the TRIBUNICIAN

Introduction

When the Framers drafted the Constitution in the summer of 1787, they chose to define and explain the powers of the legislative and executive branches in Articles I and II of that document, respectively. It was in Article III that they presented and explained the powers of the judicial branch. The legislative branch would draft the laws, the executive branch would enforce the laws, and the judicial branch would adjudicate the disputes caused by the laws. The judicial branch was intended to be the “guardian” of the Constitution, and it was supposed to be a nonpolitical, interpretive branch of this new iteration of the young American republic. It is an unfortunate detail of history that the judicial branch was described last and least among the three branches.

The Constitutional Convention Origin and the Federalist Argument

During the Philadelphia Convention in the summer of 1787, when crafting the Constitution of their intended second iteration of the American republic, the Framers used the first three articles to explain the form and functions of the legislative, executive, and judicial branches, respectively. While the first article is composed of ten sections and over 2000 words, and the second article has four sections and over 1000 words, the third article has only three sections and less than 500 words. Last and least, indeed.

Of the three branches of government that the Framers crafted in the Constitution, it is likely that the judicial branch was the one that many of them were most familiar with in function (and intended form). The British Parliament, Prime Minister, and the King were an ocean away. While His Majesty’s governors-general executed his will, it was the British courts that most of the Founders and Framers had interactions with, many of them either being lawyers or men of wealth (or both), who were able to engage directly or indirectly with the British judicial system from afar. Perhaps it was this familiarity that led to the dismissive energy that seems to inform the length of Article Three of the Constitution.

The Philadelphia Convention ended in September of 1787. Within a month of that same year James Madison, Alexander Hamilton, and John Jay were authoring and distributing pamphlets arguing in favor of ratification of the new Constitution that in their collected form are now known as The Federalist Papers. It is in Federalists #78 to #83 where Alexander Hamilton's direct descriptions and justifications of the newly proposed "Judiciary Department" are featured.

In Federalist #78 Hamilton famously opined on possible future legislative overreach:

"It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents."

It was this possible overreach that Hamilton used as a justification for the power of judicial review, and it is this line of reasoning that Chief Justice John Marshall invoked when the Supreme Court first applied the power of judicial review in the now famous Marbury v. Madison decision in 1803 that invalidated Section 13 of the Judiciary Act of 1789. Most agree that Hamilton’s reasoning for judicial review was sound and its future applications justified and needed.

Sadly, it was also in Federalist #78 that Hamilton argues for the need for life tenure for Supreme Court Justices, contingent on “good behavior", in order to assure the independence of the new “Judiciary Department”:

"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 said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments."

Hamilton paraphrased Charles de Montesquieu’s Spirit of Laws when he ironically called the judicial branch the “least dangerous” of the three new branches proposed. Unfortunately, Hamilton’s contention has not aged well. In arguing in favor of the Supreme Court’s independence, he accidentally sacrificed their accountability.

The Roman and American Parallels

Because the Founders and Framers were so transparent and intentional about the Roman republic being their primary historical influence when constructing their own republic, it is natural that we fall into comparisons between the two. While comparisons are flawed by their very nature, it can be particularly difficult to compare the two most prominent republics in Western history. It appears easy to compare the two at first because both possess monarchial, aristocratic, and democratic elements. Rome had its monarchial Consuls; America has its monarchial Presidents. Both Rome and America have their aristocratic Senates. And Rome had its democratic assemblies while America has its House of Representatives. The primary reason the comparison is difficult is because while the post-Confederal American republic was designed, the post-monarchial Roman republic was adopted and adapted; it grew in an organic fashion.

While the comparisons between the Consuls and the Presidents, the Senates, and the assemblies and the House are easy to make on initial review, it is clear with further inspection that those comparisons are highly flawed and not at all equivalences. While it would be technically incorrect to say that the Roman republic had branches, for the sake of comparison it could be argued that they had two: the elected magistrates, and those who nominated and elected them, the Patrician Senate and various Plebeian assemblies composed of the citizenry, respectively. Between these two components of government, the legislative, executive, and judicial functions were shared. It’s when we begin to compare the judicial functions of the two republics that we begin to see the stark differences between the two republics. The Roman republic never established an independent judicial system; it was the elected magistrates, the Praetors, who served as judges of the courts that were composed of the assemblies with members of the Senate serving in juries. The blended nature of the Roman republican system directly contributed to legal inconsistency and a lack of professional and impersonal jurisprudence.

The Framers purposefully chose three branches with specific functions because they were directly influenced by the writings of John Locke, Adam Smith, and Montesquieu and the history of the Roman republic. While the checks and balances of the organically organized, class-based Roman system held their republic together for nearly 500 years it was the blended nature and distributed executive, legislative, and judicial functions that eventually lead to its undoing. The nonexclusive nature of those functions and the inefficiencies of the system were eventually leveraged by its more privileged members. It was because of this history that the Framers chose to compartmentalize the legislative, executive, and judicial functions into branches that were regulated by a system of checks and balances.

