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The Role of the Judiciary

By Bonnie C. Coleman, Esq.

In 1787, the 12 states adopted the Constitution of the United States of America.  In the Constitution, there are three branches of government.  By having three branches of government, checks and balances exist so that one branch won’t be more powerful than another.

The first branch is the legislative branch, which provides that representatives and senators elected by citizens from each state make the laws.  When laws are passed and put in writing they are called statutes.

The second is the executive branch which provides for an elected president and vice president.  The president is in charge of the military, appoints judges and carries out the laws.

The third branch is the judicial branch.  Judges decide how laws apply to particular situations, settle disputes and determine if laws are violated.  There are federal courts and state courts.  The president appoints federal judges and the appointments must be confirmed by the Senate.  Federal judges usually decide cases regarding federal laws and federal crimes.

The states also have state laws and constitutions which provide for three branches of government.  In state courts, some judges are appointed and some judges are elected.   State court judges usually decide cases dealing with state laws and state crimes.

A judge needs to know the statutes that are adopted by the legislative branch.    The judge also studies prior orders and decisions made by judges in other cases.   When a judge considers prior decisions, the judge is considering precedent.  The judge hears the facts from the parties, considers statutes and precedent, and makes a decision.  Judges put their decisions in written orders or judgments.

When an order or judgment is signed by a judge, usually a party has the right to appeal.  That means a person who doesn’t like the order or judgment can ask another higher court, usually consisting of a group of judges, to reconsider the decision or order.

The highest court in the land is the U.S. Supreme Court.  When there are no vacancies on the Court, there are nine U.S. Supreme Court judges who decide cases and the majority rules.  Supreme Court decisions are very important.  The Constitution gives the judicial branch certain powers to limit acts of the other branches, which is part of the checks and balances that exist between the three branches of government.

Early in the history of this country, the Supreme Court ruled that it had the power to declare a law to be unconstitutional.  In 1803, President Adams had nominated several justices of the peace. The Senate confirmed the nominations; and the papers appointing the justices, known as commissions, were signed.  Some of the commissions were not delivered before President Jefferson took office. President Jefferson would not allow his secretary of state to deliver the commissions. William Marbury, a man whose commission was not delivered, petitioned the Supreme Court seeking an order requiring delivery.

The Supreme Court said that the commissions were valid; and Marbury was entitled to delivery.  However, the Act giving the Court the right to issue the order was unconstitutional because it violated Article III of the Constitution.  Therefore, Marbury was not given the order he requested.  This early ruling established the right of the judiciary to limit the legislative branch from passing laws in violation of the Constitution. 

The Supreme Court has also exercised its power over the executive branch. In 1974, following the scandal known as Watergate, a special prosecutor issued a subpoena to President Nixon to turn over tapes of conversations that took place in the oval office.  The President refused and the dispute came before the Supreme Court.  The President argued that he was entitled to executive privilege, so the Court couldn’t force him to turn over the tapes.

The Supreme Court unanimously ruled that there were situations where executive privilege did not apply. The president was ordered to turn over the tapes.  A short time later, President Nixon resigned from office.

Rulings of the Supreme Court can change the way things happen in our country.  Each of the three branches of government is given certain powers over the other branches.  The Supreme Court has exercised this power over both the legislative and the executive branch. 

Bonnie C. Coleman, Esq., is a Merrillville, Ind., attorney and a volunteer for the Indiana Bar Foundation.

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