Role of the Courts

The Issue

The Founders recognized that too much power accumulated in any single branch of government is a significant threat to liberty. They sought to avoid this threat by separating power, both among the three branches of the federal government and between the federal government and the sovereign states, in a system of checks and balances that would prompt ambition to counteract ambition. They gave each branch authority to exercise and an interest in defending its own prerogatives, thereby limiting the ability of any one branch to monopolize governmental authority. Accordingly, the Founders vested the power to make the laws in Congress, the power to enforce the laws in the President, and the power to interpret the laws and decide concrete factual cases with the courts.

In explaining judicial power under the Constitution, Alexander Hamilton noted that the courts would have the authority to determine whether laws passed by the legislature were consistent with the fundamental and superior law of the Constitution. Any law contrary to the Constitution was void. The Supreme Court of the United States famously announced its authority to rule on the validity of laws—known as judicial review—in Marbury v. Madison. In that decision, Chief Justice John Marshall declared: “It is emphatically the province and duty of the judicial department to say what the law is.”

The Marbury Court, however, did not claim that the courts possessed the exclusive or supreme authority to interpret the constitutionality of laws. The other branches of government have an independent obligation to uphold the Constitution. The President, for example, takes an oath to support the Constitution and carries out this oath by determining which bills to sign into law. While the President may sign or veto legislation for political or policy reasons, in order to faithfully discharge his oath, he must veto legislation if he believes that it would violate the Constitution. If the law was signed by one of his predecessors, a President may engage in constitutional interpretation by choosing not to enforce it if he honestly believes it to be unconstitutional.

Members of Congress also take an oath to support the Constitution. Congress interprets the Constitution by deciding which laws to enact. Congress may (and does) choose to enact or reject legislation for political or policy reasons, but when its Members reject legislation that would violate the Constitution, they are acting in accordance with their oaths.

That is how our system is intended to work, but the Supreme Court, over time, has grabbed power by declaring that “the federal judiciary is supreme in the exposition of the law of the Constitution.” The Court has even gone so far as to declare that its decisions interpreting the Constitution are the supreme law of the land, and the political branches have largely acceded to these bloated claims. For example, when Congress was considering the Patient Protection and Affordable Care Act (popularly known as Obamacare), some Members scoffed at questions about the Act’s constitutionality and stated that such questions were for the Supreme Court, not Congress, to decide—a flagrant abdication of Congress’s role in determining the constitutionality of legislation.

Not only have federal courts grabbed power, but they also have changed how judges carry out one of the core functions of the judiciary: interpreting laws. The proper role of a judge in a constitutional republic is a modest one. Ours is a government of laws and not of men. This basic truth requires that disputes be adjudicated based on what the law actually says and according to its original public meaning rather than the whims and personal wishes of judges.

In determining whether a contested law is consistent with the Constitution, judges act within their proper judicial power when they give effect to the original public meaning of the words of the law and the Constitution. Judges acting in accordance with their constitutional duties will at times uphold laws that may be bad policy and strike down laws that may be good policy. Judicial review requires the judge to determine not whether the law leads to good or bad results, but whether the law violates the Constitution.

In recent decades, some judges have engaged in judicial activism, deciding cases according to their own policy preferences rather than by applying the law impartially according to its original public meaning. They have become enamored of ideas like “living constitutionalism,” the theory that the Constitution evolves and changes not through the amendment process set out in the Constitution itself, but as a result of the decisions of judges who supposedly serve as the supreme social arbiters. They have drawn on external sources like foreign laws when the outcome they desired did not comport with the original public meaning of the law under review.

Several egregious examples of judicial activism have occurred over the past decade at all levels of the judiciary.

  • In upholding the IRS’s extension of tax credits to the federal health care exchange established pursuant to the Affordable Care Act in King v. Burwell, the Supreme Court contorted the plain text of the statute to uphold President Obama’s signature legislative achievement for a second time.
  • In the area of gun rights, an appeals court ruled that the Second Amendment did not apply to the states and does not even implicate a fundamental right—a position that ignored a century’s worth of interpretation of constitutional rights and was repudiated by the Supreme Court in McDonald v. Chicago, but only by a 5–4 vote.
  • In recognizing a constitutional right to marriage that includes same-sex couples in Obergefell v. Hodges, the Supreme Court issued a decision that even supporters of the ruling have described as unintelligible and poorly reasoned.
  • In Kelo v. City of New London, the Supreme Court interpreted the Takings Clause of the Constitution to allow government to seize citizens’ homes—not to build a road or fulfill some other public use as is required by the Fifth Amendment, but to transfer the property to a private corporation because it could pay more taxes.

