Bonus 98: The "Least Dangerous" Branch—Court Reform and Federalist 78

An increasingly common objection to even modest proposals for Supreme Court reform is that they would infringe upon judicial independence. Alexander Hamilton would've disagreed.

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For this week’s bonus issue, I thought I’d take a minute to tie current debates over Supreme Court reform back to Founding-era debates about the role of the federal courts—the “independence” of which was one of the most significant innovations to come out of the Constitutional Convention. As the contemporary Court’s defenders have begun to push back more aggressively against calls for even the most modest reforms, one of their central charges has been that virtually any reform (even those involving more oversight by judges) would infringe upon the Court’s (and the courts’) “independence.”

Somewhere along the way—whether in high school, college, or for the lawyers out there, law school, you probably read (or, at least, should have read) Federalist No. 78—Alexander Hamilton’s celebrated defense of both judicial review and judicial independence. It turns out, though, that Hamilton understood the very point that is lost on so many of today’s reform critics: independence was not, and was never meant to be, a form of isolationism. Even an “independent” judiciary is, and ought to be, heavily dependent upon the other branches of government to do their job. And although the conclusion may seem counterintuitive, that involvement has the effect of facilitating judicial independence—not undermining it.

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