Maybe the Anti-Federalists Were Right

The recent battle over the confirmation of (now-Justice) Brett Kavanaugh to the Supreme Court raised tempers and led to significant debate about Kavanaugh’s personal life and issues of sexuality, gender, and power.  But for the moment, I’d like to focus instead on a somewhat different question: why does the Court have so much significance to begin with?

The short answer, obviously, is the Constitution – Article III of the Constitution created a judiciary, headed by a Supreme Court.  In Federalist 78, Alexander Hamilton famously defended the power of the courts to review acts of legislation passed by the elected branches as a necessary feature of the judicial system, and the need for the judges to serve for life (“good behavior”) to protect their institutional prerogatives.

The stakes of this confirmation battle were higher than ever, with a conservative replacement to the moderate Anthony Kennedy shifting the Court dramatically to the right.  But why should this be the case?  Why should so much attention be focused on nine people who serve for life and have seemingly unlimited authority?  How does this make sense in the context of a representative government?

I would suggest that the real lesson of the Kavanaugh fight is that the Constitution is a highly flawed document that created a series of flawed institutions – and perhaps we should consider that the Anti-Federalists were largely right in their critique of the Constitution.

(Hat-tip here to a recent post by Julie Novkov, making a similar argument about the flaws of the current constitutional structure.)

Let’s start by briefly reviewing Hamilton’s defense of the judiciary.  He begins by defending the concept of judges serving during “good behavior,” a synonym for life tenure.  Hamilton states that life tenure is a “barrier to the encroachments and oppressions of the representative body,” i.e. the legislature, because the judiciary is naturally the weakest of the three branches of government:

“The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, 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.”

The metaphor of the “sword” and “purse” implies that the judiciary has neither – it can’t implement its decisions through force or through monetary consequences, and ultimately relies on the other branches for its judgments to be executed.  As a result, Hamilton argues, the judiciary is the weakest of the branches and judges therefore need the security of life tenure to protect them from the president or Congress overstepping and ignoring judicial decisions.

The Anti-Federalist writer Brutus (who may have been Robert Yates), in contrast, argued that the English precedent of life tenure didn’t apply in the context of the United States, because in England the judges could still be overturned in the House of Lords, and English judges didn’t have the authority to overturn acts of Parliament.  English judges, Brutus states, were given life tenure to make them more independent from the Crown, who otherwise could remove them at will if they made decisions unfavorable to the monarch.  Creating a strong, independent check on the hereditary king was, he argues, a major step forward in protecting liberty there – but none of this applies to the proposed Constitution.

Brutus argues that the judges in this Constitution will be effectively unchecked: “There is no power above them that can correct their errors or control their decisions.”  At least in England the House of Lords can review judicial determinations, but the proposed Constitution has no such final legislative check.  Similarly, he argues that the judges will be able to interpret the Constitution as they see fit, with no concurrent legislative ability to counter that interpretation – meaning “the judges are supreme” over the other branches of government.  In conclusion, Brutus says that while the judges certainly should not be elected, neither should such powerful, unaccountable judges be allowed to have life tenure, unless their powers are limited in some other fashion.

In retrospect, much of Brutus’ argument seems to have been borne out: while there is a natural pull-and-push between the authority of the Courts to interpret the Constitution and the ability of the other branches to bring their own constructions to bear, the Supreme Court has become our national arbiter of constitutional meaning – with surprisingly little resistance by the other branches.  The justices serve on average for longer than ever before and as a result the stakes of each nomination grow every higher, as we fight not only about one particular person but about the next 30 or 40 years during which that person will serve on the Court.  Unlike most other democracies, we don’t limit our judges to a specified term of service, which could lower the stakes of confirmation battles and give every president the same number of chances to make appointments to the court.

In my next post, I’ll continue this discussion with some thoughts about the constitutional design of the American presidency.

 

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