Of the many incoherent and tendentious arguments now plaguing the American right, its continued commitment to judicial supremacy stands out as a prominent sign of intellectual rot. As I recently argued in an essay at Chronicles, too many on the right now embrace the liberal norm of judicial supremacy, forgetting the important work conservatives did a generation ago to condemn it. Given this shift, it is worthwhile to delve further into the flaws of mainstream conservatism, particularly its approach to the role of the judiciary.

The shift towards an embrace of government by the judiciary coincided with the relative successes of legal conservatism in electing more originalist judges who maintain lifetime appointments.

As Russell Kirk put it in his 1991 book, The Conservative Constitution, the Supreme Court, going back to at least 1950, had come to possess powers “not conferred upon the judicial body of any country,” transforming itself into “a reforming council, politicized.” This happened even though the American Republic was alone among the great powers of the earth in having never deliberatively altered its general frame of government. Like L. Brent Bozell Jr. before him, Kirk complained of the “strong tendency of our courts of law, the Supreme Court of the United States in particular, to remold our political and social institutions nearer to the judges’ hearts’ desires.”

Today’s mainstream conservatives, in response to this, would likely argue that an insistence on originalism is the solution to the problem of judicial policymaking. But this overlooks the key underlying shift Bozell analyzes in his 1966 book The Warren Revolution. The Supreme Court, with lower courts following, did not merely become a roving constitutional convention—it did so by fundamentally changing the relationship between the written and unwritten Constitution, making its rulings a new and permanent form of constitutional change. 

If the Court’s leanings have shifted significantly over the last few decades, its underlying claims to supremacy within our constitutional system have not. Mainstream conservatives respond to such concerns by citing Federalist #78 and Marbury v. Madison, pointing out that the founders considered the need for an independent judiciary crucial, including the power to declare legislative acts in contravention of the Constitution null and void.

Yet, there were crucial limiting circumstances to Hamilton’s analysis in his commentary on the subject in the Federalist. For one, Hamilton assumed that the judiciary would be by far the weakest branch, famously asserting it had neither “force nor will” but merely judgment. As George Carey puts it in his analysis of the Constitution’s design , The Federalist: Design for a Constitutional Republic, Publius, in “emphasizing the inherent weakness of the judiciary,” was simply “pointing up the imperative need for permanent tenure.” Hamilton’s argument for judicial review, Carey suggests, was to emphasize a general theory of a written and limited Constitution. Fitting with Madison’s work in Federalist 51, Hamilton argues that the provision for tenure during good behavior would strengthen the weakest branch by making it less vulnerable to being swallowed up by the other branches. Such concerns no longer apply to the modern Court and its claims to judicial supremacy a situation that  allows the courts to work with the other branches to expand federal power.

Hamilton also noted in the Federalist that the power of judicial review did not “imply a superiority of the judiciary to the legislative power” because the power of the judiciary was derived from the principle that “every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void.” Thus, no legislative act in contravention of the Constitution was valid, as otherwise it would imply that the “representatives of the people are superior to the people themselves.” Further, as Carey notes, the use of the words and phrases “bound down, strict rules and precedents, and indispensable all serve to narrow the range of judicial discretion.,” Hamilton considered the judiciary to be playing a passive and highly circumscribed role in our constitutional system. The modern court, to be certain, plays a very active role in our system, exercising its will and possessing the capacity to achieve, implement, and advance legislative goals.

Hamilton did not just harp on the significance of judicial review or tenure, either. He emphasized the need for the right kind of judges and justices, believing that only a particular class of citizens with “fit character” could hold the responsibilities and duties he outlined. As Hamilton put it in Federalist 78:

To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents…it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind…there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge.

Hamilton believed that only with a guarantee of life tenure would such distinguished citizens join the bench. At the same time, The Federalist cannot be reduced to the strong endorsement of judicial review in Federalist 78. As Bozell reminds us, the “most arresting aspect” of The Federalist’s answer to the problem of a “final authority” for constitutional interpretation is that it precludes any such authority. The enforcement of constitutional limitations was not the “peculiar providence” of the Court. After all, in Federalist 81, Hamilton admitted that while he believed a legislature could not “reverse a determination [by the Court] once made,” it could prescribe a new rule for future cases. As Bozell puts it, Hamilton retreated so far from the teaching of Federalist 78 “as to leave him, at the end of The Federalist, an opponent of the doctrine of judicial supremacy.”

Mainstream conservatives, in their embrace of the modern court’s outsized role and power, reject the constitutional morality and framework of the founders while failing to recognize the vast, consequential shift away from the assumptionsof The Federalist that characterized the Warren Revolution. Sixty years ago, William F. Buckley Jr. recognized that the Warren Court’s “fanatical extension of a doctrine of judicial supremacy which over a period of 150 years has been creeping up on us.”  Those who claim his mantle would do well to follow his advice to resurrect the “old ideal” of limited judicial power.