The Judicial Branch

8 August 2016

The Judicial Branch is the most important branch of the United States government, due to the significant role it plays in interpreting and determining if laws are constitutional. Even though the Judicial Branch is the smallest in size and has smallest budget of any branch in our nation’s government, it exercises enormous power and is equal to other branches of the government because it has the power of Judicial Review. Judicial Review is the review by the US Supreme Court of the constitutional validity of a legislative act. The Creation of the Federal Courts

The Constitution defines the structure and functions of the legislative branch of the government. It clearly addresses the responsibilities and powers of the president. But, it treats the judicial branch almost as an afterthought. Article III specifically creates only one court (the Supreme Court), allows judges to serve for life and to receive compensation, broadly outlines original jurisdiction, and outlines the trial procedure for and limitations of congressional power against those accused of treason.

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Framers of the Constitution

The framers of the Constitution were clearly more interested in their experiment with legislative government than in the creation of a judicial system. Had it not been for John Marshall, the third chief justice of the Supreme Court, the judicial branch might well have developed into a weak, ineffective check on the legislature and the presidency. But Marshall changed everything by interpreting a power “implied” by Article III. Judicial review, or the power of the courts to overturn a law, was the vehicle he used to create the most powerful judicial branch in the history of the world.

Article III basically implied that “the judicial Power of the United States shall be vested in one Supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish”. It also stated that “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,”. Writs A writ is a written court order requiring a party to perform or cease to perform a given act.

Marshall’s decision was to declare the writ of mandamus unconstitutional, claiming that Congress had passed a law “repugnant to the Constitution. ” He declared that because Article III did not grant the judicial branch the power of the writ of mandamus, and so the Supreme Court was unable to order Madison to act. Of course, Jefferson and Madison were happy with the decision, and the crisis passed, with only a disgruntled prospective justice (Marbury) to protest. i How the Supreme Court gets the Final Word No one seemed to understand the grand implications of what Marshall had done: he had created the power of judicial review.

This established the standard that only the federal courts could interpret the Constitution. This power has given federal judges the final word in settling virtually every major issue that has challenged the government in American history. Today, the judicial branch not only provides strong checks and balances to the executive and legislative branches; it possesses a tremendous amount of policy-making power in its own right. This power rests more on the standard of judicial review set by Marshall in 1803 than on the provisions of the Constitution.

How the Judges and Justices of the Federal Courts are chosen The first of three ways Judges and Justices are chosen is the Nomination Process. The Constitution provides broad parameters for the judicial nomination process. It gives the responsibility for nominating federal judges and justices to the president. It also requires nominations to be confirmed by the Senate. But many vacancies do occur during a president’s term of office. Appointing judges, then, could be a full-time job. A president relies on many sources to recommend appropriate nominees for judicial posts.

Recommendations often come from the Department of Justice, the Federal Bureau of Investigation, members of Congress, sitting judges and justices, and the American Bar Association. Some judicial hopefuls even nominate themselves. A special, very powerful tradition for recommending district judges is called senatorial courtesy. According to this practice, the senators from the state in which the vacancy occurs actually make the decision. A senator of the same political party as the President sends a nomination to the president, who almost always follows the recommendation.

To ignore it would be a great affront to the senator, as well as an invitation for conflict between the president and the Senate. Presidents must consider many factors in making their choices for federal judgeships. Let’s start with the first of four factors, Experience followed by Political Ideology, Party and personal loyalties; finally they consider Ethnicity and gender. •Experience- Most nominees have had substantial judicial or governmental experience, either on the state or federal level. Many have law degrees or some other form of higher education.

•Political ideology- Presidents usually appoint judges who seem to have a similar political ideology to their own. In other words, a president with a liberal ideology will usually appoint liberals to the courts. Likewise, conservative presidents tend to appoint conservatives. •Party and personal loyalties- A remarkably high percentage of a resident’s appointees belong to the president’s political party. Although political favoritism is less common today than it was a few decades ago, presidents still appoint friends and loyal supporters to federal judgeships.

•Ethnicity and gender- Until relatively recently, almost all federal judges were white males. Today, however, ethnicity and gender are important criteria for appointing judges. In 1967, Lyndon Johnson appointed the first African American Supreme Court justice, Thurgood Marshall. In 1981, Ronald Reagan appointed the first woman to the Supreme Court, Sandra Day O’Connor. All recent presidents have appointed African Americans, Latinos, members of other ethnic minority groups, and women to district courts and courts of appeal. The power of the Federal Courts

Not everyone agrees on how much power the judicial branch should have. After all, federal judges and justices are appointed, not elected. As most Americans believe in democracy, shouldn’t elected officials run the country? On the other hand, perhaps American government would be fairer if judges had even more power. Because they do not have to worry about reelection, they are relieved of the outside pressure of public opinion. After all, the majority is not always right. It is no accident that the Founders provided for elected officials in the legislature and appointed officials in the judiciary.

They believed that freedom, equality, and justice are best achieved by a balance between the two branches of government. Checks on Judicial Power The president and Congress have some control of the judiciary with their power to appoint and confirm appointments of judges and justices. Congress also may impeach judges, alter the organization of the federal court system, and amend the Constitution. Congress can also get around a court ruling by passing a previous law declared unconstitutional by the Courts. Courts also have limited power to implement the decisions that they make.

For example, if the president or another member of the executive branch chooses to ignore a ruling, there is very little that the federal courts can do about it. The power of the Courts The federal courts most important power is judicial review, or the authority to interpret the Constitution. When federal judges rule that laws or government actions violate the spirit of the Constitution, they profoundly shape public policy. For example, federal judges have declared over 100 federal laws unconstitutional. Another measure of the Supreme Court’s power is its ability to overrule itself.

In 1954, the Supreme Court ruled in Brown v. Board of Education of Topeka that schools segregated by race were unconstitutional. This reversed the 1896 Plessy v. Ferguson decision that upheld the doctrine of “separate but equal. ” i For the most part, though, federal courts do have a great deal of respect for previous decisions. A very strong precedent called stare decisis (“let the decision stand”) directs judges to be cautious about overturning decisions made by past courts. i Judicial Activism versus Judicial Restraint Judicial Activism is an interpretation of the U.

S. constitution holding that the spirit of the times and the needs of the nation can legitimately influence judicial decisions (particularly decisions of the Supreme Court). While Judicial Restraint is a theory of judicial interpretation that encourages judges to limit the exercise of their own power. The lack of agreement regarding the policy making power of courts is reflected in the debate over judicial activism versus judicial restraint. Judicial activists believe that the federal courts must correct injustices that are perpetuated or ignored by the other branches.

Supporters of judicial restraint point out that appointed judges are immune to public opinion, and if they abandon their role as careful and cautious interpreters of the Constitution, they become unelected legislators. Despite the debate over what constitutes the appropriate amount of judicial power, the United States federal courts remain the most powerful judicial system in world history. Their power is enhanced by life terms for judges and justices, and they play a major role in promoting the core American values of freedom, equality, and justice.

Conclusion That is why I believe the Judicial Branch is the strongest branch of the Government. Because not only does it interpret laws and declare if they are constitutional, they also execute their power of Judicial Review. They also have extensive power due to their ability to deny any court case, also higher up courts in the Federal Court System can accept those denied cases. Such as The Supreme Court did in the instance of Brown V. Board of Education, and Plessy V. Ferguson.

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