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Why the judiciary is actually the weakest branch of government

By Lauren AguirreSeptember 14, 2017

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Supreme Court Getty Images

The Supreme Court is the highest court in the United States. With that comes power and prestige. Filling an empty seat on the bench is seen as a momentous event because the justices serve "during good behavior." Only death or resignation can end a justice's term on the Court. Therefore, it isn't unusual for justices to serve for several decades. And with landmark decisions changing national law, the Supreme Court appears at times to be a very powerful branch. However, the judicial branch isn't usually in this position. On a day to day basis, the courts could be seen as the weakest branch in American government.

 

If our government wasn't steeped in decades of tradition to the contrary, it would be all too easy to dismiss the judiciary entirely.

This is because the entire judicial system is based upon the concept of judicial supremacy. On a basic level, this means that court rulings at any level must be followed by the other branches — even though the judiciary literally has no way of enforcing its decisions. Judges simply state their opinion on the law. The judicial branch depends entirely on the executive branch to enforce its decisions. Meanwhile, the president is the commander-in-chief of the armed forces and Congress has the final say on the national budget. In comparison, all the courts really have is legal knowledge and published opinions. If our government wasn't steeped in decades of tradition to the contrary, it would be all too easy to dismiss the judiciary entirely.

In fact, one president already did. The Supreme Court’s decision in Worcester v. Georgia (1832) found that Georgia laws that allowed the seizure of Cherokee lands on which gold had been discovered were in violation of federal treaties. It also stated that the Cherokee were an independent nation inside the United States. In response, Andrew Jackson is famous for saying, “John Marshall has made a decision. Now let him enforce it." John Marshall was the Chief Justice of the Court at the time. This statement showed a complete disregard of judicial supremacy. Marshal completely ignored the ruling and executed the removal of Native Americans from the east coast, leading to the Trail of Tears.

Other examples of ignoring Supreme Court rulings come from state and local governments. After the Court declared in Loving v. Virginia (1967) that interracial marriages were legal and should be granted, several states in the South refused to give these couples marriage licenses. The same thing happened after Obergefell v. Hodges (2015), which legalized same-sex marriage nationally.

 

 Judicial review is actually a power the Supreme Court gave itself in Marbury v. Madison (1803)

So if the courts have no power to enforce their decisions, why are they making them in the first place? The U.S. Constitution gives the Supreme Court the power to interpret the law in its decisions. It doesn't give the Court the power to declare laws unconstitutional and strike them down (in other words, prevent laws from being enforced). Judicial review is actually a power the Supreme Court gave itself in Marbury v. Madison (1803). This is arguably where the concept of judicial supremacy began. This concept trickled down to the lower courts, allowing state and city courts to review laws based on their local constitutions. Now, just over two centuries later, this is a long-held American tradition in the legal system.

Most of the time, the cases that are decided in any court don't make too much of a legal impact. Big landmark historical cases at the Supreme Court aren't the norm, although it can feel like that when you look at news coverage. Most cases aren’t significant enough to get a headline on national news.

However, given how partisan American politics is becoming, this situation might change. With less immediate recourse available through Congress, more and more important cases might appear before the Supreme Court. Still, bringing a case of any kind is still an extreme option. It can take several years before any case can be sent there. And even then, the justices might not accept the petition to hear the case.

The judicial branch is weighed down by tradition and is probably the slowest-moving branch in our government. While the courts can issue landmark decisions, most of the time the judicial branch really is the weakest one in United States government.