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The Role of the Federal Judiciary

  • What role does the judicial branch have in the federal government?
  • Why is the speech that Justice Elena Kagan made at a recent judicial conference so dangerous?
  • How can We the People protect ourselves from an out of control federal judicial system?


In Federalist Papers #78, Alexander Hamilton said the federal
judiciary would be the branch of government least dangerous to
our rights. Is that how the courts are working in the 21st century?
What makes the courts today so injurious to our rights? We get a
clue from current Associate Justice Elena Kagan, in a speech she
gave at a judicial conference in Montana this July. By comparing
her statements to the Constitution and the writings of those who
helped frame it, we should not only be able to answer what makes
the court dangerous to our rights, but how to protect our rights
from them.
Associate Justice Kagan made a statement that many probably
took in stride, but for me was jaw dropping.
I’m not talking about any particular decision or even any
particular series of decisions, but if over time the court
loses all connection with the public and with public
sentiment, that’s a dangerous thing for a democracy,

Elena Kagan at a judicial conference in Montana
As I said, I expect most people to read this sentence and not give
it a second thought, but when I read this, I see the failure of the
republic. Let me explain.

Some of you may be thinking I’m pointing out the repeated lie that
America is a democracy. We are not, we are a constitutional
republic. While that fact is important to understanding just how
jaw dropping Justice Kagan’s statement is, it’s nothing compared
to heart of her error. Justice Kagan is concerned that the court
may lose its connection with the public and public sentiment, but
the court is not elected by the public, and for a very good reason.
The court’s job is not to court public opinion, but to decide
controversies and criminal prosecutions based on the law.
That branch of government which is concerned in the trial
and determination of controversies between parties, and
of criminal prosecutions; the system of courts of justice in
a government. An independent judiciary is the firmest
bulwark of freedom.

JUDICIARY, noun – Webster’s 1828 Dictionary
The fact that a judge can rise to the level of the Supreme Court of
the United States and think that the court should be swayed by
public opinion should scare the American people. The branch of
government that represents the people and the states is
Congress, not the courts. How can we say that we have a
representative government if unelected judges can supersede the
representative branch? We are not a nation of laws when those
who are to apply the law think they can make it up for themselves.
What Justice Kagan is describing is not a constitutional republic.
It’s not even a democracy. It’s an oligarchy! She believes it’s the
role of the court to determine public sentiment, then apply that to
the cases before them. But who decides what the “public
sentiment” is? According to Justice Kagan, it’s the unelected
members of the Supreme Court, the rulings of nine high priests in
black robes. The very tyranny that we declared independence

The Role of The Judiciary
In his essay on the judiciary, which became known as Federalist
Papers #78, Alexander Hamilton described the role of the courts
within the central government plainly.
Whoever attentively considers the different departments of
power must perceive, that, in a government in which they
are separated from each other, the judiciary, from the
nature of its functions, will always be the least dangerous
to the political rights of the Constitution; because it will be
least in a capacity to annoy or injure them…

Alexander Hamilton, Federalist Papers #78
Hamilton starts out by stating the judicial branch is the least
dangerous to our rights, because they have the least capacity to
injure us. Why is that? It seems today that the courts are
frequently trampling our rights, so how can it be they are least
able to injure us? The answer comes from the rest of the
… The Executive not only dispenses the honors, but holds
the sword of the community. …

Alexander Hamilton, Federalist Papers #78
The President is not only responsible for the nomination of
numerous officials, but the commissioning of all officers, both
public and military.

… he shall take Care that the Laws be faithfully executed,
and shall Commission all the Officers of the United States.

U.S. Constitution, Article II, Section 3
The President helps choose who works in the Executive Branch,
meaning all of those bureaucrats that pass rules and regulations
that impact our lives every day.
… The legislature not only commands the purse, but
prescribes the rules by which the duties and rights of
every citizen are to be regulated. …

Alexander Hamilton, Federalist Papers #78
Congress controls the purse. They have the power to tax, spend,
and even borrow against the credit of the United States.
Furthermore, with the power to legislate means the power to
make laws. These laws may impact everyone in America. But
what about the courts?
… The judiciary, on the contrary, has no influence over
either the sword or the purse; no direction either of the
strength or of the wealth of the society; and can take no
active resolution whatever. …

Alexander Hamilton, Federalist Papers #78
The courts are supposed to have no influence over either the
sword (military and police) or the purse (the taxing and spending
of money). Yet today courts claim the authority to tell the other
branches how they can use the strength or wealth of society.
Think about that last statement. Yes, a judge must sign a warrant,
but the courts cannot execute it. A judge may even find a law
unconstitutional, but they have no strength to make the other
branches comply.

