Judiciary Essay, Research Paper

When the founding fathers of our country, and by that I mean the

Federalists, were creating the system of government for America, they knew that

a separation of power would be necessary to protect the American people from the

evils of a monarchy or dictatorship. In doing this, they created the three

branches of government; Legislative, Executive, and Judiciary. The plan was to

have the Legislative make the laws, Executive enforce the laws, and the

Judiciary interpret the laws, and it was Madison’s system of “Checks and

Balances” that would keep the three in check. No one branch would be able to

exploit it’s power without the scrutiny of one of the other branches, it seemed

to be the perfect system. However, when the Federalists proposed this system of

“Checks and Balances,” they really didn’t consider the Judiciary that much of a

threat of power, and because it wasn’t considered a policy making branch like

the Executive and Legislative, it really wasn’t thought of as part of that

system. Basically, the Judiciary would make sure that no law was unfairly

enforced on somebody, and anything else would merely be a bonus. The system of

“Checks and Balances” would then be the Executive watching over the Legislative,

and the Legislative watching over the Executive. To be more specific it would

be Congress watching over the President and the President watching over Congress.

(The Federalist Papers, #51)

This system, as I mentioned earlier seemed to be the perfect protection

against tyranny of any kind, and in fact it is quite effective, but I feel the

problem is in that the Federalists didn’t take into account that the Judiciary

would in fact become a policy making branch in itself, with the power to check

any one of the other two branches just as much as they would check each other.

Robert Dahl wrote, “To consider the Supreme Court of the United States strictly

as a legal institution is to underestimate its significance in the America

political system. For it is also a political institution, an institution, that

is to say, for arriving at decisions on controversial questions of national

policy.” (Dahl, Role of the Supreme Court Symposium, pg.279) The point here is

that proportionately, the Judiciary yields as much power and policy making

capabilities as any of the other two branches of government, and that the

decisions made by the Supreme Court are in fact equal in stature to Congress

passing a Bill into law.

What Dahl is basically trying to say is that the evolution of the

Supreme Court has made it very involved in decisions concerning important policy

issues of the American political system. When it renders a decision on these

policy issues, it is in fact changing or creating new policy itself. Now to say

that the Supreme Court is only the highest legal institution of the United

States would be doing a it a terrible injustice, not to mention selling it

extremely short on the credit it deserves for the job that it is doing. The

Supreme Court is without a doubt, a very capable and extremely involved branch

of government, equal in power to the Legislative and Executive branch, and well

adapted in the duties involved in the system of “Checks and Balances” that the

Federalists established so many years ago.

The founders intentions for the Judiciary Branch was to interpret the

laws that the Legislative made, and the document by which their standards would

be set would of course be the Constitution of the United States. The Supreme

Court would render decisions based on the laws drafted into the Constitutions,

and it would be asked to interpret them to the best of their ability. Because

of this expectation to “interpret”, the Supreme Court has been allowed to

develop the power to change policy in America. The reason for this can be

explained by a great many examples, the biggest perhaps being the case of Roe v.

Wade where the issue of abortion took the forefront of the American judiciary

system. In this case, to ask the Supreme Court to interpret the law as best

described by the Constitution would be useless because the Constitution states

nothing on the matter of abortion. So what is the Supreme Court supposed to do

in these types of situations? The answer of course is to take the matter into

their own hands and interpret the law as THEY see fit. It is the only way

handle a situation that the Constitution does not address. This is exactly how

the Judiciary becomes a policy maker, when it has to deal with a situation as

they see fit, to refute a law or to uphold a law is to deal with political

policy in America. When the Supreme Court carried out a decision on the Roe v.

Wade case, it succeeded in not only making abortion the right of a woman to

decide on, but it also succeeded in setting forth a precedent of policy making

in America. This was a huge national issue, perhaps one of the largest of it’s

time, and for the Judiciary branch to arbitrate such an important issue was an

enormous show of force.

What we must remember when we are thinking in terms of the Constitution

is that the framers of it made it deliberately vague for a number of reasons.

One thing we must take into account is that when the founders were drafting this

document, a document who’s principles this country would be ran on for many

years to come, they were in reality trying to sell the idea to the rest of the

American people. Not everyone was all smiles about the fact America was going

to be a centralized government, so not everyone was happy about a Constitution

for the entire nation. For this reason, certain issues that would be very

controversial at the time are purposely not included in the Constitution because

people at the time simply would not have stood for it. An excellent example

would be the issue of slavery, which isn’t even spoke of in the Constitution.

This is not because the founders thought it would never be an issue, it was

actually quite the contrary. The founders absolutely knew that one day the

issue of slavery would have to be dealt with, but at the time of the drafting of

the Constitution, when they are essentially trying to sell people on the idea,

it would not be a very prudent thing to bring up.

Because of this vagueness, the Judiciary branch has been able to blossom

into a political force in our government. Countless decisions have been made

where the use of the Constitution was not an option, and interpretation was the

only means of deliberation. For these reasons, it is clear to see that the

Judiciary branch has established itself as a clear cut policy making institution,

but how does it fair in decisions involving the Executive or Legislative

branches of the government. An examination of the cases in which the Court has

held federal legislation unconstitutional provide an excellent answer to that


From the New deal to present, the Supreme Court has been active in

dealing with cases that involved federal legislation. One specific example that

validates this point is the issue of term limits. When Congress passed

legislation allowing for the government to set term limits on members of the

House of Representatives, the Supreme Court was asked to step in and rule on the

fairness to do this. This was and still is a prodigious issue among federal

officials, particularly the Congressman that it is effecting. After careful

consideration and review of the Constitution, the Court found that Term Limits

were unconstitutional. It ruled that the individual states could not govern

elections of it’s officials, so to say that if a Congressman was elected by the

people ten times in a row, let him stay in office that many times. What the

people want the people get, it is the only way to keep the system democratic.

Of course federal representatives like the President do have term limits, but

that is do mainly to the range of his constituency and power he has, and term

limits only assure the protection from a dictatorship.

Nonetheless, the main point here is the Supreme Court made an important

decision regarding legislative policy, and proved that it too is an important

policy maker, even after Congress may have passed legislation. The system of

“Checks and Balances” is well in tact, with the Judiciary Branch making sure

that policy and legislation is fair and constitutional, and is shown through the

decisions they have yielded. Countless other examples exist to back up this

claim, but it would be entirely too monotonous to go through them all.

In conclusion, I feel we have shown that the Judiciary branch has

evolved into an equally powerful branch of government as the Executive and

Legislative. Through the use Constitutional interpretation the Supreme Court

has proven itself to be an important policy making institution in the American

political system. I sustain that the founders did not expect the Judiciary to

become such a force in the policy making arena, but considering the way they set

up the Constitution, I do not think they would be disappointed by the way the

Judiciary has dealt with such controversial issues. It is my understanding that

the Judiciary is just as an important branch of government as the Executive and

Legislative, and that it has succeeded in the important duty of “checking” them

as well. With so many issues yet to be resolved, look for the Judiciary branch

to gain recognition as a policy maker, and to continue to uphold and interpret

the laws set up by the founders in the Constitution.

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