�鶹ӰԺ

Alexander Hamilton’s portrayal of the judiciary as the “least dangerous” branch of government in Federalist No. 78 starkly contrasts the courts' significant influence in contemporary American politics. In Federalist Paper No.78, Alexander Hamilton famously characterized the judiciary as the weakest branch of government. He argued that, unlike the executive and legislative branches, the judiciary lacks “the power of the sword and the purse,” implying that it neither enforces laws nor controls resources. Instead, its role remains interpretative, ensuring that laws conform to the Constitution. While Hamilton’s assertion aimed to alleviate fears of judicial overreach, many contemporary constitutional issues suggest that the judiciary wields significantly more influence than the Founding Fathers may have anticipated. As judicial decisions shape national policy in ways the Framers may not have expected, examining how Federal No.78 applies to today’s constitutional landscape remains essential. Ultimately, while Hamilton pushed the idea of a less potent judiciary, the role of judicial review, the increasing politicization of judicial appointments, and the growing use of nationwide orders challenge the notion that the judiciary acts as the “least dangerous” branch of government in modern American democracy.

Federalist No. 78, written by Hamilton in 1788 as part of the Federalist Papers, outlined the judiciary's essential role in the U.S. Constitution. In this essay, Hamilton emphasized the importance of the judiciary branch through its duty to interpret laws and act as a guardian of constitutional principles. He reassured critics that the judiciary would remain the “least dangerous branch” as it could not act on its authority; however, as American governance evolved, the judiciary increasingly played an active role in shaping national policy (National Constitution Center). The landmark ��Supreme Court decision Marbury v. Madison (1803) established judicial review, allowing courts to nullify unconstitutional laws and lending more power to the judiciary to determine the constitutionality of legislative and executive orders. Moreover, recent cases such as Citizens United v. FEC (2010) and Dobbs v. Jackson Women’s Health Organization (2022) demonstrate the judiciary's growing ability to influence fundamental aspects of society, from election financing to reproductive rights. These cases highlight how the Supreme Court’s power, although initially framed as limited, has grown into an influential force in American democracy. Ultimately, the evolution of the judiciary forces the reconsideration of Hamilton’s description of the “least dangerous” branch and how it conflicts with its modern role in constitutional interpretation.

Hamilton, in Federalist No. 78, argued that the judiciary’s power stemmed solely from its ability to interpret the law, particularly in cases where legislation conflicted directly with the Constitution. The United States solidified this power through the case of Marbury v. Madison (1803), in which Chief Justice John Marshall established the doctrine of judicial review, allowing courts to strike down unconstitutional laws. However, what Hamilton initially framed as a necessary check on legislative overreach continues to evolve into a tool for shaping policy in ways that extend far beyond its original intent. The current judiciary wields significant influence over civil rights, reproductive rights, and executive authority issues. For example, Roe v. Wade (1973) and its subsequent reversal in Dobbs v. Jackson Women’s Health Organization (2022) illustrate the judiciary’s ability to dictate national policy, drastically reshaping reproductive rights through judicial rulings rather than legislative debate. Similarly, Shelby County v. Holder (2013) significantly weakened the Voting Rights Act of 1965, removing key provisions that required certain states to seek federal approval before enacting voting laws, which critics argue led to widespread voter suppression efforts. These cases demonstrate how judicial decisions have directly shaped American civil rights policy without the input of elected legislators. While Hamilton envisioned judicial review as a check on legislative overreach, modern courts often use the power to shape policy directly, sometimes even bypassing the elected branches of government altogether. This shift in the judiciary branch leads to concerns that the branch no longer deems the nature of remaining the “least dangerous”; instead, it can wield power that profoundly impacts American society without direct electoral accountability, underscoring the impact of its role in shaping policy.

