How can the Supreme Court check the lawmaking power of Congress?

Answer 1

The Supreme Court uses judicial review to declare actions by the President or Congress to be invalid if they are contrary to the Constitution. The Constitution is the supreme law of the land and no presidential act or congressional laws may conflict with it. The Courts are the interpreters of the laws and as such they interpret the Constitution and laws to decide if they conflict with one another.

Further, it allows the Judicial Branch to "define" that law by answering questions about it that are not spoken to directly in the regulation itself.

Chief Justice John Marshall clearly affirmed the power of judicial review in the case Marbury v. Madison, (1803), when the Court declared Section 13 of the Judicial Act of 1789 unconstitutional.

It should be noted that the US Supreme Court, for the most part, determines what laws to review based on decisions made in lower Federal Courts. In most cases the Court waits for a case to be presented to them. It then can reject hearing the case or depend on the ruling of the lower courts.

For more information on Marbury v. Madison, see Related Links, below.

The US Supreme Court uses the process called Judicial Review to see if the laws passed by the Congress and the President are in alignment with the constitution. If they are contrary to the constitution, the laws are declared unconstitutional and are deemed null and void.

Answer 2

How Congress Checks the Supreme Court:

• Senate approves federal judges, including Supreme Court justices (Advise and Consent Clause)
• Impeachment power (House)
• Trial of impeachments (Senate)
• Power to initiate constitutional amendments (to undo supreme court decisions)
• Power to set courts inferior to the Supreme Court
• Power to set jurisdiction of courts (they can tell a court that they can not hear a case on a certain topic, which includes changing the appellate jurisdiction of the Supreme Court)
• Power to alter the size of the Supreme Court (if the size is drastically increased the President may select all the new justices and change the sway of power)

More Information

Congress can check the power of the Supreme Court through the process of Constitutional Amendment. While the Supreme Court can rule that a particular law is unconstitutional, it cannot rule that the Constitution itself is unconstitutional. If the Congress (and 3/4 of the state legislatures) approve a constitutional amendment, it becomes the supreme law of the land, and the Supreme Court cannot overrule the Constitution.

Here is a typical example of how the Congress overcomes the rulings of the Supreme Court:

The 18th amendment was passed by Congress and ratified by the states. That made it illegal to manufacture, sell, or transport alcohol. The SC had no choice but to rule in favor of any law that specified penalties for manufacturing, selling, or transport of alcohol. Many people over the years (1919-1933) went to jail for violating those laws, based upon their constitutionality in light of the 18th amendment.

In 1933, the Congress simply repealed the 18th amendment with the 21st amendment, and the states ratified that amendment. The SC since then has had to rule against any blanket law that prohibits the manufacture, sale, or transport of alcohol.

Several times, the SC has struck down laws that prohibit desecration of the American flag. Their rulings are always based upon the 1st amendment which protects individuals' rights to express themselves, even when that expression is offensive to many, even most other citizens.

If Congress were to pass an amendment that prohibited desecration of the American flag, and it were to be ratified by the majority of the states, the SC would likely have to uphold any laws that provided penalties for said desecration.

Amending the Constitution is a difficult and time-consuming process. It was designed to be that way, so that people could not easily alter our form of government on a whim of the moment.

Answer 3

The Supreme Court rules on the Constitutionality of laws (judicial review). What this means is that if a person is charged with violating a law, and is found guilty, he or she can continue to appeal to higher and higher courts, and, if the Supreme Court decides to hear the case, they may come down with a decision that effectively negates the Congressional law.

They can actually do three things: 1) hear the case, decide the law IS constitutional, and that's that. 2) Hear the case, decide the law is unconstitutional, and then no one can be accused of breaking it anymore, and the original person may be acquitted., or 3) NOT hear the case, in which case that particular person is out of luck, as NOT hearing the case means "we think this law is constitutional, so it stands." However, since the makeup of the Supreme Court is subject to change, it's possible that later in years, a similar case may come up, and may be heard, and the law may be overturned.

Thus, Congress can not just pass any old law they want - there is the 'threat' that the Supreme Court may overturn it. And usually they don't - there have been very few examples of flagrantly unconstitutional laws passed recently, but again, it depends on the makeup of the Supreme Court. As is it now, with many conservatives, they might decide that previously "legal" actions like abortion and women's voting rights are "unconstitutional" if they are asked. Basically, the Constitution means whatever the current Supreme Court says it means.

Answer 4

By saying that a law is unconstitutional.!