Constitutional Role of the Judicial Branch

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Constitutional Role of the Judicial Branch

The federal judiciary is the branch of government that holds trials and decides cases under the nation's laws. The powers of the federal judiciary appear in Article III of the U.S. Constitution. America adopted the Constitution in 1788. Before then, the country did not have a separate judiciary. Instead, a body called Congress exercised all the powers of the nation's government.

The thirteen American colonies first sent delegates to Congress in 1774. Beginning in 1781, Congress functioned under a document called the Articles of Confederation. The Articles gave Congress the power to make and enforce the nation's laws. It also gave Congress the power to establish courts to resolve particular kinds of disputes. There was no general judicial system to hear and decide cases under the nation's laws.

During the 1780s, some Americans became dissatisfied with the government under the Articles of Confederation. One main concern related to taxes. Congress could not collect taxes directly from the people. It had to collect tax money from the states instead. The states did not pay their shares reliably, and Congress could not force them to do so.

Another concern related to commerce, or business. Congress had the power to regulate commerce, but it could not stop the states from making their own commercial laws with foreign states. This prevented Congress from resolving trade problems with England, which was banning the importation, or bringing in, of certain manufactured goods from America.

A third weakness of the national government concerned the judiciary. Congress had the power to create a court for resolving cases in which private American vessels captured enemy merchant vessels. Congress, however, lacked the effective power to enforce the court's decisions. Moreover, Congress could not create a general judiciary for handling cases under the nation's laws.

Seven states sent delegates to a convention in Annapolis, Maryland, in September 1786 to discuss America's commercial problems under the Articles of Confederation. The delegates decided to ask Congress to call a national convention for revising the Articles. Congress issued the call in February 1787, and the Constitutional Convention met in Philadelphia, Pennsylvania, from May to September that year. Instead of just revising the Articles, however, it recommended scrapping them entirely in favor of a whole new Constitution.

Separation of powers

There was much debate and disagreement between the delegates to the four-month Constitutional Convention in 1787. They agreed, however, that the Constitution should separate the powers of government into three branches: a legislature for making the laws, an executive for enforcing the laws, and a judiciary for deciding cases under the laws.

Nathaniel Chipman (1752–1843) was an assistant justice of the Supreme Court of Vermont when the Convention met in Philadelphia. In 1793, he published Sketches of the Principles of Government, in which (as reprinted in The Founders' Constitution) he explained the importance of separating the judiciary from the executive and legislative branches:

There are very obvious reasons, why these powers should be committed to separate departments in the state, and not be entrusted unitedly to one man, or body of men. Different abilities are necessary for the making, judging, and executing of laws. . . . To commit their exercise to a single man, or body of men, essentially constitutes a monarchy, or aristocracy, for the time being. By giving them the power of avoiding all constitutional enquiry, it places them above a sense of accountability for their conduct. They have it in their power, either in the enacting, the interpretation, or the execution of the laws, to skreen [screen] themselves, and every member of their body, from account or punishment. The situation itself suggests to them, views and interests, different from those of the people, and leaves no common judge between them. It places them, in respect to the people, in that state of independence, which is often called a state of nature. In such case, the people, hopeless under oppression [domination], sink into a state of abject [hopeless] slavery, or roused to a sense of their injuries, assume their natural right, in such situation, oppose violence to violence, and take exemplary [appropriate] vengeance of their oppressors. . . .

The Preamble

The preamble of the U.S. Constitution says:

We, the People of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

In the middle of the Constitutional Convention of 1787, the delegates formed a Committee of Detail to draft language for the Constitution. The "Records of the Federal Convention" (as reprinted in The Founders' Constitution) reveal that during their meetings, committee members discussed the reason for including a preamble in the Constitution:

The object of our preamble ought to be briefly to declare, that the present foederal government is insufficient to the general happiness; that the conviction of this fact gave birth to this convention; and that the only effectual mode which they can devise, for curing this insufficiency, is the establishment of a supreme legislative executive and judiciary. . . .

