The Least Dangerous Branch

In the federalist paper #78, Alexander Hamilton in 1788 wrote:

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. 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.

In doing so, he lays out a view of the tripartite structure of the blossoming United States government; and in doing so he espouses a view of the Court merely as arbiter on a specific issue, with no influence over public policy. As two hundred and twenty further years of policy development have shown, however, this is no truer today than it was in the late 1940s, or, for that matter, the early 19^th century. In fact, in the past two hundred years, the Court has demonstrated not only the ability to set, to some extent, public policy, but it has demonstrated that it may set the rules by which other branches of the government may do business- and because it was designed, as Hamilton claims, as the last dangerous branch, it is the one that operates with the fewest checks and balances on the exercise of its authority.

Let us dispose of Hamilton’s last argument first. He writes “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.” Technically, of course, this is true. The Court does have an enforcement arm; it is the United States Marshals Service, however it falls under the jurisdiction of the Department of Justice and therefore the executive branch. However, in practice, even when there has been considerable personal animosity between the Court and the Executive, the will of the Court is carried out smoothly. The seminal case is perhaps Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). Under President Truman, the United States was involved in the Korean War; there was a strike by the steel workers, which Truman believed would cause a substantial shock to not only the domestic economy but also the wartime economy, and as a result, he invoked the President’s ‘inherent authority to act in response to a national emergency’, and seized the steel plants. The Court rapidly (The seizure was April 8^th, the Supreme Court’s ruling was June 2^nd) processed the case, and the Supreme Court voted that the seizure of the steel facilities had been illegal. Within minutes, Truman ordered the steel facilities returned- despite considerable personal disagreement with the law and in fact animosity with the justices over this decision. While technically speaking the Court is unable to enforce its judgments against the will of the Executive, in practice, the executive, even when considerably opposed to the judgment, will enforce it. The reasoning is neither complicated nor unusual; as an arbiter of disputes, the Court’s power to order the Executive branch to enforce its dictates falls well within the sphere of influence of the Court, and as such, is a valid exercise of the rule of law. On the other hand, were the executive to refuse to adhere to a Court decision, the Executive would not be enforcing the rule of law- a dangerous path to tread, as there is nothing other than the rule of law that requires the military, for example, to follow the orders of the Executive branch. Without the structures of the rule of law, which are, in fact, supported because most people wish to obey them, the legitimacy of the government crumbles. The Court’s dictates, its force and will, are a function of the legitimacy of government. Their enforcement may depend upon the Executive, but an Executive that did not do so would have no legitimacy as a body.

Hamilton that defines two further arguments; he says

“The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated.”

The former has been dealt with to some extent above. The ‘sword of the community’ only arises out of legitimacy; the Court’s actions are as enforceable as the Executive’s. The Court also has an ability to influence, at least to some extent, the dispensation of the honors- for example, Marbury v. Madison, 5 U.S. 137 (1803), where the Court ruled it had the ability to grant Marbury a remedy for the refusal of Madison to grant him the honors to which he was entitled (although of course it avoided the issue and did not.)

The legislature, Hamilton rights, “Not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated.” This subject, of course, is a touchy one. The rights of the populace are enumerated in the first ten amendments to the United States Constitution, but more specifically, the ninth amendment specifies “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In adding this clause (which has seen limited judicial use, admittedly; the Court in U.S. Public Workers v. Mitchell, 330 U.S. 75 (1947) found that “If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail.”, prohibiting the government to expand its powers via those amendments but not enumerating other rights that may further restrict granted powers) the Constitutional framers allowed the Court itself to establish the rights of citizens, and specifically to determine to what extent there are to be enforced. In the same vein, by applying the test of these rights to any administrative law dispute brought before it, the Court may prohibit the legislature for impressing duties upon citizens, or regulations.

