Under Chief Justice Roberts, the Supreme Court has demonstrated a willingness to enforce the Constitution’s separation-of-powers principles. This is welcome news for those who think that aspects of the administrative state run afoul of important constitutional lines separating the federal government’s three coequal branches. But not everyone has found the Roberts Court’s separation-of-powers jurisprudence to be cause for celebration.

　　A growing number of jurists and scholars have critiqued the Court for putatively “aggrandizing” itself at the expense of Congress and the president. Justice Kagan, for example, has written that “in recent years,” the Supreme Court “has too often taken for itself decision-making authority Congress assigned to agencies.” Likewise, two law professors contend that we live amid a “juristocratic counterrevolution.”

　　This type of “judicial aggrandizement” critique is misguided in one sense, yet persuasive in another.Building upon my recent work published in the Cornell Law Review Online, I aim to illuminate what the judicial aggrandizement critique gets both wrong and right.

　　The Judicial Aggrandizement Critique

　　To properly assess the merits of the judicial aggrandizement critique, it is appropriate to offer a few examples of the critique in action. Start by considering recent statements made by three of the current Supreme Court’s more liberal justices.

　　In a case decided last summer about presidential immunity, Justice Jackson criticized her colleagues in the majority for “aggrandizing power in the Judiciary and the Executive, to the detriment of Congress.” In another case, which held that some legal claims had to be adjudicated before juries rather than administrative agencies, Justice Sotomayor warned that “judicial aggrandizement is as pernicious to the separation of powers as any aggrandizing action from either of the political branches.” And in a case in which the Court ruled that judges have to interpret statutes independently, rather than defer to agencies, Justice Kagan maintained that her colleagues had replaced a “rule of judicial humility” with “a rule of judicial hubris.”

　　Legal academics have offered similar arguments.For example, two scholars argue that “modern separation-of-powers law is premised” on the “misunderstanding” that “the U.S. Constitution imposes unwritten but judicially enforceable limits on the power of one branch of government to interfere with the others.” They further contend that this alleged “misunderstanding” is “juristocratic,” and has replaced a “republican” conception of the separation of powers that is associated with “normative values underlying the separation of powers in eighteenth-century England.” This ostensibly “republican” conception, if adopted, would place primary responsibility for enforcing the separation of powers in Congress and the president, rather than the courts.

　　Another scholar has written that “the judges are out of control,” in part because they have used “administrative law cases to aggrandize themselves.” This scholar focuses, in particular, on judicial rhetoric, and contends that the Court has both used “strikingly dismissive language about the governing capacity of other institutions” and treated “judicial procedure as a paragon of reason and rectitude.”

　　Rhetoric is one of the most important tools that the federal judiciary has to stand up to the other branches.

　　To help keep track of the various arguments,scholars have even proposed a “taxonomy for understanding different aspects of contemporary judicial power.”Within that taxonomy, the term “judicial aggrandizement” is said to help “capture what is distinctive” about the Roberts Court.Focusing also on judicial rhetoric, thesescholars who proposed the taxonomy contend that “the Roberts Court is exceptional in its willingness to deploy rhetoric justifying its role outside and above the separation of powers and demean other constitutional actors in a way that few previous Courts would have dared.”

　　There are other examples that could be examined—many of which bring their own subtle differences to the foreground.But for the sake of simplicity, these critiques will be referred to, collectively, as the judicial aggrandizement critique.

　　What the Critique Gets Wrong

　　To the extent that the judicial aggrandizement critique is premised on the idea that federal courts should play little to no role in enforcing the separation of powers, the critique is misguided. That is because, in the American context, the federal judiciary is truly an independent, coequal branch of government.

　　The independent nature of the federal judiciary distinguishes the government of the United States from that of the United Kingdom. In the United Kingdom, courts are not truly independent from (or equal to) Parliament. That is in part because Parliament is sovereign. And as the English theorist A. V. Dicey explained, the principle of Parliamentary sovereignty requires that “any Act of Parliament … will be obeyed by the courts.”

　　Things are different on this side of the Atlantic. As Justice Thomas explains, “One of the fundamental differences between our Government and the British Government” is that “Parliament was supreme” and “Congress is not.” The federal judiciary is therefore not required to blindly “obey” acts of Congress, or to act as if the constitutionality of federal statutes must be determined by a “sovereign” Congress alone.

　　Instead, federal courts must act in accordance with the demands of the relevant sovereign in America: “We the People.” And the sovereign People’s Constitution places limitations on Congress and the president that cannot be altered through ordinary legislation. Thus, to properly respect the sovereign People’s demands, the federal judiciary must ensure that acts of Congress are constitutional before giving legal effect to those acts in the People’s federal courts.

