Checks and Balances on Judicial Power

We have been discussing Marbury v. Madison and the power of Constitutional Review, i.e., the power of the Supreme Court to declare legislation unconstitutional (and thus invalid).

If unchecked, this is an extraordinary power and could lead to what one commentator calls “government by an unelected judiciary.”

We’ve been discussing some of the checks on this extraordinary power. What are some of those checks?

1. Constitutional Amendment (2/3 of both Houses plus ratification by 3/4 of the States). See Art. V.

2. Impeachment (for high Crimes and Misdemeanors). Art. II, § 4.

3. New appointments to the Court bring fresh blood and help assure that the Court identifies with the changing needs and concerns of the times.

4. Doctrine of Judicial Restraint, i.e., the view that the written Constitution has an historical meaning that binds the judiciary (i.e., judges should interpret and apply law not make law).

5. McCardle and "jurisdiction stripping" legislation enacted by Congress as a check on judicial power.

Moreover, one proposal that has recently been made calls for a constitutional amendment permitting Congress to reverse – by a 2/3 vote or perhaps by a majority vote – any judicial decision declaring any state or federal law unconstitutional. What do you think of this proposal as a check on judicial supremacy?

Here is one I personally like – how about amending the Constitution to require, say, 7 votes on the Court to declare any law unconstitutional. This requires the Court to act by consensus before striking down legislation enacted through the democratic process.