75230H

Judge, Jury, & Justice

We, the people of the United States, in order to form a more perfect Union, establish
Justice, insure domestic tranquility, provide for the common defense, promote the general
Welfare, and secure the Blessings of Liberty to ourselves and Prosperity, do ordain and establish
this Constitution for the United States of America, wrote the Founding Fathers, with a flick of
their quills, on May 25, 1787 at Philadelphias Pennsylvania State House of the Constitutional
Convention. This Preamble preceded the revolutionary document that built the foundation of the
United States government. This document, the U.S. Constitution, established three branches of
government the Legislative Branch, also known as Congress, made up of two houses the
House and the Senate as established by the Great Compromise; the Executive Branch, made up
of the President and their Cabinet; and finally, the Judicial Branch, which is made up of the
nations courts. These branches allowed the powers of the government to be separated between
multiple groups in order to mitigate corruption and violation of human rights, and an effective
system of checks and balances was implemented.
However, even the most seemingly perfect system has its flaws. As stated by James
Madison in Federalist No. 51, it is not possible to give each department an equal power.
Perfect equality is simply impossible to achieve, and therefore, one branch must hold greater
power. And, under the bipartisan system that the United States government follows, it is the
Judicial Branch that holds the supreme power in the government system, surpassing that of the
Legislative and Executive Branches.
A primary reason that the Judicial Branch is the most powerful branch of the U.S.
government is the simple fact that the rulings made in the Supreme Court become federal law
that typically cannot be changed. In theory, Congress does technically have the power to
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overturn a Supreme Court decision with a two-thirds vote; however, as stated by Professor
Richard Hasan from the University of California in 2014, [P]artisanship seems to have strongly
diminished the opportunities for bipartisan overriding of Supreme Court cases, in which
Democrats and Republicans come together to reverse the Supreme Court. The bipartisan
system that the United States government follows has forced overturning a Supreme Court
decision to no longer be a viable option for Congress, thus allowing the Judicial Branch to
establish irreversible law.
An example of this is Cruzan v. Missouri [Department of Health], wherein the U.S.
Supreme Court ruled in favor of Nancy Cruzans family, thus legalizing passive euthanasia (or
pulling the plug, as it is commonly described as) discontinuing life support when it becomes
clear that the patient will not recover, and has explicitly stated prior to the event that, in such a
situation, they would not wish to artificially continue their life and advanced medical
directives. Another example, which is now highly controversial, is the right of abortion
established by the Supreme Court case Roe v. Wade. The Legislative Branch has not yet
succeeded in reversing this decision, despite being dominated by Republicans, who have
established a clear stance of opposition to the practice. Additionally, the conservative segment of
the Legislative Branch, aware that overturning a Supreme Court decision is a near-impossible
feat, due to the bipartisanship that characterizes the United States government, is not attempting
to illegalize abortion it is merely attempting to prevent funding.
Although one may argue that because Congress creates bills and laws, it supersedes the
power of the Judicial Branch, they must also recognize that there are many downfalls of
Congresss abilities. Congress has accomplished very little in recent years, particularly
following the 2014 elections, which created a standoff between the Executive and Legislative

Branches (due to the fact that the U.S. now has a Democratic President and a Republican
Congress). Additionally, Congresss power is severely hindered by the Presidents veto power
and the Supreme Courts ability to declare their laws unconstitutional. One may declare that the
Presidents veto may be overturned by a two-thirds vote within Congress, but then, the
Legislative Branch will encounter the same problem that is preventing them from being capable
of overturning a Supreme Court decision bipartisanship.
Another power allotted to the Judicial Branch that grants them the ability to reign
supreme in the power politics amongst the branches of the United States is that of judicial
review. As briefly mentioned previously, the Supreme Court has the capability to declare
legislature unconstitutional, thus making it null and void. This concept of judicial review was
introduced in the infamous Supreme Court case of Marbury v. Madison, wherein President John
Adams nominated various Supreme Court justices just before the end of his term. He had
submitted the necessary paperwork to John Marshall, who had then failed to pass that paperwork
along to the next stone in the path to officially nominate a Supreme Court justice, thus making
Adamss nominations void. This case had established the power of the Supreme Court to declare
law that did not follow the Constitution to be unconstitutional, and thus void, which they have
utilized a multitude of times throughout the course of American history.
Judicial review permits the Supreme Court another great asset to check the Legislative
Branch, and thus further establishing the fact that they hold more power than Congress does. A
few examples of instances where judicial review was utilized to reverse Congressional
legislature includes: the Missouri Compromise (as established in 1857 by the case Scott v.
Sandford), the Test Oath Law (1867), Legal Tender Acts (1870), Civil Rights Act (1883), Federal
Tax (1895), Yellow Dog Contracts (1908), Child Labor Laws (1918), Campaign Spending