　　To the extent that the judicial aggrandizement critique is focused primarily on policing the use of “demeaning” judicial rhetoric, the critique might seem less significant. But as Alexander Hamilton reminds us, the third branch has “neither force nor will, but merely judgment.” Efforts to make exercises and explanations of judicial “judgment” less rhetorically persuasive—by suggesting, for example, that it is wrong or “demeaning” for the Court to contend that apolitical judicial procedure offers advantages that the political branches lack—are efforts that risk weakening one of the judiciary’s only means of participating as a coequal branch.

　　In some systems of government, it might make sense to require constitutionally inferior courts to stay mum when they spot a constitutional violation—or to at most use deferential language that asks a constitutionally supreme, sovereign legislature to address the violation itself. However, the United States federal government is not such a system. Rhetoric is one of the most important tools that the federal judiciary has to stand up to the other branches, and thus effectively fulfill the judiciary’s constitutionally ordained role as a coequal branch. Federal courts should be free to craft judgments using the language they deem most effective for fulfilling that constitutional role—even if that means pointing out perceived shortcomings in the political branches.

　　What the Critique Gets Right

　　To be sure, to say that the federal judiciary is coequal with Congress and the president is not to say that the judiciary is supreme. And it is here that the judicial aggrandizement critique has helpful insight to offer. In particular, the critique is correct to the extent it maintains that federal courts should not be the sole enforcers of the separation of powers.

　　Yes, federal courts can (and should) enforce the Constitution’s separation-of-powers principles.But the courts need not (and should not) go it alone. Instead, the People’s Constitution established a complex system of checks and balances that empowers each of the three federal branches to play a role in enforcing constitutional lines. Among other things this means that there is room for administrative agencies, which exercise executive power on the president’s behalf, to enforce the separation of powers.

　　Agencies can play their part by instilling in legislators the virtues those legislators need to fulfill their lawmaking functions in a way that respects the Constitution’s separation of powers.

　　In recent academic work, I’ve explained how administrative agencies can help enforce the separation of powers by working to instill in legislators the virtues (i.e., character traits) that legislators need to fulfill their constitutional functions excellently. I refer readers to that work for a more detailed explanation. But in short, for a legislator to perform his or her constitutionally assigned lawmaking function excellently, the legislator must act consistent with the Constitution’s separation-of-powers principles. And it is by helping instill virtues in legislators that agencies can help give legislators the tools they need to perform their constitutional functions. 

　　To be sure, agencies (and courts) can misstep and mistakenly instill vices in legislators. But a focus on instilling the four cardinal virtues can help avoid that mistake. Thus, I have proposed that agencies help legislators develop “courage to make policy decisions in the face of political pressures, prudence to identify the proper means for achieving proper goals, temperance to resist various vices that often distract government officials, and justice to recognize the limitations imposed by the Constitution’s vesting of legislative powers in a collective Congress.”

　　Administrative agencies have many opportunities to help instill those virtues in legislators. For example, an agency might use a regulation’s preamble to speak to legislators in a public forum. When doing so, the agency could explain that the agency would like to address an important societal problem, but that additional statutory authority is needed. Publishing such a statement could place a political spotlight on legislators, and thus give those legislators a chance to rise to the occasion and take bold political action. Much like a firefighter can develop courage by routinely facing fires, allowing legislators to routinely face political consequences (rather than duck behind vague delegations of power to agencies) can assist legislators in developing the sort of political courage they need to fulfill their constitutionally assigned lawmaking functions in an excellent way.

　　To offer a second example: agencies could publish subregulatory guidance documents, which explain how the agency will treat efforts by individual legislators who lobby agency officials for special regulatory outcomes. In such guidance, the agency could explain that legislators must “support their lobbying requests with evidence of broader congressional support.” By doing so, agencies can help instill in legislators a sense of justice by disallowing legislators from “unjustly exercis[ing] too much power … through personal lobbying, rather than collective lawmaking.”

　　Finally, and more aggressively, agencies might borrow from a playbook that is sometimes used by Congress. To wit, when federal legislators suspect that agency officials are not carrying out their regulatory duties in accordance with law, agency officials can be held to account through congressional hearings and written inquiries. Likewise, when agency officials suspect that legislators are not carrying out their duties in accordance with law, agency officials “could use their own stationery and letterhead to request information from legislators,” and use their own ceremonial conference rooms to hold “hearings where legislators are the ones offering testimony.” Sure, legislators might “refuse to attend an agency hearing, or refuse to respond to an agency letter,” much like agency officials sometimes give short shrift to congressional requests. But “the mere act of publicly inviting a legislator to a hearing, or sending a public letter, could have an instructive effect.”

　　In sum, the careful ways in which the Constitution separates and vests federal power allows for federal courts to play a substantial role in ensuring that Congress and the president operate within constitutional lines. But a coequal judiciary is not a supreme judiciary. Other entities, including administrative agencies, therefore can (and should) assist the courts in enforcing the Constitution’s separation-of-powers principles. Agencies can play their part by instilling in legislators the virtues those legislators need to fulfill their lawmaking functions in a way that respects the Constitution’s separation of powers.