Chapter 1: The History of Reforms and Reform Debates
Any account of what has precipitated today’s debate about the role and operation of the Supreme Court would be incomplete without an understanding of the long history of political debate and institutional reform surrounding the Court. This history, which dates back to the Founding and encompasses formative periods of the nation’s history, highlights how lawmakers and the public frequently have been keenly attentive to and engaged in debate about the role the Court plays within the constitutional system. Reform debates have reflected the institutional needs of an expanding nation, and they have involved partisan conflict and philosophical struggle over substantive constitutional values and the power of government to serve the needs of the people. We offer this history not to explain away or attempt to resolve today’s debate according to a particular historical standard, but rather to underscore the fact that debates about Court reform are part and parcel of U.S. constitutional history and the development of the American political order.
I. The Origins of Federal Judicial Power
In the spring of 1788, Alexander Hamilton published an essay titled The Federalist No. 78 under the pseudonym “Publius.” The piece was one of a “Collection of Essays, written in favour of the New Constitution” and addressed to “the People of the State of New York.” In it, Hamilton offered “an examination of the judiciary department of the proposed government.” Describing the role of the Supreme Court in the constitutional structure, he wrote:
Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, 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
