Who checks and balances SCOTUS?

Question

My apologies for the question that must be very basic.

Suppose that the Supreme Court of the United States is corrupt enough to usurp powers far beyond the original intent. What are the mechanisms to rein it in? Suppose that SCOTUS meets every Congressional bill or executive action that it doesn't agree with a claim that it's unconstitutional. What would be the realistic mechanisms to address that? Let's say that SCOTUS also influences Presidential and Congressional elections by entertaining challenges in favor of its allies, like with Bush v Gore. Is there any way to prevent that?

Answer 1

Congress can impeach supreme court justices and remove them from office and this has happened in the past.

Impeachment Trial of Justice Samuel Chase, 1804-05

On November 30, 1804, for the third time in its brief history, the Senate began preparations for an impeachment trial. In 1798 and 1799, the Senate had tried a senator previously expelled on grounds of treason. The Senate dismissed the case, citing lack of jurisdiction. The second impeachment trial, in 1804, removed a federal judge for reasons of drunkenness and insanity. More than the first two proceedings, however, this third trial challenged the Senate to explore the meaning of impeachable crimes.

Samuel Chase had served on the Supreme Court since 1796. A staunch Federalist with a volcanic personality, Chase showed no willingness to tone down his bitter partisan rhetoric after Jeffersonian Republicans gained control of Congress in 1801. Representative John Randolph of Virginia, at the urging of President Thomas Jefferson, orchestrated impeachment proceedings against Chase, declaring he would wipe the floor with the obnoxious justice. The House voted to impeach Chase on March 12, 1804, accusing Chase of refusing to dismiss biased jurors and of excluding or limiting defense witnesses in two politically sensitive cases. The trial managers (members of the House of Representatives) hoped to prove that Chase had "behaved in an arbitrary, oppressive, and unjust way by announcing his legal interpretation on the law of treason before defense counsel had been heard." Highlighting the political nature of this case, the final article of impeachment accused the justice of continually promoting his political agenda on the bench, thereby "tending to prostitute the high judicial character with which he was invested, to the low purpose of an electioneering partizan."

On November 30, 1804, the Senate appointed a committee to "prepare and report proper rules of proceedings" for the impeachment trial. When they took up the case against the Federalist justice in January 1805, the Senate consisted of 25 Jeffersonian Republicans and nine Federalists. Chase appeared before the members on January 4, 1805, to answer the charges. He declared that he was being tried for his political convictions rather than for any real crime or misdemeanor and requested a one-month postponement to prepare a defense. The Senate agreed and the trial began in earnest on February 4.

Chase's defense team, which included several of the nation's most eminent attorneys, convinced several wavering senators that Chase's conduct did not warrant his removal from office. With at least six Jeffersonian Republicans joining the nine Federalists who voted not guilty on each article, the Senate on March 1, 1805, acquitted Samuel Chase on all counts. A majority voted guilty on three of the eight articles, but on each article the vote fell far short of the two-thirds required for conviction. The Senate thereby effectively insulated the judiciary from further congressional attacks based on disapproval of judges’ opinions. Chase resumed his duties at the bench, where he remained until his death in 1811.

Answer 2

In addition to the direct action of impeaching some of the justices (as Joe W's answer explains) which is the best remedy against corrupt individuals, Congress also has the authority to do almost anything they want to the Court's makeup and procedures, if they can get a law to do so passed. So if it's more of a systematic flaw than just a few corrupt Justices, the system can be changed.

All the Constitution says about the makeup of SCOTUS is:

Article II: [The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint, ... Judges of the supreme Court, ...

Article III: The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

The number of justices on the court and their policies and procedures are all set by law or custom, and can be changed by passing a new law. The only things off the table without an amendment are changing how Justices are appointed, removing them by means other than impeaching them, and docking their pay.

So Congress and the President working together can pack the court with "better" judges who aren't corrupt, redefine what constitutes a quorum, impose mandatory recusal guidelines (instead of the current self-recusal), change how cases get appealed to SCOTUS (but not that they can be), and so on.

