Constitution Sunday: “Brutus” XI

New York Journal

January 31, 1788

The Constitution’s creation of the Supreme Court raised many questions about how such a court would operate. But an anonymous author, Brutus, laid out what was likely to come from the Court, and this author described—much of it with remarkable precision—what would indeed happen to the Court in the coming decades and centuries.

He noted that the Constitution’s vagueness about what the Court’s responsibilities might include all but ensured that its power would grow as time elapsed. “Every body of men invested with office are tenacious of power; they feel interested, and hence it has become a kind of maxim, to hand down their offices, with all its rights and privileges, unimpared [sic] to their successors; the same principle will influence them to extend their power, and increase their rights . . . .” This would lead the Court to “enlarge the sphere of their own authority.”

And the dynamic of the Court would ensure it maintained its own sphere and its own authority. Parties could not appeal the Court’s decisions; legislatures were subject to the Court’s decisions—however favorable or unfavorable those decisions may be; and the justices presiding on the Court could not be removed “for making ever so many erroneous adjudications”—instead, the justices could be displaced only by “conviction of treason, bribery, and high crimes and misdemeanors.”

Then, as the scope of legislatures’ governing grew, so would the scope of the Court’s power. And each extension of that power “will increase the powers of the courts; and the dignity and importance of the judges . . . .” It was because of this that emoluments, or the returns on holding public office, would be funneled to the justices of the Court “with the increase of the business they will have to transact and its importance.” Brutus wrote, “[f]rom these considerations the judges will be interested to extend the powers of the courts, and to construe the [C]onstitution as much as possible, in such a way as to favour it; and that they will do it, appears probable.”

With no check on the Court’s power, it would be up to the Court itself and the justices themselves to assert control. Brutus concluded: “This power in the judicial, will enable them to mould the government, into almost any shape they please.—The manner in which this may be effected we will hereafter examine.”

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