Hip Checking The “Least Dangerous” Branch.

“It is emphatically the province and duty of the Judiciary Department to say what that law is…”

-John Marbury, Marbury v. Madison.


In Federalist Papers number 78, Alexander Hamilton argues for the independence of the Judiciary and life appointments for Justices to, specifically, the Supreme Court. Many critics of the Supreme Court, Conservative and Liberal (used in the American sense of the word) have alleged the Supreme Court exercises too much power in its discretion and ruling, that they “create law” and overstep their bounds with the power of Judicial Review. That they are not elected representatives of Government. Since Marbury v. Madison, Judicial Review has been at the heart of the arguments over Supreme Court power. I argue that the Supreme Court, is not, as Jefferson alleged in 1820, an “Oligarchy”, that ultimately authority still rest in the people and their representatives, life tenure is good, and that Supreme Court is not any more illegitimate than the Executive branch.

At the heart of the anti-Oligarchy argument is two amendments to the Constitution, the 11th amendment, and the 26th amendment. The 11th amendment concerns the rights of citizens to sue other states. The Supreme Court ruled in 1793 that individuals do, indeed have the right to sue. The 26th amendment over turned a Supreme Court decision regarding voting age. The fact of the matter is, these two amendment prove that the “Will of the Majority” will ultimately prevail if “unjust” decisions are made. If the citizens of this country are so greatly concerned with Roe v. Wade, or Lawrence v. Texas, then I ask them to do their duty as citizens and vote for representatives who will add amendments to our Constitution that will rebuke these decisions. Popular Sovereignty remains and the idea of Civic Republicanism would still remain supreme. The Supreme Court is still at the mercy of the popular will.

An example is, shall I call him “interesting” GOP nominee Rick Perry. Perry believes that States, not the “big, bad, blow your house of straw down” Supreme Court should decide whether or not abortion should be legal. This brings up an interesting thought. Civic Republicanism ultimately becomes the idea of “State’s Rights”. That the elite Supreme Court are not the best deciders of law and doctrine. That voters should get to choose. That this idea exist within our legal framework demonstrates the Supreme Court, weak or strong, is still at the mercy and service of the people.

My next point of examination is life tenure, another criticism of the Supreme Court. This constitutional design is often cited as a manner in which the court may ‘run away with power’. I, as Hamilton did, disagree. The Supreme Court “controls neither the purse or sword”. They only have review power when cases are brought against them and must rely upon the Executive Branch to execute their decisions. Life Tenure has the added benefit of isolating them from removal via political decisions. With an election in mind, Judges will be biased to make, not the correct decision, but the popular one, thus defeating the point of the Supreme Court. The separation between the people and the Supreme Court, while not impermeable (as seen in my examples above), is there to stop both the “Tyranny of the Majority” and political pressure on the Justices of the Supreme Court.

Finally is the argument is that the Supreme Court is not legitimate because it isn’t elected by the people. It is appointed by the President and approved by the Senate. Following this line of thought, no President of the United States has ever been ‘legitimate’. He is elected by the electors, and not the people. Similarly, the Supreme Court has a de facto election via the Senate. So the claim that the Supreme Court is undemocratic is the same as saying the President is undemocratic, yet often those arguments are not made together, as they perhaps should be if the criticism is to be leveled. The Supreme Court is meant to be non-political. The Supreme Court is meant to stand alone and render an un-biased of decisions as humanly possible, and for the most part that is what they do. If they didn’t make the unpopular decisions, we might not have the right to abortion, contraception, private sexual practices, a lawyer when one cannot be afforded, etc.

In closing, the Supreme Court should have Judicial Review because it protects minorities (when it is ruling in an independent, not popular manner), the Supreme Court is no less legitimate than the President due to the similar nature of both successes to office, and finally, life tenure protects justices from the divisive nature of elections (see Iowa Supreme Court for an example of the danger of popular elections for Justices…) and allows for the institution of new rights.

This entry was posted in Uncategorized. Bookmark the permalink.

3 Responses to Hip Checking The “Least Dangerous” Branch.

  1. Laura Clark says:

    Hi Zach,
    I thought I would comment because no one else has, but I really liked your argument. I completely agree that the Supreme Court is AWESOME! Just because a body is not directly elected by the people (Senate before 1913, President, Supreme Court) doesn’t mean it doesn’t represent them. These bodies are supposed to be deliberate and thoughtful, so they make the right choices, instead of the popular ones. That’s one of the best things about the Supreme Court; it can make the right choice, instead of the popular ones. And State’s Rights people should just shut up and take a look at the constitution. That argument was settled with the Supremacy clause (Thanks Alexander Hamilton!). Great argument, great work!

  2. beneikey says:

    Good call on the final argument relating to how Supreme Court justices are appointed. If justices had to be concerned with how they rule on cases due to re-election, this could cause a clear conflict of interest within our courts. Also, I totally disagree with Hamilton as well with having the Judiciary being the weakest branch of government. So good call on that as well.

    • beneikey says:

      If the judiciary was the weakest branch of government, then the President or Legislature could override precedents set by the courts. The judiciary creates the guidelines, they are essential, and need to be insulated from elections.

Leave a Reply