In 1788, Virginia delegate and future U.S. president James Monroe (1758–1831) wrote Observations upon the Proposed Plan of Federal Government. There (as reprinted in The Founders' Constitution), Monroe expressed his opinion that the preamble would be an important part of the Constitution: "The introduction, like the preamble to a law, is the Key of the Constitution. Whenever federal power is exercised, contrary to the spirit breathed by this introduction, it will be unconstitutionally exercised, and ought to be resisted by the people."

Forty-five years later, U.S. Supreme Court justice Joseph Story (1779–1845) wrote in Commentaries on the Constitution (as reprinted in The Founders' Constitution) that the preamble's "true office [function] is to expound [explain] the nature, and extent, and application of the powers actually conferred [presented] by the constitution."

The U.S. Supreme Court, however, has given no weight to the preamble when interpreting the Constitution. In the 1904 case of Jacobsonv. Massachusetts, for example, the Reverend Henning Jacobson claimed that the preamble's "blessings of liberty" made it illegal for Massachusetts to force him to have a smallpox vaccination. The Supreme Court rejected the notion. It said, "Although that preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the government of the United States."

A separation and precise limitation of the legislative, judiciary, and executive powers, with frequent, free, and uncorrupted elections, is the only remedy for these evils. Those who exercise the legislative power, must be subjected to their own laws, and amenable [accountable] for a violation, equally with the plainest citizen. They must, by the express provision of the constitution, be confined to the consideration of general laws, and forever excluded the right of enacting particular penalties, privileges, or exemptions. Such partial laws are the first beginnings of an attack on the equal rights of man, and a violation of the laws of nature....

To prevent both legislative and executive abuses, the intervention of an independent judiciary is of no small importance. To the judges, the ministers of this power, it belongs to interpret all acts of the legislature, agreeably to the true principles of the constitution, as founded in the principles of natural law [the idea that human laws must conform to a higher law—one of nature, often believed to come from God], and to make an impartial application, in all cases of disputed right. By this provision, the rights and interest of the legislative and executive branches will be kept in union with the rights and interests of the individual citizens. . . .

Alexander Hamilton (1757–1804) was a delegate from New York at the Constitutional Convention. After the Convention submitted its proposed Constitution to Congress in September 1787, Hamilton joined fellow delegates James Madison (1751–1836) and John Jay (1745–1829) to write a series of essays urging the states to adopt it as the framework for American government. They signed the essays as the "Federalist," a reference to the Federalist Party, which wanted a strong national government for America. In "Federalist No. 78" (as reprinted in The Founders' Constitution), Hamilton wrote of the importance of an independent judiciary:

This independence of the judges is equally requisite [required] to guard the constitution and the rights of individuals from the effects of those ill humours [whims] which the arts of designing [scheming] men, or the influence of particular conjunctures [combinations of interest], sometimes disseminate among the people themselves, and which, though they speedily give place to better information and more deliberate reflection, have a tendency in the mean time to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. . . .

But it is not with a view to infractions of the constitution only that the independence of the judges may be an essential safeguard against the effects of occasional ill humours in the society. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws. Here also the firmness of the judicial magistracy [office] is of vast importance in mitigating [minimizing] the severity, and confining the operation of such laws. It not only serves to moderate the immediate mischiefs of those which may have been passed, but it operates as a check upon the legislative body in passing them; who, perceiving that obstacles to the success of an iniquitous [unjust] intention are to be expected from the scruples [ethics] of the courts, are in a manner compelled by the very motive of the injustice they mediate, to qualify their attempts. . . . Considerate men of every description ought to prize whatever will tend to beget or fortify that temper in the courts; as no man can be sure that he may not be tomorrow the victim of a spirit of injustice, by which he may be a gainer to-day. And every man must now feel that the inevitable [unavoidable] tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead, universal distrust and distress.

