Monday, August 21, 2023

"The least dangerous branch"


In the Federalist No. 78, Alexander Hamilton described the federal judiciary as follows: "[T]he judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure."


Almost 200 years later, however, in his classic book entitled The Least Dangerous Branch, Alexander Bickel provided the following update: "The least dangerous branch of the American government is the most extraordinarily powerful court of law the world has ever known. The power which distinguishes the Supreme Court of the United States is that of constitutional review of actions of the other branches of government, federal and state."


Judge Richard Posner calls this power of the Court "Zeus's Thunderbolt," because it is a god-like power wielded by an unelected body of lawyers.
Which provision in the Constitution gives federal courts the power of "constitutional review?"
One commentator refers to the doctrine of judicial review as "an irreversible reality of American law." What do you think he meant by this?

Finally, consider this statement by Justice Jackson in Brown v. Allen, 344 U.S. 443, 540 (1953):

"We are not final because we are infallible, but we are infallible only because we are final."

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