Judicial Processes

3. Factors That Make Conflict Intractable

This introductory article was written by ChatGPT at the direction of Heidi Burgess, who reviewed, edited, and approved the final content.
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The judicial branch is supposed to interpret and apply the law, not write or enforce it. In the American system of separated powers, Congress makes laws, the president and executive agencies enforce them, and the courts decide legal disputes. USA.gov summarizes the judicial role as interpreting laws, applying laws to individual cases, and deciding whether laws violate the Constitution. Article III of the Constitution creates "one supreme Court" and such lower federal courts as Congress chooses to establish, with federal judges holding office during "good Behavior," as described in the Library of Congress's Constitution Annotated. This independence is meant to protect judges from political pressure, so they can decide cases according to law, rather than public opinion or partisan demands.

Court action is generally seen as legitimate when judges decide real cases within their jurisdiction, explain their reasoning, treat similar cases alike, follow relevant statutes and precedents, and respect the constitutional roles of the other branches. Courts also play an essential checking function. Judicial review allows courts to declare that government actions violate the Constitution, even though the Constitution does not explicitly spell out that power in those words; the Library of Congress explains the history of judicial review as a distinctive feature of American constitutional law. Federal courts also review executive action, including executive orders, and the Federal Judicial Center notes that such review helps define the scope of presidential power within the system of checks and balances. In this sense, courts are not merely technical legal bodies; they are one of the main institutions that keep the other branches within legal bounds.

At the same time, courts lose legitimacy when citizens believe that judges are substituting their own policy preferences for the Constitution, statutes, or precedent. This is the charge usually called "judicial activism." Cornell's Legal Information Institute defines judicial activism as judges making rulings based on their policy views, rather than on their honest interpretation of existing law. Britannica notes that the term is often used to criticize exercises of judicial review, although people disagree sharply about which decisions deserve the label. The controversy is difficult because almost every major constitutional case involves judgment: judges must interpret broad phrases such as "equal protection," "due process," "free speech," and "unreasonable searches." One side may see a decision as a courageous defense of constitutional rights, while the other sees the same decision as unelected judges "legislating from the bench."

The way judges are chosen also affects public confidence. Supreme Court justices are selected through a political process: the president nominates a candidate and the Senate votes on confirmation, which requires a simple majority, as explained by the Court's own general information page. This gives both the executive and legislative branches a role in shaping the Court. Supporters of this system argue that it creates democratic accountability, while preserving judicial independence through life tenure. Critics argue that the process has become intensely partisan, encouraging presidents to choose ideologically reliable nominees and senators to treat confirmation as a high-stakes political battle over future policy outcomes. Life tenure, once intended to protect independence, can also make each vacancy feel like a generational struggle for control of the law.

These concerns have produced many proposals to change the Supreme Court. Some advocate term limits, such as staggered 18-year terms, to regularize appointments and reduce the political importance of any single vacancy; the Brennan Center argues that regular turnover could make the Court more reflective of changing public values. Others call for a binding ethics code and stronger enforcement. The Supreme Court adopted a Code of Conduct in 2023, but the American Bar Association has noted that the code does not include an enforcement mechanism. Still others propose expanding the Court. The Court's own history notes that the number of justices changed several times before settling at nine in 1869, and the Federal Judicial Center describes Franklin Roosevelt's 1937 court-expansion proposal as a controversial effort to change the Court's ideological balance. Reformers argue that changes may be needed to restore public trust, reduce randomness, and strengthen accountability. Opponents warn that reforms, especially court expansion, could look like partisan retaliation and trigger an escalating cycle in which each party changes the Court whenever it gains power. The challenge is to preserve judicial independence, while also maintaining enough democratic legitimacy that citizens continue to accept court decisions, including decisions they strongly dislike.

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This page was created by ChatGPT in response to this prompt. It was then reviewed, edited, supplemented and approved by Heidi Burgess. More information about how and why we are using AI in this way, and about the growing number of ways in which Beyond Intractability is using ChatGPT, Claude and other AI systems to generate content and build out the BI system, is available on our BI/AI Overview Page