In short, Hamilton believed judges were supposed to protect minorities from unfair treatment by legislative majorities. Hamilton was particularly concerned that legislative majorities would treat wealthy men unfairly. The spirit of Hamilton's idea, however, allows federal judges to use the Constitution to protect all kinds of minorities—property, racial, and otherwise—from legislative injustice.

Supreme Court and inferior courts

Article III of the Constitution covers the judicial branch of the federal government. It begins, "The judicial power of the United States, shall be vested in one supreme court, and in such inferior courts as the Congress may from time to time ordain and establish."

The Supreme Court is the only federal court the Constitution requires. Some delegates to the Constitutional Convention believed America would not need any more courts. Others disagreed. One of their many compromises was to leave it up to Congress to decide whether to create federal courts below the Supreme Court.

Judicial power: what kinds of cases does it cover?

Article III, Section 2, contains a list of the kinds of cases and controversies to which the judicial power "shall extend." If a case does not fall into a category in the list, the federal judiciary cannot hear it. Congress may not expand judicial power by adding cases to the list. The only way to change it is by constitutional amendment.

The U.S. Constitution, laws, and treaties

The federal judiciary has the power to hear cases "in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority. . . ." Treaties are agreements between nations. Cases "in law" refers to cases involving legal rights and responsibilities. Cases in "equity" means cases in which the courts create special remedies when the law is inadequate to resolve a private dispute.

Ambassadors, public ministers, and consuls

The federal judicial power extends "to all cases affecting ambassadors, other public ministers and consuls. . . ." Ambassadors are people who represent a nation in its relations with other nations and organizations around the world. Public ministers are government officials other than ambassadors who work in diplomacy. Consuls are government officials who represent a country's commercial interests in another nation.

Admiralty and maritime jurisdiction

The judicial power covers "all cases of admiralty and maritime jurisdiction." Admiralty and maritime cases arise from the use of navigable waters, which includes oceans, seas, great lakes, and navigable rivers.

United States in lawsuit

The federal judicial power covers controversies to which the United States is a party. That means lawsuits in which the United States as an entity is a participant.

Cases between states and citizens

The federal judicial power initially covered "controversies between two or more states, between a state and citizens of another state, between citizens of different states, between citizens of the same state claiming lands under grants of different States, and between a state, or the citizens thereof, and foreign states, citizens or subjects."

America changed this provision with the Eleventh Amendment in 1798. The amendment prevents federal courts from hearing cases in which a state citizen sues another state, or in which a citizen or subject of a foreign nation sues one of the American states.

Original and appellate jurisdiction

After listing the kinds of cases the federal judiciary can hear, Article III, Section 2, says, "In all cases affecting ambassadors, other public ministers, and consuls, and those in which a state shall be a party, the supreme court shall have original jurisdiction. In all the other cases before mentioned, the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."

Original jurisdiction

Jurisdiction means the power of a court to hear and decide a case. Original jurisdiction gives a court the power to hold trials. Appellate jurisdiction gives a court the power to review trials and appeals from lower courts.

The Supreme Court's original jurisdiction gives it power to hold trials in cases involving ambassadors and other public ministers and consuls, and in cases in which a state is a party. Congress cannot take this power away from the Supreme Court. It is designed to ensure that ambassadors, public ministers, consuls, and states can file cases directly in the Supreme Court without having to go through lower federal courts or state courts.

Appellate jurisdiction

The Constitution gives the Supreme Court appellate jurisdiction in all cases except those involving ambassadors, public ministers and consuls, and states. This means such cases must begin in either a state court or a lower federal court. The Supreme Court hears these cases only after trial, when the losing party appeals. In deciding appeals, the Supreme Court's job is to make sure judges in lower courts do not make serious mistakes concerning the meaning of the law or the procedure for holding a trial.

Congressional exceptions

The Constitution says the Supreme Court has appellate jurisdiction "with such exceptions, and under such regulations as the Congress shall make." Some scholars think this means Congress can revoke all of the Supreme Court's appellate jurisdiction. Doing so would leave the Supreme Court to hear only cases under its original jurisdiction, meaning those involving ambassadors, other public ministers and consuls, and states.