Answer 3

Many answers get at one or more pieces of the full mosaic of checks against SCOTUS. I will attempt to be comprehensive.

Natural Checks

The Supreme Court exists as a co-equal branch of government with the Executive and Legislative. Each of these branches has natural strengths and weaknesses. Ultimately the Legislative branch is presumptively 'first among equals' and the Judicial branch is expected to defer to Legislative intent. When SCOTUS strikes down laws as unconstitutional, vague, or otherwise improper that ruling may be reversed in essence by legislative act (within certain bounds - Congress may not repeal the Constitution, for example). Similarly, the Executive branch may issue Executive Orders and various directives in response to SCOTUS rulings in order to re-establish a status quo.

1. The Supreme Court has no original power to act by itself. It may only react/respond to existing acts or conditions and generally only when someone asks it to, by bringing suit. That process is lengthy (taking years, or at least months when expedited), expensive, highly technical in nature, and never certain to go your way. This means litigants are strongly incentivized to avoid involving the court.

While SCOTUS' power is substantial and very broad, it basically only gets activated when systems are failing to function smoothly, and conflicts exist that are unable to be resolved by other means. As an emergency measure, a rising use/prominence/power of SCOTUS itself is a bright red warning light that the country isn't functioning very well.

Legislative Checks

2. Congress may impeach Justices and if the Impeachment is confirmed in the Senate they are removed from office, creating a vacancy that may be filled with advice and consent of the Senate. If SCOTUS oversteps, or otherwise antagonizes the Legislature too many times, it may find itself hosting a new roster of Justices.

3. Constitutional Amendments may also be passed by Congress so long as supermajorities exist to support them. While the bar is extremely high, here, this is the preferred tool for addressing single decisions that SCOTUS gets wrong.

4. Clarification of statute is also a means by which Congress can limit the effective reach of the Court after a decision it doesn't like is handed down. Once the rationale is understood, Congress can restructure the statute to limit how/when/why the impact of the Court's decision may be permitted to proceed. Not all SCOTUS decisions are amenable to this, but most are.

Executive Checks

5. As with the Legislature, Presidents may issue Executive Orders to clarify policy or make de facto rules that frustrate the Court's purposes. If the Court says you can't consider race when applying a given policy, the President may decide to apply that policy using wealth/income as a criterion. So long as the policy concern is a strong correlation between race and poverty, you've managed to bring the policy back to target (albeit with significant bycatch).

6. Court packing is, famously, one President's response to SCOTUS trying to get in the way of his policy agenda. While the method was legislative in nature, the President's "Bully Pulpit" (Term coined by a cousin of the president in question, no less) may be wielded as a form of check against both other branches.

7. Investigations into Supreme Court justices and/or personnel, while teetering on the brink of skullduggery (if not actually over the line entirely), are within the power of the Executive to order. Impeachment cases are easier to build when evidence can be gathered, and the criminal investigation of Justices is going to be deeply uncomfortable even if there's nothing meaningful to uncover.

Exogenous Checks

8. State governments also have checks against the SCOTUS, despite being (on paper) subordinate governments to the Federal system. Chiefly, they may - without waiting for Congress - initiate and effect Constitutional amendments if they're able to form a sufficient coalition amongst themselves.

9. And, as a deleted answer raised, the entire United States of America - as an experiment in democracy - may be dissolved if sufficient sentiment to sustain the effort is aroused in a large enough number of people. Commenters objected to this as 'not a check or balance.' I challenge that. Indeed, absent the other mechanisms described above, it's the only universal check against governmental power. The whole purpose of the remainder of this list, however, is to make this final, 'nuclear option' an avoidable one. At the end of the day, however, the government exists at all by grant of power from the People and therefore the People (not individual persons, mind you) may withdraw that grant and dissolve the Union.

Because the Framers established so many other options, however, SCOTUS would have to have gone rabidly tyrannical in ways that boggle the mind for this to be a sane proposal.

