Why the Judiciary Does Not Govern — and Never Was Meant To

 Americans are often told that the judiciary is a "co-equal branch of government." The phrase is repeated so often that it feels self-evident. But the Constitution does not actually say this—and more importantly, it does not function this way.

The belief that courts govern alongside Congress and the President is not just a harmless civic shorthand. It is one of the quiet misunderstandings that has reshaped our expectations of constitutional responsibility, weakened democratic accountability, and encouraged a dangerous form of civic passivity.

To see why, we need to make a basic distinction that modern discourse routinely blurs: the difference between governance and adjudication.

Governance consists of two powers. First, the power to make rules that bind society. Second, the power to execute those rules in the real world. These are the legislative and executive powers, and the Constitution assigns them explicitly and affirmatively.

Judicial power is different in kind.

Courts do not initiate action. They do not make policy. They do not enforce outcomes on their own. They wait. They respond. They adjudicate disputes that others bring before them. Without a case or controversy, courts are constitutionally silent.

This is not an oversight. It is a design choice.

The judiciary cannot investigate on its own. It cannot indict. It cannot impeach. It cannot remove officials from office. It cannot repair constitutional injury directly. Even its judgments depend on the executive for enforcement and on the legislature for correction or revision of the law.

A power that cannot initiate, cannot enforce, and cannot act without being asked is not a governing power. It is an adjudicative one.

This structure explains something that often confuses the public: when the Constitution itself is violated, courts are not the first responders.

They never were meant to be.

Violations of law are handled in courts. Violations of the Constitution are handled through impeachment. That is not because impeachment is a political shortcut or a substitute for criminal prosecution, but because constitutional violations are not legal violations. They are breaches of public trust committed by officers who hold power under oath.

Courts interpret law. The People judge whether constitutional authority has been abused.

Over time, however, Americans have come to treat courts as the ultimate guardians of the Constitution. This belief is understandable. Courts speak in the language of principle. Their opinions are written, reasoned, and public. They feel authoritative.

But this belief is constitutionally false—and practically dangerous.

Courts can declare laws inconsistent with the Constitution when a case is properly before them. They cannot ensure constitutional fidelity across government. They cannot police the daily exercise of power. They cannot substitute for legislative restraint, executive responsibility, or civic vigilance.

When we ask courts to govern, three things happen.

First, legislators begin to outsource constitutional judgment. Rather than asking whether a bill exceeds constitutional authority, they ask whether it might survive judicial review. Constitutional responsibility becomes a litigation strategy.

Second, executives test boundaries. If the courts have not yet said "no," power is treated as available. The oath becomes symbolic rather than binding.

Third, citizens retreat. If courts are the guardians, then the People become spectators—waiting for rulings instead of exercising judgment.

This is how self-government erodes. Not through a single decision or crisis, but through the steady misplacement of responsibility.

But this misplacement of responsibility doesn't just make governance less constitutional—it makes adjudication worse.

When courts are expected to function as constitutional enforcers rather than dispute resolvers, they begin generating broader holdings, more policy-inflected reasoning, and pronouncements that look less like case resolution and more like legislative direction. The judiciary becomes distorted by being asked to perform a function it was never designed to handle.

Judges, sensing that they are being treated as the last line of constitutional defense, begin to write opinions that reach beyond the case before them. They craft tests and standards meant to guide future conduct across government. They issue sweeping declarations about constitutional meaning that read more like statutory provisions than case law.

This is not judicial overreach in the usual sense. It is judicial response to structural abandonment. When the other branches stop exercising constitutional judgment and citizens stop demanding it, courts fill the vacuum—not because they seek power, but because someone must say something about constitutional boundaries.

The result is a judiciary that looks increasingly political, precisely because it has been forced into a governing role it was never meant to occupy. Confirmation hearings become ideological battlegrounds. Judicial appointments feel like elections. Court decisions are analyzed for their policy outcomes rather than their legal reasoning.

The system degrades in both directions simultaneously: governance becomes less democratically accountable, and adjudication becomes less judicially constrained.

This mutual corruption is not accidental. It is the natural consequence of asking one institution to do the work of three—and expecting technical legal analysis to substitute for political judgment, executive restraint, and civic engagement.

The Framers assumed something very different. They assumed courts would resolve disputes, not supervise governance. They assumed legislators and executives would take their oaths seriously. And they assumed the People would remain attentive to the use of constitutional power.

Judicial power was meant to support constitutional order—not replace it.

Calling the judiciary "co-equal" may feel respectful, but it obscures the Constitution's deeper lesson: not all powers are governing powers, and not all accountability flows through courts.

If we want constitutional government to endure, we must stop asking judges to do the People's work—and start remembering what that work is.