AP® United States Government and Politics review sheet from Aim for Five (aimforfive.com/gov/units/2/2-11)
Unit 2 · Topic 2.11
2.11 Checks on the Judicial Branch
People disagree about how boldly courts should use judicial review: judicial activism favors striking down laws and revisiting precedent, while judicial restraint favors deferring to elected officials. The other branches also have real tools to push back on the Court, from passing new laws and amending the Constitution to appointing new judges and limiting what cases the Court can hear.
Key terms
- judicial activism
- judicial restraint
- constitutional amendment
- judicial appointments
- jurisdiction
Judicial activism versus judicial restraint
These labels describe how willing a court is to overrule others, not which side of politics it favors. Courts have been called activist for striking down both liberal and conservative laws. Accusations of activism usually come from whoever dislikes the ruling.
A related debate is about how to read the Constitution. Originalism holds that the text should be read as it was understood when adopted. A living constitution approach holds that its broad principles should be applied in light of changing conditions. Neither label maps perfectly onto activism or restraint.
- Judicial activism: the view that courts should be willing to strike down laws and actions, and overturn precedent, when they conflict with the Constitution or fail to protect rights. Supporters say courts must step in when elected branches won't protect rights, as in Brown v. Board of Education.
- Judicial restraint: the view that courts should defer to elected lawmakers, strike down laws only when the conflict with the Constitution is clear, and follow precedent closely. Supporters say unelected judges shouldn't substitute their policy views for those of the people's representatives.
How the other branches check the courts
| Check | How it works | Example |
|---|---|---|
| Pass a new or revised law | If the Court interprets a statute in a way Congress dislikes, Congress can rewrite the statute | The Lilly Ledbetter Fair Pay Act (2009) changed the deadline for pay discrimination claims after the Court's 2007 Ledbetter ruling |
| Amend the Constitution | Overrides a constitutional ruling directly | The 14th Amendment overturned Dred Scott v. Sandford (1857); the 26th Amendment responded to Oregon v. Mitchell (1970) |
| Appoint and confirm judges | The president nominates and the Senate confirms people who share their view of the law | Over time, new appointments shift the Court's ideological balance (2.9) |
| Delay or resist implementation | The Court can't enforce its rulings and depends on others to carry them out | After Brown, many Southern officials stalled desegregation for years; in 1957 President Eisenhower sent federal troops to Little Rock to enforce it |
| Limit jurisdiction | Article III lets Congress make exceptions to the Court's appellate jurisdiction | In Ex parte McCardle (1869), the Court accepted Congress's removal of its power to hear a pending type of appeal |
| Impeachment and court structure | Congress can impeach judges and sets the number of justices by law | Franklin Roosevelt's 1937 plan to add justices failed in Congress |
Why these checks matter
Hamilton called the judiciary the “least dangerous” branch because it has no army and no budget (2.8). These checks show what he meant. Congress and the president can't overturn a constitutional ruling by ordinary law, but over time they can reshape the Court through appointments, rewrite statutes, or, with enough support, amend the Constitution.
Some checks are rarely used. Constitutional amendments are very hard to pass, and Congress seldom strips jurisdiction. The most common and effective checks are new legislation responding to statutory rulings and the appointment process.
Worked examples
Try each one yourself first, then open the solution.
- Example 1
Concept application: responding to a ruling
The Supreme Court interprets a federal environmental law narrowly, ruling that it doesn't cover a certain type of wetland. Members of Congress who disagree want to protect those wetlands. Describe one action Congress could take and explain why it would work in this case.
Show the solutionHide the solution
- Step 1: Determine what kind of ruling it is: the Court interpreted a statute, not the Constitution.
- Step 2: Choose the fitting check: when the Court reads a statute narrowly, Congress can amend the statute to state clearly that it covers those wetlands.
- Step 3: Explain why it works: the Court was only deciding what Congress meant, so a clearer law changes the outcome without a constitutional amendment.
- Step 4: Note a limit: the new law would still need to pass both chambers and avoid a veto, or win an override.
Answer: Congress could pass an amendment to the statute that explicitly covers those wetlands. Because the ruling interpreted a law rather than the Constitution, new legislation can override it.
Common mistakes
- Equating activism with liberal and restraint with conservative. The terms describe willingness to overrule elected branches, not ideology.
- Saying Congress can overturn any Supreme Court ruling by passing a law. It can do that for statutory interpretations; constitutional rulings need an amendment or a later Court.
- Forgetting that the president's main check on the courts is appointing judges (and, in practice, enforcing or not enforcing rulings).
On the exam
- Concept application questions often describe a ruling and ask how Congress or the president could respond. Match the response to the kind of ruling.
- Expect multiple-choice questions defining activism and restraint with a scenario. Look for whether the Court defers to elected officials or overrules them.
Connected topics
Videos
Check yourself
4 questions on 2.11 Checks on the Judicial Branch. Pick an answer to see if you got it, and why.
Congress strongly disagrees with a Supreme Court ruling interpreting the Constitution. Which of the following could Congress do to reverse the ruling's effect?
A judge believes courts should uphold laws passed by elected legislatures unless the laws clearly violate the Constitution, and should rarely overturn earlier rulings. This judge favors
In Ledbetter v. Goodyear Tire & Rubber Co. (2007), the Supreme Court interpreted a federal civil rights law to require that a worker file a pay discrimination complaint within 180 days of the employer's original decision about pay. In 2009, Congress passed the Lilly Ledbetter Fair Pay Act, which said the 180-day period restarts with each discriminatory paycheck.
Summary written for this practice set
This sequence of events best illustrates
In 1957, the governor of Arkansas used the state's National Guard to keep Black students from entering Little Rock's Central High School, despite federal court orders to desegregate. President Dwight Eisenhower then sent federal troops to protect the students. This episode best shows that
0 of 4 answered