Judicial deference and the inconsistent enforcement of separation of powers

Deference Discussion

Judicial deference: does it give too much power to institutions?

In theory, judicial deference, far from giving too much power to institutions, upholds the idea of a separation of powers in government, and checks and balances. Legislatures are supposed to decide issues of policy by finding out the facts of a situation and making laws to address constituent's specific needs. The legislature is the most responsive entity of all of the branches of government and has unique tools to investigate issues. The judiciary decides upon questions of law and principles and defers to the legislature in questions of fact, just as the legislature must defer to the judiciary upon issues such as interpretation and constitutionality. The judiciary is shielded from the popular will and pressures of politics, but sometimes, in the case of rapidly-shifting events the judiciary should defer to the specific data yielded by the fact-finding exercises of the legislature.

But many scholars counter that this "simplistic formula" does not accurately describe the courts' confused approach to legislative fact-finding, and the problem with judicial deference is not that it makes one branch of government too powerful, but that it is quite arbitrarily enforced (Borgmann 2008). "Although the courts often speak in terms of deference, they follow no consistent or predictable pattern in deciding whether to defer in a given case. Moreover, blanket judicial deference to legislative fact-finding would not be a wise general rule.