To say that the Roman republic failed regarding their judicial system would be inaccurate, or at the very least unfair. Whereas the Framers designed their judicial system, the Romans’ system organically grew out of necessity. This lack of design produced a haphazardly built system that was exploited by avaricious Romans with purpose. It wasn’t until the time of the Third Punic War, at the very end of the mid Roman republic period, that permanent courts were established. Prior to that the courts had been created and administered in an ad hoc fashion. The establishment of permanent courts and the simultaneous elimination of Rome’s last near peer competitor created a perfect storm for the powerful elites of Rome to begin to focus their ambitious machinations upon one another.

The establishment of permanent courts unintendedly created battlegrounds for political contests and struggles. Eventually these struggles could no longer be contained within judicial confines, and the courts and their processes were used as ex post facto (after the fact) tools to legitimize the illegal actions of victors and to criminalize the post actions of their opponents. The Servile Wars, a series of slave uprisings that saw the rise and fall of Spartacus and the beginning of the political rivalry between Gaius Marius and Lucius Cornelius Sulla Felix culminated in the first of a series of Roman civil wars. It was Sulla as the victor and in his role as Dictator who was the first to use the ex post facto legal tactics to grant himself and his political allies retroactive immunity and his political opponents a retroactive criminal status. Sulla’s tenure as Dictator peaked with the legalized bounty murders of those very same opponents. These institutionalized murders were labeled proscriptions, made legal by the courts controlled by Sulla and his allies who then seized the property and assets of those killed.

It was only twenty years later that Marcus Tullius Cicero was prosecuted for actions taken to defend the Roman republic from domestic treachery during his term as Consul. Cicero’s prosecution and eventual exile were engineered by his political opponent, Publius Claudius Pulcher, also known as Clodius. Clodius was assisted in the endeavor by his allies, the First Triumvirate, Gaius Julius Caesar, Gnaeus Pompeius Magnus, and Marcus Licinius Crassus. Crassus and Pompey had been allies of Sulla and knew how to weaponize the courts to bankrupt and eliminate their enemies. Pompey eventually had Cicero recalled from exile. It was fourteen years after that Cicero himself was killed in the proscriptions instituted by the Second Triumvirate, consisting of Gaius Julius Caesar Octavianus (Julius Caesar’s heir and the eventual first Emperor of Rome) Marcus Antonius, and Marcus Aemilius Lepidus.

At the turn of the second millennium, the American republic saw its first and only Presidential election decided by a decision of the Supreme Court. Decades of politicized Supreme Court nominations climaxed with the conservative majority of the Rehnquist Court deciding in favor of the conservative candidate George W. Bush in the landmark Bush v. Gore case. In January of 2001 George W. Bush was sworn in as the 43rd President of the United States. In 2005, William Rehnquist passed away during his tenure as Chief Justice and was replaced with Bush nominee John Roberts, who continues to serve into the latter part of 2026.

The Roberts Court has in the last twenty years overseen the slow dismantlement of the social and democratic gains of the Warren and Burger Courts. The Roberts Court has decided three controversial landmark cases that have altered the legal landscape of the United States: Citizens United v. Federal Election Commission (2010), Dobbs v. Jackson Women's Health Organization (2022), and Trump v. United States (2024). Citizens United opened the floodgates for unregulated “dark money” into the American electoral process. Dobbs overturned nearly five decades of legal precedent when it overturned the 1973 Roe v. Wade decision guaranteed women the right to abortion. And in a decision eerily like the ancient ones of the Roman courts, the Trump decision granted absolute legal immunity to sitting Presidents executing duties within their role as the President.

The judicial branch of the federal government has begun to lose its credibility with the public. The aforementioned controversial legal decisions, in addition to the embodiment of polarization of the American electorate as seen in Supreme Court nominee confirmation battles of the Senate, along with recent revelations of various social and financial connections of sitting Supreme Court Justices to the corporate faction of wealth and entitlement for whom they often adjudicate favorably, has led to a modern crisis of confidence in the Supreme Court.

A Possible Solution

The protracted Senate confirmations of Justice nominees over the past 40 years, the shifting ideological landscapes of the past 25 years, and the hyperpolarized political environment of the past 15 years have all contributed to the Supreme Court being the intersection of elite jurisprudence and modern de facto law-making that it is today. Early polarization and confirmation battles of the first 75 years of the American republic notwithstanding, the partisan nature of the Supreme Court’s decisions and the adjacent political battles at the State and federal level have created a uniquely politicized and loathed version of the Court not seen before in the history United States.

