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The Power Of The Judiciary Essay

1653 words - 7 pages

Albert LairsonPS 1Professor MitchellTHE POWER OF THE JUDICIARYWhen 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...

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