Limits (as established in the 1976 case Buckley v. Valeo), the Legislative Veto (1983 in
Immigration Services v. Chadha), Gramm-Rudman (1986), the Line-Item Veto (1998 in Clinton
v. City of New York), and many more. Of course, ability of Supreme Court to utilize judicial
review in the U.S. government is not limited to only the Legislative Branch. The Judicial Branch
is also capable of overturning Executive Orders and declaring them to be unconstitutional, thus
making them void, as was seen when the Supreme Court reversed five parts of President Franklin
D. Roosevelts New Deal in the 1930s (Executive Orders 6199, 6204, 6256, 6284, and 6855).
This thus renders any argument stating that the Legislative or Executive Branch holds more
power than the Judicial Branch due to the fact that they can create legislation useless. Not only
does the Judicial Branch also have the capability to create law via their rulings in Supreme Court
cases, but they can also declare legislation created by the other branches to be unconstitutional,
and therefore null and void.
Another argument that some stating that the Executive or Legislative Branches hold more
power than the Judicial branch is that the Judicial Branch only has four powers delegated to them
by the Constitution, and the rest of their powers, including judicial review, are only implied
powers. However, despite the fact that the Supreme Court only holds a finite number of powers,
they have not yet failed in being effective or in upholding and interpreting the law, whereas
Congress has failed in its duties, and is, to many, characterized by ineffectiveness, a snails-pace
decision making process, and idiocy.1 And, in regards to the idea that judicial review is an
implied power, this implied power has not yet failed, and continues to remain effective, just as
the implied power of Executive Orders delegated to the President has.

1 Suppose you were an idiot, and suppose you were a member of congress; but I repeat myself.
(Mark Twain)
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Yet another idea that those advocating for the Legislative Branch will mention is that the
framers of the Constitution clearly intended the Congress to be the most energetic and powerful
branch of the national government, as stated by Benjamin Ginsberg and Martin Shefter in their
1990 book Politics by Other Means: The Declining Importance of Elections in America.
Although, it is most certainly true that the Legislative Branch holds the most potential power,
that does not mean by any means that, in reality, they truly have the most power. As seen by
nations current state and reality, Congress is accomplishing next to nothing. As stated by Peter
Stone, I have come to the conclusion that one useless man is called a disgrace, that two are
called a law firm, and that three or more become a Congress. This has been amplified in recent
years. After the 2014 elections, the five hundred and thirty-five members of Congress have been
at a standstill with not only one another, but also with the President. The Legislative Branch has
failed in the past, and continues to fail to utilize the full extent of their potential. There are a
great many powers delegated to them, and yet, due to the bipartisan nature of the U.S.
government, which disproportionately affects large legislative bodies such as Congress, they are
incapable of using their power to the greatest extent possible, and thus preventing them from
becoming the most powerful branch.
The Executive and Legislative Branches are in a constant headlock with one another,
which was only further amplified by the recent elections, and, in the governments current state,
the Judicial Branch is the only governmental branch that can do anything. This thus renders both
branches as having lesser power than the Judicial Branch. As previously stated, the Legislative
and Executive Branch are at a standstill, whereas the Judicial Branch can act alone. When
analyzing a governmental system, one cannot only consider the theory. Any governmental
system looks good in theory; every governmental system looks good on paper. However, when

truly implemented, the sustainability, practicality, and reality of the system is what truly counts.
And, when performing an analysis of the United States government, one can clearly see that the
reality is that the Legislative Branch is failing to utilize their power, and that, especially under a
situation wherein the Legislative and Executive Branches refuse to cooperate, it is the Judicial
Branch that reigns supreme.
The Legislative and Executive Branches both carry significantly weaker power when
compared to the Judicial Branch. The Supreme Court has the capability to create law via their
rulings; additionally, they can declare legislature unconstitutional, providing the Judicial Branch
with an effective check against both the Legislative and Executive Branches, and likewise also
providing an effective refutation of any argument defending the idea that either of those two
branches hold greater power. Despite the fact that Congress and the Executive Branch may hold
more potential or Constitutional power, they lack the ability to utilize it. The bipartisan system
that the United States follows, and the lack of their capability to compromise, forces those two
branches into an endless headlock with one another. In these situations, the Judicial Branch is
the only branch that can make change and effectively accomplish tasks. Congress and the
President have failed to utilize the full extent of their potential power. This is a simple reality
that the United States must face, as is the simple reality that, of the three branches established on
May 25, 1787 by the Founding Fathers, it is the Judicial Branch that holds and most effectively
utilizes their power.