Separation of powers in government systems

Judicial Branch

The Separation of Powers and the System of Checks and Balances: The Judicial Branch of the Federal Government

The government established by the framers of the United States' Constitution was a grand and complex experiment in many ways. Not only was it the first modern democracy, but the system of checks and balances that the legislative, executive, and judicial branches of the federal government were endowed with created a new mechanism for ensuring the responsiveness and responsibility of government offices and the individuals that filled them. As with any decent and ongoing experiment, adjustments have been made as new information and clearer insights arise; it is through this process of evolution and progression that the current policy-making system in this country has come into existence.

While it is still generally true that the legislative branch makes the laws, the executive branch carries out the laws, and the judicial branch interprets the laws, in reality the degree of interaction and influence that exists between these branches means that each branch serves as an effective means for policy creation in the current system of government in the United States at the federal level. This is no less true of the judicial branch than of any other, and the Supreme Court -- as the highest federal court and the primary judicial body established by the Constitution -- is the chief policy maker for the judicial branch of the federal government. The mechanisms it uses to influence and guide policy are somewhat varied, but can essentially be boiled down to two words: judicial review.

Marbury v. Madison

The concept of judicial review has become so engrained in the modern understanding of the federal government and the workings of the Supreme Court that it might easily be overlooked. Most if not all of the most famed Supreme Court cases deal with the concept of judicial review to one degree or another -- the Court must decide if a law, enacted by the federal government or by a state or local government entity, violates the limitations and restraints of the Constitution. This appears, for most intents and purposes, to be the primary duty of the Supreme Court. This task of the judicial branch of the federal government and its primary decision-making body, however, was not established by direct design, but rather by practice in the early days of the country, when the evolution of the government was still in a very early stage with little definition and less clarity.

In Marbury v. Madison, a relatively benign and almost boring issue resulted in a landmark Supreme Court decision that continues to have major ramifications to this day. The petitioner, William Marbury, had not received his documented commission from outgoing President Adams, and field in the Supreme Court to force the new Secretary of State James Madison to deliver this commission. Marbury's suit and the denial of the commission (as well as the creation of the commission itself) were highly political, and ultimately the Supreme Court did not really decide the issue (SCHS 2010). This lack of decision, though, proved momentous in shaping the way in which the Supreme Court would affect policy.

Chief Justice John Marshall determined that though Marbury had a write to his commission and that Madison had an obligation to deliver it, the ability to force such action was beyond the original jurisdiction of the court, thus striking down the Judiciary Act of 1789 (SCHS 2010). This was the first time that the Supreme Court had deemed a law unconstitutional, and in fact this power of the Court had not even really been established until it was used in this case. Its establishment, however, was to have profound effects on the judicial branch's power over the legislative and executive branches, especially in making sure that the restrictions of the Constitution were maintained despite -- and in fact precisely in reaction to -- attempts to legally surmount them through legislative acts or executive orders, as Marshall's words make clear (SCHS 2010).

Current Use of Judicial Review in Policy Making

The Supreme Court cannot exercise its power of judicial review until a case is brought to the Court, either through a direct filing (which is rare) or through appeals from lower federal or state courts. Any law or executive action could, however, come under the purview of the Supreme Court, at least theoretically, and be struck down as unconstitutional. This position as the final arbiter and interpreter of the highest body of law in the land has led some to claim that the federal government is actually poorly balanced, with the judicial branch -- specifically the Supreme Court -- holding far more power over the executive and legislative branches of the federal government than these branches do over the Court (Saikowski 1987).