What Powers Does the US Constitution Grant the Federal Judiciary?

Civics Crash Course Lesson 7

While advocating for the ratification of the Constitution, Alexander Hamilton asserted that the judiciary was “beyond comparison the weakest” as measured against the executive and legislative branches. After the Constitution was adopted, many of the leading statesmen of that era considered it more prestigious to serve in state legislatures rather than on the Supreme Court. How, then, did the Supreme Court achieve the clout and influence it has today?

The Least Dangerous Branch

Congress is granted enumerated powers in Article I of the Constitution. Expressed powers are delegated to the President in Article II. Then Article III turns to the federal judiciary. Article III is divided into three sections:

Section 1 vests judicial power in a Supreme Court and gives Congress the ability to create lower courts. This section also addresses tenure and compensation
Section 2 lays out the Supreme Court’s jurisdiction
Section 3 defines treason

In The Federalist No. 78, Alexander Hamilton had characterized this newly proposed judiciary as the “least dangerous” of the three federal branches. He did not believe the judicial branch could threaten the rights or freedoms of the people on its own.

The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

Independence is Key

Although Hamilton believed the federal judiciary had a “natural feebleness” as an institution, he was aware of the potential for abuse of power if the courts were subject to undue influence from the other two branches.

In The Federalist No. 78, Hamilton explained:
“the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive.”
judges must be independent to protect both the Constitution itself and the rights of Americans from “dangerous innovations in the government, and serious oppression of the minor party in the community.”

To establish a basis for judges to be guided by legal principles rather than steered by political pressure, the Constitution provides the opportunity for lifetime appointments so long as judges exhibit “good behavior” in their positions.

Presidents appoint judges and the Senate confirms these appointments. Once in office, federal judges’ salaries cannot be reduced. They may only be removed by impeachment, resignation or retirement.

This framework is intended to shield judges from corruption. Ideally, judges are loyal to the Constitution and will not bow to powerful leaders or fleeting whims of the public.

Who gets to be a Supreme Court Justice?

Although the Constitution includes qualifications to become a Congressperson, Senator and President, it does not set forth requirements to become a Supreme Court Justice. There is no constitutional provision regarding citizenship, age, education or professional background. However, historically:

Very few Supreme Court Justices throughout American history have been born in other countries
More than half have had the privilege of an Ivy League education
Justices typically have legal backgrounds as judges or attorneys
Most have held public office
They have commonly been white men appointed in their fifties¹

Presidents typically appoint Supreme Court Justices who share their political party affiliation and ideological leanings. For example, all three of President Trump’s nominees were vetted by the Federalist Society. Currently, six of our nine justices have been associated with this conservative organization.²

Nine is Fine

The first act passed by the first Congress was the Judiciary Act of 1789. This legislation, signed into law by President George Washington, laid the foundation of the federal court system by forming the Supreme Court and establishing lower courts.

Originally, the Supreme Court was composed of six justices. The number of justices appointed fluctuated between five to ten members before Congress, eighty years after the first judiciary act, set the number at nine.

Americans have tended to respect this tradition. Historically, efforts to impeach justices or “pack the court” largely have been viewed dis-favorably by the public.

Original and Appellate Jurisdiction

Article III of the Constitution identifies the matters in which the Supreme Court is granted original jurisdiction and appellate jurisdiction.

The Supreme Court is granted original jurisdiction - the power to hear a case first - in only a handful of circumstances. Litigation may begin at the Supreme Court in controversies including:

Foreign diplomatic matters involving ambassadors, public ministers and consuls
When states are a party (such as disputes between states, states having a conflict with the federal government, and actions by a state against another state’s citizens or non-citizens)

Most cases arrive at the Supreme Court through appellate jurisdiction (by appeal). These cases may be appealed by the parties involved or pulled up through court order.

With appellate jurisdiction, the Court reviews and can potentially overturn lower courts’ decisions
They do not hold a new trial
Most cases that involve federal law or a constitutional issue can be appealed to the Supreme Court
The Constitution specifies that the Court can hear appeals of cases involving the U.S. as a party, cases regarding treaties, and cases originating on the high sea
Congress could alter the court’s appellate jurisdiction, but does not opt to do so³

How Cases are Selected

The Court is granted the discretion to select which cases to hear. In practice, the Supreme Court declines to accept the overwhelming majority of the thousands of petitions it receives each year.

Roughly 7,000 cases are typically brought to the Court each year
The Justices usually hear only 100-150 of these cases

Many cases are hand picked by a high ranking member of the Justice Department, the Solicitor General, who represents the government’s interest.

This appointed individual is often referred to as the “Ninth and a half member” of the Court
Justices typically follow the “Rule of Four” when deciding which cases to take on, meaning four justices vote to hear the case regardless of their positions on the matter at hand
The select cases accepted tend to concern pressing legal questions that could carry broad implications for public law

Judicial Review Superpower

The Supreme Court’s most influential ability is being the final arbiter of that which is deemed constitutional or unconstitutional - the power of judicial review.
The nine justices on the bench interpret the Constitution to define our rights and the government’s authority
They determine whether a legislative or executive act conflicts with constitutional principles
This power is the ultimate source of the Court’s prestige and might, and yet, somewhat ironically, this authority is not directly articulated in the Constitution

The power of judicial review was established in an early Supreme Court case called Marbury v. Madison (1803). On the surface, the controversy was about the legitimacy of “midnight appointments” made by an outgoing president.