In 1868, Congress revoked the Supreme Court's appellate jurisdiction to prevent it from deciding a specific case. The case involved a portion of the Reconstruction Acts, which were laws Congress passed after the American Civil War (1861–65) for bringing the Confederate States back into the United States. In March 1868, Congress feared the Supreme Court was going to use the case to strike down the Reconstruction Acts as unconstitutional. To prevent this, Congress passed a bill revoking the Supreme Court's power to review the kind of case the Court was considering.

The Supreme Court soon dismissed the case, saying it no longer had the power to decide it. In a unanimous written opinion, the Supreme Court said Congress had acted lawfully in revoking the Court's appellate power: "The power to make exceptions to the appellate jurisdiction of this Court is given by express words. . . . Without jurisdiction the Court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the Court is that of announcing the fact and dismissing the cause."

As of 2005, this is the only time Congress has revoked the Supreme Court's appellate jurisdiction to prevent it from deciding a pending case. Over the years, members of Congress have introduced bills for revoking the Supreme Court's power to review state supreme court decisions and to hear cases involving congressional investigations, the rights of accused criminals, and state laws concerning abortion and school prayer. None of these bills ever made it through Congress to become law.

Scholars debate whether Congress can lawfully revoke the Supreme Court's appellate jurisdiction. On the one hand, the language in the Constitution is clear, and the Supreme Court itself has ruled that such action by Congress is lawful.

On the other hand, the Constitution contains a list of the kinds of cases to which the judicial power "shall extend." This list includes those cases that fall under the Court's appellate jurisdiction. The phrase "shall extend" might be mandatory language that allows Congress to regulate the Court's appellate jurisdiction without revoking it. Some scholars think allowing Congress to control the Supreme Court's appellate power destroys the independence of the federal judiciary. Still others think the men who wrote the Constitution did not mean to give Congress such power.

Judicial power: what is it?

The Constitution gives "the judicial power" to the Supreme Court and to any lower courts Congress creates. The Constitution, however, does not define "the judicial power." Clues appear in other constitutional clauses, the records of the Constitutional Convention, and writings of the people who wrote and adopted the Constitution. Judicial power includes the power to hold trials, hear appeals, issue writs of habeas corpus, interpret laws, and review government conduct for compliance with the Constitution.


It was widely accepted in 1787 that the judicial power included the power to hold trials in civil and criminal cases. Civil cases are disputes between private people or businesses, or noncriminal disputes between a person or business and a government. Criminal cases involve violations of criminal laws.

The Constitution of 1787 contains specific directions for criminal trials. Article III, Section 2, says, "The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed."

This clause requires all federal criminal trials to be by jury. A jury is a random group of citizens from the community in which a trial is held. During criminal trials, juries hear and see evidence, including documents, other physical evidence, and the testimony of witnesses. Next, the judge explains the law that applies to the case. Then the jury moves to a private room to decide whether the defendant is guilty under the applicable law.

Treason is one of the many crimes that may be tried in federal courts. The men who wrote the Constitution defined treason very specifically. Article III, Section 3, says, "Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt [open] act, or on confession in open court." The men who wrote the Constitution defined treason specifically to prevent it from being used unfairly as a political weapon, including against presidents.

The Constitution of 1787 does not contain specific provisions concerning civil trials. The list of cases the judiciary has the power to hear, however, includes cases of a civil nature, such as "controversies . . . between citizens of different states." So the federal judiciary clearly has the power to hold civil trials.


After a trial in a civil or criminal case, the court enters a judgment in favor of the winning party. The losing party usually can appeal the case to an appellate court. Appellate courts review trials to make sure judges and juries do not make serious mistakes. The U.S. Supreme Court also reviews decisions by lower appellate courts.

