AP® United States Government and Politics review sheet from Aim for Five (aimforfive.com/gov/units/2/2-8)
Unit 2 · Topic 2.8
2.8 The Judicial Branch
Article III creates the Supreme Court and lets Congress set up lower federal courts. In Federalist No. 78, Hamilton argued that the judiciary is the least dangerous branch and that life tenure keeps judges independent enough to enforce the Constitution against the other branches. Marbury v. Madison (1803) established judicial review, the courts' power to strike down laws that conflict with the Constitution.
Key terms
- Article III
- Federalist No. 78
- judicial review
- Marbury v. Madison
- judicial independence
Article III and the court system
Article III vests judicial power in one Supreme Court and in any lower courts Congress creates. Congress built the system with the Judiciary Act of 1789 and has changed it many times since. Congress also sets the number of justices, which has been nine since 1869.
Today the federal system has three main levels:
| Level | What it does | Jurisdiction |
|---|---|---|
| District courts (94) | Trial courts: hear evidence and witnesses, often with juries | Original jurisdiction over most federal cases |
| Courts of appeals (13 circuits) | Review district court decisions for legal errors; no juries | Appellate jurisdiction |
| Supreme Court (9 justices) | Final word on federal law and the Constitution | Mostly appellate; original jurisdiction in a few cases, such as disputes between states |
Federalist No. 78 (Hamilton, 1788)
Anti-Federalists warned that unelected federal judges with life tenure would become too powerful. Hamilton replied that the judiciary would be the “least dangerous” branch. Congress controls the purse, and the president commands the military, but the courts have “neither FORCE nor WILL, but merely judgment.” They depend on the other branches to carry out their rulings.
Because the courts are the weakest branch, they need protection to stay independent. Permanent tenure “during good behaviour” is that protection: judges who can't be fired for unpopular rulings can stand up to the other branches and to temporary waves of public opinion.
Hamilton also made the case for what we now call judicial review. The Constitution is the people's fundamental law. If an ordinary law conflicts with it, judges must follow the Constitution, because the people's will outranks the legislature's. This doesn't make judges superior to lawmakers; it makes the people's Constitution superior to both.
Marbury v. Madison (1803)
Facts: After losing the 1800 election, President John Adams rushed to appoint dozens of judges and justices of the peace before leaving office. Some commissions were signed but not delivered in time. The new president, Thomas Jefferson, told Secretary of State James Madison not to deliver them. William Marbury, one of the appointees, asked the Supreme Court directly for a writ of mandamus, a court order forcing Madison to deliver his commission. A section of the Judiciary Act of 1789 appeared to let him go straight to the Supreme Court.
Holding: Chief Justice John Marshall, writing for the Court, said Marbury had a right to his commission, but the Supreme Court couldn't order it delivered. The section of the Judiciary Act that let Marbury file directly with the Supreme Court tried to expand the Court's original jurisdiction beyond what Article III allows, so it was unconstitutional and void.
Significance: By striking down part of an act of Congress, the Court established judicial review. Marshall wrote that it is “emphatically the province and duty of the judicial department to say what the law is.” The ruling was shrewd: Jefferson got the immediate result he wanted, but the Court claimed a far bigger power, making the judiciary a co-equal branch.
Worked examples
Try each one yourself first, then open the solution.
- Example 1
Linking Federalist No. 78 to Marbury
Explain how Federalist No. 78 supports the power the Court claimed in Marbury v. Madison.
Show the solutionHide the solution
- Step 1: State Hamilton's argument: the Constitution is fundamental law, so when a statute conflicts with it, judges must follow the Constitution.
- Step 2: State what Marbury did: the Court ruled that part of the Judiciary Act of 1789 conflicted with Article III and refused to enforce it.
- Step 3: Connect them: Marbury put into practice the reasoning Hamilton laid out, turning his argument into judicial review.
Answer: Federalist No. 78 argued that judges must prefer the Constitution over conflicting laws; in Marbury, the Court did exactly that by voiding part of the Judiciary Act, establishing judicial review.
Common mistakes
- Saying Marbury won his case. The Court agreed he deserved the commission but ruled it lacked the power to order delivery, so he never got the job.
- Saying judicial review is written in the Constitution. It's implied and was established by Marbury.
- Mixing up the jurisdictions. The Supreme Court mostly hears appeals; district courts are the trial courts.
On the exam
- Marbury v. Madison and Federalist No. 78 are both required. Be ready to explain the facts, the holding and why judicial review strengthened the courts.
- Argument essays about judicial power often call for Federalist No. 78. Use the “least dangerous” and independence arguments, and be ready to rebut the critique that judges are unaccountable.
Connected topics
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Check yourself
4 questions on 2.8 The Judicial Branch. Pick an answer to see if you got it, and why.
Source 1: “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 … The interpretation of the laws is the proper and peculiar province of the courts.” (Alexander Hamilton, Federalist No. 78, 1788)
Source 2: “It is emphatically the province and duty of the judicial department to say what the law is. … So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case … the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.” (Chief Justice John Marshall, Marbury v. Madison, 1803)
Federalist No. 78 (1788) and Marbury v. Madison (1803)
Hamilton's claim that the judiciary has “neither FORCE nor WILL, but merely judgment” means that courts
Which statement best describes the relationship between the two sources?
… And as nothing can contribute so much to its [the judiciary's] firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.
… the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments …
Alexander Hamilton, Federalist No. 78, 1788
Hamilton's main reason for supporting “permanency in office” for judges is that it
Which proposal would Hamilton, based on the passage, most likely oppose?
0 of 4 answered