President John Adams had made some appointments at the tail end of his presidency which had not been fully executed before he left office
The new Secretary of State, James Madison, refused to deliver the commissions, including that of William Marbury who was slated to become a justice of the peace

Marbury did not end up getting his commission. However, the facts of the case themselves are not what propelled Marybury v. Madison to become one of the most significant cases in American history - it was the principles and reasoning used by the justices.

The Court struck down a section of the Judiciary Act of 1789 which had attempted to give the Supreme Court original jurisdiction in a matter not authorized in Article III of the Constitution
The justices affirmed that the Constitution is the Supreme Law of the Land in accordance with the Supremacy Clause found in Article VI of the Constitution
The court’s assertion of the power of judicial review over Congress’ Judiciary Act of 1789 cemented the justices’ esteemed position of determining constitutionality at the federal level

This decision and others made under Chief Justice John Marshall significantly increased the stature of the Supreme Court. The Court would go on to assert its power to strike down or uphold laws passed by states as well.

The Fourteenth Amendment and Judicial Activism

The Fourteenth Amendment to the Constitution also expanded the power of the Supreme Court. This 1868 amendment provided the justification for the federal government to extend most protections of the Bill of Rights to states. Previously, Americans were only guaranteed many civil liberties and civil rights in matters concerning the federal government.

On a case by case basis, Supreme Court rulings led to “selective incorporation” of these rights at the state level throughout the twentieth century. In particular, the Court advanced:

First Amendment rights to speech, press, petition, assembly and religion
Many due process rights of people accused of a crime
Equal protection under law for civil rights

During some periods of American history, the courts have practiced “judicial activism” and have taken more initiative to create policy instead of relying on legislative bodies to do so. In other periods, they have practiced “judicial restraint” and are more inclined to be deferential to the legislative and executive branches.

When adhering to the principle of judicial restraint, the courts are less likely to overturn laws or set precedents. Both judicial activism and restraint have been practiced by liberal and conservative benches alike.

In general, the courts historically have tended to follow the principle of stare decisis, letting previous courts’ decisions stand. This concept applies to lower court decisions as well as precedents set by earlier Supreme Courts. Two famous cases in which the Supreme Court reversed its own decisions are:

Brown v. Board of Education of Topeka (1954) which overturned Plessy v. Ferguson (1898) regarding racial segregation
Dobbs v. Jackson Women’s Health Organization (2022) which overturned Roe v. Wade (1973) regarding reproductive rights

Why it Matters

Supreme Court decisions wield enormous influence over Americans’ lives. From student speech to Miranda rights, from birth control access to presidential immunity, the nine members of our highest court have the power to affect our daily lives and change our future paths.

The federal judiciary may have started as “the least dangerous branch,” but today the courts have the final say over many of our rights and freedoms. While Americans cannot vote for federal judges, citizens do have the power to elect:

Presidents who appoint federal judges
Senators who confirm these positions
State and federal leaders who have a say in amending the Constitution

Check for Understanding

Did you pick up details to support the main ideas of this Civics Crash Course lesson?

Take a quick quiz to self-assess:

True or False? Federal judges serve ten year terms.
True or False? The Supreme Court is more likely to hear a case on appeal, than to rule on a case for the first time.
True or False? Marybury v. Madison established the Supreme Court’s power of judicial review.

Answers:

False - Correction: Federal judges serve during “good behavior.”
True - The Supreme Court is more likely to hear a case on appeal, than to rule on a case for the first time.
True - Marybury v. Madison established the Supreme Court’s power of judicial review.

Discussion Guide

Which branch of the federal government (legislative, judicial, executive) would you consider to be “the least dangerous branch” today?
Do you believe the potential for lifetime appointments and salary security protect judges from undue influence today?
What are the pros and cons of appointing additional judges to the Supreme Court?
Are you aware of a federal court case that directly influenced your own life?
Which do you prefer: judicial activism or judicial restraint?

Endnotes

(1) Kristen Bialik, “What Backgrounds Do U.S. Supreme Court Justices Have?,” Pew Research Center, March 20 2017, Pew Research Center, accessed August 14, 2025,
https://www.pewresearch.org/short-reads/2017/03/20/what-backgrounds-do-…;

(2) Zoya Haq, “How the Federalist Society Shaped America’s Judiciary,” Yale Daily News, November 4 2024, Yale Daily News, accessed August 14, 2025, https://yaledailynews.com/blog/2024/11/04/how-the-federalist-society-sh…;

(3) “Original Jurisdiction,” Wex, Legal Information Institute, Cornell Law School, accessed August 14, 2025, https://www.law.cornell.edu/wex/original_jurisdiction