Institutional Approach (Supreme Court)

Hamilton

Federalist No. 78 The judiciary is the “least dangerous branch” because it has no control over the sword (military) or purse (funding). Its only real power is judgment—interpreting the Constitution and invalidating laws that conflict with it.

Robert A. Dahl

Decision Making in Democracy: The Supreme Court as a National Policy Maker. The Supreme Court is not an independent legal body above politics

Martin Shapiro

The Logic of the Triad Courts are fundamentally structured around a triadic relationship (judge + two opposing parties), which shapes how judicial power works.

Cass Sunstein

How Independent is the Court? The Supreme Court is not fully independent, but it is also not purely political. Its decisions are shaped by legal norms, institutional constraints, and political environments.

What is the appropriate role and scope of power of the Supreme Court in American democracy? How has this role evolved over time?

• Hamilton (Federalist #78) argues the Court should only interpret laws and strike down unconstitutional ones. It is not meant to govern or make policy, but to protect constitutional limits.

• Dahl challenges this, arguing the Court effectively becomes a national policy-maker, especially when it aligns with dominant political coalitions.

• Shapiro explains that structurally, the Court can only decide disputes brought before it, limiting its ability to independently set policy.

• Sunstein argues the Court operates between law and politics: it interprets law but inevitably shapes policy through interpretation and precedent.

How does the Supreme Court differ from the other federal branches of government? What are the constraints on judicial power?

Hamilton in Federalist No. 78 emphasizes that the Court has “neither force nor will,” only judgment. Unlike Congress (which controls lawmaking) and the presidency (which controls enforcement), the Court depends on others to implement its decisions.

Shapiro’s “Logic of the Triad” adds that courts operate in a three-part relationship (judge, plaintiff, defendant), meaning courts are structurally dependent on disputes brought before them—they cannot act independently like the political branches.

To what extent is the Court independent from Congress and the Presidency? Why is this important?

The Court is formally independent (life tenure, salary protection, no direct electoral accountability), as emphasized in Hamilton’s Federalist No. 78, which argues this independence is necessary to protect constitutional rights from political pressure.

However, Dahl argues the Court is only partially independent in practice because:

• Justices are appointed by elected presidents

• Confirmed by elected Senate

• Often align with dominant political coalitions over time

• Sunstein (NYRB, “How Independent is the Court?”) similarly argues that the Court is not fully insulated from politics and tends to reflect broader political and institutional environments.

Are the Courts political?

Dahl explicitly argues that the Supreme Court is inherently political, functioning as a national policy-maker that generally aligns with dominant governing coalitions rather than opposing them.

Sunstein adds that while the Court is not purely political, its decisions are shaped by:

• Judicial philosophy

• Institutional pressures

• Broader political context

Shapiro’s “Logic of the Triad” reinforces this by showing that courts are embedded in structured disputes that are often political in nature, making neutrality difficult.

Should the courts be political?

One view: some political responsiveness is inevitable and even necessary for legitimacy

Counterview (Hamilton): courts must remain insulated to preserve constitutional stability

What are the potential consequences of a political court?

Consequences of a highly political court:

• Loss of perceived neutrality and legitimacy

• Increased polarization of judicial decisions

• Reduced trust in constitutional interpretation

• Greater instability in legal precedent when courts shift ideologically