“Neither Force Nor Will, But Merely Judgment”

George Will, the last living dinosaur of thoughtful conservatism, invoked Alexander Hamilton’s description of the judiciary in Federalist 78 in his Washington Post column


We have Alexander Hamilton‘s assurances, from Federalist 78, that the judiciary is “the least dangerous” branch of government. Having “neither force nor will, but merely judgment,” it “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.”

Will proceeds to argue that Hamilton was wrong, as evidenced by the impact that the federal judiciary has on essentially every social controversy faced by our society today, and calls Hamilton’s description “anachronistic”. 
His purpose is to echo Chief Justice Roberts’ State of Judiciary speech calling for an increase in judicial salaries, a ball that was dropped somewhere in the capital rotunda between the House and Senate where it never found its way out of committee.

But the fact that society turns to the federal judiciary to do its dirty work doesn’t make the Supremes more powerful than Hamilton imagined.  And the fact that federal judges are paid almost as much as a first year associate at Biglaw proves just the opposite.

The judiciary is, in the sense that Will discussed, society’s whipping boy when it comes to social issues.  Congress can pass laws that are flagrantly unconstitutional but immensely popular as they appeal to the “common sense” notions of the masses or the somewhat secret bias of the voters, knowing that there is a federal judiciary behind it to make the hard calls.  The courts make the unpopular decisions so that politicians can claim the glory without having to play the school marm, saying, “No, you can’t do that.”  The courts are the government’s janitors, cleaning up the mess that politicians leave behind.

The fact that the Chief Judge of the United States Supreme Court can’t manage to wangle a decent pay raise for his people proves Hamilton’s point.  The judiciary have no power to affect affirmative change, not even for themselves.  Just as the Chief Judge of New York has been embarrassingly ineffective, so to is Chief Judge Roberts.  For all the power attributed to the courts, their inability to impact their own livelihood is manifest.  The courts are entirely dependent on gifts from politicians.

George Will repeats the reasoning behind the need for substantial increase in judicial pay, but he need not have bothered.  No one questions it.  No one argues that judges are overpaid.  No one doubts that judicial pay is embarrassingly low.  That’s not the problem at all.  The problem is that the judiciary is powerless to do anything about it, and the politicians gain nothing by increasing their pay. 

“It’s the right thing to do,” is the rallying cry.  But this only matters to people who care about doing the right thing.  Sure, plenty espouse that their motives are good and pure, but either not enough people join them, there are too many “right things” on the table to capture enough attention or they don’t mean what they say.  For the most part, the judiciary does care about doing the right thing, and argues to the government in the way that would be meaningful if argued to a judge.  Clearly, this hasn’t worked. 

One would hope that the “more dangerous” branches of government would not rub the judiciary’s nose in its impotence.  For those platitude loving stump speechifiers, this would seem to require no thought at all.  But it is clearly too unimportant, or too lacking in political benefit, to be worth their time.  It’s not the cost factor in a down economy, nor the fear of popular uprising that drives politicians away from increasing salaries.  If anything, the voters don’t care enough one way or the other.  This just isn’t an issue that “resonates” with voters.  It’s housekeeping.

Whether the lack of a decent salary is stripping the judiciary of qualified and competent judges is a separate issue, in my mind.  But the indisputable fact that the other branches of government can control or ignore the judiciary through the power of the purse reveals a glaring gap in a tripartite concept of government.  It proves Hamilton prescient.  The judicial branch of government is indeed the least dangerous.  In fact, it poses no threat at all. 

2 comments on ““Neither Force Nor Will, But Merely Judgment”

  1. Gritsforbreakfast

    “No threat”? Hmmmm, clearly written by someone who has never practiced before the Texas Court of Criminal Appeals! Gore v. Bush and Dred Scott also come to mind.

    Still, a valid and arguable point, even in those instances, and an excellent post.

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