If you want to understand how the Supreme Court became the sinkhole of ideological extremism and corruption it is today under the leadership of Chief Justice John Roberts, you have to go back to the beginning and examine the institution’s own origin story. A good place to start is with the debates on ratification of the Constitution that played out in 1787 and 1788 in what are now known as the Federalist and Anti-Federalist papers, in which the pros and cons of replacing the Articles of Confederation with a new national charter were laid out in passionate detail.

Totaling 85 essays, Alexander Hamilton was the author of 51 of the Federalist Papers; John Jay of New York and James Madison of Virginia penned the remainder. Of the three, Hamilton was the staunchest advocate for creating an independent federal judiciary fortified with the power of “judicial review” that would enable judges to declare acts of Congress and the executive unconstitutional.

Writing under the pseudonym “Publius,” Hamilton outlined the principles of judicial review in Federalist No. 78, explaining:

The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.

Hamilton was aware of the potential for overreach, but he believed the federal judiciary would prove “the least dangerous” of the Constitution’s three branches of government. Unlike Congress and the president, he reasoned, the courts would have “no influence over either the sword or purse,” but would possess “only judgment,” rendering them repositories of detached wisdom and impartiality. To put it plainly, his argument was that we could trust the judges.

Hamilton got a lot right about the need for judicial independence, but the faith he placed in the president and the Senate to select and confirm only well-qualified judges was egregiously wrong.

This was a novel and highly controversial idea at the time and remains a subject of contention nearly 240 years later.

Among the earliest dissenters was New York state Judge Robert Yates, a delegate to the 1787 Constitutional Convention. Yates feared that the power of judicial review would result in judicial supremacy, and historians consider him the probable author of several anti-federalist tracts published under the pen name of “Brutus.”

In Anti-Federalist essay No. 14, Brutus rebuked Hamilton, writing that under the new Constitution, the Supreme Court “would be exalted above all other power in the government, and subject to no control.” In No. 15, Brutus added in words that echo eerily to the present that the Supreme Court

[will] have a right, independent of the legislature, to give a construction to the constitution and every part of it, and there is no power provided in this system to correct their construction or do it away. … Men placed in this situation will generally soon feel themselves independent of heaven itself.

Hamilton’s position triumphed, and a Supreme Court equipped with judicial review became official doctrine with the landmark 1803 decision in Marbury v. Madison. But the triumph came with a price. Although it is difficult to imagine an independent court system that lacked authority to invalidate legislative and executive acts, judicial review has proven to be a two-edged sword. It has been wielded at times to advance democratic ideals (Brown v. Board of Education) but at others to thwart, damage and reverse those ideals (Dred Scott v. Sandford, Plessy v. Ferguson, and the cases invalidating key legislative pieces of the early New Deal).

We are in one of the dark periods now. With Roberts at the helm, the Supreme Court has used the power of judicial review to tack hard to the right on a number of fronts: reinterpreting the Second Amendment to include an individual right to bear arms, undermining the legal foundations of union organizing, removing political gerrymandering from the jurisdiction of federal courts, opening election campaigns to unlimited spending by corporations and wealthy individual donors, overturning the right to abortion, endowing the president with immunity for official acts and neutering the Voting Rights Act.

Hamilton got a lot right about the need for judicial independence, but the faith he placed in the president and the Senate to........

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