L, Least Dangerous Branch.
Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman
Edited By: Kermit L. Hall
Least Dangerous Branch.
Writing in The *Federalist, no. 78, Alexander *Hamilton prophesied that the judiciary would always be the “least dangerous branch” of the federal government, since it had “no influence over either the sword or the purse” and had “neither force nor will, but merely judgment.” If Hamilton’s readers thought he meant that the Supreme Court would never be a force in American government, they soon learned otherwise because of the rise of the Court under Chief Justice John *Marshall. But Hamilton was right about the Court’s vulnerability. The president controls appointments, and the Court, as Hamilton said, “ultimately depend[s] upon the aid of the executive arm even for the efficacy of its judgments.” Congress has control of all but the Supreme Court’s *original jurisdiction and can often circumvent court decisions by simple legislation. The people can resist the Court and override unpopular decisions by constitutional amendment (see constitutional amending process). To function effectively, therefore, the Court must accommodate itself to the democratic process. The Court does best when it does what it best can do: exercise principled “judgment.” As a legal institution it is uniquely equipped to do just this. Its distance from electoral politics, its deliberative tradition, the rational environment in which it hears arguments and renders opinions—all these elements invite a level of disinterested constitutional exposition not possible in the political branches.
R. Kent Newmyer