Case Study 2: Was Brutus Right? Anti-Federalist Paper No. 11 and Two Centuries of Judicial Review

A warning from 1788, judged against 235 years of constitutional history

On January 31, 1788, an anonymous writer using the pseudonym "Brutus" — most likely Robert Yates of New York, though scholars have debated the identification — published the eleventh of his sixteen Anti-Federalist essays in the New York Journal. The essay was titled, in modern editions, "The Power of the Judiciary." Its argument can be summarized in a single sentence: under the proposed Constitution, the federal courts will gradually and inexorably expand the power of the federal government and constrict the power of the states, and they will do so without effective accountability, because the federal judges hold their offices for life and are removable only by impeachment.

This case study walks through Brutus's argument, then walks through how seven landmark Supreme Court cases — Marbury v. Madison (1803), Dred Scott v. Sandford (1857), Lochner v. New York (1905), Brown v. Board of Education (1954), Roe v. Wade (1973), Citizens United v. FEC (2010), and Dobbs v. Jackson Women's Health Organization (2022) — variously confirmed, complicated, or transformed his prediction. It then closes with the question that has divided constitutional commentators across the political spectrum for two centuries: was Brutus right? The honest answer, as we will see, is that he was right in important ways, but not in the simple way that either his admirers or his critics often suggest.

What Brutus argued

Brutus's central observations were structural, not partisan. The federal courts, he wrote, would have:

1. Life tenure, removable only by impeachment, which makes them effectively unaccountable.
2. Authority over a Constitution whose key terms ("necessary and proper," "general welfare," "commerce among the several states") are vague.
3. The power to interpret their own jurisdiction, since the question of whether a particular controversy is within federal judicial power is itself a federal judicial question.
4. Both equity and law jurisdiction, allowing them to fashion remedies as they saw fit.
5. No effective check on their interpretive choices, since Congress can override only by constitutional amendment, which is practically very difficult.

Brutus's prediction, drawn from these structural features, was that the Supreme Court would, over time, "construe the Constitution and laws... as may strike the minds of the judges as right and proper, without any control." He worried that judges would:

• Expand federal power by reading enumerated powers (especially "necessary and proper" and the commerce power) broadly.
• Contract state power by reading the limits on states (the contract clause, the supremacy clause) broadly.
• Resolve textual ambiguity in the federal government's favor, because federal judges are themselves federal officials with institutional incentives to expand federal jurisdiction.
• Eventually exercise a power so vast that the Court would, in practical effect, "mould the government, into almost any shape they please."

Brutus did not predict any specific case. He was reasoning from constitutional structure to long-run institutional behavior. The question is whether the long run has confirmed him.

Seven cases

Marbury v. Madison (1803)

The first major confirmation of Brutus's argument came fifteen years after the Constitution's ratification. Marbury v. Madison established the doctrine of judicial review — the Supreme Court's authority to strike down acts of Congress as unconstitutional. The case is famous, and Chapter 11 walks through it in detail. For our purposes, the key point is that the Court asserted a power that the Constitution does not explicitly grant, drawing on Hamilton's reasoning in Federalist No. 78 (which Brutus had specifically critiqued). Chief Justice John Marshall's opinion held that "It is emphatically the province and duty of the judicial department to say what the law is." That sentence — and the institutional practice it inaugurated — is the foundation of the modern American judiciary.

Brutus had predicted that this would happen. He had also worried about it. Marbury confirmed his reading of the Court's institutional logic.

But Marbury also has a complicating feature. The specific holding favored limiting the federal judiciary — Marshall declined to issue the writ Marbury sought, on the ground that the statute authorizing the writ was itself unconstitutional. The Court asserted vast power and exercised restraint in the same opinion. This pattern — institutional aggrandizement combined with case-specific modesty — would recur throughout the Court's history.

Dred Scott v. Sandford (1857)

If Marbury established the Court's interpretive authority, Dred Scott showed how badly that authority could be exercised. Chief Justice Roger Taney's majority opinion held that no Black person, free or enslaved, could be a citizen of the United States, and that Congress had no constitutional authority to prohibit slavery in federal territories. The Missouri Compromise of 1820, under which Congress had outlawed slavery in northern territories, was struck down as unconstitutional.

The decision was a moral and political catastrophe. It accelerated the Civil War. It is now universally regarded — across the entire political spectrum — as one of the worst Supreme Court decisions in American history. Its specific holdings were overturned by the Thirteenth and Fourteenth Amendments.

