I received some questions lately regarding what checks and balances can be placed on a seemingly "activist" court system. If the Judiciary provides the final "check" to both the Executive and Legislative branches, what necessarily "checks" the court. Specifically, what can a branch like the Legislature do to "reign" in the courts? I decided to explore this idea in a little depth.

The purpose of our federalist system of government was to check and balance its power in order that tyranny never institutes itself in the processes by which U.S. policy is legislated, executed and adjudicated.

For this purpose the U.S. government was divided into three co-equal branches of government: The Legislature, The Executive and The Judiciary. Over the years, as can be seen in the laws and Constitutional Amendments that have followed years after the Constitution’s ratification in 1787 during the Continental Congress, it is the ongoing debate and friction between the three branches that have protected liberty for the 240 years that the United States has been a nation, even if this friction has generated fierce vitriolic political warfare.

The legislature and the courts have generated a dark history of conflict against one another; at times veering onto the edge of internal combustion. In this analysis, I will discuss some of the ways the legislature can express disagreement with court decisions as well as some of the primary methods by which the legislative branch has utilized to attack and curb the judiciary’s power and jurisdiction.

Impeachment is one such method by which the legislature can exercise its right to “disagree” with specific court decisions. According to Mark C. Miller in Judicial Politics in the United States, “Although federal judges have life terms, there is a growing willingness to call for the U.S. House of Representatives to impeach federal judges over their decisions and for the U.S. Senate to then remove them from office.

This is a drastic measure… Congress has never removed a federal judge solely because politicians disagreed with his or her decisions” (Miller 2015, p. 242).Indeed, these occurrences are rare, but the boiling political environment that has been developing over the past couple of decades seems to have initiated a push to threaten courts over unpopular judicial decisions through impeachment by legislative action. One needs only to review controversial cases in recent history like National Federation for Independent Business v. Sebelius (Obamacare)or Citizens United v. Federal Election Comission (campaign finance laws) to see the political outbursts from both the “right” and the “left” sides of the political spectrum that lead to eventual outcries for impeachment of justices.

However, according to the Fordham Law Review, “To be impeachable, an act must fall within one of two categories: It must violate some known, established law, be of a grave nature, and involve consequences highly detrimental to the United States. In the alternative, it must involve evil, corrupt, willful, malicious or gross conduct in the discharge of office to the great detriment of the United States. Acts which result from error of judgment or omission of duty, without the presence of fraud, or from the misconception of duty, without the presence of a willful disregard, are not impeachable” (Feerick, 1970). In order for Congress to effectively “reprimand” the court, proof of actual wrongdoing must serve as the pre-requisite for such action.

The legislature can also respond to unpopular court decisions on law that circumvents the opinion of the court. For example, In General Electric Co. v. Gilbert, 429 U.S. 125 (1976), The Supreme Court ruled that discrimination against women in the workplace was not unconstitutional. In response to the ruling, Congress passed the Lily Ledbetter Fair Pay Act of 2009 in order to express its disagreement with the Court’s original ruling and to exact clear protections for women in the workplace.

Another example could be found in Employment Division v. Smith, 494 U.S. 872 (1990), where two members of the Native American Church were fired for using the prohibited drug peyote while working for a drug rehabilitation clinic. When seeking unemployment compensation, the state of Oregon denied them unemployment due to their interpretation of their behavior as “misconduct”, since general possession of the illicit drug was already illegal in the state. In a rare occurrence, The Supreme Court ruled on behalf of the state asserting that the statute prohibiting the possession of peyote did not discriminate against any religion or group, nor was it established for the purpose of infringing on religious liberty.In response to this, Congress passed the Religious Freedom Restoration Act in 1993 in order to expound on the Constitutional provisions of “religious liberty”.

For purposes of “overturning judicial decisions”, most of the legislative actions to circumvent the courts are predicated upon statutory interpretation issues; separate from their constitutional interpretation counterparts. According to Mark C. Miller, “If the legislature disagrees with the judicial interpretation of a statute, then the legislature merely needs to enact a new statute with new language that would clarify the ambiguous situation” (Miller, 2015, p. 236). Overturning a judicial interpretation of Constitutional law is much more difficult, since in theory a legislative “overturn” would require the passing of a Constitutional Amendment, which would require approval by a two-thirds majority vote in both houses of Congress.

