Hamilton's Prophecy Fulfilled: The Evolution & Decline of Judicial Review

In Federalist No. 51, James Madison explains how the separation of powers doctrine enables the U.S. government to balance leadership while also harnessing the natural political ambitions of those in power. [1] Madison further argues that this framework allows each branch to function independently, thereby preventing any one branch from dominating the others. However, Alexander Hamilton thought differently. Though Hamilton never explicitly opposed Federalist 51, his arguments in Federalist 78 express the idea that the powers of the three federal branches are inherently unequal, especially pertaining to the Judicial Branch. [2] Hamilton makes the case that the judiciary is the “least dangerous” or weakest branch of government because of its lack of ability to implement its rulings and influence on citizens. He stands firm on the notion that they are lacking two important powers: the power of the sword (military force) and the purse (control over the nation's finances). In essence, the judiciary’s weakness comes from the fact that it relies on the actions of the executive and the legislative to actualize its judgments; it cannot enforce its own decisions by making laws or commanding resources through executive action. 

Hamilton’s objections and fears about the capabilities of the judiciary were once unsubstantiated due to the Founders’ early efforts to establish judicial oversight and review. Despite these efforts, modern-day limitations of judicial rulings—exemplified by Supreme Court decisions such as Trump v. CASA Inc.—have actualized Hamilton’s ideas about the shortcomings of the judicial branch. These decisions represent the latest phase in a centuries-long evolution of decisions that have consistently weakened judicial oversight. From the establishment of judicial review to wartime expansions of executive authority and recent constraints on the courts, this development threatens the foundational system of checks and balances and poses risks to citizens.

The Constitution does not explicitly grant the courts the power to declare executive or legislative actions unconstitutional. Yet, it is clear that those who composed and ratified the Constitution were aware of the practice of judicial review and approved its use. This understanding was clearly established in Marbury v. Madison (1803) when the Justices first formally applied the judicial review doctrine. In this ruling, the Justices held that Congress cannot pass laws that supersede the Constitution due to the Supremacy Clause. [3] Chief Justice Marshall, in the majority opinion, reinforced that “the Constitution is superior to any ordinary act of the legislature” and will take precedence over any novel act. [4] Thus, provisions made in the Judiciary Act of 1789—which expanded the scope of the Supreme Court’s original jurisdiction beyond what is explicitly stated in Article III and brought the case of Marbury v. Madison to the forefront—were struck down. 

 This ruling held for decades until the power of judicial review began to be slowly challenged as courts became more deferential to executive authority during wartime or emergencies. Supreme Court cases spanning from World War I through the aftermath of Pearl Harbor are highlights of this argument.  [5] A quantitative analysis of Supreme Court civil liberties cases from 1941 to 1999 reveals this pattern of deference, as researchers "find a slight tendency in wartime for the government to prevail more often in cases involving protest demonstrations, internal security, and conscientious objection" compared to peacetime decisions. However, this trend presents a fundamental constitutional contradiction. [6] While the judiciary lacks a specific constitutional role in wartime, “the Court's responsibility in times of crisis is to ensure that the government's use of its war powers follows constitutional principles," but the reality has often been different. [7] Justice Oliver Holmes in the majority opinion for Schneck v. United States argued that “courts owed greater deference to the government [executive] during wartime” even when constitutional rights were called into question. The executive branch’s authority as chief military officer superseded Schneck’s right to free speech in that case, as he was hindering the Civil Service selection process by promoting documents encouraging others to resist the draft. Though his actions were objectively harmless, the time during which he was acting made him liable to punishment. [8] According to the Court, when the nation is in times of war, “many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured,” and thus the court can not deem them to be protected by constitutional rights.  

