The Federal Judiciary

Judicial review is the power of the courts to declare statutes and executive actions unconstitutional and therefore unenforceable. It makes the courts the final interpreter of the Constitution's meaning and the enforcer of constitutional limits against the political branches.

It was established in Marbury v. Madison (1803) by Chief Justice John Marshall, who held that Section 13 of the Judiciary Act of 1789 unconstitutionally expanded the Supreme Court's original jurisdiction beyond what Article III allows. Although Marbury lost his commission, the Court asserted the much larger power of declaring acts of Congress unconstitutional — "It is emphatically the province and duty of the judicial department to say what the law is."

Rule of Four: the Supreme Court grants a writ of certiorari (agrees to hear a case) when AT LEAST FOUR of the nine justices vote to grant it. This sub-majority rule allows minority blocs to push cases onto the docket they think important.

Fraction heard: the Court receives roughly 7,000 cert petitions per year and grants approximately 80, so it hears slightly more than 1% of petitions. Most cases that reach the Supreme Court therefore END at the U.S. Court of Appeals, which is the practical court of last resort for the vast majority of federal litigation.

Originalism (Scalia, Thomas, Gorsuch, Barrett): the Constitution's meaning is fixed at the time of ratification; judges should apply the original public meaning of the text rather than evolving with social values.

• Strength: Constrains judges from imposing their personal preferences; provides predictability and democratic legitimacy (the Constitution means what was ratified, not what nine justices say it should mean today).
• Weakness: Strict originalism can produce results widely seen as unjust by modern standards (e.g., it would have left segregation untouched if applied rigidly to the 14th Amendment); historical meaning is often contested or unknowable.

Living Constitution (Brennan, Marshall, Sotomayor): constitutional meaning evolves with society; broad textual provisions ("equal protection," "cruel and unusual punishment") were meant to be applied to changing circumstances.

• Strength: Allows the Constitution to address modern problems (privacy, technology, civil rights) the Founders could not foresee; aligns constitutional law with evolving moral standards.
• Weakness: Critics argue it gives unelected judges essentially legislative power, with little to discipline their personal preferences; raises concerns about democratic legitimacy.

Hamilton's argument (Federalist 78): The judiciary is the LEAST dangerous branch because it has neither "FORCE nor WILL but merely judgment" — it cannot raise armies (executive) or appropriate money (legislative). It can decide cases but must rely on the executive to enforce its rulings. To insulate this weak branch from political pressure, judges should serve lifetime appointments "during good Behavior," allowing them to apply the law without fear of reprisal from the political branches.

Modern critics largely DISAGREE. They argue:

1. Judicial review, combined with lifetime tenure, gives the Supreme Court enormous power to set policy (abortion, gun rights, voting rights, presidential elections).
2. Lack of accountability: unelected judges decide questions that significantly affect the lives of millions; mistakes or biases persist for decades.
3. Strategic retirements allow justices to pick the political moment of departure, magnifying partisan influence over composition.
4. **Decisions like Bush v. Gore (2000), Citizens United (2010), and Dobbs (2022) show the Court resolving deeply contested political questions in ways that affect election outcomes and statutes.

Defenders reply that the Court still cannot tax, spend, or enforce, and that it depends on public legitimacy and the political branches' cooperation. The empirical case is mixed: the Court is strongest when its decisions align with broad public consensus; it can be defied or reshaped by the political branches when it strays too far.

1. Constitutional amendment. Congress can propose (2/3 vote) and states can ratify (3/4) amendments that override Court decisions. Examples: the 11th Amendment (1795) overrode Chisholm v. Georgia; the 14th Amendment (1868) overrode Dred Scott (1857); the 16th Amendment (1913) overrode Pollock v. Farmers' Loan & Trust (income-tax case); the 26th Amendment (1971) lowered the voting age to 18 after Oregon v. Mitchell.

2. Congressional jurisdiction-stripping. Article III, Section 2 says Congress can make "Exceptions" to the Court's appellate jurisdiction. Example: in Ex Parte McCardle (1869) Congress stripped the Court's jurisdiction over a habeas case mid-decision; the Court accepted the loss of jurisdiction. Modern proposals would strip jurisdiction over particular topics (abortion, school prayer, immigration), though most have not passed.

3. Court-packing or restructuring. Article III sets no fixed number of justices; Congress has changed the size of the Court six times. Example: FDR's 1937 court-packing plan (failed but pressured the Court to "switch in time" and uphold New Deal programs); modern proposals to expand the Court to 13.

4. Executive non-enforcement or slow implementation. Example: President Andrew Jackson on Worcester v. Georgia (1832), allegedly: "John Marshall has made his decision; now let him enforce it." Massive resistance to Brown v. Board (1954) by Southern states and slow federal enforcement until Brown II and the 1964 Civil Rights Act.

5. Public opinion and Court legitimacy. The Court reads the political environment; sustained public opposition can shift its trajectory (West Coast Hotel of 1937; the slow narrowing of Roe before its eventual overruling in Dobbs). Repeated controversial decisions can damage perceived legitimacy and provoke calls for reform.