In The Federalist Papers, Alexander Hamilton argued that the judiciary was the least dangerous of the three branches of the national government. The Court’s weakness was apparent in the years prior to the Civil War, when it rarely initiated direct confrontations with Congress and the president. The assiduous avoidance of conflict allowed the justices to build support for the principle of judicial review, establishing the Supreme Court as the final authority on the Constitution’s meaning.

Following the Civil War, the attention of the Court shifted from defining the boundaries of national and state authority to government regulation of the economy. The Supreme Court frequently intervened to defend individual property rights against laws seeking to regulate business activity. Conflict between the Supreme Court and the elected branches came to a head when the Court invalidated several New Deal programs. President Roosevelt’s threat to expand the Supreme Court induced the justices to back down. In the 1940s, civil liberties began to replace economic issues as the major area occupying the Court’s time and energy.

In recent years, the Supreme Court has not hesitated to use judicial review to strike down federal and state laws. It has increasingly upheld states’ rights, refereed conflicts between the elected branches, kept elected officials from overstepping their authority, and helped hold the bureaucracy responsible for following rules. In these endeavors, the Supreme Court is currently assisted by ninety-four district courts and thirteen courts of appeal. The lower courts decide the vast majority of cases brought before the federal system. The Supreme Court focuses its limited time on a small number of cases (approximately one hundred each year) that allow it to resolve controversial questions or set important precedents to guide lower-court activity. Although the Supreme Court is at the top of the judicial pyramid, it lacks many of the standard methods of control typically available to principals and instead depends heavily on lower-court judges behaving like loyal agents.

Nearly everything that judges do, from deciding which cases to hear to crafting majority opinions, is rife with strategic considerations. The Supreme Court pays attention to the preferences of other government actors, especially the U.S. Justice Department, interest groups, and the public. If the Court fails to consider the political ramifications of its actions, it risks being ignored or overruled by the other branches. The appointment powers of presidents and Congress’s ability to reorganize the judiciary also ensure that the judiciary does not stray too far from the will of national majorities.