The same principle introduced by Justice Holmes in Schneck v. United States is apparent in Korematsu v. United States. After the attack on Pearl Harbor, the US entered into war with Japan, and to protect the nation, President Roosevelt signed Executive Order 9066, which forced the relocation of all Japanese American citizens from the West Coast military area. However, Korematsu remained at his residence in California in defiance of the order and was subsequently arrested. Given the order’s blatantly racist nature, one would think that the court would rule in opposition to the executive. [9] In the majority opinion of the latter case, Justice Black states that “ hardships are part of war … [and] citizenship has its responsibilities, as well as its privileges, and, in time of war, the burden is always heavier,” referring to the idea that there is more leniency of judicial review given to the executive during times of conflict. The opinion also insinuates that in times of conflict, citizens feel the impact of war on many levels, even when it comes to constitutional rights. Thus, with a 6-3 majority, the Court held that the executive order signed by Roosevelt was not an instance of executive overreach or racial prejudice, as it was necessary to respond to the Japanese invasion. It is evident that in times of crisis, the judiciary defers to the executive, and by doing so leaves citizens vulnerable to civil rights violations. The weakening of the judicial branch is not just an attack on checks and balances of the government, but it severely affects those being governed as they go without protection. 

The power of judicial oversight has been gradually weakened due to rulings that have emboldened the executive branch during conflict. However, it's important to note that in the years following the first half of the 20th century, there were notable Supreme Court decisions that showcased that this dynamic was not entirely one-sided. For example, in the tumultuous and high-profile case against former President Richard Nixon, the courts demonstrated judicial oversight in full practice. With U.S. v Nixon holding, the Supreme Court recognized the president's power of executive privilege but also stood firm on precedent from U.S. v. Burr, in which they ruled that the President is not entitled to immunity from criminal proceedings. [10] Most importantly, in cases where the claim of executive privilege is being evoked for a general or personal interest in confidentiality, not on the need to protect the nation or withhold military secrets. 

Another check on the executive during this era was issued to President Truman during a time of international conflict. In an attempt to avert a crisis during the ongoing Korean War in 1952, President Truman issued an Executive Order directing the Secretary of Commerce to seize and operate most of the steel mills. Truman intended to prevent a national strike of steelworkers, which he thought would put the military at a deficit and jeopardize national security. The constitutionality of this order came into question promptly after Congress refused to aid Truman in seizing the mills to begin with. [11] Congress, under the 1947 Taft-Hartley Act, prevented the authorization of “governmental seizures of property as a method of preventing work stoppages and settling labor disputes,” which was exactly Truman’s prerogative. Thus, the former president failed at convincing the legislature to pass a bill that would allow him to take action on the mills, and issued the executive order as a last resort. Truman’s action was met with a lawsuit filed  by the steel mill companies, Youngstown Sheet & Tube Co. v. Sawyer, a case that made its way up to the Supreme Court. [12] In a 6-3 ruling, the majority held that the President “cannot take possession of private property without authorization from Congress or the Constitution,” effectively demonstrating the forte of judicial review. 

However, Youngstown Sheet & Tube Co. v. Sawyer differs from other cases involving judicial checks on executive power during conflict because Congress did not support the executive action in question. Judicial review is strictly practiced usually when the executive and legislative branches disagree. [13] Justice Jackson’s concurring opinion corroborates this notion as he argues that “when the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb”. As a result, when the executive is making decisions that are not thoroughly supported by the legislature, the President has to rely more on the explicit powers given to them by the constitution and weigh them against the constitutional powers Congress has over the issue. The Court often defers to presidential decisions, even when they border on unconstitutionality. As long as Congress supports executive decisions, they typically withstand federal court challenges, which suggests that the judiciary lacks independence. 

Recent Supreme Court decisions do not represent a complete dismissal of the court's ability to exercise judicial review, but rather a narrowing of its application through procedural restrictions. The case that has most severely weakened the scope of the Court's ability to administer rulings regarding executive orders and subsequently crippling judicial review is Trump v. CASA Inc. The Supreme Court ruled that federal courts lack the authority to issue universal injunctions that prohibit enforcement of executive actions beyond the parties before the Court. Though the background of this case dealt with whether the president could prohibit birthright citizenship, the ruling did not decide the fate of that question. Instead, this ruling put in place the idea that federal judges cannot unilaterally strike down an executive order impacting all citizens.

 The majority argued that universal injunctions are actions outside of the scope of powers given to the courts by Congress in the Judiciary Act of 1789. The Court reiterates when the idea of “universal relief” is allowed to be enforced and why it did not apply in the situation regarding the executive order for the ban on birthright citizenship. [14] Justice Barrett, writing for the majority, explained that “prohibiting enforcement of the Executive Order against the child of an individual pregnant plaintiff will give that plaintiff complete relief,” meaning that her child will not be denied citizenship. This also means that extending this injunction to the whole nation would not provide the plaintiff in the case with any more relief than she would be receiving with the injunction. [15] Justice Barrett emphasizes that “complete relief is not a guarantee…it is the maximum a court can provide.” [16] Justice Thomas, joined by Justice Gorsuch, concurred, stating that “in no circumstance can a court award relief beyond that necessary to redress the plaintiffs’ injuries.” In other words, the court’s power to grant remedies in a case is restricted to providing protection that is directly required to compensate plaintiffs for the harm they have suffered.  

