This episode of the AEI Events Podcast features a 2016 conversation between Wall Street Journal’s Paul Gigot and federal Judge Brett Kavanaugh on the role of judges and the Supreme Court in supporting the rule of law and preserving the separation of powers in the American system of government. Judge Kavanaugh maintains that the Court has a role to play in protecting Congress and the separation of powers: while it is Congress’ task to pass statutes and set boundaries for an agency’s action, the Court should police such boundaries when the agency seeks to work outside of them. This requires a careful balance to ensure that the Court does not interfere unduly with the proper operation of Congress or the executive branch.
The panelists comment that while Madison famously called the Court the “weakest branch,” today it often plays an outsized role in the political process. Activist judges who do not hold to the text of statutes or the Constitution can contribute to this phenomenon, but it also occurs when the other branches punt difficult political policy decisions to the Court for resolution.More