The Illusion of a Weak Judiciary

“It may truly be said to have [the judiciary] neither force nor will, but merely judgment. This quote from Alexander Hamilton in Federalist Paper No. 78 illustrates the notion that the Judiciary, more or less the Supreme Court, has plenary power to rule on whether acts of Congress are constitutional and to follow the Constitution when there is “irregularity.”

File:Alexander Hamilton portrait by John Trumbull 1806.jpg

Yes, it is true, that one would believe in a perfect world, judges, acting on their own behalf, rule accordingly to the virtue and origins of the laws to which they oversee. However, like opposing factions (as Madison describes in Federalist 10), the inherent opinion of whether congressional acts are constitutional, are subject to human interaction. In other worlds, the world is viewed differently in the “eye of the beholder.” Justices are human beings. According to the Supreme Court, during the 2010 term, only 48% of cases, less than half, were decided along 9-0 decisions, while 20% of cases were decided by 5-4 decisions.[1] Shocking when considering Madison’s vision of judgment!


More importantly, the Supreme Court has been anything but weak in the last two centuries. Major landmark decisions, including Roe v Wade (5-4 decision), Brown v. Board of Education (9-0 decision), Bush v. Gore (5-4 decision), Plessey v. Ferguson (7-1 decision), and many others, have altered judicial precedent as well as to shape the political landscape to which Congress can both enforce and pass acts.


Progressively, the Supreme Court, even the Presidency, have become more powerful that the framers intended. Why would citizens early on in the Democratic process allow such an idea to occur? I think the answer lies in the themes in this course: The ideas of classic liberalism and civic republicanism and their subsequent tension. These ideas represent the “extreme” attributes for each idea. Yet, rarely in politics do individuals operate at the extremes. Equally important, rarely does one party, more or less one idea of thought, hold on to power for a long period of time. The dream to have Congress become most powerful branch of government was benevolent gesture to Civic Republicanism. But, for example, during the Jacksonian years, to many historians, it seemed as though the man in the White House called the plays, where it became a classic liberal hotspot. Elites often ruled and the Spoils System (as many of us remember from our American History days…) was put into great practice. The main point is, I argue, is that the original intent of the framers has transgressed into a political firestorm marred by changing ideals. In one term, people think a certain way, and then in four years, people may change their opinions, given the state of affairs in the nation. Yes, the Supreme Court is more powerful than originally intended. But as Justice Breyer says in the YouTube video, contemporary America has been content with decisions; not on the thoughts of opinion, but on the ideals of legitimacy. Government is only as virtuous as the governed!



(A note from last lecture: I know we had talked about whether or not the Supreme Court could have juries. However, this is not possible, because the Supreme Court does not hold “original jurisdiction.” Meaning, they hear cases on writ of certiorari, meaning an order by a higher court directing a lower court, tribunal, or public authority to send the record in a given case for review. The Supreme Court only handles appeals)

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