Why the U.S. Judiciary Is the ‘Least Dangerous’ Branch

This discussion delves into Article Three of the U.S. Constitution, focusing on the judiciary. It corresponds to Chapter Six of "America's Constitution, a Biography," titled "Judges and Juries." The chapter opens with an image of John Marshall, widely considered the greatest Chief Justice in U.S. history.

Why Less Attention to the Judiciary?

A notable observation is the comparatively less textual and structural attention given to the judiciary in the Constitution. While Article One (legislature) and Article Two (executive) each receive two chapters and four lectures in this course, Article Three (judiciary) is covered in a single chapter, shared with juries. This mirrors the Constitution itself, where Article Three is the shortest of the three major articles.

The legislature receives the most attention, being the first and longest article. The executive is second in order and length. The judiciary is third, and federal judges, while prominent, share the stage with juries. This can be conceptualized as a "bicameral judiciary," with judges forming an "upper house" (selected in more refined ways, a small group of elite individuals) and juries representing a more "populist lower house," akin to the House of Representatives.

The American Revolution's Influence on the Judiciary

The Constitution's structure, particularly the judiciary's position, is deeply rooted in the American Revolution.

• Article One (Legislature): The revolution's rallying cry, "No taxation without representation," directly influenced Article One. The new Congress, unlike its predecessor under the Articles of Confederation, was empowered to tax and regulate individuals. Consequently, it had to be highly representative of individuals, as Americans had rejected taxation and regulation by a Parliament they did not elect.
• Article Two (Executive): The Declaration of Independence's condemnation of King George III as a tyrant shaped Article Two. The framers sought a president who possessed the virtues of a strong leader (like a king in terms of stability and national security) but was not tyrannical. This led to a presidency with democratic safeguards like elections, impeachment, and checks and balances, preventing the kind of hereditary rule seen in England.
• Article Three (Judiciary): Judges were not heroes of the American Revolution. In 10 of the 13 colonies, judges were appointed by the King and remained loyal to George III, not George Washington. In contrast, local militias, assemblies, and juries (who often acquitted tax smugglers) were seen as instrumental in resisting British rule. This historical context explains why the judiciary was initially viewed with less prominence and power.

Evolution of Judicial Power Post-Revolution

By the time of the Philadelphia Convention in 1787, 11 years after independence, the former colonies had become self-governing states, and judges were no longer appointed by the King. Americans were now selecting their own judges. This shift might suggest a more robust role for the judiciary. Indeed, Article Three grants more judicial power than many state constitutions of the era.

However, even in post-revolutionary state constitutions, the judiciary remained the least powerful branch, often appointed by the legislature and lacking the independence that Article Three would eventually grant federal judges. Only Massachusetts had separate constitutional sections for all three branches, and even there, the judiciary's section was the shortest. State constitutions were largely dominated by the legislative branch, with weak governors and judiciaries.

The Federalists' Vision for a Stronger Judiciary

Many Federalists at the Philadelphia Convention believed these state constitutions were flawed due to imbalanced power structures, with legislatures being too powerful and unchecked. Six of the 39 signers of the Constitution had been prominent state or continental judges, and many leading lawyers were present. Some likely envisioned themselves as judges in the new system. Notably, three of the first six Supreme Court justices were members of the Philadelphia Convention, and two more of Washington's subsequent appointments also attended.

This suggests that the framers, particularly those who would become judges, intended to create a more robust judiciary.

Structural Reasons for the Judiciary's "Thirdness"

Despite the framers' intentions to strengthen the judiciary, it remains "third out of three" in several structural ways:

1. Logical Order of Government Functions: Laws are first passed by the legislature (Article One), then implemented by the executive (Article Two). Only then do cases arise in court (Article Three) when disputes or challenges to these laws occur.
2. Chronological Establishment: The new government materialized in a specific order after ratification. Congress (Article One) met first to count electoral votes. Only after the President (Article Two) was in place could laws be passed to create the judiciary's structure. Article Three itself does not specify the number of Supreme Court justices or lower federal courts; it grants Congress the power to establish these. The Judiciary Act of 1789, passed in September 1789, was crucial in setting up the early judiciary.

3. Democratic Pyramid: The Constitution establishes a democratic pyramid:

   • Preamble: The broadest base, emphasizing "We the People" and reflecting widespread citizen participation.
   • Article One (Congress): A very popular branch, directly elected.
   • Article Two (Executive): Slightly more removed from the people, with an indirect election process.
   • Article Three (Judiciary): At the apex, the least democratic branch, furthest removed from direct popular control.

   This structure dictates that more democratic branches select less democratic ones, not vice versa. For example: * Presidents (elected) pick judges, not judges picking other judges. * Politicians (in Congress) pick their own leaders (Speaker, President Pro Tempore), but judges do not pick their Chief Justice. * Presidents pick cabinet officers, but justices do not pick lower judges. * Congress, through legislation, can specify many judicial procedures, including rules of evidence and civil/criminal procedure, and even the number of justices and lower courts. * Presidents can fire cabinet officers at will, but justices cannot fire lower court judges at will.

This "democratic pyramid" explains why the judiciary has less regulatory power and is, to some extent, under the control of the more politically accountable branches. This structural principle also raises questions about cases like Bush v. Gore, where the Supreme Court's decision effectively determined the presidency, seemingly reversing the constitutional order of presidents picking judges, not judges picking presidents.

The Judiciary as the "Least Dangerous Branch"

Alexander Hamilton, in Federalist No. 78, famously described the judiciary as the "least dangerous branch." He argued that judges would have the power of judicial review – the ability to refuse to enforce laws deemed unconstitutional. This concept was understood by both Federalists and Anti-Federalists and was already emerging in state courts.

However, judicial review is not exclusive to the judiciary:

• Members of the House and Senate can vote against laws they believe are unconstitutional, even if the Supreme Court might uphold them.
• A president can veto a law he deems unconstitutional.
• A president can pardon individuals convicted under statutes he believes are unconstitutional, even if courts have upheld those convictions (e.g., Thomas Jefferson pardoning those convicted under the Sedition Act).

The judiciary's power to refuse to enforce unconstitutional laws is bolstered by:

• Life Tenure: Judges serve "during good behavior," providing independence from political pressure.
• Undiminishable Salary: Their salaries cannot be reduced, further ensuring independence.

Hamilton argued that judicial independence is crucial for judicial review, allowing judges to invalidate laws that are "contrary to the manifest tenor of the constitution" or "clearly unconstitutional."

The Scope of Judicial Review

While judicial review is a bedrock principle, questions remain about its intended robustness:

• Did the framers envision judges striking down laws frequently or only occasionally?
• Would judges invalidate laws that were merely arguably unconstitutional, or only those that were clearly and undeniably so?
• Would judges primarily strike down laws regulating the judiciary itself, or a broader range of statutes?

These questions, along with the role of juries, will be explored further in subsequent discussions, returning to the significance of John Marshall.