… [The judiciary] may truly be said to have neither
FORCE nor WILL, but merely judgment; and must
ultimately depend upon the aid of the executive arm even
for the efficacy of its judgments.

Alexander Hamilton, Federalist Papers #78
Compare that to the view of the court Justice Kagan appears to
have. She wants the court to assume the will of the people, then
use that to force others to comply. This is not the courts that our
Founding Fathers envisioned. This is not a court that offers
opinions and not rulings. This is not a court with mere judgment,
but with power.
Overall, the way the court retains its legitimacy and fosters
public confidence is by acting like a court, is by doing the
kinds of things that do not seem to people political or

Elena Kagan at a judicial conference in Montana
While Justice Kagan claims the court retains its legitimacy by
acting like a court, her expectations that they enact the sentiment
of the people would have them acting as a legislature not a court.
Justice Kagan also claims she’s not referring to any recent
decisions of the court, though I would remind the reader this is the
justice who dissented in that same court’s decision that would
restore the abortion question to the people and their
representatives. A justice who complained that the majority of the
court read the actual language of the Constitution, as understood
by the people who wrote and ratified the document. Does that
sound like a court acting like a court? And lest we forget, this is
the same justice who put her feelings about gun violence above
the law.

The Solution
What can be done about a judicial branch occupied by would-be
legislators in black robes? Let’s return to the words of Alexander
Hamilton for some advice.
According to the plan of the convention, all judges who
may be appointed by the United States are to hold their
offices DURING GOOD BEHAVIOR; … The standard of
good behavior for the continuance in office of the judicial
magistracy, is certainly one of the most valuable of the
modern improvements in the practice of government.

Alexander Hamilton, Federalist Papers #78
Contrary to popular belief, federal judges do not have lifetime
appointments, they serve during their good behavior.

The Judges, both of the supreme and inferior Courts, shall
hold their Offices during good Behaviour,

U.S. Constitution, Article III, Section 1
But who decides what’s good behavior for a judge? The first step
is the House of Representatives.

The House of Representatives shall choose their Speaker
and other Officers; and shall have the sole Power of

U.S. Constitution, Article I, Section 2

That means the power of impeachment rests in the hands of the
representatives of the people, your employees in the federal
government. This is followed by the Senate.

The Senate shall have the sole Power to try all

U.S. Constitution, Article I, Section 3
While the role of the Senate is to represent the states, since the
ratification of the Seventeenth Amendment the people choose
these representatives as well. That means the ultimate decider of
what will be considered good behavior for federal judges is We
the People.

During this talk, Justice Kagan made an important point: She said
there were times when justices…
really just attempted to basically enact their own policy or
political or social preferences

Elena Kagan at a judicial conference in Montana
I would suggest the justice heed her own counsel. Her position in
recent cases before the court seem to be based more on her
political or social preferences. They are supported not by the
Constitution or laws of the United States, but by the previous
opinions of judges, many of whom have been just as much
political actors as Justice Kagan has been.

I hope by now you have seen the jaw-dropping arrogance of the
little talked about words of Associate Justice Kagan. While
experience tells me she is not likely to pay any price for her bad
behavior, much less the oath she took to support the Constitution
of the United States, I can only hope that the American people will
take this lesson to heart. If we are to have a judiciary that is least
able to injure our rights, we must make sure that those who sit on
these courts be on their best behavior. And when they claim the
power of the sword or the purse, that their bad behavior be
appropriately punished.


Paul Engel is an Affiliate of Institute on the Constitution. He founded The Constitution Study in 2014 to help everyday Americans read and study the Constitution. Author and speaker, Paul has spent more than 20 years studying and teaching about both the Bible and the U.S. Constitution. Freely admitting that he “learned more about our Constitution from School House Rock than in 12 years of public school” he proves that anyone can be a constitutional scholar. You can find his books on the Institute on the Constitution Store (, Amazon, and Apple Books. You can also listen to his weekday radio show on America Out Loud ( You can reach him at