Federal courts lack the authority to overreach and issue universal injunctions that prohibit the enforcement of executive actions beyond the parties before the court. This begs the question: what happens to those who are unable to petition a court on behalf of their constitutional rights? If those individuals are unable to be named as plaintiffs in their suits against the government, does that mean that their rights are simply disregarded? As the dissenting justices, including Justice Sotomayor and Justice Jackson, share, this ruling will affect those who are financially disadvantaged from protecting their rights if they are unable to sue. This ruling undermines the rule of law, by eliminating universal injunctions, it effectively allows the executive to engage in unconstitutional conduct without check. 

In the United States, the rule of law means that nobody is above punishment for disregarding policies or “the law,” not even the President. Yet, the most important characteristic of  Trump v. CASA Inc. that the majority fails to mention is whether or not the President’s executive order "Protecting the Meaning and Value of American Citizenship" is constitutional. Though every single piece of legislation dating back and relating to the original and explicit form of the United States Constitution confirms that birthright citizenship is the law, Trump’s executive order was not struck down. Instead, the majority of the Court focused on checking the Court's power and concluded that when the judiciary finds that the executive branch has acted unlawfully, the answer is not for the Court to exceed its power, too. The Supreme Court’s opinion is defensible, but it also allows the executive to promote a personal agenda against citizens not named as plaintiffs, and overall sets a dangerous precedent. 

Evidently, the holding of Trump v. Casa Inc. represents this age's most direct attack on the judiciary’s impact. However, another recent case, Loper Bright Enterprises v. Raimondo, presents a more complex challenge to judicial authority through its reversal of the Chevron doctrine. While this decision may appear to strengthen judicial review, it actually creates uncertainty that may discourage future litigation challenging executive actions, ultimately weakening the judicial branch's effectiveness. The ruling in the original case, Chevron U.S.A. Inc. v. Natural Resource Defense Council (1984), required courts to defer to executive agencies’ interpretations of ambiguous statutes made by Congress, effectively limiting judicial review of executive agency actions. [17] The latest Supreme Court majority reverses a 40-year-old decision with support of Article III of the Constitution, which “assigns to the Federal Judiciary the responsibility and power to adjudicate cases and controversies.” The majority, interpreting the text explicitly, argued that courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority. [18] The Court based their reasoning in part on the Administrative Procedure Act of 1946, which states that reviewing courts must “interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.” As a result, the Court held that judges may not defer to agency interpretations simply because a statute is unclear or ambiguous. Instead, courts must exercise independent judgment to determine whether an agency has acted within its authority.

 The long-term consequences of this decision are quite large for the judicial branch, though they are not clear. Oftentimes, there is a lack of specificity in the statutes that are passed by Congress, making it harder for implementation. When this happens, agencies are well within their rights to fill in the gaps with appropriate and reasonable provisions so they can administer the laws that have been passed. As long as the interpretations agencies give are reasonable, consistent with statutory language, and serve the public interest—the federal courts have deferred to them for decades under the Chevron doctrine. Though Chevron limited judicial oversight of agency law implementation, its structure allowed knowledgeable experts within these agencies to make better-informed judgments about legal interpretations. [19] Under the Chevron doctrine, federal courts respected agencies’ expertise, particularly in complex, technical areas such as environmental regulation for the Environmental Protection Agency (EPA) or education reform for the Department of Education (DOE). Without this deference, courts now face the burden of interpreting specialized regulatory frameworks without the necessary knowledge or administrative experience.

