The Role of the Judiciary Against The Other Branches of Government – A Historical Background

Just this week a number of reports have surfaced that detailed President Trump’s frustration with the Supreme Court and both the federal and state level judiciary in general.

In private, it has been reported that the President is frustrated with Supreme Court Justice Amy Coney Barrett who he appointed to the Supreme Court in 2020. In addition, the President has also expressed concern about Justices Neil Gorsuch and Brett Kavanaugh, the other two justices he appointed to the Supreme Court during his first term. The basis of President Trump’s grievances are that the justices are not sufficiently supportive of his policy agenda. The President is reported to be angry that the justices, specifically Justice Barrett, have voted against the Administration in a number of the court’s rulings.

Prior to the President’s inauguration in January, Justice Barrett (along with Chief Justice John Roberts) joined a ruling that allowed the President to be sentenced in his hush money case in New York. In March, Justice Barrett voted with the majority to reject the Administration’s plan to freeze payments of foreign aid. And in May, Justice Barrett recused herself from the Oklahoma Catholic charter school case. Since she was not participating in the case – because of personal ties she had with the plaintiffs who brought the case – the remaining eight justices heard the case and issued a ruling. The case came out to a 4 – 4 tie. Since there was no majority or plurality opinion the lower court ruling from the Oklahoma Supreme Court was allowed to stand which had ruled using state funds to fund Catholic charter schools unconstitutional. Justice Barrett was blamed because if she had not recused herself she could have cast the deciding fifth vote that could have overturned the Oklahoma Supreme Court. Justice Barrett’s votes in these rulings against Trump Administration initiatives have sparked a backlash against her and has helped fuel the anger of not just the President but from those who identify as MAGA and those who support many MAGA supported policies. LEARN MORE, LEARN MORE

Policy Analysis: While the Trump Administration’s criticisms and attacks on the judiciary are ongoing, the central premise of his frustrations – that the Supreme Court and the judiciary are not fully supportive of his policy agenda – is completely flawed and unsupported by the historical record.

Since just about the beginning of this nation, the idea that the judciary/judicial department could render an act by the legislative or executive branch void has been generally accepted. At the 1787 Constitutional Convention where the Constitution was being drawn up, delegate Luther Martin stated, “As to the constitutionality of laws, that point will come before the judges in their proper official character. In this character they will have a negative on the laws.” During another point during the convention, delegate Gouvernor Morris expressed a similar sentiment when he stated, “A law that ought to be negatived will be set aside in the judiciary department.”

These ideas continued and were expanded on during the debates that were held for the ratification of the Constitution by the individual states. In Pennsylvania James Wilson published a speech where he wrote, “If a law should be made inconsistent with those powers vested by this instrument in Congress the judges, as a consequence of their independence, and the particular powers of government being defined, will declare such law to be null and void[.]” At the Connecticut Ratification Convention in 1788, Oliver Ellsworth proclaimed, “If the general legislature should at any time overleap their limits, the judicial department is a constitutional check. If the United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void; and the judicial power, the national judges . . . will declare it to be void.”

And finally, Alexander Hamilton and James Madison, two of the leading minds on constitutional affairs during this era helped solidify the idea that the judiciary could strike down unconstitutional acts undertaken by the legislative or executive branches. In Federalist No. 78, Hamilton wrote that the duty of the judicial branch “must be to declare all acts contrary to the manifest tenor of the constitution void.” And in one of his most famous quotes James Madison said that the proper role of the courts was to act as “an impenetrable bulwark against every assumption of power in the legislative or executive.”

What history is showing to us is that the judiciary is not to act as a rubber stamp to a president’s policy agenda. Nor should courts be deferential to a president’s actions as Vice – President J.D. Vance has himself suggested. History is showing us that this Administration’s attacks on the judiciary are horribly misguided and have no place in their attempt to twist the constitutional role of the courts in order to implement their policy agenda. More than 200 years ago, the Founding Fathers envisioned a constitutional role for the judiciary that would act as a check on the bounds of the legislative and executive branch. When Justice Barrett or any other justice or court disagrees with this Administration, that disagreement emanating from the courts demonstrates that the courts are properly exercising their judicial power as the Founding Fathers intended.

Engagement Resources

• Constitution Annotated – historical background on judicial review.
• National Center for Constitutional Studies – origin of judicial review.