If “drastic measure” properly identifies the current trend of the legislature’s castigation of judicial opinions that aren’t curried in their favor, then the legislative initiative to strip the courts of jurisdiction through the phenomenon known as court stripping should serve as no surprise. Under the Constitution, the legislature is given the authority to create courts as well as determine their jurisdictions. Specifically, the Exceptions Clause states, “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

This, in theory, gives Congress the ability to limit the jurisdictions of specific courts. The extent to which this “court-stripping” can occur, however, is not concrete due to the fact that such power of the legislature has rarely been utilized. For example, proponents and opponents of court-stripping utilize one of two conflicting Supreme Court cases[Ex Parte McCardle (1869) and United States v. Klein]in order to determine the exact amount of power the legislative branch has in its “jurisdiction apportionment” power to strip the courts of their jurisdictions.

According to Miller, advocates argue the existence of few, if any, limits on the legislature’s ability to be able to cancel federal court jurisdiction on specific or classes of cases. Opponents, on the other hand, argue from the premise of due process and equalized protection to negate Congress’ ability to take jurisdiction away from the federal courts in certain cases that could be deemed controversial (Miller, 243). Recently, for example, there have been flirtations by Congress with the idea of stripping jurisdiction out of the hands of the 9^th Circuit Court of Appeals due to repeated allegations of implicit liberal bias in judicial interpretation and for its astounding 80% reversal rate as analyzed by the American Bar Association.

Interestingly enough, along with determining the initial scope and geographic location of jurisdiction for the federal courts, the legislature is also given the ability to determine how many justices will sit on each federal court, including the Supreme Court by appropriate statute under Article 3 of the Constitution. For the purposes of reactionary solutions to unfavorable court decisions, Congress’ ability to construct the courts and their number of justices could also be seen as an incredibly viable tool for expressing disagreement with the judiciary when the legislature deemed necessary. Congress, after recent actions by the 9^th Circuit Court of Appeals that affirmed a District Court judge’s restraining order against President Donald Trump’s foreign policy initiative to ban immigration from certain countries in the Middle East deemed to hold areas of high terrorist activity, have debated on whether there needs to be a limitation on the number of judges that sit on the 9th Circuit.

A final political tool that the legislature maintains over the courts is its control of the judiciary’s salaries. Now, the Constitution prohibits the legislature from reducing the salaries of judges, but it says nothing about mandated increases in salaries to cope with the annual cost-of-living increases due to inflation.According to Mark C. Miller, “Congress can use its budget decisions to signal its overall approval or disapproval of the decisions of federal judges in general and the Supreme Court in particular. For example, in 1964 Congress approved salary increases for lower federal judges of $7,500 dollars per year but only increased the salaries of Supreme Court justices by $4,500, a clear indication that Congress was upset with several Supreme Court decisions” (Miller, 2015, p. 233).

Some would argue that the independence of the judiciary is in danger when subject to actions utilized by the legislature to curb its authority. However, I would beg to differ. If the branches of government are all equal, legally, under the Constitution for the purposes of upholding the cardinal ethic for representative government, then it serves no one well for the judiciary to be completely free of question. The judiciary was never intended to be “superior” to the other branches of government, nor was it intended to not have its fallibility recognized. This is the reason why the Framers of the Constitution granted Congress the power to create and determine the jurisdictions of courts, as well as the authority to impeach justices that violate their oath of office. For the same act of balance that draws the judiciary into the political fray to declare legislation passed by Congress as unconstitutional, the legislature is also given authority to check the power and authority of the courts.

For all intents and purposes, the devices each branch is gifted with to “check” one another are necessary evils in my opinion. The ultimate duty of government is to protect liberty. If vicious friction in execution, legislation and adjudication is the method by which this duty is accomplished, then it stands to reason that a government at conflict within itself is more beneficial to its citizens than a government allied against them.