Public opinion and trust in the supposed guardians of the Constitution is approaching an unprecedented low. Chief among the issues the public has with the Court, its members, and their decisions is a perceived lack of impartiality that has damaged the credibility of the judicial branch itself. To remedy this crisis of legitimacy, I propose Congress must craft and the States must ratify a Constitutional amendment to modify the Supreme Court with the intent to restore it to its originally intended impartial, objective, and nonpolitical role as the guardian of the Constitution.

The primary issue challenging the credibility of Supreme Court is the lifetime appointment of its members. At the American republic’s inception, the legislative branch was where innovations happened and innovators were drawn. Because Congress used to be the de jure and de facto law-making body, that was where most people who were excited about public service wanted to go. At that same time, the job of a Supreme Court Justice was the one almost no one in public service wanted to fill. And now, because it has become the de facto law-making body via its far too often precedent-setting decisions and Congress’ inability to fulfill its duties as the primary legislative body due to the current hyper-partisan political environment, it is the job one no one in public service wants to leave. And the Court’s lifetime appointments allow them to do so.

The secondary issue challenging the credibility of the Supreme Court is the politicized appointment process of the Justices. Since the Depression era when Roosevelt attempted to increase the size of the Supreme Court, the Court has shown itself to be a partisan battleground of the bipolar American political landscape. How can a supposed nonpolitical position be filled by a political agent elected by a politically motivated electorate and confirmed by other political agents who are also elected by the very same electorate? The reality of the situation is that the Supreme Court has become a political body composed of politically motivated appointees.

These issues need to be acknowledged and addressed directly, appropriately, and effectively if the Court is to recover its credibility and retain its legitimacy. The American People deserve a more dynamic and less partisan Supreme Court with the following characteristics:

• 18-year appointments for Justices
• Justices may not serve more than a combined 18 years on the Supreme Court, even if they are appointed within their initial appointment to the role of Chief Justice
• a 2-year cyclical appointment process for Justices
• a process to fill unplanned vacancies due to retirement, impeachment, incapacitation, or death with temporary appointees that serve the remainder of the terms of those who created the vacancies that would not disrupt the 2-year appointment cycle or favor a Presidential administration with more than two permanent appointments

I have faith that the implementation of these changes would restore the credibility and respect of the Supreme Court in the eyes of the People, by acknowledging the political nature of the appointees and the appointment process, while providing a regular means of replacement of the Justices in an equitable and predictable manner.

Conclusion

The working class, the remnants of the middle class, and the marginalized groups and minorities that make up much of the American citizenry continue to be disappointed by the so-called impartial judicial arbiters and interpreters of the Constitution that currently are the conservative majority of the Supreme Court. From the end of the Korean War to the beginning of the 21st Century, the Supreme Court increased and strengthened the civil and electoral rights of the citizens of the American republic. Since the advent of the Roberts Court, there has been an observable change of direction as to how the conservative majority of the Court interprets the Constitution and to whom it favors when it does so, particularly the wealthy at the expense of the working class, and the executive branch at the expense of the legislative branch. The actions of the Supreme Court, beginning with their 2010 Citizens United decision gives its conservative majority the appearance of being bought and paid for by the recipients of the benefits of those decisions, their corporate sponsors. Whether they believe in their own independent and uninfluenced power of jurisprudence is debatable. What is not debatable is that the corporate faction of wealth and entitlement, cloaked and embodied in the so-called Federalist Society have leveraged the political polarization of the American republic and manipulated the federal judicial system to their benefit at the expense of the rest of the American citizenry. The United States needs to craft and ratify a Supreme Court Reform Amendment, with all deliberate speed.

References

• Beard, Mary. SPQR: A History of Ancient Rome. New York: Liveright Publishing Corporation, 2015.
• Hamilton, Alexander, John Jay, and James Madison. The Federalist. The Gideon Edition. Edited by George W. Carey and James McClellan. Indianapolis: Liberty Fund, 2001.
• Hamilton, Joseph W. 2011. "Think Piece #3." Unpublished manuscript, ENG 122-602, June 22, 2011.
• Hamilton, Joseph W. 2011. "Increase the Size of the Supreme Court of the United States." Unpublished manuscript, ENG 122-602, August 2, 2011.
• Plato. The Republic of Plato. Translated with introduction and notes by Francis Macdonald Cornford. New York: Oxford University Press, 1941.
• Shotter, David. The Fall of the Roman Republic. London: Routledge, 1994.
• Signorelli, Walter. Rome and America: The Great Republics: What the Fall of the Roman Republic Portends for the United States. Ewings Publishing LLC, 2024.
• Tacitus, Publius Cornelius. The Annals of Imperial Rome. Translated by Michael Grant. Revised edition. London: Penguin Books, 1996.
• The Constitution of the United States: A Transcription. National Archives and Records Administration. Accessed February 10, 2026. https://www.archives.gov/founding-docs/constitution-transcript
• Tranquillus, Gaius Suetonius. The Twelve Caesars. Translated by Robert Graves. Revised by J. B. Rives. London: Penguin Books, 2007.