Members of the founding generation naturally were anxious about the constitution’s experiment with a national judiciary and whether the checks on judicial authority found in separation of powers, federalism, and the people are adequate. They voiced various concerns. Brutus predicted that the Supreme Court would exercise its power to “melt the states into one entire government.” James Madison worried that the court would encroach improperly on the powers of Congress. Thomas Jefferson believed that the national judiciary was “the most dangerous branch.” Alexander Hamilton argued that the federal judiciary always would be “the least dangerous branch” because it “has no influence over either the sword or the purse.” John Jay fretted the Supreme Court was so defective that it would not achieve the “energy, weight, and dignity” required to be a co-equal branch of the national government or earn public respect and confidence.
Without question, judicial review and lifetime appointments have contributed to the institutional power of the United States Supreme Court and lower federal courts. The nation’s first chief justice would not recognize the institution from which he resigned and to which he declined to be reappointed. However, the federal judiciary has not “melted down the states” as Brutus feared. The states remain vibrant actors in the American political system as demonstrated, in part, by their responses to Supreme Court decisions and their role in confirming judicial nominees. Congress and the President continue to have immense constitutional and political powers over the federal judiciary, as well as complete power over whether and how to exercise those powers.
Some Americans continue to doubt that federal judges should enjoy lifetime appointments. Today, for example, former Texas Governor Rick Perry advocates amending the Constitution to place term limits on federal judges. He also contends that the Constitution should be amended to allow Congress to overturn constitutional decisions of the Supreme Court by a two-thirds vote. Whether such proposals will gain traction in the 21st century remains to be seen.
Disagreements over the appropriate role of the federal judiciary are as contentious now as they were during the founding period. As passionate as those debates may be and probably will remain, however, the insight provided by Alexis de Tocqueville should not be forgotten: the power of the Supreme Court may be immense, “but it is a power of opinion.” People must consent to obey the law. The judiciary “can do nothing once the people scorn the law.”