Furthermore, Hamilton envisioned the judicial branch as free from elected appointments and factions that could impede the branch's ability to interpret laws and constitutional provisions without bias; however, many argue that the modern judiciary exists far from the impartial body Hamilton imagined. The increasing polarization of judicial appointments, particularly at the Supreme Court level, turns the nomination and confirmation process into a partisan battleground. Justices often face selection based on their perceived ideological leanings, with presidents and legislators prioritizing nominees who align with their political agendas rather than those committed to strict constitutional interpretation. This trend undermines the judiciary’s independence and erodes public trust in the checks and balances framework of American democracy, posing a potential threat to democratic principles. The danger of politicizing these appointments shows itself in the polarization of voting measures. Notably, “Between the 2018–2019 and 2021–2022 terms, the number of polarized partisan decisions—where all the justices nominated by Republican presidents voted as a bloc against all those nominated by Democratic ones—tripled, from 9% of cases (7 of 74) to 29% (17 of 58), while the number of unanimous rulings fell markedly”, highlighting the shifting dynamics in which justices and their political alignments can significantly influence national policy, deviating from the neutral and impotent stance Hamilton once believed. As a result, the judiciary, once envisioned as an impartial body of government, increasingly functions as an extension of partisan divisions, raising concerns about its ability to uphold democratic principles free from political influence.

Lifetime appointments, intended to insulate justices from political pressure, now enable long-term ideological entrenchment, which allows the Supreme Court to shape national policy that reflects partisan divides rather than neutral legal principles. Some scholars even argue “that Article III judges time their retirements to align with their political party’s strength in Washington D.C., further politicizing the ostensibly non-partisan appointment process,” further emphasizing ways partisanship continues to shape the judiciary despite the original intentions of an unbiased branch. Ultimately, this evolution of the judiciary, from an apolitical safeguard to an active participant in the struggles of modern American democracy, challenges its status as the “least dangerous” branch of government as envisioned by Hamilton.

Furthermore, the growing use of nationwide orders challenges the perception of the judiciary as the “least dangerous” branch by significantly expanding its influence over national policy and governance. Unlike traditional judicial rulings, which typically apply to the parties in a case, nationwide injunctions allow a single federal judge to halt the enforcement of laws, executive actions, or agency regulations nationwide. This expansive judicial power can override the decisions of elected government branches, effectively allowing unelected judges to shape national policy on critical issues such as immigration, healthcare, and environmental regulations. For example, in Texas v. United States (2016), a single, distinct court judge issued a nationwide injunction that effectively blocked the Deferred Action for Parents of America (DAPA) immigration program, overriding an executive action to relieve undocumented immigration. More recently, West Virginia v. EPA (2022) limited the ability of federal agencies to regulate environmental protections, curbing executive authority over climate policy. These cases illustrate how the judiciary’s role continues to shift from a constitutional body to an active policy-making branch of government, often creating decisions that reshape national governance without direct electoral accountability. Moreover, the ability to issue sweeping rulings has incentivized forum shopping, where litigants strategically file lawsuits in jurisdictions where they are likely to receive a favorable decision, further politicizing the judiciary. Judges from the political spectrum utilize these injunctions to obtain a favorable decision. This pattern leads to an escalating cycle in which each administration faces broad judicial interventions that delay or derail its policy agenda (CRS report). As a result, rather than acting as the impartial body that Hamilton envisioned, the judiciary has increasingly become a battleground for national policy disputes, wielding power that rivals the legislative and executive branches. Ultimately, this trend calls into question the traditional understanding of the courts as possessing “neither force nor will, but merely judgment,” highlighting the judiciary's growing role in governance and its potential to disrupt the balance of power in modern American democracy.

Some may still argue that despite the judiciary’s expanded role, it remains the “least dangerous” branch because it lacks enforcement power and relies on the executive and legislative branches to implement its rulings; however, while the judiciary lacks direct enforcement power, its ability to issue binding legal interpretations and nationwide injunctions demonstrates a substantial influence over policy. The modern judiciary is not merely a reflective body but plays a crucial role in shaping national governance through judicial review and strategic rulings. The increasing reliance on courts to resolve major political issues—from reproductive rights to election laws—elevates its role beyond what Hamilton originally envisioned. Additionally, the executive and legislative branches often comply with judicial decisions due to the legal and political consequences of defying the courts. For instance, even contentious rulings such as Bush v. Gore (2000) or Dobbs v. Jackson Women’s Health Organization (2022) had immediate and far-reaching impacts despite their reliance on executive enforcement. Furthermore, nationwide injunctions allow individual federal judges to halt government policies, granting the judiciary a decisive role in shaping the nation’s legal landscape. This growing judicial authority suggests that Hamilton’s description of the judiciary as the “least dangerous” branch is outdated, as courts now wield considerable power over American democracy without direct electoral accountability.

