This essay was written as part of an online course on the US Constitution, in response to questions about the formation and ongoing power of the judicial branch. Citing is a bit sloppy since I’m often parroting back lecture material that I didn’t take the time to chase down actual sources for.

Of the three branches of our government codified in the Constitution, the Judiciary is listed last. The Framers likely chose to do this from their experiences in the American Revolution. Prior to that event, judges were appointed by the crown and typically supported pro-British interests. During the revolution, ten of the thirteen colony Chief Justices supported the king rather than the rebels.

Post-revolution, states started appointing their own judges, and the Framers copied this model. Under Article III of the constitution, the detailed structure of the judiciary is set by the Congress established in Article I1, and judges are appointed by the executive branch established in Article II2. So the judiciary can only logically be established after the first two branches.

Federalists considered the judiciary the weakest of the three branches. Alex Hamilton argued in Federalist No. 78:

The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

Congress can create laws, the president can execute laws, but the the judiciary can only react to cases brought before them. Further, the judiciary can be constrained by the other branches. Congress is responsible for passing laws determining how the judiciary operates, covering everything from rules of evidence to the number of judges. Indeed, the Judiciary Act of 1789 was one of their first acts3.

Further evidence of the Judicial branch’s weakness is that the other branches can overrule them. Amendment XI to the constitution was explicitly enacted by Congress to overturn the Supreme Court’s decision in Chisholm vs Georgia, 1793.

The Growth of Judicial Power

The judiciary does have a power and duty known as judicial review, in which they may decide a law unconstitutional and refuse to enforce it. However, the Framers intended this to mostly be directed against state laws rather than federal ones. If they expected a large amount of power beyond mere judgement, they would have defined its shape better in Article III. The first Congress evidently agreed: the initial court they set up had only six members, so no way to resolve disputes.

Indeed, in the early years this is pretty much what happened. Many state laws were held to be unconstitutional, but rarely was review applied to federal statutes. Over time though this balance shifted, culminating (at least symbolically) in 2000 when a court split down party lines in Bush v Gore elected the president. The president is supposed to appoint judges, not the other way around!

There are three main reasons why the judiciary has grown so much in power. The first is that there are simply many more judges today than there were two hundred years ago. In the late 1700s there were seven house representatives for every judge. Today, as there are more laws, more cases, and more courts, there are two judges for every representative! This provides many more opportunities for judges to exercise review. While in theory Congress could regulate this, in practice the sheer volume of law and cases makes this difficult. For example, under pressure Congress passed the Judiciary Act of 1891 to establish nine new courts to help deal with a Supreme Court backlog that was many years long4.

That act also granted the Supreme Court the right of certiorari, which allowed it to choose which cases it heard. This is the second reason the judiciary has more power today: it can pick and choose the cases it hears.

Finally, the judiciary has benefited from increasing partisanship in Congress and the executive branch. A united Congress has more retaliatory power over judges, in the extreme case by being able to propose constitutional amendments. In a Congress where the lower and upper houses are controlled by different parties, or Congress is held by a different party than the President (with veto power), it is much harder to enact any laws, let alone ones that control judicial power. This situation has become more prevalent over time5.

Now more than ever, with an increasing politicization and power of the Supreme Court6 7, ruling on more and more cases that can effectively undermine legislative and executive action8, Thomas Jefferson’s correspondence from 1820 start to sound prophetic9:

You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.

  1. “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.” art. III, § 1 

  2. “[The president] shall have Power [… to] nominate, and by and with the Advice and Consent of the Senate, shall appoint [] Judges of the supreme Court” art II, § 2 

  3. History of the Federal Judicary, retrieved 2014-11-21 

  4. Wheeler & Harrison, 2005, Creating the Federal Judicial System, pp16-18 

  5. The 113th Congress is historically good at not passing bills, Washington Post, 2014 

  6. The Polarized Court, NY Times, 2014 

  7. The Incredible Polarization and Politicization of the Supreme Court, The Atlantic, 2012 

  8. Recently, Burwell v Hobby Lobby and the Wheaton College v Burwell injuction have effectively repealed parts of the newly enacted Affordable Care Act, with a pending decision in Burwell v King threatening it further. 

  9. Jefferson 1859, The Writings of Thomas Jefferson, pp178