Judges 21:25
In those days [when the judges governed] there was no king in Israel; every man did what was right in his own eyes.
The Founding Fathers of the United States, architects of a nation founded on principles of liberty, self-governance, and checks on power, would likely view the current state of the American judiciary—particularly the decisions of unelected, lifetime-appointed lower court judges—with profound concern. The concentration of unchecked authority in the hands of federal judges, whose rulings often carry the weight of law without accountability to the electorate, would strike them as a form of judicial supremacy that surpasses even the powers wielded by King George III, against whom they rebelled. The Founders would disapprove of this system, arguing that it represents a form of tyranny contrary to their vision of a balanced republic.
The Founding Fathers were acutely aware of the dangers of unchecked authority, having experienced the arbitrary rule of King George III. Their grievances, as outlined in the Declaration of Independence, included accusations that the king had “made Judges dependent on his Will alone” and obstructed the administration of justice. This experience shaped their commitment to a government of separated powers, where no single branch could dominate the others. The Constitution, crafted in 1787, reflects this philosophy through its careful delineation of legislative, executive, and judicial roles, each designed to check the others.
The judiciary, as outlined in Article III, was intended to be the “least dangerous” branch, as Alexander Hamilton famously argued in The Federalist No. 78. Hamilton emphasized that the judiciary lacked the purse (controlled by Congress) and the sword (wielded by the executive), possessing only the power of judgment. The Founders envisioned judges as interpreters of the law, not makers of it, bound by the text of the Constitution and statutes passed by elected representatives. Lifetime appointments, justified by Hamilton, were meant to ensure judicial independence from political pressures, not to grant unaccountable authority to reshape society according to personal or ideological preferences.
Yet, the Founders were not naive about the potential for judicial overreach. James Madison, in The Federalist No. 51, stressed the necessity of checks and balances to prevent any branch from usurping power. The judiciary’s role was to apply the law impartially, not to create it or override the will of the people as expressed through their elected representatives. The notion that unelected judges could issue rulings with far-reaching societal impact, unchecked by democratic processes, would have alarmed the Founders as a betrayal of their republican ideals.
In the contemporary United States, lower federal court judges—appointed for life and unaccountable to the public—have increasingly assumed roles that extend beyond interpretation to policymaking. Through decisions on issues ranging from immigration to environmental regulation, these judges often issue nationwide injunctions or rulings that effectively rewrite laws, bypassing the legislative process. This phenomenon, often described as judicial supremacy, grants judges powers that rival or exceed those of the elected branches, a situation the Founders would have found antithetical to their vision.
One key example is the use of nationwide injunctions by district court judges. These injunctions, issued by a single judge, can halt the implementation of executive or legislative policies across the entire country. Such actions effectively give a single unelected official the power to override the will of Congress or the president, disrupting the balance of power. The Founders, who designed a system where the legislature represents the people’s will and the executive enforces it, would see this as a dangerous concentration of authority. King George III’s ability to influence colonial judges was limited by geography and the lack of centralized power; modern judges, by contrast, can wield national influence with a single ruling, a scope of power that would have shocked the Founders.
Moreover, the lifetime tenure of judges, while intended to protect judicial independence, has in practice insulated some judges from accountability. Unlike elected officials, who face periodic voter scrutiny, or even King George, whose actions were constrained by parliamentary and colonial resistance, federal judges answer to no one once appointed. This lack of accountability allows judges to impose their ideological preferences under the guise of constitutional interpretation, a practice the Founders explicitly sought to avoid.
The Founders’ rebellion against King George III was driven by his perceived tyranny, including his manipulation of judicial processes to enforce his will. Yet, the powers of modern federal judges often exceed those of the king in scope and impact. While George’s influence over colonial judges was significant, it was not absolute, and his decrees were often limited by practical constraints, such as distance and colonial defiance. In contrast, a single district court judge today can issue a ruling that halts a national policy, affecting millions of citizens with no immediate recourse.
For instance, consider cases where lower court judges have blocked executive orders on immigration or environmental policy. These rulings often rely on expansive interpretations of constitutional provisions or statutes, effectively creating new law rather than applying existing law. The Founders would have viewed such actions as a form of judicial tyranny, where unelected officials usurp the roles of Congress and the president. Thomas Jefferson, a vocal critic of judicial overreach, warned in 1820 that allowing judges to act as “the ultimate arbiters of all constitutional questions” would place the nation “under the despotism of an oligarchy.” His fears seem prescient in light of modern judicial practices.
Furthermore, the Founders would have been troubled by the lack of democratic recourse against judicial decisions. While the king’s actions could be challenged through colonial assemblies or rebellion, modern judicial rulings are often insulated from immediate challenge, except through lengthy appeals processes or rare legislative overrides. This dynamic creates a system where the judiciary can act as a super-legislature, imposing its will without fear of reprisal, a power dynamic the Founders explicitly rejected.
The Founders designed a republic where sovereignty resides in the people, expressed through their elected representatives. The judiciary’s role was to ensure that laws and actions conformed to the Constitution, not to substitute its judgment for that of the people’s representatives. Modern judicial supremacy undermines this principle by allowing unelected judges to override democratic processes. For example, when a single judge strikes down a law passed by Congress or a policy enacted by a president, it effectively nullifies the will of millions of voters, a scenario the Founders would have found intolerable.
This erosion of republican principles is compounded by the increasing politicization of the judiciary. The Founders assumed that judges, insulated by lifetime tenure, would remain impartial arbiters. However, the appointment process has become a battleground for ideological agendas, with judges often selected for their perceived alignment with specific political or social outcomes. Once appointed, these judges can advance their views through rulings that shape public policy, bypassing the democratic process. The Founders, who valued deliberation and consensus through elected bodies, would see this as a perversion of their intended system.
The Founders would likely advocate for reforms to restore the judiciary to its intended role. One possibility is limiting the scope of lower court rulings, such as restricting nationwide injunctions to the specific jurisdictions of the issuing court. This would align with the Founders’ emphasis on localized governance and prevent a single judge from wielding disproportionate power. Another potential reform is revisiting lifetime tenure, perhaps introducing term limits or mandatory retirement ages to ensure accountability without compromising independence.
Additionally, the Founders might support strengthening the other branches’ ability to check the judiciary. For example, Congress could use its constitutional authority to limit the jurisdiction of federal courts in certain cases, as provided in Article III. The executive could also play a role by appointing judges committed to judicial restraint, though this risks further politicization if not carefully managed. These measures would reflect the Founders’ commitment to checks and balances, ensuring that no branch, including the judiciary, becomes supreme.
The Founding Fathers, having fought a revolution against concentrated and unaccountable power, would be deeply troubled by the current state of the American judiciary. The ability of unelected, lifetime-appointed by hyper partisan politicians as lower court judges to issue rulings with national impact, often overriding the will of elected representatives, represents a form of judicial supremacy that surpasses the powers of King George III. This system undermines the republican principles of self-governance, checks and balances, and accountability that the Founders enshrined in the Constitution. By allowing judges to act as policymakers rather than interpreters of the law, the modern judiciary risks becoming the very tyranny the Founders sought to prevent. To restore their vision, Chief Supreme Court Justice John Roberts must step up with reforms to limit judicial overreach and reaffirm the primacy of the people’s will in a constitutional republic.
Editorial comments expressed in this column are the sole opinion of the writer.