Additionally, another challenge of placing the power back into the hands of the courts is the possibility of variation within rulings. It is highly probable that different courts end up with differing decisions regarding the same piece of legislation or regulation. There is also the question of whether or not the courts can table issues regarding rules and regulations by issuing national injunctions. Courts will have more pressure to resolve these differences across judiciaries in the country. In turn, more cases will move up the federal court system as lower courts issue conflicting interpretations, substantially increasing the Supreme Court's workload as it becomes the primary arbiter of disputes once settled at the agency level. This backlog will inevitably delay justice for litigants while creating further uncertainty in regulatory enforcement, leaving businesses and individuals without clear guidance on compliance requirements. Furthermore, the scope of this disruption extends beyond new cases, as the Chevron reversal raises significant questions about existing legal precedent. [12] What will now happen to the 18,000-plus cases previously decided on Chevron deference grounds? It is worrisome that the courts have now taken on this responsibility that strengthens their oversight, but at what cost? The decision to make judicial review strict in regards to agency statutes seems to sacrifice efficiency, consistency, and the federal courts’ ability to focus on constitutional and legal questions where judicial expertise is most valuable.  

Modern-day limitations and SCOTUS rulings achieve exactly what Hamilton feared: a judiciary that cannot enforce its decisions. The irony is that Hamilton's concerns about the "least dangerous branch" have become reality not through direct constitutional change but through procedural evolution. The judiciary has become the least effective branch and will operate as such for the foreseeable future as long as erosion of judicial review continues. While the Constitution's framers designed a system of checks and balances to prevent one branch from becoming unequally powerful, recent Supreme Court decisions have effectively severed the judiciary's ability to serve as a meaningful check on executive authority. From restricting universal injunctions to overturning four decades of agency deference, these rulings create a judicial system that appears strong in theory but lacks practical enforcement methods. The consequences of these rulings affect American citizens who may very likely find themselves without a legal solution when their rights are violated by executive actions. As the judiciary strays from its traditional role as upholder of constitutional principles, true democracy becomes vulnerable to the unchecked power of the executive branch. Unless this trend is reversed, Hamilton's prophecy of a weak judiciary will continue to undermine the power balance that has long protected American citizens from governmental overreach.

Edited by Cara Wreen

[1] Madison, James, “Federalist No 51.” Yale Law Library. February 8, 1788. https://avalon.law.yale.edu/18th_century/fed51.asp.

[2] Hamilton, Alexander,  “Federalist No 78.” Yale Law Library. May 28, 1788. https://avalon.law.yale.edu/18th_century/fed78.asp.

[3] Marbury v. Madison, 5 U.S. 137 (1803)

[4] Marbury v. Madison, 5 U.S. 137 (1803)

[5] Tushnet, Mark V,  "Defending Korematsu?: Reflections on Civil Liberties in Wartime." Wisconsin Law Review, 2003, 6. 

[6] Epstein, Lee, Daniel E. Ho, Gary King, and Jeffrey A. Segal, "The Supreme Court During Crisis: How War Affects Only Non-War Cases." New York University Law Review, vol. 80, no. 1, 2005, 25.

[7] Schenck v. United States, 249 U.S. 47 (1919)

[8] Schenck v. United States, 249 U.S. 47 (1919)

[9] Korematsu v. United States, 323 U.S. 214 (1944)

[10] United States v. Nixon, 418 U.S. 683 (1974)

[11] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)

[12] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)

[13] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)

[14]  Walker, Christopher, “What Trump v. CASA Means for the Future of Universal Relief in Administrative Law.” Yale Journal on Regulation, July 2025.

[15] Trump v. CASA, Inc., 606 U.S. ___ (2025)
[16] Trump v. CASA, Inc., 606 U.S. ___ (2025)

[17] Loper Bright Enterprises v. Raimondo, 603 U.S. ___ (2024)

[18] Loper Bright Enterprises v. Raimondo, 603 U.S. ___ (2024)

[19]  Hoag Levins, "Supreme Court's Chevron Reversal: A Seismic Shift for Health Care Regulation," Leonard Davis Institute of Health Economics, University of Pennsylvania, November 2024, https://ldi.upenn.edu/our-work/research-updates/supreme-courts-chevron-reversal-a-seismic-shift-for-health-care-regulation/.

[20] Blumenthal, Michael R., Douglas W. Charnas, James William Sandy, and David B. Waxman., "End of Chevron Deference: What Does It Mean? What Comes Next?" American Bar Association, August 2024, https://www.americanbar.org/groups/business_law/resources/business-law-today/2024-august/end-chevron-deference-what-does-it-mean-what-comes-next/.