Checking the Court

99 Pages Posted: 2 May 2016

Date Written: 2016

Abstract

What can the political branches of national and state governments legitimately and constitutionally do when, in their good faith judgment, the Supreme Court has careened out of control and exercised not legal judgment, but lawless will? What legitimate “checks” exist, and can appropriately exercised, against willful abuse of the judicial power?

This article explores the full array of possible constitutional checks on the federal judicial power, analyzing their legal validity and practical usefulness. They are, in ascending order of constitutional difficulty – and also of effective power, if constitutionally valid – as follows: (1) full substantive ideological review at the appointment and confirmation stage of a judicial candidate’s judicial philosophy, including the posing of “litmus test” questions; (2) control over the Supreme Court’s appellate jurisdiction through aggressive use of the Exceptions Clause power (“jurisdiction stripping”); (3) manipulation of the size of the Supreme Court (both “Court packing” and Court “unpacking”); (4) impeachment of judges and justices for believed abuse of judicial power, violation of the judicial oath, and violation of the Constitution; (5) legislation prescribing correct substantive and methodological “rules of decision” governing the judiciary’s interpretation and application of federal law of all types and abrogating the judicial policy of (occasional) stare decisis with respect to precedent decisions departing from such rules; and (6) presidential (and perhaps state and lower court) non-execution of judicial decisions inconsistent with the objective original meaning of the Constitution or other federal law.

Which of these purported checks might be constitutionally valid? Which ones are likely to be effective? What is the proper occasion for the exercise of these stronger and weaker devices for “Checking the Court”?

Keywords: Constitution, constitutional law, checks and balances, judicial power, Supreme Court

Suggested Citation

Paulsen, Michael Stokes, Checking the Court (2016). 10 NYU Journal of Law & Liberty 18 (2016); U of St. Thomas (Minnesota) Legal Studies Research Paper No. 16-08. Available at SSRN: https://ssrn.com/abstract=2773324

Michael Stokes Paulsen (Contact Author)

University of St. Thomas School of Law ( email )

MSL 400, 1000 La Salle Avenue
Minneapolis, MN Minnesota 55403-2005
United States
651-962-4831 (Phone)

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