After the drafting of the Constitution, there were great debates over ratification in the states. Among the issues raised by the Anti-Federalists was the scope of the power the proposed Supreme Court would have. To allay fears that the Court could become oppressive, Alexander Hamilton penned Federalist #78 in which he argued that under the Constitution, the judiciary would be “the least dangerous branch” and that judicial review would protect the people’s rights against overreaching by Congress and the executive branch. The possibility of laws that infringed on those rights was foremost in many minds and judicial review was one of the ways contemplated to deal with it. (Another was having a “council of revision” to oversee all enactments and strike down those regarded as beyond the authority of the legislature. That was James Madison’s preferred solution, but it wasn’t adopted.) The Constitution was ratified and before long the Supreme Court began to exercise its authority to declare laws invalid.

In How the Court Became Supreme, Hillsdale College history professor Paul Moreno examines the development of judicial review. He writes: “A hundred years ago, progressives griped about a Court that had taken the side of capital on the ‘social question’; half a century ago, conservatives bemoaned a Court that had taken the progressive side in the ‘culture wars.’ How did we get here?” Through a great deal of research, Moreno provides an answer.

English roots / As one would expect from a history professor, Moreno digs back in time for the origin of the idea that judges could overrule the decisions of lawmakers. He points to Dr. Bonham’s Case, which dates from 1610. England’s top jurist, Sir Edward Coke, ruled that Parliament could not allow the London College of Physicians to fine and imprison non-member Dr. Thomas Bonham, who had tread upon the guild’s turf, because that would make the College a judge in its own case and thus contrary to reason. From that acorn grew the mighty oak of judicial review, both in England and, eventually, its North American colonies.

Late in the 17th century, John Locke argued for a constitutional system of limited government where judges could step in to protect the rights of citizens. Montesquieu would subsequently write that liberty depends on there being a division of power among the legislative, executive, and judicial branches of government. Those ideas took root in America. During the years of turmoil from 1764 to 1775, British officials relied on Parliament’s authority to seek general writs, enabling them to search colonists’ papers and property as they pleased. The famed lawyer James Otis argued to the Massachusetts Superior Court that it should not issue such writs on the ground that they violated the rights of the people, citing Dr. Bonham’s Case. John Adams, then a young lawyer, heard Otis’s argument and would write in 1817 that it was “the first scene in the first act of opposition to the arbitrary claims of Great Britain.”

Marbury / Following independence, there were a few early court decisions invoking judicial review. But the big case came in 1803: Marbury v. Madison.

Moreno provides a detailed examination of the issues and the people involved. Chief Justice John Marshall was a cousin to Thomas Jefferson but a political opponent. (Jefferson regarded him “a cunning casuist.”) William Marbury was a Federalist appointed to be a justice of the peace at the very end of John Adams’ presidency. James Madison was secretary of state to the newly inaugurated Jefferson. Marbury’s commission had been signed and sealed but not delivered before the new administration took over, and Madison was not about to aid the Federalists and refused to deliver it. Marbury sued, using a provision of the Judiciary Act of 1791 to take the case directly to the Supreme Court.

Marshall cunningly decided that while Marbury was legally entitled to his commission, he had come to the wrong court because, in passing the Judiciary Act, Congress had unconstitutionally expanded the Supreme Court’s jurisdiction. In this, Marshall accomplished two things: First, he declared that the Supreme Court could nullify laws that violated the Constitution. Second, he avoided having to issue the writ of mandamus Marbury sought, which Madison would undoubtedly have ignored, thereby showing the Court’s weakness. Moreno also points out that Marbury did not further pursue the case, indicating that the suit was created to yield a certain result—a tactic that would become common in the 20th century.

Just how important was Marbury? For decades afterward, few people thought much about the case. Courts didn’t cite it. Marbury does, however, illustrate what Moreno calls “first tier” judicial review, namely cases where the courts invalidate laws that intrude on the domain of the judiciary. Marshall’s famous decision gave the country the Supreme Court that most of the Founders envisioned, but nothing more. Only later would two more tiers emerge: cases where courts struck down laws on other subjects because they conflicted with the Constitution, and cases where the courts used judicial review to make policy.

Striking down laws / The most important tier-two case decided by Marshall was McCullough v. Maryland (1824), in which the Court invalidated Maryland’s tax on notes of the Bank of the United States. The decision upset the Jacksonians who hated the Bank, but Moreno doesn’t find it amiss, writing that Marshall “exercised juris prudence, not political prudence. Many of Marshall’s successors would maintain the appearance of jurisprudence while using it as a Trojan horse for juristocracy.”

After the Civil War, the Court would become more political. It whittled away much of the 14th Amendment in the Slaughterhouse Cases. In Hepburn v. Griswold (1869), it ruled against the law requiring that “greenback” paper currency be accepted at face value as legal tender, but the following year, after President Ulysses Grant put two new justices on the Court, it reversed course and upheld the law. The most controversial case of all was Pollock v. Farmers Loan and Trust (1895), where the Court declared that the graduated federal income tax was unconstitutional. “The Court,” Moreno states, “seemed to go out of its way to invite a reaction—it chose, as one scholar put it, ‘the path of most resistance.’” Populists and progressives were furious, but a number of progressives in the legal academy concluded that their best course of action would be to start training lawyers and judges so that they could use judicial review to promote their agenda. Within a few decades that investment would pay huge dividends.