The kinds of mistakes appellate courts look for are mis-application of the law, errors in the admission of evidence for the jury to consider, and errors in the general procedure of the trial. By giving the Supreme Court "appellate jurisdiction," the Constitution clearly gives the federal judiciary the power to hear and decide appeals.

The 1969 case of Tinker v. Des Moines Independent Community School District illustrates the appeals process. As noted in Supreme Court Drama, the Tinker case happened during the Vietnam War (1954–75), a war between North and South Vietnam. The United States entered the war in the 1960s to fight for South Vietnam to protect it from communism. The war became unpopular as tens of thousands of American soldiers died with no indication that North Vietnam could be defeated. Protests against the war became common in America.

In Des Moines, Iowa, sixteen-year-old Christopher Eckhardt, fifteen-year-old John P. Tinker, and thirteen-year-old Mary Beth Tinker decided to protest the war by wearing black armbands with a peace symbol to their high school and junior high school. A former student from the high school had died in the war, and some students said they would wear different colored armbands to support the war. When the school principals learned of the plans, they announced that anyone wearing a black armband to school would be told to remove it and suspended for refusal to do so. Eckhardt and the Tinkers were suspended under this policy.

With help from their parents, the students filed a lawsuit in a federal district court. They asked the court to stop the schools from enforcing the "no armband" policy. They said the policy violated their rights under the First Amendment of the U.S. Constitution, which says the government may not abridge, or limit, the freedom of speech. The federal district court disagreed, ruling that the schools were allowed to enforce the "no armband" policy to prevent disturbances. The students appealed to the Court of Appeals for the Eighth Circuit, but it affirmed the district court's decision, so the students appealed to the U.S. Supreme Court.

In a 7-2 decision, the Supreme Court ruled in favor of the students. Writing for the Court, Justice Abe Fortas (1910–1982) said wearing armbands to protest a war is a form of speech called "symbolic" speech. Symbolic speech is speech that conveys ideas with symbols or actions instead of words. The First Amendment protects many kinds of speech, including symbolic speech. Justice Fortas said, "Students in school as well as out of school are 'persons' under our Constitution." Because the students had not disrupted school activities, their protest was protected by the First Amendment. The federal district court had been wrong to approve the "no armband" policy.

Privilege of the writ of habeas corpus

A writ of habeas corpus is an order that forces the executive branch to explain why a person has been imprisoned. People who believe they have been imprisoned illegally can ask a court to issue a writ. If the court agrees the imprisonment is illegal, it can set the prisoner free.

The U.S. Supreme Court has ruled that the federal judiciary has the power to issue writs of habeas corpus only when Congress gives it such power. Article I, Section 9, of the Constitution, however, says, "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." The phrase "shall not be suspended" arguably means federal courts must have the power to issue such writs. In any event, congressional law has continuously given federal courts this power since 1789.

Judicial interpretation

In a criminal trial, a jury decides whether the defendant has violated the law. In a civil trial, a judge or jury decides whether one party has violated the legal rights of another party. In both cases, the judge must decide which law or laws apply to the situation. In jury trials, the judge explains the law to the jury before it makes a decision. In civil trials without a jury, called bench trials, the judge alone applies the law to the case.

Judicial interpretation is the act of deciding what a law means and how it applies to a particular case. Trial judges engage in judicial interpretation each time they instruct the jury on the applicable law in jury trials and each time they apply the law themselves in bench trials. Appellate judges interpret the law every time they review whether a trial judge or lower appellate judge applied the law properly in a specific case.

Judicial interpretation involves many kinds of laws. Judges interpret the Constitution, laws passed by Congress, regulations passed by federal agencies, and treaties with foreign nations. Judges also interpret the common law. Common law is law made by English and American judges on a case-by-case basis to govern private relationships between people. Examples of common law include the law of contracts and the law of torts. (A contract is an agreement between two or more people. A tort is a civil wrong or injury, such as assault and battery.)

