The framers of the Constitution understood political power with a level of sophistication unmatched in their era. In a matter of months, 55 delegates constructed a governing framework that has outlasted monarchies, empires, and ideological revolutions. Nearly 250 years later, the United States remains the most stable and influential republic in the world because the framers designed a system that restrains ambition, divides authority, and prevents any single institution from controlling public life.
Even they failed to anticipate one danger: the extent to which the judicial branch could grow into a dominant force.
In Federalist No. 78, Alexander Hamilton described the judiciary as the “least dangerous” branch—lacking the purse of Congress and the sword of the executive. The courts, he argued, possessed “judgment” but neither political will nor enforcement power. His argument, however, assumed a judiciary insulated from politics and committed to interpretation rather than activism. That assumption no longer reflects reality.
Over several decades, the judiciary has shifted from a neutral arbiter to the most influential and least accountable branch of government. This transformation began with the politicization of judicial nominations and expanded into a broader legal culture that increasingly treats courts as policymakers rather than guardians of constitutional limits.
The nomination process for Supreme Court justices was the first major sign of this shift. Confirmations were once grounded in legal competence and judicial philosophy. That standard collapsed when the process became dominated by political outcomes.
The rejection of Judge Robert Bork in 1987 was the defining moment. Bork’s qualifications were unquestioned—he had served as solicitor general, a federal judge, and was widely recognized as the intellectual father of originalism. His nomination failed not because of misconduct or inadequate credentials but because his legal reasoning conflicted with prevailing political preferences. His view that Roe v. Wade lacked constitutional grounding—whether one agrees with him or not—became the single factor that determined his fate.
From that point forward, both parties treated the Supreme Court as a political battleground rather than a legal institution. Senate Republicans refused to consider President Obama’s nominee in 2016. Four years later, Democrats condemned the confirmation of Amy Coney Barrett under President Trump. Each side defended its actions procedurally, but the underlying motivation was identical: control of the Court had become a long-term political prize.
This politicization expanded beyond confirmations. The operation of the justice system itself began reflecting political incentives. The legal barrage against President Donald Trump was the most visible example. Regardless of personal opinions about him, the scope, timing, and unprecedented nature of the charges reveal how prosecutorial power can be shaped by political pressure.
The attorney general's role illustrates that vulnerability. The attorney general is both the nation’s top prosecutor and a political appointee—meaning the office inherently sits at the intersection of law enforcement and political authority. That structure creates opportunities for prosecutions to be, fairly or not, interpreted as political exercises.
The deeper issue is not whether Trump, or any other figure, is prosecuted. The issue is why.
A justice system that targets individuals primarily because of their political identity weakens public confidence and erodes the rule of law. Once criminal prosecution becomes a tool for settling political disputes, no movement or party remains safe. The weapon, once created, never stays in the hands of its original architects.
Public deference to the courts compounds the imbalance. Americans have been conditioned to treat judicial decisions as inherently legitimate and effectively final. That respect is essential for constitutional stability, but it also eliminates meaningful checks on judicial overreach. Congress rarely pushes back. Presidents comply with rulings even when they disagree with them. As a result, the judiciary effectively regulates itself—an arrangement the framers never imagined for any branch.
For this reason, judicial philosophy matters far more than judicial ideology. The central distinction is not between conservative and progressive judges. Rather, it is between judges who view their authority as limited and those who view it as expansive. An activist judge, regardless of political alignment, substitutes personal judgment for democratic decision-making.
A restrained judge reinforces constitutional boundaries and maintains the separation of powers that the framers relied on.
The framers believed the judiciary would remain the “least dangerous” branch. That belief was grounded in a vision of limited judicial power and strict constitutional interpretation. The modern system, shaped by political incentives and expanding judicial reach, no longer reflects that vision. Restoring balance requires recognizing that courts cannot function as political instruments without undermining the very framework they were created to protect.