Judicial Power and Influence on Population Health

Centennial Issue
Health Law Population Health

Policy Points:

  • Since its founding, the Supreme Court has played a major role in defining the parameters of governments’ public health powers and the scope of individual health-related rights. Although conservative courts have been less favorable to public health objectives, federal courts have, for the most part, advanced public health interests through consensus and adherence to the rule of law.
  • In establishing the current six–three conservative supermajority, the Trump administration and the Senate shifted the Supreme Court dramatically. A majority of Justices, led by Chief Justice Roberts, did shift the Court in a decidedly conservative direction. It did so incrementally, guided by the Chief’s intuition that the Institution itself should be preserved, mindful of maintaining public trust and appearing outside the political fray. That has all changed because Roberts’ voice no longer holds sway. Five members of the Court have displayed a willingness to overturn even long-held precedent and dismantle public health policy in favor of the Justices’ core ideological tenants—notably the extensive reach of the First and Second Amendments and a parsimonious view of executive and administrative action.
  • Public health is vulnerable to judicial rulings in this new conservative era. This includes classic public health powers in infectious disease control as well as reproductive rights; lesbian, gay, bisexual, trans, queer or questioning, and others (LGBTQ+) rights; firearm safety; immigration; and climate change. Congress has the power to curb the most extreme actions of the Court while still adhering to the vital ideal of a nonpolitical branch. That does not require Congress itself to overreach (such as by “packing” the Supreme Court, as Franklin Delaeno Roosevelt once proposed). Congress could, however, 1) disempower lower federal judges from issuing injunctions that apply nationwide, 2) limit the Supreme Court’s so-called shadow docket, 3) alter the way that presidents appoint federal judges, and 4) set reasonable term limits for federal judges and Supreme Court Justices.

Article III of the US Constitution establishes the federal courts as a coequal branch of government: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may…ordain and establish.”  Standing alone among the branches of the federal government, judges “shall hold their Offices during good Behaviour,” meaning for life. As Alexander Hamilton put it in The Federalist No. 78, judicial independence “is the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws.”1 Of course, it is no secret that judges’ political ideologies do matter; judges do not just call balls and strikes, as Chief Justice Roberts said in his confirmation hearings.2 Yet, although the composition of federal courts has always been consequential, the current makeup marks a significant departure from history, which will have lasting repercussions across multiple domains, including public health and safety.

Examining past Supreme Courts helps to understand the magnitude of the recent ideological shift. The last time the Court held a conservative supermajority was in the early 1930s, to which President Roosevelt reacted by appointing strong liberal Justices to push his New Deal agenda.3 The Warren Court (1953-1969) is thought to be the most liberal in history; this Court expanded civil rights (e.g., ending dejure segregation and outlawing anti-miscegenation laws), civil liberties (e.g., establishing a right to privacy), and federal power.4 In the 1970s, the Court began to shift more conservative when President Nixon appointed Justices Burger, Rehnquist, Powell, and Blackmun and would eventually come to hold a conservative majority that would last for several decades.


1. Hamilton A. Federalist No. 78: the judiciary department. The Federalist Papers. J. & A. McLean; 1788.
2. Confirmation Hearing on the Nomination of John G. Roberts, Jr. to Be Chief Justice of the United States, Committee on Judiciary, 109th Cong, 1st Sess (2005).
3. Sparrow PM. FDR and the Supreme Court: a lasting legacy. National Archives: Franklin D. Roosevelt Presidential Library and Museum. February 23, 2016. Accessed February 21, 2023. https://fdr.blogs.archives.gov/2016/02/23/fdr-and-the-supreme-court-a-lasting-legacy/

Gostin LO. Power and Influence on Population Health. Milbank Q. 2023;101(S1):700-733.