On the one hand, the Framers of the Constitution wanted judges who could be independent, meaning that they could be independent of pressures from the other branches of government or the political process. On the other hand, they did not want judges who would act independently of the law itself. In all cases—not only in instances of judicial review—it would be inappropriate for judges to “substitute their own pleasure to the constitutional intentions of the legislature” (Federalist No. 78). The practical problem was (and remains): how can a constitution keep the judges immune from political pressures while at the same time keeping them beholden to “the constitutional intentions of the legislature?”
The Anti-Federalist “Brutus” believed that the Framers had accomplished the first goal all too well, but they failed at the second. Brutus denounced the Constitution for failing to provide for punitive measures should the judges exceed their authority. He pointed out that judges “cannot be removed from office or suffer a dimunition of their salaries, for any error in judgement or want of capacity.” They “are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.” He elaborated:
The only clause in the Constitution which provides for the removal of the judges from office, is that which declares, that ‘the president, vice-president, and all civil officers of the United States, shall be removed from office, on impeachment for, and conviction of treason, bribery, or other high crimes and misdemeanors.’ By this paragraph, civil officers, in which the judges are included, are removable only for crimes. Treason and bribery are named, and the rest are included under the general terms of high crimes and misdemeanors—Errors in judgement, or want of capacity to discharge the duties of the office, can never be supposed to be included in these words, high crimes and misdemeanors. A man may mistake a case in giving judgment, or manifest that he is incompetent to the discharge of the duties of a judge, and yet give no evidence of corruption or want of integrity. To support the charge, it will be necessary to give in evidence some facts that will show, that the judges commited the error from wicked and corrupt motive.
As President, Thomas Jefferson proved the prescience of Brutus’ predictions. He attempted to have Supreme Court Justice Samuel Chase removed, primarily on grounds that he allowed political bias to interfere with his judgments. In 1804, the House successfully impeached Chase, but the Senate voted to acquit in 1805. This experience led an embittered Jefferson to write during his retirement that the impeachment of judges “is scarcely a scarecrow”; it “is a bugbear which they fear not at all.” No other federal judge has since been impeached for any reason other than legal or ethical misconduct, and no other Supreme Court Judge has since been impeached for any reason whatsoever.
Hamilton, however, had never relied on the impeachment power to solve the potential problem of judicial impropriety. He relied more on the structure of the government’s branches themselves. He argued that the judiciary’s inherent weakness could be relied on to check its overreach:
The judiciary . . . has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. (Federalist No. 78)
Therefore, Hamilton anticipated that the judicial branch “can never attack with success either of the other two” – at least it could not succeed without their implicit cooperation. In other words, the checks and balances of the three branches of government will only work if each branch possesses the will and the ability to resist incursions by the others.