Alexander Hamilton famously described the federal judiciary as the “least dangerous” branch of government. According to Hamilton, the powers granted to the federal courts were to be viewed with magnanimity because the Supreme Court was vested with “neither Force nor Will, but merely judgment.” Fast forward 200 years and it is the Supreme Court that is deciding nearly every important question of legal, political, and even social significance. Today, Hamilton’s least-dangerous-branch idea is quoted only ironically—not as a description of the actual powers of the Third Branch.

That the Supreme Court is an important branch of government is apparent from newspaper headlines. In just the last few years, the Supreme Court has ruled on numerous cases that deeply affect the fabric of our nation. The Court, for example, has addressed, no less than three times since its enactment, fundamental questions regarding the Affordable Care Act—the Obama administration’s signature achievement.

  • It has also decided that the Second Amendment is an individual right;
  • reaffirmed Roe v. Wade’s controversial holding that women have a constitutional right to an abortion;
  • held that race may be considered explicitly in law school, but not college, admissions;
  • required warrants prior to a cell phone search; n declared that terrorism suspects held at Guantanamo Bay may challenge the constitutionality of their detention;
  • held that states may not impose the death penalty for child rape;
  • struck down a regulation that required business owners to pay for insurance coverage that violated deeply held religious beliefs;
  • permitted the forced transfer of private property to private companies for economic development;
  • held that the federal government must provide benefits to legally married same-sex couples; and
  • legalized same-sex marriage in all 50 states.

And all of these decisions are from just the Court’s most recent terms. That the Third Branch is an influential branch of government seems self-evident.

But this was not always the case. At the country’s inception, Alexander Hamilton’s narrower view of the role of the judiciary was quite accurate. The Supreme Court was not the power player of today. The Court was a sleepy little institution held in relatively low esteem. It was not uncommon for an individual to turn down a Supreme Court appointment, in part because of the additional and arduous “circuit riding” duties required of the Justices.

Gradually, the Supreme Court’s docket grew, and Congress relieved part of the workload by creating the federal courts of appeal. This, perhaps more than any other factor, has changed the role of the Supreme Court. It is no longer a court that is required to hear nearly every case and exists primarily to correct the legal or factual errors of the lower courts. Instead, the Court’s docket is almost entirely discretionary and composed of important federal questions that have bedeviled the Courts of Appeal.

This legal brief describes the way the Third Branch has changed over time. This history is important to understanding how the Supreme Court functions today and to evaluating its role in our government. 

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