2.9 Legitimacy of the Judicial Branch

Judicial review and legitimacy

The Supreme Court's power of judicial review, established in Marbury v. Madison (1803), lets it declare laws or executive actions unconstitutional. Because justices are unelected and have life tenure, the Court's authority rests on legitimacy — public and institutional acceptance that its rulings should be obeyed, even by those who disagree with them.

Checks on the judiciary

The Court's legitimacy depends on other branches and the public respecting its decisions. Congress can check the Court by proposing constitutional amendments, changing the size/jurisdiction of courts, or through the Senate confirmation process for nominees. The President enforces rulings; refusal to do so (or public defiance) can weaken judicial legitimacy and the rule of law.

Precedent and stare decisis

Courts rely on *stare decisis* ('let the decision stand') — following precedent from earlier rulings — to promote consistency, predictability, and legitimacy. Departing from precedent (as in Brown v. Board (1954) overturning *Plessy v. Ferguson*) can be controversial but is sometimes necessary to correct injustice, showing the balance between stability and adaptability.

Key terms

Judicial review

The power of courts to declare laws or executive actions unconstitutional, established in Marbury v. Madison (1803).

Legitimacy (judicial)

Public and institutional acceptance that the Court's decisions are authoritative and should be followed.

Stare decisis

The principle of adhering to precedent set by prior court decisions to promote consistency.

Check on judiciary via Congress

Constitutional amendments, altering court jurisdiction/size, and Senate confirmation of nominees.

Brown v. Board of Education (1954)

Overturned Plessy v. Ferguson's 'separate but equal' precedent, showing courts can depart from precedent to correct injustice.

Try an AP-style question

Judicial activism describes judges who…

1. defer to Congress
2. refuse to hear cases
3. always follow precedent
4. readily strike down laws