Role of the Courts

Talking Points

  • Our constitutional system relies on a separation of powers that limits the ability of any one branch to monopolize governmental authority.
  • The Constitution vests the power to interpret the laws and decide concrete factual cases with the courts.
  • Although it is the courts’ duty to say what the law is, the other branches of government have an independent obligation to uphold the Constitution.
  • Judges engage in judicial activism by deciding cases according to their own policy preferences rather than by applying the law impartially according to its original public meaning.
  • Public officials should help to ensure that those who are selected to be judges will faithfully interpret the Constitution and laws as written.

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 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, 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 in deciding 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, as necessary to decide cases, 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.”

However, the Marbury Court 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 takes an oath to “preserve, protect, and defend” the U.S. Constitution and the Constitution assigns the President the duty to “take Care that the Laws be faithfully executed,” which requires the President not to enforce that which is not the law due to unconstitutionality. The President is not, of course, free to decline to enforce a law for policy reasons.

Members of Congress take an oath to support and defend the Constitution. Congress interprets the Constitution in deciding which laws to enact. Congress may (and does) choose to enact or reject legislation for political or policy reasons. When its Members reject legislation that would violate the Constitution, they are acting in accordance with their oaths; when they pass legislation that violates the Constitution, they are not.

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. Judges must apply the law, interpreting the law and measuring it against the Constitution when necessary, to decide cases. That is their limited function.

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 reflecting social change with their decisions.

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

  • •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 traditional public use, but to transfer the property to a private corporation for commercial development—an expansion of Fifth Amendment taking for “public use” beyond its original public meaning.
  • •In upholding Obamacare’s individual health care mandate, the Supreme Court strained the statutory text to find that the provision was a valid exercise of Congress’s taxing power—even though the text of the statute made clear that it was not a tax (which both President Obama and the congressional sponsors had acknowledged in the legislative process).
  • •Finally, in invalidating a portion of the Defense of Marriage Act, the Supreme Court issued a decision that many commentators have described as “muddled” and “politically motivated” rather than based on law.

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.”


  1. 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.
  2. 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.
  3. 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 public meaning of the Constitution and laws. Senators should ask nominees what role, if any, empathy will play in their decision-making. Senators should explore whether 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 what role, if any, that foreign law should play in interpreting the U.S. Constitution and laws.
  4. Senators should carefully examine their role in the “advice and consent” process. The President has the constitutional duty to nominate judges for the federal courts, but Senators have a constitutional duty to advise 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 support and defend the Constitution.

Facts & 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 four of the nine current justices have demonstrated that they are usually faithful and consistent constitutionalists. The others are either liberal activists or inconsistent in their approach.
  • Nearly one-third of decisions in the most recent term 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. These include United States v. Windsor, the case overruling the traditional definition of marriage for the purpose of federal law; NFIB v. Sebelius, the decision upholding the Obamacare individual mandate to purchase health insurance; D.C. v. Heller, the case confirming an individual right to bear arms; Kennedy v. Louisiana, the notoriously activist case declaring that states’ imposition of the death penalty on child rapists violates the Constitution’s ban on cruel and unusual punishment; and Boumediene v. Bush, which declared the right of habeas corpus for Guantanamo Bay terrorist detainees.
  • Because the Supreme Court hears only 70–80 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

Heritage Experts on Role of the Courts

  • Andrew Kloster

    Legal Fellow

  • John Malcolm

    Director and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow

  • Elizabeth Slattery

    Senior Legal Policy Analyst

To talk to one of our experts, please contact us by phone at 202-608-1515 or by email.