Introduction Essay: The Judicial Branch
Written by: Tony Williams, Bill of Rights Institute
Guiding Questions
Where are the requirements, and powers of the judiciary branch found in the Constitution? How has the role of the court changed over time? What is the national structure of the Federal Court system? What is the role of the Supreme Court?
The Judicial Branch
The judicial branch of government is an essential guardian of justice and the republican constitutional system. The judiciary is constitutionally tasked with interpreting the meaning of the Constitution and deciding cases where it has authority, or jurisdiction. The Constitution empowers the judiciary to render judgment in certain cases in Article III of the Constitution.
The Articles of Confederation lacked a national judiciary, which contributed to the weakness of the central government. The Framers of the Constitution sought to establish the principle of separation of powers in the constitutional government. Therefore, they created an independent judicial branch in the Constitution.
The Constitution creates the judicial branch in Article III of the Constitution. Article III, Section 1, simply states that the “judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” In 1789, the First Congress complied and created a three-tiered system for the federal court system, with a federal district court in every state, federal appellate courts, and a Supreme Court. Congress also decided that the Supreme Court would have six justices. The Court currently has nine justices and can change that number. The president appoints the justices, and a majority of the Senate has to approve them.
In Federalist #78, Hamilton also described the judiciary as the “least dangerous” branch of government. He asserted that, “the judiciary…has no influence over either the sword or the purse…and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment.” The judiciary gains legitimacy when it decides cases upon constitutionalism and the law and leaves political questions, disputes, and controversial issues to the legislature and the executive. It does not make laws, shape policies, or build broad national coalitions. It can also let the other branches of government persuade, compromise, and engage in political battles to settle political issues. Moreover, when justices set aside their own personal political views and decide questions upon the Constitution and the law, they contribute to the rule of law in this country.
The independence of the judiciary was essential in the new government as part of the principle of separation of powers. In Federalist #78, Alexander Hamilton explained that the independence of the judiciary was based in part upon appointment for life. Therefore, judges would not have to face election and be subject to public pressures related to controversial issues. They could dispassionately and reasonably decide cases and render justice in an unbiased and constitutional manner. However, they held office only while they exercised “good behavior” in carrying out their offices. The Constitution did not specifically define good behavior, but judges were expected to act with the civic virtues of honor, integrity, justice, and responsibility. The more the justices exercised such restraints and practiced civic virtues, the greater legitimacy their decisions had in the public eye because the people will be more likely to respect and accept their rulings. Their salaries could also not be lowered during their tenure to shield them from political pressure from the public or other branches.
In Federalist #78, Hamilton proposed the principle of judicial review because legislative acts could not contradict the fundamental law established by the people in the Constitution. Hamilton wrote, “A constitution is, in fact, and must be regarded by the judges, as a fundamental law….If there should happen to be an irreconcilable variance between the [the Constitution and congressional laws]…the Constitution ought to be preferred to the statute.” It also supported the principle of checks and balances as the Court could review congressional laws for their constitutionality. Even though the power of judicial review is not specifically in the Constitution, it was readily accepted as a part of the Court’s jurisprudence.
The Judiciary Act of 1789 empowered the Court to review state court decisions. The Supreme Court started ruling on the constitutionality of state laws quickly.
The Court also began reviewing congressional laws, among these the Judiciary Act of 1789 itself. This eventually resulted in the Court’s decision in Marbury v. Madison (1803), which definitively established the principle of judicial review. In this decision, the Court also stated that all laws must be consistent with the fundamental law of the Constitution, or they were null and void. The Court did not overturn another congressional law until Dred Scott v. Sandford (1857).
The Constitution created an independent judiciary, which established itself as a coordinate branch of the national government with Congress and the presidency. The three branches are in dynamic tension with one another as they each interpret the Constitution while they exercise their constitutional powers. As you read several excerpts from Supreme Court cases, think about the constitutional powers of the Supreme Court, the constitutional issues the Court addresses, and the relationship of the branches to one another.