Engage: The Branch They Barely Described
Article III of the Constitution is astonishingly brief—just three sections establishing the judicial branch. The framers spent weeks debating Congress’s structure, argued intensely over executive power, but devoted little time to the courts. They created “one Supreme Court” and left almost everything else to Congress’s discretion.
Yet today, the Supreme Court decides whether laws can stand, determines presidential power, and shapes American society on issues from abortion to gun rights. How did the “least dangerous branch” become so powerful?
Explore: What Article III Actually Says
The Constitution establishes:
The Federal Court System:
- One Supreme Court (mandated)
- Such inferior courts as Congress creates (at Congress’s discretion)
- Congress determines the number of Supreme Court justices (has varied from 6 to 10; settled at 9 in 1869)
Judicial Independence:
- Judges serve “during good behavior” (essentially lifetime appointment)
- Salaries cannot be decreased during service
- Can only be removed by impeachment
Why lifetime tenure? The framers wanted judges insulated from political pressure. A judge facing reelection might rule based on popular opinion rather than constitutional principle. Financial security prevents bribery or intimidation.
Federal Court Jurisdiction:
Federal courts hear cases involving:
- The Constitution, federal laws, and treaties
- Cases where the United States is a party
- Disputes between states
- Disputes between citizens of different states
- Maritime and admiralty cases
- Cases involving ambassadors and public ministers
Supreme Court’s Original Jurisdiction:
The Supreme Court has original jurisdiction (hears cases first) only in:
- Cases involving ambassadors
- Cases where a state is a party
For everything else, the Supreme Court has appellate jurisdiction—it reviews cases from lower courts, and Congress can regulate this jurisdiction.
Explain: The Power Not Mentioned—Judicial Review
The Constitution never explicitly gives courts the power of judicial review—the authority to declare laws unconstitutional. Yet this has become the judiciary’s most important power.
How judicial review emerged:
In Marbury v. Madison (1803), Chief Justice John Marshall ruled that courts have the power to strike down laws that conflict with the Constitution. His reasoning:
- The Constitution is the supreme law
- Judges take an oath to uphold the Constitution
- Judges must interpret laws to apply them to cases
- When a law conflicts with the Constitution, judges must choose which controls
- Therefore, judges can declare laws unconstitutional
This seems logical now, but it was controversial then. Nothing in the Constitution explicitly grants this power. Some framers expected it (Hamilton discusses it in Federalist No. 78), but others didn’t.
Marshall’s brilliant move: He ruled against his own political interests (denying Marbury his appointment) while establishing judicial review. He lost the battle but won the war—securing for the Court immense power.
Elaborate: Landmark Cases That Expanded Judicial Power
The Supreme Court has used judicial review to shape America:
McCulloch v. Maryland (1819):
Broadly interpreted federal power; established federal law supremacy over states
Dred Scott v. Sandford (1857):
Ruled African Americans couldn’t be citizens; precipitated Civil War (one of the Court’s greatest failures)
Plessy v. Ferguson (1896):
Upheld “separate but equal” segregation (overturned in 1954)
Brown v. Board of Education (1954):
Declared school segregation unconstitutional; launched Civil Rights era
Miranda v. Arizona (1966):
Required police to inform suspects of rights (Miranda warnings)
Roe v. Wade (1973):
Established constitutional right to abortion (overturned in 2022 by Dobbs)
United States v. Nixon (1974):
Forced President Nixon to release tapes; established limits on executive privilege
District of Columbia v. Heller (2008):
Recognized individual right to gun ownership under Second Amendment
These cases show the Court’s power: nine unelected judges, serving for life, can override Congress, Presidents, and states.
Evaluate: Too Much Power for Unelected Judges?
The debate over judicial power has raged for 200+ years:
Arguments For Strong Judicial Review:
- Protects minority rights against majority tyranny
- Enforces constitutional limits on government
- Provides stability and continuity in law
- Insulates decisions from political pressure
- Someone must interpret Constitution; who better than judges?
- Has driven progress on civil rights
Arguments Against Strong Judicial Review:
- Undemocratic: nine unelected people overriding elected officials
- No accountability: lifetime tenure means no consequences for bad decisions
- Constitution allows amendment if people disagree with Court
- Courts have made terrible mistakes (Dred Scott, Plessy)
- Judges impose personal views as “constitutional law”
- Issues should be decided democratically, not judicially
The Counter-Majoritarian Problem:
How do you justify unelected judges overruling elected representatives in a democracy? Defenders argue the Constitution itself is counter-majoritarian—it protects certain rights even if majorities oppose them. Courts enforce these protections.
Modern Tensions:
- Presidential appointments have become intensely political
- Court decisions along ideological lines undermine legitimacy
- Forum shopping (filing in friendly courts) manipulates system
- Emergency stays and shadow docket increase power without full review
- Some call for Court reform: term limits, expanding justices, jurisdiction limits
Alexander Hamilton called the judiciary the “least dangerous branch”—it has no army, no budget, just judgment. But that judgment has shaped America more than the framers imagined possible.
Key Vocabulary
- Judicial Review: Power of courts to declare laws unconstitutional
- Original Jurisdiction: Authority to hear a case first (as opposed to on appeal)
- Appellate Jurisdiction: Authority to review decisions from lower courts
- Good Behavior: Legal term meaning judges serve for life unless impeached
- Judicial Independence: Insulation from political pressure through lifetime tenure
Think About It
Should Supreme Court justices serve for life, or should there be term limits? What are the trade-offs between judicial independence and democratic accountability?
Additional Resources
Primary Source: Read Article III of the Constitution:
https://www.archives.gov/founding-docs/constitution-transcript
Notice how short it is—just a few paragraphs compared to the detailed Articles I and II. Then read Marbury v. Madison to see how judicial review was established:
https://www.archives.gov/milestone-documents/marbury-v-madison
Also read Federalist No. 78 by Alexander Hamilton:
https://avalon.law.yale.edu/18th_century/fed78.asp
Hamilton argues the judiciary is the weakest branch because it depends on the executive to enforce its decisions and Congress to fund it. Has this proven true?
Tomorrow: We’ll explore separation of powers—why the framers divided authority among three branches and what happens when branches conflict.