The Rule of the Courts

M. Akram Faizer

collapsed Black enrollment at highly selective colleges and universities nationwide. 97 My research indicates that while the Court is cloaked with immense judicial review power, it is very reluctant to use this power when doing so risks a conflict with the country’s power structure or would create enforcement problems. 98 After all, to paraphrase Stalin’s reference to the Pope, the Court has no military divisions to enforce its orders and the federal courts’ budget requires the cooperation of the political branches. 99 Federal judges also typically crave support from influential individuals and lawyers at the local level, which, of course, inhibits any inclination favoring progressive judicial review. Most problematically, the federal courts’ unwillingness to invalidate regressive laws for fear of antagonizing the government and powerful elements of civil society not only leaves these laws on the books, allowing them to still be enforced, but problematically increases support for laws approved by the federal courts. Obvious examples include the Court’s facil itating the rise of Jim Crow laws in the South based on Plessy and its failure to invalidate the military exclusion order in Korematsu. More recent examples include the Court’s unwillingness to confront to Trump Administration on its obviously illegal Executive Order purporting to limit 96 Parents Involved in Community Schools v. Seattle School District No. 1 is 551 U.S. 701 (2007) and Students for Fair Admissions v. Harvard, 600 U.S. 181 (2023). 97 “Students React to Harvard Race Data,” The Harvard Crimson (last visited Dec. 5, 2025), https://www.thecrimson.com/article/2024/9/12/students-react-harvard-race-data/ and Recent Declines in Black First-Year Enrollments at Highly Selective Colleges and Universities,” The Journal of Blacks in Higher Education (Nov. 3, 2025), https://jbhe.com/2025/ 11/recent-declines-in-black-first-year-enrollment-at-highly-selective-colleges-and- universities/ 98 See e.g. Christopher J. Walker, Separation-of-Powers Avoidance, 121 Yale L.J. 665, 672–73 (2012) (discussing how courts interpret doctrines to avoid embroiling themselves in separation-of-powers conflicts with coordinate political branches) and The Presumption Against Novelty in the Roberts Court’s Separation-of-Powers Case Law, 137 HARV. L. REV. ___ (2024), https://harvardlawreview.org/print/vol-137/the-presumption-against novelty-in-the-roberts-courts-separation-of-powers-case-law/ (last visited Dec. 14, 2025). 99 Winston Churchill, From War to War – Challenge and Response , in The Second World War 135 (Houghton Mifflin 1948).

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