There is a famous Latin aphorism of antiquity by the ancient Roman Poet Juvenal (1467, Satire VI, lines 347–48): Quis custodiet ipsos custodes? This translates to “who guards the guardians?” In the United States, we recognize a cherished and time-honored system of balanced government. We adhere to a unique system of constitutional governance, divided by three co-equal branches. In the legislative branch, Congress creates the laws and guards the public interests of its constituents: the American people. Atop the executive sits the president who enforces and faithfully executes the laws, while serving as a guardian of national security. Last but not least is the Judiciary, which resolves legal skirmishes between the elected branches and the states. While Alexander Hamilton perceived the Judiciary as the “weakest” of the three branches, it has come to rival and often check the political branches when safeguarding our constitutional freedoms from abuse.

America’s Judiciary has existed for most of the nation’s 250-year history. Congress formally established the federal court system through the Judiciary Act of 1789. This introduced the first set of federal district courts, circuit courts, and one Supreme Court of the United States. This paper will explore the Supreme Court’s impact on the classically liberal principles that undergird our republic. I will also explore how certain constitutional mechanisms, legal doctrines, and institutional structures have facilitated, and sometimes challenged, the Judiciary’s preservation of liberal democracy for the last 250 years. Liberal democracy represents our majoritarian, representative form of government that concurrently secures individual liberties and minority rights (Pearce and Uelmen 2007, 168). Classical liberal principles remain the bedrock of America’s democratic republic and will be highlighted across key Supreme Court decisions.

First, the Judiciary’s primary role has been to interpret the constitutionality of laws passed by Congress and the policy actions of the executive. However, in the landmark case of Marbury v. Madison (1803), the Supreme Court invoked an implied, unwritten judicial power known as “judicial review,” and federal common law, which are unwritten legal norms that guide federal actions. This has elevated the standing of the Judiciary among the three branches, enabling the Court to not only interpret law, but, if necessary, to invalidate legal actions made by Congress and the president. Federal courts now serve as a de facto gatekeeper of the law, or, to address Juvenal’s question for the ages, as entities which guard the guardians.

Second, the polycentric character of the judicial system allows multiple courts to exercise decisional authority within distinct yet overlapping spheres of power that facilitate litigatory competition between each other. Such a design allows for courts to exercise appellate jurisdiction, which grants parties an opportunity to have their case appealed to a higher level of review. Many lower courts also undergo rotations featuring different panels of judges over time, judicial (“forum”) shopping, and random assignment of cases to ensure judicial impartiality. Each of these pathways provide polycentric avenues for courts to compete over when hearing cases.

KEYWORDS: Judiciary, U.S. Supreme Court, Constitutional Framers, Liberal Democracy, Checks and Balances.