In light of the judiciary’s expanding influence, it remains crucial to reconsider the role of courts in maintaining the balance of power in American democracy. While Hamilton envisioned the judiciary as the “least dangerous” branch, its modern role in shaping policy through judicial review, politicized appointments, and nationwide orders suggests otherwise. The increasing involvement of the courts in highly contentious political issues calls for greater transparency, accountability, and perhaps structural reforms to preserve judicial impartiality and limit judicial overreach. Potential solutions could include revisiting lifetime appointments, implementing more explicit guidelines on using nationwide injunctions, and promoting bipartisan efforts in the judicial nomination process to limit politicization. As the judiciary continues to exercise power in ways that profoundly impact society, it remains imperative for lawmakers, scholars, and citizens to engage in discussions on judicial reform to ensure that courts remain fair and equitable. Without these meaningful dialogues, the judiciary risks transforming into an instrument of partisan agendas rather than the neutral safeguard Hamilton envisioned, challenging the very principles democracy should uphold.

��

References

19-1392 Dobbs v. Jackson Women’s Health Organization ( ..., www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf. Accessed 20 Feb. 2025.

20-1530 West Virginia v. EPA (06/30/2022), www.supremecourt.gov/opinions/21pdf/20-1530_n758.pdf. Accessed 20 Feb. 2025.

“Bush v. Gore, 531 U.S. 98 (2000).” Justia Law, supreme.justia.com/cases/federal/us/531/98/. Accessed 20 Feb. 2025.

“Citizens United v. FEC, 558 U.S. 310 (2010).” Justia Law, supreme.justia.com/cases/federal/us/558/310/. Accessed 20 Feb. 2025.

“Federalist 78 (1788).” National Constitution Center – Constitutioncenter.Org, constitutioncenter.org/the-constitution/historic-document-library/detail/alexander-hamilton-federalist-no-78-1788. Accessed 20 Feb. 2025.

Hlr. “District Court Reform: Nationwide Injunctions.” Harvard Law Review, 20 Apr. 2024, harvardlawreview.org/print/vol-137/district-court-reform-nationwide-injunctions/#:~:text=Nationwide%20injunctions%20issued%20over%20the,is%20foundational%20to%20legal%20development.

Levendusky, Matthew, et al. “Has the Supreme Court Become Another Political Branch? Public Perceptions of Court Approval and Legitimacy in a Post-Dobbs World.” Science Advances, U.S. National Library of Medicine, 8 Mar. 2024, pmc.ncbi.nlm.nih.gov/articles/PMC10923515/#:~:text=Between%20the%202018%E2%80%932019%20and,rulings%20fell%20markedly%20(4).

“Lifetime Appointments of Federal Judges: A Double-Edged Sword.” Lifetime Appointments of Federal Judges: A Double-Edged Sword | Georgetown Journal of Legal Ethics | Georgetown Law, www.law.georgetown.edu/legal-ethics-journal/blog/lifetime-appointments-of-federal-judges-a-double-edged-sword/. Accessed 20 Feb. 2025.

“Marbury v. Madison, 5 U.S. 137 (1803).” Justia Law, supreme.justia.com/cases/federal/us/5/137/. Accessed 20 Feb. 2025.

“Roe v. Wade.” Center for Reproductive Rights, 1 Apr. 2024, reproductiverights.org/roe-v-wade/.

Ryan Cooper. “The Case against Judicial Review.” The American Prospect, 11 July 2022, prospect.org/justice/the-case-against-judicial-review/.

“United States v. Texas, 579 U.S. ___ (2016).” Justia Law, supreme.justia.com/cases/federal/us/579/15-674/. Accessed 20 Feb. 2025.

Where a Suit Can Proceed: Court Selection and Forum ..., crsreports.congress.gov/product/pdf/LSB/LSB10856. Accessed 20 Feb. 2025.