Answer 4

Suppose that SCOTUS meets every Congressional bill or executive action that it doesn't agree with a claim that it's unconstitutional.

The Supreme Court can't just declare congressional or presidential actions unconstitutional on their own initiative. Someone has to sue the government, then this has to be appealed through all the layers of the judicial system. And as we've seen in recent cases that have made it this far, the plaintiffs need to have standing to bring this lawsuit -- they have to have been damaged by the law in question.

So if there's a bill that SCOTUS doesn't like, but the people affected by it are not willing to spend all the effort needed to appeal to SCOTUS, it remains in effect by default.

Justice Thomas has mentioned that he'd like the opportunity to revisit the past decision on same-sex marriage. But unless there's a new lawsuit that gets appealed to them, it will remain the law of the land.

This process of appealing everything through all the appellate courts to SCOTUS is necessarily very slow. So it's not really feasible for SCOTUS to take over the country. They can't initiate anything, just react.

Answer 5

As said in theory the justices could be impeached, but given the increased polarization of politics this seems unlikely so long as the justices stuck to supporting one party over the other.

In practice if the supreme court was as bad as you imply the real answer may be that the president just stop respecting their decisions. The constitution never explicitly provides the supreme court the right to find something unconstitutional, that is in a sense a power they simpley declared they had to give them a third option when stuck in a no-win situation. It seemed a reasonable power to give them and so people kind of went along with it.

In theory a president could argue therefore that they are not required to respect a ruling that something was unconstitutional and just ignore the supreme court. This wouldn't be a decision taken lightly, but it does seem like something one might consider resorting to in such an extreme example as you described.

Realistically at this point though you would be facing a constitutional crises. Whether a president would get away with such an action would depend far less on what the constitution says and more on whether the public believed he was right to do so vs the public favoring the supreme court's behavior. It's more about politics then law at that point, let's hope we never reach that point...

Answer 6

The only reasons the Supreme Court has any authority over anyone beyond the actual parties to cases before it are that (1) it usually cites a sound constitutional or statutory basis for its rulings, and when it does so the cited laws would by the Article V Supremacy Clause apply in future cases just as they did in the case heard by the Supreme Court; (2) lower courts are loath to issue rulings which the Supreme Court would immediately overturn, and lower court decisions that directly contradict Supreme Court holdings are prone to be overturned very quickly.

The Supremacy Clause doesn't include Supreme Court rulings anywhere, because rulings have no authority beyond any portions of the Constitution or statutes cited as justification for them. While it has been observed that when the Supreme Court is doing its job, what it says and what the law is will be one and the same, people often fail to ignore the conditional clause in that observation. While the Supreme Court has often been granted deference far beyond what is actually merited, lower court judges are bound by oath to uphold the Constitution of the United States, and nothing the Supreme Court says can authorize them to do otherwise. Having lower court judges honor the Supremacy Clause would in and of itself serve as a check on the Supreme Court.

Answer 7

SCOTUS is not a constitutional court. The South African CONCOURT does interact with law makers and can give constitutional review to a law before it is enacted.

Scotus for the most part only acts in the manner of an appelate court in the sense that there must be real parties to a case with contradicting points of view.

It does not deal with what could be or what should be. There must be a real case for them to get involved.

It is not uncommon for a law in the US to have no real desire to be enforced and thus have no real cases that can enable constitutional review.

That being said all courts have the right to deem a law unconstitutional. From traffic court all the way to SCOTUS.

So in essence the big thing that limits SCOTUS judge corruption is that so few constitutional matters ever make it to such a high level of scrutiny. By a large majority SCOTUS does not hear most cases it is asked to review.

This highly selective nature of the apex courts review is a feature not a bug.

This enables lower courts to develop constitutional authority at a more localised level. With a justice system more aligned with your local points of view and judges less concerned with federal politiking. With SCOTUS only really getting involved in issues of a national level of importance.