Constitution 101: The Judicial Branch

Where does the Supreme Court get the power to strike down laws? What are the qualifications for being a Supreme Court justice? Find out in Part 3 of Legal Lad’s series on the U.S. Constitution.

Adam Freedman
5-minute read

Constitution 101: The Judicial Branch

Today’s Topic: Constitution 101 – The Judicial Branch

And now, your daily dose of legalese: This article does not create an attorney-client relationship with any reader. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.

Constitution 101

This is the third installment of a new series on the U.S. Constitution. For more on the Constitution, you can check out my new book, The Naked Constitution: What the Founders Said, and Why it Matters.

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Only the Supreme Court is Required

Article III of the Constitution creates the judicial branch. According to Article III, “the judicial Power of the United States shall be vested in one supreme Court, and in such inferior courts as Congress may from time to time ordain and establish.” Thus, under the Constitution, the Supreme Court is the only court that is required to exist. In theory, Congress could refuse to create lower courts and force the Supreme Court to do all the work. Now, there’s a program to cut government spending!

The Size of the Court Has Varied

Given the importance of the Supreme Court, the Constitution says surprisingly little about it. For example, the number of justices on the high court is not specified in the Constitution. It’s up to Congress. During the first century after the Constitution was ratified, the number of justices varied from 6 to 10, but the number has been fixed at 9 since 1869. But still, Congress could change this at any time – a fact that Franklin Roosevelt exploited in his attempt to get Congress to “pack” the Supreme Court with 6 additional justices, as I discussed in my earlier episode on The Power of Congress

Anyone Can Be a Justice – If the Senate Approves

Nor does the Constitution set forth any qualifications for being a Supreme Court Justice. Unlike congressmen and presidents, justices of the Supreme Court do not have to meet any citizenship or age qualifications. They don’t even have to be lawyers. Granted, all Supreme Court justices have been lawyers (as far as I know), but they didn’t always have law degrees. The last Supreme Court Justice who did not graduate from law school was Stanley Forman Reed, who was appointed by Franklin Roosevelt.

The lack of qualifications, however, does not mean that the president can appoint anyone he wants, because the Senate has to consent to appointments to the Court. The Constitution does not say on what grounds the Senate could or should withhold its consent. In recent decades, there has been a great debate about whether Senators should vote against otherwise qualified judicial nominees simply because they disagree with the nominee’s philosophy. The last time the Senate rejected a Supreme Court nominee was President Reagan’s nominee, Robert Bork; however, presidents since then have sometimes withdrawn judicial nominees to avoid Senate resistance.

“Cases and Controversies”

Article III does get a little more specific when it describes the jurisdiction of federal courts – the framers set forth a variety of “cases” and “controversies” that federal courts would have the power to decide. This is known as the “cases and controversies” requirement and it means that federal courts can only rule on concrete disputes between parties, where the parties have some stake in the outcome. The way federal courts enforce the “cases and controversies” requirement is by policing who has the right – known as “standing” – to bring federal cases. As an example, if Mr. A breaks his contract with Mr. B, usually only Mr. B can sue Mr. A. If I tried to sue Mr. B just because I thought it was the right thing to do, I would get thrown out of court.

Article III does not, however, say that federal courts have the power to strike down laws; that is, to invalidate laws that have been enacted by state legislatures or even the U.S. Congress on the grounds that they conflict with the Constitution. But the Supreme Court asserted this power early in the life of the Republic, in a case called Marbury v. Madison. The other branches of government acquiesced in that decision, and today, it is widely agreed that courts should have this power, known as “judicial review.” (Although there remains controversy about whether states have the right to nullify federal laws, as I discussed in an earlier episode).

“In Law and Equity”

A final point is that federal judicial power extends to cases in “law and equity.” In this context, equity refers to a separate set of legal rules – distinct from so-called common law rules. Traditionally, common law courts could only order parties to pay money, but courts of equity could order people to do things, or refrain from doing things. If you ever got a restraining order against somebody, that was an equitable order. It is because of this “equity” jurisdiction that federal courts have been able to order state and local governments to institute various policies, such as school busing and prison reform. This power is highly controversial, since it arguably puts judges in the position of adopting policies that should go through legislatures. Nonetheless, since the Courts have this power they are not likely to give it up!

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Supreme Court and Judge images courtesy of Shutterstock

About the Author

Adam Freedman

Adam Freedman is a lawyer and a regular contributor to Point of Law and Ricochet. Freedman’s legal commentary has been featured in The New York Times, the Minneapolis Star-Tribune, and on Public Radio. He holds degrees from Yale, Oxford, and the University of Chicago. He is the author of The Naked Constitution (2012).