The outcome of many other cases currently pending in courts across the country will depend on whether the judges deciding the cases adhere to what the Constitution requires or decide to adhere to their personal policy preferences. Regrettably, President Obama has said that he wants to appoint judges who will make decisions based on empathy rather than on what the law as it is written requires. His appointment of Justices Sonia Sotomayor and Elena Kagan to the Supreme Court, as well as numerous appointments to the lower federal courts, demonstrates that he is largely succeeding.


Elected Officials Should Seek to Promote Robust Dialogue Regarding the Importance of Approving Constitutionalist Judges. They should seek to educate the American people about the threat of judicial activism and pledge to promote the appointment or election of constitutionalist judges.

Public Officials Should Help to Ensure that Those Who Are Selected to Be Judges Will Faithfully Interpret the Constitution and Laws as Written. This means that the judge will follow and apply the text’s public meaning at the time of its enactment, regardless of whether the judge personally approves of the outcome or would prefer a different outcome. At the federal level, the President should nominate and Senators should confirm only such faithful constitutionalists. At the state level, officials with appointing authority should do the same. In states with an elected judiciary, public officials should encourage citizens to evaluate every judicial candidate’s approach to judging, including the candidate’s record of fidelity to the Constitution and laws as written.

Senators Should Vigorously Question Judicial Nominees Regarding Their Philosophy of Judging. Senators have the duty to gauge whether nominees will be faithful to the original meaning of the Constitution and laws. Senators should ask nominees what role, if any, empathy will play in their decision making. Will nominees interpret the Constitution according to its original meaning or according to their personal views of “evolving standards”? Additionally, they should question nominees’ positions on the role that foreign law should play in interpreting the U.S. Constitution and laws.

Senators Should Carefully Examine Their Role in the “Advice and Consent” Process. The President has the constitutional duty to nominate judges to the federal courts, but Senators have a constitutional duty to advise him and give or withhold their consent to the appointment of these judges. In addition to considering the experience, intelligence, and integrity of judicial nominees, Senators should seriously consider whether nominees demonstrate that they will apply the laws as they are written. In casting their votes, Senators must keep in mind their own oath to protect and defend the Constitution.

Facts and Figures

  • Justice Ruth Bader Ginsburg will be 83 and Justices Antonin Scalia and Anthony Kennedy will be 80 by Election Day 2016. Should either Scalia or Kennedy retire and be replaced with a liberal activist justice, the current balance of the Supreme Court would be significantly altered.
  • The Supreme Court currently hangs in a delicate balance. Only a few of the current justices have demonstrated that they are faithful and consistent constitutionalists. The others are either liberal activists or inconsistent in their approach.
  • In recent terms, 20–30 percent of decisions were decided by 5–4 votes. Some of the most significant decisions over the past few years have also been decided by 5–4 votes, including NFIB v. Sebelius, upholding the Obamacare individual mandate to purchase health insurance; McDonald v. Chicago, recognizing that the Second Amendment applies to the states; Burwell v. Hobby Lobby, protecting small family-owned businesses from the anti-conscience Department of Health and Human Services mandate; and Obergefell v. Hodges, creating a constitutional right to marriage that includes same-sex couples.
  • Because the Supreme Court hears fewer than 80 cases per term, the federal appellate courts are often the last resort for citizens challenging an injury. It is therefore vitally important that constitutionalist judges are nominated and confirmed for the circuit courts as well.

Selected Additional Resources

Robert Alt, “What Is the Proper Role of the Courts?” Heritage Foundation Understanding America Series Report No. 14, January 20, 2012.

Janice Rogers Brown, “Repointing the Constitution,” Heritage Foundation Lecture No. 1257, January 26, 2015.

Paul J. Larkin, Jr., “The Role for Magna Carta in America in 2015,” Heritage Foundation Legal Memorandum No. 159, July 27, 2015.

John Malcolm and Elizabeth H. Slattery, “Boehner v. Obama: Can the House of Representatives Force the President to Comply with the Law?” Heritage Foundation Legal Memorandum No. 132, July 24, 2014.

Edwin Meese III, David Forte, and Matthew Spalding, “The Heritage Guide to the Constitution, Second Edition: What Has Changed Over the Past Decade, and What Lies Ahead?” Heritage Foundation Lecture No. 1260, March 11, 2015.

Elizabeth H. Slattery, “How to Spot Judicial Activism: Three Recent Examples,” Heritage Foundation Legal Memorandum No. 96, June 13, 2013.

Elizabeth H. Slattery, “Who Will Regulate the Regulators? Administrative Agencies, the Separation of Powers, and Chevron Deference,” Heritage Foundation Legal Memorandum No. 153, May 7, 2015.