There is no pretension that the courts will be equal in power or importance to the president or the Congress. Hamilton quotes Montesquieu that "Of the three powers, the judiciary is next to nothing." And he admits that in the American design, the courts will be weak and reactive. Yet he also says that the courts are the upholders of the Constitution, and that the Constitution is and must be supreme to the will of the Congress.

[T]he courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep [Congress] within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.

Hamilton says that the Constitution represents “the intention of the people” more directly than laws passed by Congress do. This seems an odd claim given that one branch of the Congress is named the “House of Representatives,” and representing the will of the people is their whole job.

The first two essays – 78 and 79 -- focus on the practical questions of who is qualified to be a federal judge, how long they should serve, and how they will be paid. The first matter is answered simply – “[T]he mode of appointing the judges . . . is the same with that of appointing the officers of the Union in general.” That is, judges are appointed by the president with the advice and consent of the Senate.

No actual qualifications are stated. The Constitution might, for instance, have required that a federal judge have a license to practice law, or have not less than three years of experience, or at least not be wanted for murder. But no, the Constitution leaves the choice of federal judges wide open. And once a judge is appointed and confirmed, that judge stays in office for life. The language of the Constitution is “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior…”

There is no definition of what “Good behavior” means. There is no requirement for outstanding citizenship or being a role model. Good behavior only means that once a judge is appointed, they stay in office for the rest of their life or until they retire or are impeached. They can’t be removed because a president doesn’t like them or their legal opinions.

The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.

 Concerning the pay of federal judges, the Constitution only says judges’ salaries cannot be reduced.

What might be extravagant to-day, might in half a century become penurious and inadequate. It was therefore necessary to leave it to the discretion of the legislature to vary its provisions in conformity to the variations in circumstances, yet under such restrictions as to put it out of the power of that body to change the condition of the individual for the worse. 

The Constitution does not say how many federal judges there should be, and the Federalist expresses no opinion. At the start of the Constitutional period, only six members sat on the Supreme Court, and there was one federal judge appointed in each state. That initial cadre of 19 judges increased throughout American history. In 1837, the number of Supreme Court judges was raised to nine. By 1900, there were 113 federal judges overall. The federal appeals courts and districts courts burgeoned during the last century and, as of 2019, there were 860 federal judges under Article III of the Constitution.