2.8 The Judicial Branch

Structure and Judicial Review

Article III created a Supreme Court and gave Congress power to establish lower federal courts. The judiciary is designed to be the least democratic branch — justices are appointed, not elected, and serve life terms to insulate them from public opinion. Judicial review, established in *Marbury v. Madison* (1803), gives courts power to declare laws or executive actions unconstitutional, making the judiciary a powerful check on Congress and the President.

Judicial Independence and Checks

Federal judges receive life tenure and protected salaries, insulating them from political pressure and majority opinion. However, the judiciary isn't unchecked: the President nominates and the Senate confirms judges, Congress can alter court structure/jurisdiction, and courts rely on other branches to enforce rulings. This system creates ongoing tension between an independent judiciary and democratic accountability.

How the Supreme Court Decides Cases

The Supreme Court exercises discretionary jurisdiction, choosing cases via a writ of certiorari — at least four justices must agree (the Rule of Four) to hear a case. Justices' decisions are shaped by judicial philosophy: judicial restraint favors deferring to precedent and elected branches, while judicial activism favors using judicial power to promote preferred social outcomes.

Key terms

Judicial review

The power of courts to declare laws or government actions unconstitutional, established in Marbury v. Madison (1803).

Life tenure

Federal judges serve for life (barring impeachment), insulating them from political and public pressure.

Writ of certiorari

An order by the Supreme Court to review a lower court's decision; requires the Rule of Four to be granted.

Judicial restraint

Philosophy favoring deference to precedent, legislatures, and elected branches over overturning laws.

Judicial activism

Philosophy favoring active use of judicial power to shape policy and social outcomes, even overturning precedent.

Try an AP-style question

In Federalist No. 78, Hamilton called the judiciary the "least dangerous" branch because it…

1. is elected every two years
2. controls the military
3. has neither purse nor sword
4. can veto laws