the founding fathers of our country, and by that I mean the
Federalists, were creating the system of government for America, they knew that
a separation of power would be necessary to protect the American people from the
evils of a monarchy or dictatorship. In doing this, they created the three
branches of government; Legislative, Executive, and Judiciary. The plan was to
have the Legislative make the laws, Executive enforce the laws, and the
Judiciary interpret the laws, and it was Madison's system of "Checks and
Balances" that would keep the three in check. No one branch would be able to
exploit it's power without the scrutiny of one of the other branches, it seemed
to be the perfect system. However, when the Federalists proposed this system of
"Checks and Balances," they really didn't consider the Judiciary that much of a
threat of power, and because it wasn't considered a policy making branch like
the Executive and Legislative, it really wasn't thought of as part of that
system. Basically, the Judiciary would make sure that no law was unfairly
enforced on somebody, and anything else would merely be a bonus. The system of
"Checks and Balances" would then be the Executive watching over the Legislative,
and the Legislative watching over the Executive. To be more specific it would
be Congress watching over the President and the President watching over Congress.
(The Federalist Papers, #51)
This system, as I mentioned earlier seemed to be the perfect protection
against tyranny of any kind, and in fact it is quite effective, but I feel the
problem is in that the Federalists didn't take into account that the Judiciary
would in fact become a policy making branch in itself, with the power to check
any one of the other two branches just as much as they would check each other.
Robert Dahl wrote, "To consider the Supreme Court of the United States strictly
as a legal institution is to underestimate its significance in the America
political system. For it is also a political institution, an institution, that
is to say, for arriving at decisions on controversial questions of national
policy." (Dahl, Role of the Supreme Court Symposium, pg.279) The point here is
that proportionately, the Judiciary yields as much power and policy making
capabilities as any of the other two branches of government, and that the
decisions made by the Supreme Court are in fact equal in stature to Congress
passing a Bill into law.
What Dahl is basically trying to say is that the evolution of the
Supreme Court has made it very involved in decisions concerning important policy
issues of the American political system. When it renders a decision on these
policy issues, it is in fact changing or creating new policy itself. Now to say
that the Supreme Court is only the highest legal institution of the United
States would be doing a it a terrible injustice, not to mention selling it
extremely short on the credit it deserves for the job that it is doing. The
Supreme Court is without a doubt, a very capable and extremely involved branch
of government, equal in power to the Legislative and Executive branch, and well
adapted in the duties involved in the system of "Checks and Balances" that the
Federalists established so many years ago.
The founders intentions for the Judiciary Branch was to interpret the
laws that the Legislative made, and the document by which their standards would
be set would of course be the Constitution of the United States. The Supreme
Court would render decisions based on the laws drafted into the Constitutions,
and it would be asked to interpret them to the best of their ability. Because
of this expectation to "interpret", the Supreme Court has been allowed to
develop the power to change policy in America. The reason for this can be
explained by a great many examples, the biggest perhaps being the case of Roe v.
Wade where the issue of abortion took the forefront of the American judiciary
system. In this case, to ask the Supreme Court to interpret the law as best
described by the Constitution would be useless because the Constitution states
nothing on the matter of abortion. So what is the Supreme Court supposed to do
in these types of situations? The answer of course is to take the matter into
their own hands and interpret the law as THEY see fit. It is the only way
handle a situation that the Constitution does not address. This is exactly how
the Judiciary becomes a policy maker, when it has to deal with a situation as
they see fit, to refute a law or to uphold a law