Making policy / The Court took a strong turn toward “legal modernism” with the addition of Justice Louis Brandeis in 1916. The modernists rejected the idea that judges must be bound by the written law and believed they should be free to decide cases according to their own preferences. His fellow justices said that Brandeis practiced Gefuhlsjurisprudenz, meaning “jurisprudence by sentiment.” This was the beginning of what we now call the “living Constitution” movement.

An increasingly “progressive” Court upheld some strongly interventionist state laws early in the New Deal era (e.g., New York’s milk price fixing regulation and Minnesota’s moratorium on mortgage foreclosures, both attacks on freedom of contract that the Court had formerly defended). But then in 1935, it turned against several of President Franklin Roosevelt’s new statutes, especially the National Industrial Recovery Act, which was held unconstitutional because Congress had delegated excessive power to bureaucrats to run the country.

Those decisions led to Roosevelt’s infamous threat to pack the Court with six new justices. Although the legislation to do that met with stiff opposition from his own party, the threat swayed two members to switch over to supporting the New Deal. Within a few years, the remaining traditionalist justices were gone, replaced with reliably pro-government men, and Court jurisprudence changed accordingly.

In the 1938 Carolene Products case, Chief Justice Harlan Fiske Stone set the remarkable precedent that the Court would treat some constitutional rights as more important than others. Laws that appeared to infringe upon “fundamental” rights such as voting would be scrutinized, whereas those that infringed upon rights involving contract, property, and business would receive less scrutiny. In practice, that came to mean that as long as there might be any rational basis for a regulation in those areas, the Court would stay out. This was a major leap into what Moreno calls “juristocracy”—the Court declaring that it got to say which constitutional rights were really important and which ones were second-class.

Under Chief Justice Earl Warren, the Court strode much further into judicial supremacy. Warren was noted for caring little about what the law actually said and focused on what he deemed “fair.” His first big decision was Brown v. Board of Education (1954), declaring “separate but equal” public schools unconstitutional. Among the country’s elites, the outcome was very popular, but many legal scholars who applauded it nevertheless found the legal reasoning weak.

Warren and his allies were soon joined by William Brennan, who loved the idea of using the Court to push progressive policy ideas. In the early 1960s, it waded into what had always been regarded as a political question when it declared that state legislatures must be apportioned equally. It changed criminal procedure, mandating that courts use the exclusionary rule to void any evidence obtained in violation of the defendant’s rights. It turned welfare into a right and, in Griswold v. Connecticut (1965), ruled that states could not limit access to contraceptives because of a “right to privacy.” Justice William O. Douglass found various “emanations and penumbras” of other rights in the Constitution. Juristocracy and Gefuhlsjurisprudenz were in full flower.

President Richard Nixon might have thought that his appointments to the Court would turn it away from the activism of the Warren years, but that didn’t happen. His choice for chief justice, Warren Burger, didn’t change the Court’s trajectory. One of Burger’s first major decisions was Griggs v. Duke Power (1971), where he expanded the Equal Employment Act to say that business testing that had a “disparate impact” on protected minority groups was illegal. Civil rights advocates were amazed and said that they didn’t think Burger knew what he had accomplished for them. Then in 1973, Nixon’s second appointment, Justice Harry Blackmun, authored the decision in Roe v. Wade, where the Court made abortion policy for the entire nation. Again, the result met with favor among those who had come to see the Court as the conscience of the nation, but the decision’s reasoning was widely denounced by friends and foes alike. Yale law professor John Hart Ely wrote that Roe “was not constitutional law and gives almost no sense of an obligation to try to be.”

While the Court was making new policy in some areas, it had decided to give bureaucrats a free hand to make it in many others. In the 1984 case Chevron v. Natural Resources Defense Council, the Court announced that administrative agencies should be given great deference in interpreting the scope of their authority. Moreno comments sagely, “One could say that the Court’s administrative law did more to undermine the separation of powers than did its own usurpation of the legislative function.”

Originalism? / Is there reason to think the Court might backtrack, applying the Constitution as written rather than as progressives think it should be rewritten, reining in the excesses of administrative agencies, and declining to legislate from the bench? Moreno doesn’t have much to say on that score. Originalism offers that possibility, and the current Court ostensibly has a majority who support this view. But justices have long proved creative in finding ways to argue the law and Constitution support their views. Personnel is policy and politics will determine whether we have justices who favor juristocracy.

Is the judiciary still the least dangerous branch? If so, it’s only because the legislative and executive have so burst their intended constitutional bounds that the judiciary is tame in comparison. But the legislative and executive were able to do that only with the Court’s acquiescence.