The principle of separation of powers in the judicature of the U.S. Supreme Court

Abstract

The paper is devoted to the governmental status of the U.S. Supreme Court in general and to its exegesis of the principle of power distribution in particular. Regarding the latter at issue are such approaches as formal and functional one, as well as “the third way”. Depending on the types of legal norms met by the Court, its judicial activity takes the shape of creative, interpretative or constitution- making functions. In the mentioned activity those functions intertwine, similarly as the types of the norms applied by the Court do. The common feature of all those functions is that they cannot be reduced solely to the law application, but that they make that law to a vast extent. This is the biggest paradox in the Court’s work: a singular case, being decided in a typical way for such matters, becomes a basis to create a new general norm which changes law already in force. Seemingly typical judicial powers are transformed into legislative ones.