During the course of debates leading up to ratification of the Constitution of the United State, strong arguments were made by Alexander Hamilton about the role and structure of the judiciary.
Less known were the views of the Anti-Federalists – those who feared that the Constitution did not go far enough to preserve individual liberties and that there were dangers that any one branch could gain and use too much power.
The Anti-Federalists, a group of early American thinkers opposed to the ratification of the U.S. Constitution, had significant concerns about the power of the judiciary.
One of their primary fears was that the judicial branch, as outlined in the Constitution, would become too powerful and unaccountable. In particular, they worried that federal judges would be appointed for life with no effective checks on their authority. The Anti-Federalists, including prominent figures like Brutus (likely Robert Yates) and Mercy Otis Warren, argued that this arrangement would enable the judiciary to interpret the Constitution in ways that might undermine the rights of states and individuals.
Brutus, in his famous Anti-Federalist Papers, warned that the judiciary could use its power to expand federal authority far beyond what was intended, particularly through judicial review—the ability to declare laws unconstitutional. He believed that the courts would eventually become independent of the people and the states, making decisions that could not be easily overturned or challenged.
These concerns resonate today in debates about the role of the judiciary, particularly the Supreme Court. Critics argue that the court has amassed too much power, shaping policy in areas such as healthcare, voting rights, and corporate influence without being subject to democratic oversight. The lifetime appointments of federal judges, as the Anti-Federalists feared, have led to a judiciary that can hold sway over crucial national matters for decades, regardless of shifts in public opinion or elected leadership.
Recent cases such as Dobbs v. Jackson Women’s Health Organization and Citizens United v. FEC demonstrate how the judiciary can shape major societal issues, sometimes overturning longstanding precedents. The Anti-Federalists’ concerns about the unchecked power of the courts and the lack of accountability to the people have, in many ways, come to pass in modern America, fueling ongoing debates about judicial reform and the limits of judicial authority.
The Federalist Papers, particularly through Alexander Hamilton in Federalist No. 78, argued that federal judges, especially those on the Supreme Court, should be appointed based on their integrity, legal expertise, and ability to remain independent from political pressures. Lifetime appointments were considered essential to ensure judicial impartiality, allowing judges to interpret laws without fear of political retribution or influence.
In contrast, the Anti-Federalists feared that lifetime appointments would create an unaccountable, elitist judiciary, distant from the will of the people and prone to overstepping its authority by expanding federal power through judicial review.
In hindsight, both perspectives have merit. While lifetime tenure has helped preserve judicial independence, as the Federalists hoped, the Anti-Federalists’ fears of an unaccountable judiciary that wields considerable influence have also materialized.
The modern Supreme Court has faced criticism for making decisions that shape national policy without direct accountability to voters, suggesting the Anti-Federalists’ concerns were not unfounded.