Was the Supreme Court Supposed to Have This Much Power?
September 23, 2026
Every few months, a single sentence from nine unelected judges has the potential to reshape American life. Abortion, guns, presidential immunity, the reach of federal agencies: these questions land at the Supreme Court, and whatever the Court says is treated, by nearly everyone, as the final word. The losing side complains, writes op-eds, organizes marches, and then complies. That reflex feels as old as the Constitution itself.
And yet, the idea that the Supreme Court speaks the last word on what the Constitution means is a mostly a twentieth-century invention, and for most of American history it was contested by presidents, senators, and even by the justices themselves. Recovering that older argument does not settle today’s disputes, but it does something more useful. It shows that the Court’s current position in American life was built, not inherited.
Brutus Saw It Coming, and Hamilton Did Not Deny It
The warning arrived before the Constitution was ratified. In the spring of 1788, the Anti-Federalist writer known as Brutus read Article 3 and concluded that the new federal judiciary would become the most powerful institution in the country. His reasoning was simple. The judges would have jurisdiction over cases arising under the Constitution itself, and they would hold their offices for life. Nothing would restrain them. Eventually, Brutus predicted, they would consider themselves independent of heaven itself.
Alexander Hamilton could have waved this away. Instead, in Federalist 78 through 83, he conceded the central point. Under a limited constitution, one that authorizes Congress to do certain things and explicitly forbids others, such as bills of attainder and ex post facto laws, judges will necessarily decline to enforce laws Congress had no authority to pass. Yes, Hamilton said, this power will exist, and it is proper and valuable that it should.
His reassurance came from a different direction. The judiciary, he argued, is the least dangerous branch. It commands neither the purse nor the sword. It has neither force nor will, only judgment, and it depends on the executive to give its rulings effect. In the less frequently assigned Federalist 81, Hamilton added another safeguard: judges who persist in usurping legislative authority can be impeached and removed. That remedy has been attempted exactly once, against Justice Samuel Chase in 1805, and it failed.
There is a deeper irony buried in Brutus’s complaint. As an Anti-Federalist, his real fear was not that judges would strike down too many laws but that they would uphold too many, blessing expansive readings of congressional power at the expense of state sovereignty. What he wanted, in effect, was a bench willing to say no to Congress more often. Thomas Jefferson would voice the same frustration a generation later about John Marshall’s Court.
The Marbury Myth
Ask most Americans where the Court’s power to strike down laws came from, and they will name Marbury v. Madison. The 1803 decision does deserve its place in the textbooks. It was the first time the Supreme Court held a provision of federal law unconstitutional, ruling that the Judiciary Act of 1789 had improperly expanded the Court’s original jurisdiction to include writs of mandamus. William Marbury, denied his commission as justice of the peace, was told to seek relief somewhere else, and no such place existed.
But Marbury did not invent anything. Seven years earlier, in Hylton v. United States, the Court heard a challenge to a federal carriage tax and upheld it under the taxing power. Throughout that case, everyone assumed that if Congress had exceeded its authority, the Court would have struck the tax down. The power was simply understood to be there.
It was understood because it follows from the text. Join Article 3’s grant of jurisdiction over cases arising under the Constitution to Article 6’s declaration that the Constitution is the supreme law of the land, with federal statutes supreme only when made in pursuance of it, and the conclusion is difficult to avoid. Courts must decline to apply invalid federal laws.
One more detail unsettles the standard story. Marshall never used the phrase “judicial review.” Neither did the founders, nor the nineteenth-century Court. The term originated in administrative law in the late 1800s, describing judges checking whether agencies had statutory authorization. Princeton’s Edward Corwin borrowed it for constitutional law and popularized it with an influential 1914 article. Crucially, Corwin treated judicial review and judicial supremacy as the same thing, and he credited the whole project to Marshall. The myth has an author.
Presidents Who Refused to Take No for an Answer
For most of the nineteenth century, the notion that a Supreme Court ruling bound every other officer of government was openly rejected at the highest levels.
Andrew Jackson vetoed the re-chartering of the Bank of the United States in 1832, thirteen years after McCulloch v. Maryland had upheld the Bank’s constitutionality. Jackson said plainly that he was not bound by the Court’s judgment. What is remarkable is Marshall’s private reaction, preserved in his correspondence. He regretted the policy outcome, since he thought the Bank useful, but he did not object to Jackson’s claim of independent constitutional judgment. Marshall himself appears to have been what scholars call a departmentalist, someone who regards each branch as having its own sphere of constitutional interpretation with decisive effect in its own field of action.
Abraham Lincoln went further. In a lengthy speech on June 26, 1857, rebutting Chief Justice Taney’s Dred Scott opinion, he argued that officeholders in other branches were not bound to accept the ruling’s interpretation of citizenship or of congressional power over slavery in the territories. He repeated the point against Stephen Douglas throughout their 1858 debates. Then he acted on it. As president, he directed the State Department to issue passports to free Black Americans, a privilege of citizenship the Taney Court had denied. In 1862, Congress reenacted the prohibition on slavery in the western territories that Dred Scott had declared unconstitutional.
Franklin Roosevelt’s confrontation with the Court looks superficially similar but is fundamentally different. His 1937 court-packing plan, dressed up as relief for aging justices, would have given him six new appointments no matter how the sitting members responded. The plan failed, yet Roosevelt never questioned the Court’s ultimate authority. He wanted more politically compliant interpreters, not a smaller role for interpretation.
Two institutional changes in the same era mattered more than the fight itself. William Howard Taft, the only president ever to serve as Chief Justice, secured both the marble temple the Court moved into in the 1930s and the Judiciary Act of 1925, which handed the justices near-total control over their own docket. Freed from routine appeals, the Court now selects only the cases it considers nationally significant. Felix Frankfurter recognized what that meant: an ordinary court of law had become a concentrated political tribunal.
The explicit claim of supremacy arrived later still. In Cooper v. Aaron, decided in 1958 amid the desegregation crisis, the Court assembled a syllogism. Article 6 makes the Constitution supreme. Since Marbury, the Supreme Court has authoritatively interpreted the Constitution. Therefore what the Court says the Constitution means is the Constitution. The logic is sound. The minor premise is false. Marbury asserted no such thing, and the reading that says otherwise hangs on half a dozen words pulled from a single sentence.
Occasionally a justice notices the weight of the claim. Dissenting in Obergefell v. Hodges in 2015, Chief Justice Roberts called the decision an act of judicial supremacy over a question that was none of the Court’s business, and asked who the justices thought they were. That question, once ordinary in American politics, is now rare enough to sound radical.