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Abstract

Justice Cardozo’ s prescient inquiry in The Nature of the Judicial Process nearly a century ago merits revisiting and analysis in light of the present political climate. Under the new administration, the Executive Branch has characterized a judicial opinion from the U.S. District Court of Hawaii’ s as emanating from “an island in the Pacific,” suggested the 9th Circuit Court of Appeals should be fragmented, and subjected judges who disagree with the constitutionality of the administration’ s immigration policies to ridicule, vilification, or disparagement. When contemplating the nature of the judicial process, it is time to reassess the courts' systemic policymaking function in the constitutional system via checks and balances and separation of powers. This article, therefore, analyzes the principles of checks and balances, separation of powers, and the policymaking courts through the lens of complex systems analysis.

The complex and systemic interactions between the courts, Congress, and the Executive Branch give rise to an intricate sociopolitical, legal, and economic system. In the present political context, a complex systems analysis reveals that the courts’ power to check, balance, and maintain the separation of powers is a legitimate and necessary exercise within the constitutional schema. Here, complex systems analysis is employed to explore how courts are acting properly when reviewing, checking, and balancing the power of the competing branches. Further, this analytical approach re-conceptualizes “judicial activism” as constitutional interpretation explicitly reflecting the policymaking role of the courts and their work to preserve the integrity of the constitutional system. From this perspective, the role of the courts can be viewed as policymaking not from any particular ideological position, but rather from the structural systemic values and norms that bind the constitutional order.

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