For our purposes, Dred Scott is the case in which Brutus's warnings most directly cashed out. The Court used vague constitutional language to impose on the country a substantive policy outcome (the protection of slavery in the territories) that the political branches had explicitly attempted to forbid. The Court was unaccountable. The political branches could not override the decision through ordinary legislation. It took a war and three constitutional amendments to undo it.

Lochner v. New York (1905)

If Dred Scott showed the dangers of judicial overreach in the service of slavery, Lochner showed the dangers of judicial overreach in the service of laissez-faire economics. The Court struck down a New York law limiting the working hours of bakery employees, on the ground that the law violated the "liberty of contract" implicit in the Fourteenth Amendment's due process clause.

Lochner inaugurated the so-called "Lochner era," from roughly 1905 to 1937, during which the Court repeatedly struck down state and federal economic regulation — minimum wage laws, child labor laws, agricultural regulations — on similar substantive due process grounds. Justice Oliver Wendell Holmes's dissent in Lochner became the canonical objection: "The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics." That is, the Court was reading its own laissez-faire ideology into the Constitution.

The Lochner era ended with the New Deal switch in 1937, when the Court — under political pressure including Franklin D. Roosevelt's threatened court-packing plan — abandoned aggressive review of economic legislation. Lochner itself is now widely (though not universally) treated as wrongly decided.

For our purposes, Lochner shows another pattern Brutus had foreseen: the Court using vague constitutional terms (here, "due process of law") to impose substantive policy outcomes. And here, importantly, the substantive ideology being imposed was conservative and libertarian. Brutus's prediction was structural; it did not depend on the ideological direction of the Court's overreach.

Brown v. Board of Education (1954)

Brown is the case that complicates the story most. The Court unanimously held that "separate but equal" public education violated the Equal Protection Clause of the Fourteenth Amendment. Segregated schools were, the Court ruled, inherently unequal. The decision overturned Plessy v. Ferguson (1896) and laid the legal foundation for the dismantling of Jim Crow.

Brown is now celebrated across the American political spectrum. Almost no serious legal commentator argues, in 2026, that Brown was wrongly decided. But Brown was, in important respects, an exercise of judicial power exactly of the kind Brutus had warned about. The Court read the Equal Protection Clause to require an outcome (the desegregation of public education) that the political branches, especially the Southern political branches, had explicitly refused to require. The Court relied on social-science evidence (including the famous "doll studies" by Kenneth and Mamie Clark) that originalists would later argue had no proper place in constitutional interpretation. The decision required massive ongoing judicial enforcement, including federal court oversight of school districts that lasted decades.

So: Brown was, by the Brutus diagnosis, the same kind of judicial overreach that Dred Scott and Lochner had been. The difference was that Brown was right.

This is the complication. If the Court's structural willingness to override the political branches is dangerous in the abstract, it is also the structural willingness that produced Brown. The Brutus argument cannot easily distinguish between Dred Scott and Brown on structural grounds alone. The distinction has to come from somewhere else — from the substantive merits, or from the moral progress the decisions did or did not advance.

This is the argument modern liberals (in the broad sense) have made against the Brutus diagnosis: the unaccountable Court is sometimes the only available defender of minority rights against a hostile political majority, and we should accept the cost in democratic accountability for the benefit of constitutional protection of fundamental rights. It is a serious argument. It is also one that, when the political balance of the Court shifts, sounds different to the people who made it.

Roe v. Wade (1973) and Dobbs v. Jackson Women's Health Organization (2022)

The most ideologically contested example in modern American constitutional history runs through these two decisions. Roe (1973) held that the Constitution protected a woman's right to terminate a pregnancy, drawing on a "right to privacy" the Court had developed across several cases (Griswold v. Connecticut 1965, Eisenstadt v. Baird 1972). The right was anchored in the Due Process Clause of the Fourteenth Amendment, in much the same way that Lochner's liberty-of-contract right had been. Justice Harry Blackmun's majority opinion structured the constitutional protection through a trimester framework, restricting state regulation differently in each stage of pregnancy.

Roe was, for nearly fifty years, the most intensely contested case in American constitutional law. Conservative legal critics argued, often citing the Brutus argument explicitly, that the Court had imposed a contested social policy on the entire country without textual support and without democratic accountability — that abortion policy was the kind of question the Constitution left to state legislatures, and the Court had usurped that decision. Progressive legal defenders argued that the right to bodily autonomy was a fundamental constitutional right that the political process had failed to protect — exactly the kind of case in which the Court's institutional independence served the constitutional order.

