This paper argues that the judiciary is the weakest of the three branches of government under the presidential system, examining the structural constraints that limit judicial power relative to the executive and legislative branches. Drawing on constitutional theory, historical cases such as Worcester v. Georgia, and commentary from scholars and jurists including Justice Louis Brandeis and Edwin Meese, the paper contends that courts lack enforcement power, are subject to legislative override, and are vulnerable to political influence through the nomination process. The paper also addresses the broader effectiveness of the separation of powers and checks and balances doctrine, concluding that the principle has frequently failed to prevent executive dominance or legislative obstruction.
These two questions — whether the judiciary is the weakest branch, and whether checks and balances have been effective — will be addressed simultaneously, as the answer to one necessarily involves the other.
When we speak of three departments or branches of government, we must refer to the presidential system of governance. These three co-equal and co-independent departments are the Executive, the Legislative, and the Judiciary. The executive, as its name connotes, has the primary duty to faithfully execute the laws and the constitution. The legislature enacts or makes laws, and the judiciary interprets them, determining whether the provisions of a given law conflict with the constitution. The judiciary may likewise determine whether the actions taken by the executive are in accordance with the laws and the constitution. On the basis of these foundational principles, we proceed to examine whether the judiciary is the weakest or the strongest among the three branches of government.
Before going further, however, we must remember that these departments, in the performance of their mandates, are subject to definite legal and constitutional restrictions. The courts, for example, are mandated to align their decisions with the constitution. If a court finds in a law under consideration an interpretation that appears repugnant to the provisions or spirit of the constitution, it is compelled to strike down and set aside that interpretation as unconstitutional.
The deeper question, however, is this: if these constitutional restraints are ignored with impunity and a judge proceeds with abandon, deciding a case on the basis of personal preferences and beliefs, does this unauthorized exercise make the judiciary stronger than the legislature that enacted the law? A comparative reading of various discourses on the subject of a wayward judiciary reveals a common belief that courts render decisions strictly within the confines of their restricted powers. Some prefer to call such overreach "judicial activism." It should instead be labeled "judicial vandalism," and the erring judge or judges should be subject to disciplinary action and impeachment.
This paper takes the position that the judiciary is the weakest among the three departments of government, for the following reasons:
1. On judicial activism: According to AP Government sources, the justices of the Supreme Court "may try to read into the vague wording of the constitution and stretch the boundaries of what the constitution says." Interpreting vague constitutional provisions is, in fact, a major part of a court's function, and there is nothing inherently wrong with exercising that function. What is deplorable is the act of stretching the wording, meaning, and intent of constitutional provisions beyond what the constitution says — intentionally and with malice — in order to support a particular principle, ideology, or person. Conversely, no matter how erroneous an interpretation may be, if it was arrived at in good faith and without any persuasion of gain or advantage, such a ruling must be sustained.
Assuming that justices did in fact confederate and decided an issue in a manner that runs afoul of the constitution, would this make the judiciary a stronger branch? Surely not. While it may have credited the court's account of strength with a misdeed, it has also debited the judge's personal ledger with an offsetting administrative or criminal liability, resulting in a net worth of zero. There is no added strength where there is a corresponding weakness for an undeserved and wrongful assumption of power.
2. On oral argument preparation: Some sources lament that Supreme Court justices engage in a vulgar display of power when they give trial lawyers a hard time during oral arguments by asking difficult questions, having had the luxury of knowing the facts and the law well in advance. But what is wrong with that? Does it make the Supreme Court more powerful? No. Being prepared to listen to oral arguments is admirable — a sign of diligence, a virtue. Moreover, no matter if a case is decided on the basis of the ideology of the ponente (the decision writer), as long as that view is shared unanimously or by a majority, it is in accord with the judge's sworn duty. Laws, after all, are passed on the basis of principles shared by a majority of the members of Congress, which places both branches on the same footing.
3. On political influence over nominations: Justices to the Supreme Court are nominated by the president, and those nominated very often share the political beliefs and ideology of the nominating president. This practice has flourished and endured for a reason. Gratitude — discreet or lavish — has been expressed in more than a few instances. Under a situation where debts of gratitude are expected to be repaid, can justices feel more confident, independent, and powerful than the president to whom they may be beholden?
It must be emphasized that nowhere in the constitution is it provided that the Supreme Court or its subordinate courts shall have the power to enforce their judgments. Courts must call on the executive branch to exercise its power of enforcement, on the principle that a final ruling has become part of the law of the land — a call that may, unfortunately, be refused.
This lack of power was best exemplified in the 1832 case of Worcester v. Georgia, in which Chief Justice John Marshall ruled that "the U.S. government had no right to move the Cherokee Indians off their land in Georgia." In response, President Andrew Jackson — who was clearly opposed to the ruling — said: "John Marshall has made his decision; now let him enforce it." The decision was not enforced, and the Cherokee Indians were removed from their land.
5. Legislative override of court decisions: The legislature, in response to an unpopular court decision, may attack the very basis used to support it. If that basis is the constitution, Congress may propose that a constitutional assembly be convened, propose amendments consistent with its position, and vote in favor of those proposals as members of the constituent assembly. If the basis of the decision is a mere statute, Congress may simply repeal that law or amend it significantly to suit its position.
6. Defunding judicial rulings: Congress may also defeat a court's ruling by targeting its practical necessities — limiting the funds needed to implement a ruling or delaying their release.
7. CNN commentary on judicial overreach: CNN's William Mears commented that while the framers of the constitution envisioned the judiciary as the "weakest" and "least dangerous" of the three branches, it has since chosen to flex its muscles and shed its timid image. Its recent rulings have had "far-reaching consequences" in matters such as legalizing abortion and integrating public schools, seriously affecting the lives of Americans.
Mears' observations about the metamorphosis of the judiciary's attitude are no cause for alarm, because the safeguards have been and remain in place. Their use is up to the legislature, which must come up with laws to remove the ill effects, if any, of undesired rulings. Moreover, notwithstanding the unpopularity of certain decisions, they do not strengthen the proposition that the judiciary is the more powerful department, because such decisions are short-lived and lack the character of permanency, being always subject to the prerogatives of Congress for their continued existence.
8. Judicial nominations as political currency: John Nowacki, Deputy Director of the Free Congress Foundation's Center for Law and Democracy, decries that nominations for positions in the judiciary have been used by politicians from both the legislative and executive branches to secure political favors, asking aloud: "When will they take this seriously?" Considering that judiciary positions are "peddled" like goods in the political market, how can the products be stronger than the buyers who will only use them?
"Congress and president can neutralize court rulings"
"Activist rulings are constrained by available safeguards"
"Separation of powers has failed to prevent executive dominance"
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