The Judiciary

The judiciary is the least dangerous branch, Hamilton said. He may have been wrong.

Structure of the Federal Courts

Three Levels

District Courts: 94 federal districts. Trial courts where cases begin. Judges hear evidence, juries decide facts.

Courts of Appeals: 13 circuits (11 regional, D.C. Circuit, Federal Circuit). Review district court decisions. Panels of three judges; no juries.

Supreme Court: Nine justices. Highest appellate court. Final word on federal law and constitutional interpretation.

Jurisdiction

Federal courts hear cases involving:

• Federal law or the Constitution
• The United States as a party
• Disputes between states
• Disputes between citizens of different states
• Ambassadors and other foreign officials

Most legal matters are handled by state courts. Federal courts have limited jurisdiction.

Article III and Judicial Independence

The Constitution gives federal judges life tenure during “good behavior.” They can only be removed through impeachment.

Purpose: Insulate judges from political pressure. They can make unpopular decisions without fear of retaliation.

Consequence: Judicial appointments are permanent. Presidents’ longest-lasting influence is often their judges.

Federalist No. 78: The Judiciary Department

Hamilton defended judicial independence and judicial review:

“The judiciary… has no influence over either the sword or the purse… it may truly be said to have neither FORCE nor WILL, but merely judgment.”

The courts are the “least dangerous branch” because they lack enforcement power. But Hamilton also argued courts should be “an intermediate body between the people and the legislature” to keep Congress within constitutional limits.

Judicial Review

The power to declare laws unconstitutional. Not explicitly stated in the Constitution but established by the Supreme Court.

Marbury v. Madison (1803)

Facts: William Marbury was appointed a justice of the peace but never received his commission. He sued Secretary of State Madison.

Constitutional question: Does the Supreme Court have the power to order Madison to deliver the commission?

Holding: The Court cannot order Madison because the law giving it that power (Section 13 of the Judiciary Act of 1789) is unconstitutional.

Chief Justice Marshall’s reasoning: The Constitution is the supreme law. Courts must decide what the law is. If a statute conflicts with the Constitution, courts must follow the Constitution. Therefore, courts can declare laws unconstitutional.

Significance: Established judicial review. The Supreme Court became the final arbiter of constitutional meaning.

How the Court Works

Getting to the Supreme Court

Most cases arrive through certiorari. Someone who lost in a lower court petitions the Supreme Court to hear their case. The Court receives about 7,000 petitions per year and accepts roughly 70-80.

Rule of Four: Four justices must agree to hear a case.

Oral Arguments and Decisions

Cases accepted for review are briefed and argued orally. Justices then meet in conference to vote. The senior justice in the majority assigns the opinion.

Types of opinions:

• Majority opinion: The Court’s official decision. Creates precedent.
• Concurring opinion: Agrees with the result but for different reasons.
• Dissenting opinion: Disagrees with the result.

Dissents matter. They can become the basis for future overrulings.

Stare Decisis and Precedent

Stare decisis (let the decision stand): Courts generally follow previous decisions. Precedent provides stability and predictability.

But precedent isn’t absolute. The Court can and does overrule past decisions when it believes they were wrong. Brown v. Board of Education (1954) overruled Plessy v. Ferguson (1896). Dobbs v. Jackson (2022) overruled Roe v. Wade (1973).

Judicial Philosophies

Judicial Activism vs. Restraint

Judicial activism: Courts should actively use their power to correct injustices, even if it means striking down laws or establishing new rights.

Judicial restraint: Courts should defer to elected branches, uphold laws if any reasonable interpretation supports them, and only strike down laws that clearly violate the Constitution.

These terms are contested. One person’s “activism” is another’s “faithfully applying the Constitution.”

Originalism vs. Living Constitutionalism

Originalism: Interpret the Constitution according to its original public meaning. What did the words mean when ratified? This constrains judges and respects democratic amendment processes.

Living Constitution: The Constitution should be interpreted in light of contemporary values and circumstances. It’s a flexible document that evolves with society.

These philosophies often (but not always) correlate with conservative and liberal outcomes.

Checks on the Judiciary

Congressional Checks

• Confirmation power: Senate confirms (or rejects) judicial nominees
• Jurisdiction: Congress can limit what cases courts hear
• Impeachment: Congress can remove judges for misconduct
• Court size: Congress determines the number of Supreme Court justices
• Constitutional amendments: Can override court decisions

Presidential Checks

• Appointment power: Presidents select nominees
• Enforcement: Executive branch enforces court decisions (or doesn’t)

State Resistance

States can delay implementation of court decisions (as Southern states did after Brown). Federal enforcement may be required.

The Appointment Battle

Judicial appointments have become intensely political.

The Process

1. President nominates
2. Senate Judiciary Committee holds hearings
3. Committee votes on recommendation
4. Full Senate debates and votes

Why It’s Contentious

• Life tenure means lasting impact
• Ideological balance of courts affects major issues
• No filibuster for Supreme Court nominees (eliminated in 2017)
• Recent appointments have been close party-line votes

Notable Confirmation Battles

• Robert Bork (1987): Rejected after contentious hearings
• Clarence Thomas (1991): Narrowly confirmed amid sexual harassment allegations
• Merrick Garland (2016): Never given a hearing
• Brett Kavanaugh (2018): Confirmed amid allegations and protests
• Amy Coney Barrett (2020): Confirmed weeks before an election

The Takeaway

The federal judiciary is powerful but constrained. It can strike down laws as unconstitutional, but it depends on other branches for enforcement and can be checked through appointments, jurisdiction limits, and constitutional amendments.

Understanding the judiciary means understanding:

• The structure and jurisdiction of federal courts
• How Marbury v. Madison established judicial review
• The role of precedent and how it can change
• The philosophical debates about constitutional interpretation
• The political stakes of judicial appointments

The “least dangerous branch” has become central to American governance. Battles over the courts are battles over the Constitution’s meaning.