There are several ways the public and legislative practice can regulate the decisions from the Supreme Court.

Constitutional Amendments

Constitutional Amendments are one way the people are able to exercise Constitutional authority. Throughout history, there have been four amendments enacted that counteract a Supreme Court ruling: XI, XIV, XVI, and XXVI. Additionally, many other amendments have been proposed and several other threats of an amendment may affect some of the rulings from the Supreme Court.

States have even more amendments. These state constitutions have often been amended several times, some even being amended hundreds of times.

Power to Appoint

Another way to influence the Supreme Court is through the nomination of judges. Presidents have the power to appoint and the senate to confirm. This tends to lead to justices that, in some way or another, share similar views as the President and the Senate. It does also lead to nominations that tend to be less controversial, for fear that the nomination will not succeed.

Even with this limitation, sometimes the justices turn out to have different political ideologies from the President who nominates them.

The nomination process has become more and more political. Judge Bork’s failure to be appointed, Garland’s failure to be heard in the senate, and the controversy between Thomas, Kavanaugh, and Sotomayor sparked several ill feelings between the political parties.


Judges can be removed for office for bad behavior. This often means criminal actions. Only one Supreme Court justice has ever been impeached, but he was not removed from office. Another justice resigned after some questionable finances arose. Lower judges have been impeached and removed.

Although all branches of government are subject to removal, judges have been the only ones who have been impeached and removed from office because of it.

Life Tenure

Judges are to be in office for life. However, this can be limited by defining what may be considered “for life.” Several jurisdictions have put an age ceiling (retire after 65 or 70) on judges.

Informal Limits

Society is often considered one of the greatest influence on the courts. What wasn’t acceptable in the 1700s is acceptable in the 1900s and 2000s. As a result, Supreme Court justices have flowed with society, to an extent. This can be done by interpreting the Constitution to reflect societal values, or by limiting the use of “controversial opinions.”

Ex parte McCardle

74 U.S. (7 Wall.) 506 (1869).

McCardle is the defendant who lost in trial court and used habeas corpus for his appeal.


Does the court have jurisdiction? Broader, does Congress have the power to limit court jurisdiction?


The Constitution expounds the limits, but does not restrict additional guidance from the legislature. Article III says that the legislature can adjust jurisdictional bounds as long as they do not exceed Constitutional limits.


No jurisdiction. Dismissed.


McCardle published articles in a newspaper that were offensive to the country’s reconstruction plan after the civil war. He sought a habeas corpus relief invoking the jurisdiction was afforded in an act in 1867. Responding to this, the legislature passed a bill in 1868 that removed the jurisdiction for habeas corpus relief. This was done while the case was still pending.


Article III of the Constitution outlines the boundaries of judicial jurisdiction. These boundaries cannot be pushed any further than the Constitution allows. However, Article III also allows the legislature the ability to establish a judicial branch, and restrict it as necessary. Therefore, the removal of jurisdiction in this case was a proper exercise of legislative authority to limit judicial authority.

Additional Notes

The reason why this is such a controversial issue is because this is a large amount of control that congress has over the Supreme Court. Some of this control is done through the adjusting the jurisdiction allowed to the Supreme Court. This is called jurisdiction stripping.

Here, the court justified this reasoning by saying that the Constitution gives the legislature the opportunity. Additionally, there was another way to create a habeas corpus appeal through another statute. Instead of going through the original statute, he could make a habeas corpus appeal through another statute. In other words, he would just have to start his appeal over.

This method of constitutional structure is called the plenary power argument. This argument says that the judicial power could be entirely limited if the legislature so chose. However, there are some other constitutional provisions that limit the legislatures ability to limit this to an extent. For example, if the legislature passed a law that violated the 14th amendment and said that the courts were not allowed to hear those cases, then that would have no effect on the court.

In all, there are three potential arguments:

  • Plenary power argument – Complete restriction.
  • Necessary functions argument – Courts can explore cases that are necessary for constitutional interpretation.
  • Constitutional barriers argument – Cannot violate the Constitution.

Interestingly, the big takeaway from this case is that it is the only case about restricting judicial authority from the legislature. There have been efforts, but none of those efforts have succeeded it to pass through the legislature.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Will Laursen

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