“[T]he opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves, in their own sphere of action, but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.” —Thomas Jefferson (1804)

Somehow we, as a nation, have lost our locus on this one.   We have allowed the judiciary to become tyrannical in its assertion of powers not granted to it under the Constitution.  How we got here is a curious matter.  What is certain is that we need to step back from this and realize that the judiciary is but one prong of the three prong check and balancing of our system of government.  Another thing needed is to put into check the expanding powers of the administrative agencies under the executive branch.  But that is another subject for another time.

For now, let me just say that a good exploration of the intended role of the judiciary is found here:

http://www.heritage.org/courts/report/what-the-proper-role-the-courts