Other Protecting the Rule of Law Topics:

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 laws in Congress, the power to enforce the laws in the President, and the power to interpret the laws and decide concrete factual cases in 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 1803 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 decision, 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. The President may sign or veto legislation for political or policy reasons, but 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 the American system is intended to work, but the Supreme Court, over time, has grabbed power by declaring in Cooper v. Aaron (1958) 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 debating the 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’ responsibility to make its own determination about the constitutionality of legislation before passing it.

Not only have federal courts grabbed power, 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, in the words of John Adams, 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 and phrases of laws 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 a law leads to good or bad results, but whether that 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 text and 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 serving as supreme social arbiters. They have drawn on external sources, such as foreign laws, when the outcome they desired did not comport with the original public meaning of the law under review.

Here are a few recent examples of judicial activism at the nation’s highest court.

  • In Fisher v. University of Texas at Austin II (2016), rather than requiring the university to meet the strict standards of the Constitution’s guarantee of equal protection, the Supreme Court allowed it to discriminate against prospective white and Asian-American students.
  • In overturning Texas’ commonsense reforms of substandard abortion clinics in Whole Woman’s Health v. Hellerstedt (2016), the Supreme Court inserted itself into the legislative realm, acting as “the country’s ex officio medical board,” as Justice Clarence Thomas wrote in his dissenting opinion.
  • 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 (2015), the Supreme Court contorted the plain text of the statute to uphold President Barack Obama’s signature legislative achievement for a second time.
  • In recognizing a constitutional right to marriage that includes same-sex couples in Obergefell v. Hodges (2015), the Supreme Court issued a decision that even supporters of the ruling have described as unintelligible and poorly reasoned.

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. President Donald Trump has an opportunity to shift the balance of the federal judiciary by appointing judges who understand the proper, limited role their branch should play in the government. With the nomination of Neil Gorsuch as Supreme Court Justice, President Trump had already demonstrated that he understands this crucial issue.


Policymakers Should Pledge to Promote the Appointment or Election of Constitutionalist Judges. Policymakers should pledge to promote the appointment or election of judges who will follow and apply the text in accordance with how it was understood by the public at the time of its enactment, regardless of whether they personally approve of the 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 vW’s approach to judging, including the candidate’s record of fidelity to the Constitution and laws as written.

Senators Should Question Judicial Nominees to Determine Whether They Will Faithfully Interpret the Constitution. Senators have the duty to gauge whether nominees will be faithful to the text and 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, Senators should question nominees’ positions on the role that foreign law should play in interpreting the U.S. Constitution and laws.

Senators Should Not Abuse 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. Senators should not use procedural tactics, such as the blue slip process, to obstruct the confirmation of constitutionalist judges for political gains. In casting their votes, Senators must keep in mind their own oath to protect and defend the Constitution.

Facts and Figures

FACT: Some of the most significant decisions over the past few years have been decided by just one vote.

  • Roughly 20 percent to 30 percent of decisions were decided by five-to-four votes.
  • Two recent wrongly decided close cases are NFIB v. Sebelius, upholding the Obamacare individual mandate to purchase health insurance, and Obergefell v. Hodges, creating a constitutional right to marriage that includes same-sex couples.
  • Two recent correctly decided close cases include McDonald v. Chicago, recognizing that the Second Amendment applies to the states, and Burwell v. Hobby Lobby, protecting small family-owned businesses from the anti-conscience Department of Health and Human Services mandate.

FACT: It is vitally important that constitutionalist judges be nominated and confirmed for the circuit courts in addition to the Supreme Court.

  • The Supreme Court hears fewer than 80 cases per term, so the federal appellate courts are often the last resort for citizens challenging an injury.

FACT: President Trump has the opportunity to make several key nominations in his first year, helping to restore the judiciary to its proper, limited role.

  • President Obama appointed approximately one-third of the federal judiciary during his eight years in office.
  • President Obama left more than 120 vacancies on the federal trial and appeals courts when his Administration ended, which President Trump is filling with constitutionalist judges.

Selected Additional Resources

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

Carlos Bea, “Who Should Interpret Our Statutes and How It Affects Our Separation of Powers,” Heritage Foundation Lecture No. 1272, February 1, 2016.

The Heritage Foundation, “Supreme Consequences: How a President’s Bad Judicial Appointments Threaten Your Liberty,” 2016.

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

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

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