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Federalist #78
352
Decisions about judiciary:
- Mode of appointment
- Tenure
- System of multiple courts' relations
353
Appointment:
- "same with that of appointing the officers of the Union in general"
Tenure:
- indefinite "during good behavior"
- "always be the least dangerous to the political rights of the
Constitution."
- doesn't have power over sword (military) or purse (spending)
- judgments have no power w/o executive support
- Judiciary, although sometimes injust, is not injust to liberty
354
- Better separated so judgments aren't all-powerful
--> Indefinite terms separate it from exec, legis. powers and form
"citadel of the public justice"
- courts have to review laws to make sure they are constitutional
- this does not imply superiority
355
- "regulate... by the fundamental laws [constitution]."
- Constitution is thought of as the will of the people
- By convention, newer laws supercede older laws (of equal authority)
356
- What happens if the courts exercise will over legislation?
"bulwarks of a limited Constitution against legislative encroachments"
- permanent tenure -> faithful, not political performance (of
constitutionality-checking)
wrt legislation, constitution is absolute, but not for the people, but
neither legislation nor justices can change the constitution
357
Justices moderate laws, reducing those that harm specific classes of
people.
Any periodical appointment would make judges less loyal to the
Constitution. "Too great a disposition to consult popularity"
- Also expertise over the laws is very difficult.
- There are many because all cases need to be specified so they are
not adjudicated arbitrarily
- Again an argument for permanent terms
358
GB has a similar institution of permanent tenure
"The Court and American Life" from *Storm Center: The Supreme Court in
American Politics* by David O'Brien
>Abstract
The SC is not an apolitical body.
It is not entirely dispassionate and based solely on constitutional
review.
Brown v. Board of Education was delayed to accumulate more supportive
case law
The Court must maintain its own legitimacy
292
Justice Frankfurter delayed it because of the importance of "timing and
public reactions"
293
- Was merged with other similar cases from around the country
"The power of the court lies in the persuasiveness of its rulings"
- Agreement with Hamilton
Court decisions "are not self-executing" and thus rely a great deal on
public opinion.
Dredd Scott (ruled for slavery) was a "great folly."
Justices have given in to picketers outside of SC (questionable)
294
- Resistance to Brown v. Board of Education was expected
- Implementations were difficult
- Mr. Emory Rogers, attorney for South Carolina, denies that South
Carolina would be able to implement integration.
- Court establishes a schedule of gradual integration of schools
295
- Clerks don't want to explicitly sanction 12 year integration plan
- Black and Minton argued "the less we say the better off we are"
- "The others disagreed"
296
- "the Court's bold moral appeals"
Ruling passed in 1954; only enforced by 1964 w/ Civil Rights Act.
- "required the cooperation and coordination of all three branches"
297
- "The Court is almost powerless to affect the course of national
policy" -- Gerald Rosenberg
"Dynamic Court" can take on issues other branches can't, but
"Constrained Court" can only bring about change when institutional
incentives/restraints are absent.
- But Rosenberg underestimates the influence on society of the decision
298
Court decisions change over time
1. In Federalist #78, how do the justices remain the "bulwarks of a
limited Constitution"? Please cite the text in the construction of your
answer.
The justices are able to enforce the "limited Constitution" because of
"the permanent tenure of judicial offices" (Federalist #78, 356).
Hamilton focuses his arguments largely on the independence of the court
from either the legislature or the executive branch, and he argues that
this independence from their appointment powers and their more momentary
politics makes the court more loyal to the Constitution. They
"regulate...by the fundamental laws" (Federalist #78, 355), Hamilton
claims, the fundamental laws being the Constitution as derived from the
will of the people. The justices have the power to pronounce a
legislative act "contrary to the Constitution" (Federalist #78, 354)
void, this constitutional power which has been given to the judiciary
protecting the Constitution by their judgments.
2. Does O'Brien's argument reflect Hamilton's observations of the
Supreme Court being the weakest of the three branches? Please cite the
text in the construction of your answer.
O'Brien agrees that the Supreme Court is the weakest of the three
branches. He also agrees that it is weaker than public opinion but
believes it is much less insulated than Hamilton does, possibly because
of largely different political circumstances and structures at these
documents' times of writing. "The judiciary alone could not achieve
desegregation," requiring "the cooperation of all three branches
(O'Brien 296). This implies that it is weaker because it cannot enforce
policies, but the specific case being observed shows that the
legislative being the strongest manifests power to the
executive/judicial with the Civil Rights Act of 1964 (O'Brien 296).
Politically, O'Brien believes the court holds little power but does
believe in its longterm sway of public opinion: "the Court lent moral
force and legitimacy to the civil rights movement." (O'Brien 298).
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