Institution and Virtue in the Judiciary


  • Stephen H. Wirls



This essay reconsiders The Federalist's design of the Judiciary. The argument has two themes. In general, The Federalist does not neglect ambition in the case of judicial power. Rather, The Federalist presents a coherent institutional order that is fully informed by this problem. It defines the central judicial function quite narrowly and describes an elaborate a constellation of influences to contain judicial will within these boundaries. This end and these means impose a very narrow scope on judicial review. The more specific theme concerns the place of virtue in that institutional design. The Federalist's discussion of other, truly discretionary functions introduces the need for some virtue to condition judicial will in the absence of the guidance of law. This concern for virtue in relation to other powers confirms the limited scope of judicial review. Moreover, the need to secure and preserve some virtue in judges imposes further restrictions on functions and powers.