Federalist Nos. 78 – 79

I had always been taught that the Executive, Legislative, and Judicial branches were fundamentally equal in power within the federal government (checks and balances etc.) but Federalist No. 78 says otherwise:

the judiciary is beyond comparison the weakest of the three departments of power.

I wonder if my understanding is a byproduct of the power grabs by the Supreme Court from the earliest days of the nation by which it made itself the equal of the other two departments. I read the whole paper wondering if anything different could have been done regarding the term of office for judges ("during good behavior"). I considered an absolute maximum term of service and concluded that it would have no positive effect. Hamilton argues that an age limitation (the state of New York cut judges after the age of 60 at that time) was not feasible. I have concluded that it would be feasible today due to our current society whereby pensions are relatively normal. In fact, we already have a soft age limit whereby judges are allowed, but not required, to retire. We could choose to make retirement mandatory, but I don’t think we would see any benefit from such a move. My conclusion was that the judiciary was as well designed as it could have been.

The one drawback to our modern judiciary was foreseen:

The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. (emphasis original)

We have seen unfortunate cases where courts (state courts as often as federal) do not merely judge the merits of a case or a law, but order legislative bodies to act accordingly. This seems to display a misunderstanding of the power of the courts. The courts never need to order the executive or judicial branches to do something (except in cases pitting the two departments against each other). If the court rules that a law is unconstitutional the law become null – the court has no need to require the legislature to write a different law.

Federalist No. 79 addresses the provision that the salary of a judge cannot be decreased. There does not seem to be any need for discussion on this point because the reasoning is the same as for the president having a fixed salary and is equally applicable.