Legal Question in Constitutional Law in California

Re: consttutional critisicm of laws by the judiciary

It is the job of the judiciary, at both the federal and state levels, to strike down or refuse to enforce laws that are unconstitutional. It should be noted that exactly half of all the people who go to court lose, and some people are sore losers who complain that judges make up the law as they go. Some conservative poltiicians raise these kind of complaints about judges, especially when they rule in favor of individuals and against big corporations and insurance companies.

Re: consttutional critisicm of laws by the judiciary

What judges do isn't really "criticism"; that word suggests that the judges strike laws because they disagree with the legislature about what the law should say. In reality, judges only strike laws which they find to be unconstitutional -- in other words, contrary to what the constitution permits or requires. If a judge disagrees with a law that is constitutional, his job is to enforce it anyway.

The constitution is the supreme law of the land, and the legislature has no authority to make laws which conflict with the constitution or which deal with subjects the constitution has placed off-limits to them. Even so, many unconstitutional laws are enacted; sometimes this happens even though the legislators believed they were complying with the constitution, and other times they enact laws which they know will not pass muster because the proposed laws have a lot of public support from voters whom the legislature does not want to offend. Either way, if a lawsuit properly challenges the constitutionality of a statute the courts can strike it down.

Legislators often respond by criticizing the judiciary, but they seldom try to do anything more. The judiciary is independent of the legislature, so legislators have very little power over judges. In the federal system and in many states, judges have lifetime appointments and their salaries cannot be reduced or withheld, so legislators are pretty much stuck with what the judges decide.

It is possible to amend the constitution in order to overcome a court decision, but this is seldom done on the federal level because the process is very difficult and because it is seen as rather draconian. In some states the practice is quite common (especially here in California), but in others it is very rare.

Both state and federal courts have the authority to declare statutes unconstitutional, but the courts of each state have such authority only over their own state's legislation. The federal judiciary can strike down federal laws as well as those of any state.