Original Intent

Interpreting the Constitution is one of the most important duties of the federal judiciary. It is also one of the most difficult, because the Constitution is not always clear.

There are many methods for interpreting the Constitution. One is called the doctrine of original intent. Original intent means trying to figure out what the men who wrote the Constitution meant by the words they used.

There are a number of ways to interpret the Constitution through original intent. One is to study just the language of the Constitution. Another is to study the records of the Constitutional Convention. Yet another is to study the writings of the men who wrote the Constitution.

Interestingly, one of the primary authors of the Constitution felt the records of the Constitutional Convention should play no role in interpreting the document. Writing a letter in 1821, former president James Madison (1751–1836; served 1809–17), who also served as a Virginia convention delegate, said (as reprinted in The Founders' Constitution):

As a guide in expounding [interpreting] and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character. However desirable it be that they should be preserved as a gratification to the laudable curiosity felt by every people to trace the origin and progress of their political Institutions, & as a source perhaps of some lights on the Science of Govt. the legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must not be in the opinions or intentions of the Body which planned & proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it recd. [received] all the Authority which it possesses.

Madison, in fact, took more notes during the Convention than any other delegate. According to Leonard W. Levy in Original Intent and the Framers' Constitution, Madison "was present every day and never absent for more than 'a casual fraction of an hour in any day,' so that he heard every speech. He sat center front so that he could hear everything, and every evening he wrote out his daily notes. He told a friend that the labor 'almost killed him' but he determined to finish the task, and he did."

Madison decided not to allow his notes to be published until after all the Convention delegates died. As it turned out, Madison was the last delegate to die, in 1836, so his notes were not published until 1840. Since then, courts and scholars have used them to interpret what the Constitution means.

The Constitution does not specifically say federal courts have the power to interpret the law. Judicial interpretation, however, was generally accepted as a responsibility of trial and appellate judges in 1787.

Judicial review

Judicial review is the power to determine whether a congressional law or executive action violates the Constitution. Federal judges exercise this power by striking down laws, regulations, and other government conduct they find unconstitutional.

The power of judicial review is controversial. The Constitution does not specifically give the federal judiciary this power. Many disagree strongly over whether it is proper for federal courts to exercise judicial review.

Some who favor judicial review find support for it in the Supremacy Clause of the Constitution. It says, "This constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land. . . ." Supporters of judicial review say only courts can determine whether congressional laws are "made in pursuance" of the Constitution.

Many delegates at the Constitutional Convention believed the federal judiciary would have the power of judicial review. On June 4, 1787, the delegates discussed a proposal that members of the Supreme Court serve on a council with the president for vetoing, or rejecting, laws passed by Congress. According to the Records of the Federal Convention (as reprinted in The Founders' Constitution), delegates Elbridge Gerry (1744–1814) and Rufus King (1755–1827) opposed the idea:

Mr. Gerry doubts whether the Judiciary ought to form a part of [the council for vetoing legislation], as they will have a sufficient check agst. [against] encroachments on their own department by their exposition [interpretation] of the laws, which involved a power of deciding on their Constitutionality. In some States the Judges had actually set aside laws as being agst. the Constitution. This was done too with general approbation [approval]. It was quite foreign from the nature of ye. [the] office to make them judges of the policy of public measures....

Mr. King seconds the motion [to defeat the council], observing that the Judges ought to be able to expound [interpret] the law as it should come before them, free from the bias of having participated in its formation.

The delegates ultimately rejected the idea of the council, and gave the president the sole power to veto laws passed by Congress.

Hamilton was another delegate who believed federal courts would have the power of judicial review. Writing in one of his "Federalist" essays, Hamilton said that as the Constitution is the supreme law of the land, any law that violates the Constitution must fall. The judiciary, Hamilton believed, would be the only branch capable of deciding whether a law violated the Constitution. Otherwise, there would be no check on the constitutionality of congressional conduct.

