The judiciary branch is listed as last in comparison to the other two branches. This is largely because the judiciary has more weakness than the executive or legislative branch. Alexander Hamilton, in the Federalist no. 78, criticized the judiciary as the weakest branch in government. Because congress can come up with the laws, the president (executive) can ensure laws get put out, the judiciary is weaker because it can only deal with immediate cases in the present. This is one weakness of the judiciary, which is basically told what to do and how to do it by the other two branches. Not only does Congress decide if laws will get passed, but they also created the way the judiciary should operate. The Judiciary act of 1789 “acknowledged the legitimacy of the state courts and protected individual rights at the same time that it assured the supremacy of the federal judiciary” (fjc.gov).
However, this weakness is nothing compared to the judiciary’s strength called judicial review. As stated by the Cornell University Law School, “ judicial review is the idea, fundamental to the US system of govn’t, that the actions of the executive and legislative branches of government are subject to review and possible invalidation by the judicial branch” (law.cornell.edu). Since the judiciary is able to keep tabs on what the other branches are up to, this is the judiciary’s strength. They are also able to pick what cases they want to deal with while the other branches can’t. As stated in “The Leadership Conference” “ the supreme court gets about 7000 requests to hear cases per year [and] if they decide not to hear a case, the decision of the lower court stands” (civilrights.org). Thus, the judiciary poses strengths invariable to the other branches of government.
One Option to Maintain Strength, Correct Weakness
Since the judiciary was created by the other powers, it’s important for the judiciary to exert its power when the job is under judiciary scrutiny. It’s no other branches job to do the job the judiciary was intended to. Therefore, to correct this weakness, a revising of what powers different branches of government have or should have needs to take place. As stated in the Harvard Law Review, “The limitation and separation of powers, if they are to survive, require a procedure for independent mediation and construction to reconcile the inevitable disputes over the boundaries of constitutional power which arise in the process of government.”(196). This would correct the weakness of one branch of government having more power than another and maintain the branch’s fidelity to their field.
In order to keep the strength of “judicial review,” the judiciary needs to be very mindful of all the countless cases and ensure that the people of the United States are getting served in accordance to “fundamental” law. Whatever laws people must face judges must face as well since it’s only right and fair. Alex Hamilton even said that just because the courts can interpret the constitution when judging doesn’t ”suppose a superiority of the judicial to the legislative power [but] supposes that the power of the people is superior to both [thus] the judges ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.” (law.yale.edu). In this way, the judiciary will keep its integrity intact in regards to being treated in a democratic fashion. If judiciary review simply meant that the judiciary can bypass all the fundamental laws because they had the power to, that would mean the judiciary branch would be undemocratic since it wouldn’t be for the people anymore.
Thus, although the judiciary used to the weakest of all the branches, according to Hamilton, today it has more power because there are a lot of judges. Due to this, there are more of judge’s voices able to be a part of judicial review. Because they can pick what cases they want to focus on, it’s very important for the judiciary to exercise good judgment since they have this power.
- The Leadership Conference (2016). “U.S. Supreme Court: Types of Cases Heard.” Retrieved from http://www.civilrights.org/judiciary/courts/supreme.html
- Rostow, Eugene V., “The Democratic Character of Judicial Review” (1952). Faculty Scholarship Series. Paper 2135. P. 196. Retrieved from