Alexander Hamilton discusses the significance and the design of the judicial branch in the new constitutional order. In particular, Federalist 78 introduces this analysis by commenting on the judiciary as the “least dangerous” branch. The argument is that courts are much less likely to engage in the infringement of “political rights” because they simply do not possess the necessary tools. Hamilton compares and contrasts this conclusion with the observation of risks of the abuse of power by the executive and the legislative branches.

At the same time, Federalist 78 warns that the inability of the judiciary to be “dangerous” also means that is vulnerable to the influence and the strong-arming by other parts of the government. Hamilton also expresses concerns as to the possibility of either of the two other branches combining forces with the judiciary to become oppressive. Thus, his recipe against the abuse of powers is the independence of the judicial branch from other parts of the government.

According to Federalist 78, the judicial branch must primarily be occupied with the judicial review of the actions of the two other branches. The paper stresses the utmost importance of the protection of rights and freedoms by the judiciary. Hence, the judiciary must ensure that the government acts within the constitutional limits.

Hamilton disagrees to holding elections for judges. He emphasizes the prevalence of qualifications and experience over the public opinion and popularity. While he does not present a single specific procedure for the selection of judges, he tends to lean towards an appointment procedure where the two other branches of government would play a role.

Federalist 78 focuses on legal expertise as the main criterion for selecting judges. In a way, it also mentions professional integrity and the ability to be loyal to constitutional principles. Hamilton believes that only a permanent term in the office can ensure the development of the judicial branch and the sufficient degree of its independence.