The Court then has the ability to limit or expand the duties and rights of the citizenry in keeping with the above dicta that non-enumerated rights may also not be infringed; perhaps the best example of this is given in Griswold v. Connecticut, 381 U.S. 479 (1965), where the Supreme Court ruled that certain other, non-enumerated, rights could be found in ‘penumbras’ and ‘emanations’ of specifically enumerated rights. The ability to manage the purse is slightly more complicated, but here too, the Court has influence. In Flast v. Cohen,392 U.S. 83 (1968), the Court ruled that taxpayers had standing to sue the government to prevent an unconstitutional use of their funds, although it upheld to some extent Frothingham v. Mellon in 1923, which concluded that a taxpayer did not have “standing to sue the federal government to prevent expenditures if her only injury is an anticipated increase in taxes.”

The Court also has the ability to influence public policy beyond its ability to restrict the actions of the Executive and to expand or contract the rights and responsibilities of the citizenry as dictated primarily by Congress. The primary method by which the Court may enforce its dicta is via stare decisis- that all lower courts are bound to the judgment of a higher court. In this, a Court’s decision to, for example, dictate a test by which taxpayers may sue in Flast v. Cohen would see a similar test applied by lower courts against other lawsuits of similar nature. In so doing, and because Congress conducts all of its business via legislative bills, the Court may dictate the nature of which bills will be allowed to stand by the court and how, if they are to stand, they must be constructed. In a similar vein, the Court may dictate the actions of the Executive and its agents by throwing out their actions where they do not conform to a specific standard of conduct- perhaps the best known example of this is Miranda v. Arizona, 384 U.S. 436 (1966), which held that criminal suspects must be informed of their rights before being interrogated by police. This lead to the widespread deployment of the “Miranda Warnings”- a significant alteration in police departmental policy, necessitated by the stare decisis that all interrogations not preceded by Miranda warnings would be ignored form the Court.

Further, it is important to note that the Court, unlike the other two branches of government, is relatively unchecked in its exercise of power. There are some jurisdictions in the United States (specifically state courts, as the Constitution declares that all Federal judges must be appointed, for life, although this would not technically prohibit an election, the winner of whom would be appointed) where judges are elected representatives, but this is not true at all in the Federal system and is only true in some of the states, making it generally uncommon. As a rule, judges are not accountable, therefore, to the electorate as the Executive and the Legislature are. Supreme Court judges can be impeached, however, none have successfully been removed from office (and only Samuel Chase, in 1804, ever had an impeachment vote pass the house). In fact, the US Supreme Court has supervisory authority over lower Federal justices- making it much a case of presiding over one’s own house.

Finally, Alexander Hamilton noted that

“The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.”

Perhaps the most reasonable reason to conclude this is because the Court does not have the authority to arbitrarily rule. Rather, Article III of the Constitution gives the Court the authority to decide cases brought before it. In this respect, the Court’s power is significantly weakened- it does not have the authority to overrule a law or procedure or action of another branch of the government unless someone with locus standi (that is, standing to bring the action) brings the case before it for a decision. As a result, it could be said to have the least capacity to annoy or injure them because it has the least capacity to act. While a single court ruling may have the effect of a law in that it significantly influences public policy in a specific direction (Such as Miranda v. Arizona, for example) the Court does not have the ability to enact such rulings at will. Moreover, the court is limited by previous rulings, and lower courts are limited by higher ones- and perhaps more importantly, the composition of the federal Courts and the procedures involved have in fact been altered by Congress in the Judiciary Acts of 1789, 1801, 1802, 1866, 1869, 1891, and 1925. All of the above do serve to severely limit the Court’s authority and ability to act, either positively or negatively.

Hamilton believed the Judiciary to be the least dangerous branch because it was least capable. History has shown this to be a sadly false assumption- the Court has shown itself capable and willing to intrude in almost every sphere of governmental policy and existence. There are more cases brought before the Court than the court can handle- about 7500 petitioners to the United States Supreme Court in 2006, of which it heard approximately 100. Hamilton also believed the judiciary to be the least dangerous branch because it had the most restrictions placed upon it- it had no ability to command the sword, the purse, or the rights. All three of these are also sadly mistaken, and in fact, the very lack of restrictions and oversight placed on the United States federal courts in general and the Supreme Court in specific often has individuals frothing at the mouth over judicial activism. And yet, the Court will endure as an institution- not only because of its necessity, because as a rule, nobody seems to have thought it as doing any worse a job than the other two branches.