⇒ Alexander Hamilton: “the interpretation of the laws is the proper and peculiar province of the courts”

• In addition to this, the court ensures the law stays within the boundaries of the Constitution
• Marbury v Madison (1803) is a case in which the Court established a precedent for judicial review in the US, declaring that acts of Congress that conflict with the Constitution are null and void, as the Constitution is the supreme law of the land

⇒ The Courts power to declare laws unconstitutional does seem to give it a lot of power, but the Court lacks the monetary power (e.g. over taxes) or force (such as the use of the military) to get what it wants

⇒ Woodrow Wilson believed that Courts were engaged in the neutral discovery of legal principles, and lacked the policy-making powers and discretion exercised by Congress and the bureaucracy

• In other words, he believed there was a divide between the law (the courts) and the politics (the legislature and the executive) when it came to policy-making

⇒ Wilson’s beliefs are, today, seen as an oversimplification of reality (although it is generally believed there is a distinction between law and politics)

• E.g. Easton says that the Court can determine the boundary of policy-making, but they do so neutrally using a predetermined set of rules
• In other words, the Court is tasked with working out what the law actually is having already been agreed that such a law exists by the policy-makers

⇒ However, to some extent the Court does make policy through its constitutional boundary setting

• For example, in Brown v Board of Education the Supreme Court said segregated schools were unconstitutional due to racial discrimination on the same principles that they said racial segregation was acceptable in Plessy v Ferguson

⇒ Dahl: “[t]o consider the Supreme Court of the United States strictly as a legal institution is to underestimate its significance in the American political system. For it is also a political institution, an institution, that is to say, for arriving at decisions on controversial questions of national policy.”