Judicial Branch

“The judicial organization of the United States,” observed the French political scientist Alexis de Tocqueville (1805–59) in Democracy in America (1835), “is the hardest thing there for a foreigner to understand. He finds judicial authority invoked in almost every political context, and from that he naturally concludes that the judge is one of the most important political powers in the [country]. But when he then begins to examine the constitution of the courts, at first glance he sees nothing but judicial attributes and procedures. The judges seem to intervene in public affairs only by chance, but that chance recurs daily.”

De Tocqueville’s confusion about the role of the judicial branch in America is understandable. Of the federal government’s three branches—the legislative branch, executive branch, and judicial branch—the judicial branch is both the weakest but at times the strongest. Its weaknesses stem from the fact that it has neither the power of the purse (to raise and spend money), as the legislative branch does, nor the power of enforcement (to command armies and federal law enforcement agencies), as does the executive branch.

The federal judicial branch has many strengths, however. One of these, as de Tocqueville also recognized, lies in its lack of accountability to any particular political entity. Judges on all the courts established under Article III of the Constitution are appointed for life, although, like any other national government official, they are subject to impeachment. The Constitution additionally protects their salary from diminishment, which helps ensure judicial independence. Another strength lies in the national courts’ power to arbitrate constitutional disputes and declare the acts of the other two branches unconstitutional and therefore null and void.

The constitutions of many countries divide the national government into three major branches, including a judicial branch. Sri Lanka’s constitution (1978), for example, states: “The Sovereignty of the People shall be exercised [through] the legislative power…, the executive power. .., [and] the judicial power….” Poland’s constitution (1997) declares that the government “shall be based on the separation of and balance between the legislative, executive and judicial powers.”

The U.S. Constitution’s Article III, which pertains to the judiciary (from the Latin judicium, meaning court), similarly establishes the judicial branch as the coequal of the other two branches. While the principle of the separation of powers in a government protects against the accumulation of powers in too few hands, the principle of checks and balances among those powers protects against the domination of one branch over another.

Judicial Power