SCOTUS: The History Behind the Judiciary Branch

The United States Government is composed of three different branches: Legislative, Executive, and Judiciary. Through Montesquieu's philosophy on the separation of powers and the Rule of One Man versus the Rule of Law, the Founding Fathers created a system considering this specific philosophy and creating what we now know as checks and balances. Considering the increased action from the United States Supreme Court (SCOTUS), it is important to understand the functions, connections, and influence of the nine justices on the political state of the federal government.

The History and Fundamentals of SCOTUS

The foundation of government was inspired by Montesquieu’s justification for separated powers. Montesquieu makes the argument that you need a separation of the legislative, judicial, and executive functions because when combined, there can be no liberty because of tyrannical laws. The Founding Fathers - also known as the Federalists – wrote the Federalist Papers in order to show why the Articles of Confederation must be dropped and instead, rewrite what we now know as the constitution of the United States. Federalist Paper 10, written by James Madison, speaks on the dangers of factions: “There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects” (Federalist 10). Federalist Paper 10 highlights the danger of competing interests over the United States Government since everyone has their own self-interests and those interests often clash. Governments must pass laws for the common good of the whole nation instead of just one specific group. Federalist Paper 10 is important because it demonstrates that factions cannot be eliminated but instead, we can control the effects through different methods. One of these methods is through the separation of power.

Federalist Paper 47 further develops the idea of separation of power by responding to anti-federalist claims that the Constitution fails to provide complete separation of powers. However, Madison argues that complete separation of power could ultimately cause the dangers of factions to increase by allowing one branch of government to rise to power. He believed that checks and balances prevent the dangers of factions by controlling their effects. Federalist Paper 51 also develops this idea by emphasizing that each branch must have the “means and motive” to defend itself (Federalist Paper 51). Checks and balances allow this to happen between the three branches. How does this information play a role in the judiciary branch?

The Judiciary Branch, like any other branch, has a way of controlling the actions of the other branches through what is called the Judicial Review. The Judicial Review is better described as the “power of the courts of a country to examine the actions of the legislative, executive, and administrative arms of the government and to determine whether such actions are consistent with the constitution. Actions judged inconsistent are declared unconstitutional and, therefore, null and void” (Britannica). While many other countries have their own forms of constitutional review, it is important to note the United States model of Judicial Review has specific aspects that make it unique. To begin, SCOTUS is the highest court, meaning that any case that goes through the Supreme Court is the ultimate ruling and this is not just for constitutional issues. Unlike the other branches of government, the Supreme Court has no term limit, and the Justices are nominated, not elected by the constituents. These are some of the few unique characteristics of the Supreme Court that give them their own power. As of now, there are only nine Justices, but this number has been known to fluctuate in the past.

Applying The Role of SCOTUS to Modern Times

Recently, the Supreme Court of the United States has been both under criticism and praise for the increase of action concerning past court cases. The possibility of Roe v. Wade possibly being overturned started gaining public momentum earlier this year, however, nothing happened until June 24, 2022, when the Supreme Court overruled the case because abortion was not “deeply rooted in this Nation’s history or tradition”. Massive outcries both for and against this decision caused people to protest on the streets. The two main movements are Pro-Choice and Pro-Life, each one fighting on different sides of the political spectrum.

Roe v. Wade was known as “the landmark 1973 Supreme Court decision that affirmed the constitutional right to abortion” (Guttmacher). While the decision to overturn this right, many people have started speaking up against the lawmakers of our country for not ratifying this right and allowing the Supreme Court to overturn it. As more and more people speak up on their own opinions on this decision, the Supreme Court has started becoming more active by looking at different cases and voting on whether they follow the constitution or not. Like I said before, the most famous was Roe v. Wade but since then, more decisions have been made. The Washington Post made a visual representation article on which cases have been looked at and how the nine justices have voted since Roe v. Wade was overturned.

Since the increase of SCOTUS' controversial decisions, many people have been questioning the functionality of the Supreme Court and whether it is time to change the rules to fit more of a modern point of view. When the constitution was being made, something important that the Founding Fathers included was their wish for the constitution to change and evolve through time. While the modern world looks completely different from when the constitution was created, many believe it is time to modernize the constitution to fit better with society. Others believe that the constitution should remain untouched. The constitution is better regarded as an interpretation and the application of the constitution remains at the hands of the lawmakers and the three branches of the United States government. Whether you agree with the recent events in American Politics or not, it is always important to inform yourself through reading academic articles and always understand the fundamentals of the U.S. Constitution and the roles of all three branches.

How You Can Help

Knowledge is key and in order to understand the real-world events behind politics, it is important to understand the history and fundamentals of each government institution. Without this knowledge, it becomes harder to fully understand the gravity behind different laws, bills, amendments, etc. You do not have to have a Political Science background in order to understand these governmental systems. While this article is a quick run-down of some vital information, down below are a couple of Academic Journals that go deeper into the functionality of the Supreme Court, Separation of Powers, and the Constitution.

• Separation of Powers, the Political Branches, and the Limits of Judicial Review:

  • https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1366&context=faculty_publications

• The Design of the Judicial Branch:

  • https://www.corteidh.or.cr/tablas/28322.pdf

• Judicial Independence: Separation of Power:

  • https://heinonline.org/HOL/LandingPage?handle=hein.journals/ijlmhs11&div=227&id=&page=

No matter where you are, involving yourself in politics is easy and simple. Whether you are a Democrat, Republican, neither, or anything in between, I always suggest that getting informed is the first step and then getting involved is the second. Joining clubs, groups, internships, or even online websites like Project Patriarchy is a great way to involve yourself in politics. There are many methods and never be discouraged because you feel like you do not know enough. Politics is a social science, always evolving, and always needing more people to contribute their own ideas and opinions.

Works Cited

Madison, James, Federalist No. 10: "The Same Subject Continued: The Union as a Safeguard Against Domestic Faction and Insurrection," New York Daily Advertiser, 22 November 1787.

Hamilton, A., Madison, J., Jay, J. (2009). Federalist No. 47. In: The Federalist Papers. Palgrave Macmillan, New York. https://doi.org/10.1057/9780230102019_16

Tate, C. Neal. “Judicial Review”. Encyclopedia Britannica, 18 Oct. 2019,

https://www.britannica.com/topic/judicial-review. Accessed 1 July 2022.

Marimow, E. Ann. Tambe, Aadit. Blanco, Adrian. “How the Supreme Court ruled in the major decisions of 2022”. The Washington Post, 30 June. 2022,

https://www.washingtonpost.com/politics/interactive/2022/significant-supreme-court- decisions-2022/

Guttmacher. “Roe v. Wade Overturned: Our Latest Resources”.

https://www.guttmacher.org/abortion-rights-supreme-court