Contrary to Gerry's suggestion, however, the exercise of judicial review by state courts was not beyond controversy. Today some scholars and citizens believe that Congress, as the branch of government representative of the people, is the one that should determine whether government conduct is constitutional or not. In 1803, however, the U.S. Supreme Court settled the question, declaring its power to strike down unconstitutional laws. Since then, Congress has considered bills and constitutional amendments to strip the judiciary of the power of judicial review, but such proposals have not become law as of 2005.

Impeachment trials of presidents

Article II, Section 4, says the president, vice president, and other civil officers may be removed from office only upon impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors. Under Article I, the House of Representatives has the power of impeachment. Impeachment is an official accusation of wrongdoing that can lead to conviction and removal from office by the Senate. The Senate has the power to try, convict, and remove civil officers impeached in the House.

The vice president of the United States serves as president of the Senate, even during impeachment trials. The one exception is impeachment trials of presidents. Because the vice president replaces a president who is removed from office, it would not be appropriate for the vice president to oversee presidential impeachment trials. In such cases, the chief justice of the Supreme Court presides over the Senate trial.

The chief justice is the head of the Supreme Court. When the chief justice presides over a presidential impeachment trial, his primary role is to interpret and enforce the Senate's rules for conducting the trial. The Senate, however, can overrule a ruling by the chief justice. The chief justice, moreover, does not get to vote whether to convict the president who is being tried.

Appointment, compensation, and removal of justices and judges

The Constitution gives the president the power to nominate, or appoint, people to serve as justices of the Supreme Court and judges of the lower federal courts. The Senate, however, must approve the president's nominations by a simple majority. The Constitution contains no qualification requirements for people appointed to the judiciary.

Article III, Section 1, says, "The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office." This provision is designed to make the federal judiciary independent from the executive and legislative branches. The compensation provision prevents Congress from controlling judges by threatening to lower their salaries.

The provision on good behavior prevents the president from controlling judges by threatening to fire them. Instead, judges keep their jobs as long as they want during "good behavior." This means judges can only be removed from office by impeachment or conviction in Congress for treason, bribery, and other high crimes and misdemeanors. As of 2005, Congress has removed just seven judges from office through impeachment.

For More Information


Biskupic, Joan, and Elder Witt. The Supreme Court at Work. Washington, DC: Congressional Quarterly, Inc., 1997.

Brannen, Daniel E., and Richard Clay Hanes. Supreme Court Drama: Cases That Changed America. Detroit: UXL, 2001.

Goebel, Julius, Jr. Antecedents and Beginnings to 1801. Vol. I. New York: Macmillan, 1971.

Kelly, Alfred H., and Winfred A. Harbison. The American Constitution: Its Origins and Development. 5th ed. New York: W. W. Norton & Co., 1976.

Kurland, Philip B., and Ralph Lerner. The Founders' Constitution. 5 vols. Indianapolis: Liberty Fund, 1987.

Levy, Leonard W. Original Intent and the Framers' Constitution. New York: Macmillan, 1988.

McClenaghan, William A. Magruder's American Government 2003. Needham, MA: Prentice Hall School Group, 2002.

Schwartz, Bernard. A History of the Supreme Court. New York: Oxford University Press, 1993.

Shelley, Mack C., II. American Government and Politics Today. 2004–2005 ed. Belmont, CA: Wadsworth Publishing, 2003.

Surrency, Erwin C. History of the Federal Courts. 2nd ed. Dobbs Ferry, NY: Oceana Publications, 2002.

Volkomer, Walter E. American Government. 8th ed. Upper Saddle River, NJ: Prentice Hall, 1998.

Young, Roland. American Law and Politics: The Creation of Public Order. New York: Harper & Row, 1967.


Jacobson v. Massachusetts, 197 U.S. 11 (1904).

Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).


Supreme Court of the United States. (accessed on February 18, 2005).

U.S. Courts: The Federal Judiciary. (accessed on March 23, 2005).

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Constitutional Role of the Judicial Branch

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Constitutional Role of the Judicial Branch