Why Judges are Playing an Increasingly Prominent Role in National Politics

Photo via Kevin Wurm, Reuters

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In recent decades, the power and influence of the United States Congress has declined compared to the executive branch, as seen in the relative decline in legislative bills passed since 1975. The inability of Congress to pass laws has also led to an increase in the size of bills, as legislators are concerned their priorities would be unable to be passed otherwise. This in itself can lead to legislative gridlock, as members of Congress can introduce policies to large bills that make the entire bill too objectionable to be supported by other necessary members. 

This can be attributed to several reasons, including increasing parisian polarization and the existence of the Senate filibuster. Since 1971, there has been a growing ideological divide between congressional Republicans and Democrats, alongside growing geographical divides as well. The frustration among members from gridlock and infighting are among the reasons leading 44 members of the U.S. House of Representatives to already announce departures from the House following the 2026 midterm elections, the most in at least eight years.

The growing congressional gridlock due to ideological differences has also affected the use of the Senate filibuster. Historically, a “talking filibuster,” or the practice of holding long speeches on the Senate floor, was a method intended to delay votes, but the most common current practice is the “silent filibuster,” or the threat to begin a talking filibuster to delay a vote. Currently with 100 Senators, 60 are needed to overcome a filibuster and hold a vote. With the last time one party held 60 Senate seats being Democrats for a period during the 111th Congress, from 2009-2011, and a decreasing number of congressional seats expected to be likely to change party control each election, known as “swing seats,” the possibility of one party to control a filibuster-proof majority in the Senate is highly unlikely.

These factors limiting the effectiveness of Congress have resulted in Presidents that have attempted to enact an increasing number of policy priorities without Congress. Executive orders are directives signed by the President giving instructions to members of the executive branch. While the basis of these orders must be bound either in the U.S. Constitution or in laws passed by Congress, the scope of executive orders has grown in the modern era.

While passing a limited number of bills does not guarantee a Congress is ineffective, it can be a signifier of being so, especially with the broad range of executive orders U.S. President Donald Trump has signed, arguably in place of legislation. Almost halfway through their term, the current Congress has passed just over 40 bills, far less than the 274 bills and 265 bills of the preceding two Congresses respectively.

During his second term in particular, Trump has been much more willing to stretch the use of executive orders to stretch the use of executive orders in order to accomplish priorities he is unable to pass in Congress. As of December 5th, 2025, Trump has signed 217 executive orders, nearly matching the total of 220 from his entire first term, with many of them having large significance. 

Over 250 lawsuits have been filed challenging the Trump Administration on the constitutionality of orders regarding the deployment of the National Guard to the District of Columbia and the firing of federal employees. In more than 100 cases, courts have authored preliminary injunctions temporarily halting administration actions, showing how courts are playing an important role in ensuring the constitutionality of executive orders. However, in Trump v. CASA, Inc. (2025), the U.S. Supreme Court limited federal courts’ ability to issue nationwide injunctions.

Other executive orders, such as signaling the administration’s goal of removing the Department of Education by shifting its responsibilities to other agencies while essentially acknowledging Congress controls the creation and removal of executive branch departments.

Federal judges also have different incentive structures than the President and Congress, allowing them to act as a much more independent check on the President. Having lifetime appointments, judges are, in theory, less likely to feel the need to advocate for partisan allegiances, and they do not need to consider decisions based on public opinion or a constituency needed for re-election. 

This is in comparison to members of Congress, who have an incentive in winning reelection, and therefore, pay attention to the public opinion of their districts. This also can contribute to legislative gridlock, as with a dwindling number of swing seats across the country, members of Congress can be more incentivized to act in a partisan manner. This relative ideological independence of the judiciary, alongside increased partisanship among the electorate and a congressional majority largely unwilling to check Trump, has resulted in the judiciary playing an increasingly important role in Washington, D.C.

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This article was edited by Abigail D’Angelo.