Separation of Powers: Legislative-Judicial Relations

Every society has confronted the question of how to resolve disputes. Many early societies chose a private system of revenge for dispute resolution but, as civilizations evolved, communities began designating individuals to resolve disputes impartially in accordance with established norms and customs. 

In Ancient Greece, rulers and a group of respected elders in the community were empowered to hear disputes. The judicial powers of these institutions were gradually replaced by an assembly of 6,000 jurors that was divided into smaller panels to hear particular cases. 

Juries played a key role in the development of the English judicial system. As more legal disputes were submitted to juries for resolution, however, concerns arose that both judges and juries were rendering biased decisions based on irrelevant and untrustworthy evidence. Trial procedures often were deemed haphazard, arbitrary and unfair. The concerns about the English judicial system affected the development of the U.S. judicial system. 

The general blueprint for the U.S. judiciary is laid out in Article III of the U.S. Constitution, and many details of federal judicial power are spelled out in the Judiciary Act of 1789. State judicial systems are created similarly by state constitutional and statutory provisions. 

One of the principal characteristics of the U.S. judicial system is that it has a specific role under the separation-of-powers doctrine. Under the doctrine, laws are passed by the legislature and enforced by the executive branch. The judiciary interprets and applies the law, adjudicates legal disputes and otherwise administers justice. This includes the authority to enforce—or void—statutes when disputes arise over their scope or constitutionality. 

The power of the judiciary is balanced by the legislature's ability to pass new laws and propose constitutional amendments. Legislatures also may have the power to confirm, select or impeach judicial branch officials. 

Examples of the areas in which legislative-judicial conflict may arise include:

  • Judicial review
  • Judicial interpretation
  • Judicial confirmations, selections or impeachments
  • Enrolled bill doctrine
  • Legislative intent and histories


Judicial Review and Interpretation

Enrolled Bill Doctrine

  • Kentucky: Kurt, X. Metzmeier, "Clocks and Courts: Enrolled Bills and Extrinsive Evidence," University of Louisville School of Law Faculty Blog, April, 23, 2008
  • North Dakota: North Dakota Attorney General, Attorney General's Opinion 91-11, July 1991 
  • Texas: Texas Legislative Council, Texas Legislative Council Drafting Manual, September 2008
  • Texas: Texas Attorney General, Attorney General's Opinion JM-1086, August 1989

Legislative History and Intent

Case Law

Federal: Marbury v. Madison, 5 U.S. 137 (1803)
Kentucky: Lafferty v. Huffman, 35 S.W. 123 (1893)
Kentucky: D&W Auto Supply v. Department of Revenue, 602 S.W.2d 420 (Ky. 1980)
Pennsylvania: Consumer Party of Pa. v. Commonwealth, 507 A.2d 323 (Pa. 1986)
South Carolina: Tolentino v. Secretary of Finance, 235 SCRA 630


Receiving Information or Recommending Additions

If you have any questions, please contact Brenda Erickson.  Also, please contact Brenda if you would like to recommend legislative resources or case law that may enhance the Separation of Powers website.