Dobbs (2022) overturned Roe. Justice Samuel Alito's majority opinion held that the Constitution did not protect abortion rights and that the question was returned to state legislatures. Dobbs was, by the dissent's account, an exercise of judicial overreach: the Court overturning fifty years of precedent, abandoning a right that millions of Americans had ordered their lives around, with no clear constitutional warrant beyond the majority's reading of original meaning. By the majority's account, Dobbs was a correction of judicial overreach: the Court returning a contested moral question to the political process, where it should always have been.

Notice the symmetry. The same institutional move — the Court overriding the apparent political consensus to impose its own reading of constitutional text — was made by Roe (in the progressive direction) and by Dobbs (in the conservative direction). Different observers, at different moments, have invoked Brutus's argument against whichever decision they disliked. Conservatives invoked Brutus against Roe for fifty years. Progressives have invoked Brutus against Dobbs since 2022. Both invocations, on their own terms, have force. Both rest on the same diagnosis Brutus made in 1788.

Citizens United v. FEC (2010)

Citizens United held that the First Amendment prohibits the government from restricting independent expenditures by corporations and labor unions in support of or in opposition to political candidates. The decision struck down provisions of the Bipartisan Campaign Reform Act of 2002 (the McCain-Feingold law) and overturned earlier precedents that had allowed limits on corporate political spending.

Citizens United is one of the most controversial Supreme Court decisions of the modern era, and Chapter 34 of this book is devoted to it and to money in politics generally. For our purposes here: like Roe and Dobbs and Lochner, Citizens United is a case in which the Court used a vague constitutional clause (here, the First Amendment) to override the considered judgment of the political branches on a question (campaign finance regulation) that has substantial democratic-process implications. The decision was 5-4, sharply divided along ideological lines. Critics — including Justice John Paul Stevens in dissent — argued that the majority had read the First Amendment to compel an outcome the framers had not envisioned and most Americans did not want. Defenders argued that the First Amendment's protection of political speech is precisely the kind of fundamental right the Court is institutionally designed to defend, even against majoritarian opposition.

Brutus's diagnosis fits.

The honest answer

Was Brutus right?

The honest answer is: yes, in important ways. The federal judiciary, and especially the Supreme Court, has become enormously more powerful than the framers expected. It has imposed itself decisively on questions — slavery, economic regulation, civil rights, abortion, campaign finance, gun rights, election administration — that the political branches and state governments had often considered closed or that the framers had not foreseen at all. It has exercised its power through interpretation of vague constitutional terms ("due process," "equal protection," "the freedom of speech") whose application to specific modern questions cannot be fully derived from the text. And the Court has been only weakly accountable; the principal mechanisms — constitutional amendment, court reform, ignoring decisions — are politically very difficult.

But Brutus's argument has limits, and they matter.

First, the substantive direction of judicial overreach has not been monotonic. The Court has overreached in conservative directions (Dred Scott, Lochner, Citizens United, Dobbs — depending on your priors) and in progressive directions (Brown, Roe, Obergefell). Brutus's structural worry was about unaccountable power, not about ideological direction. To the extent that the Court has used its power to advance both progressive and conservative substantive ends at different historical moments, the structural critique is more durable than any partisan critique.

Second, the cases that look most like Brutus's worry from a structural standpoint sometimes look very different morally. Brown was a paradigm case of judicial override of the political process. It was also, by virtually every modern moral standard, the right outcome. Brutus's diagnosis cannot, by itself, distinguish good from bad uses of judicial power. The diagnosis is a warning about a category of risk; it is not a verdict on every case.

Third, some form of judicial review may be inseparable from a written constitution that purports to constrain ordinary legislation. If the Constitution is supreme over legislation, and someone has to decide which is which when they conflict, then the structural argument for judicial involvement is hard to avoid. Brutus's solution would have been to give that authority elsewhere, or to make the federal courts dramatically less powerful. It is not clear that any feasible alternative would have produced a stable constitutional order over two and a half centuries.

So: Brutus was right that the federal judiciary, as designed, would become a powerful and weakly accountable institution that would impose its own readings of the Constitution on the political branches. He was right that this was a structural feature, not an accident of personnel. He was right to worry about it. He was probably wrong that the alternative — drastically weakening the federal courts — would have produced better outcomes; the historical record contains too many cases (Brown, Loving, Gideon) in which a powerful federal judiciary protected fundamental rights against political majorities that had failed to do so.

The point is not to celebrate Brutus or to dismiss him. The point is to take him seriously. Most modern constitutional debates — over the Roberts Court, over court-packing proposals, over jurisdiction-stripping, over judicial term limits, over the balance between democratic legitimacy and constitutional rights enforcement — are extensions of arguments Brutus first articulated in 1788. He was the most thoughtful institutional critic of the federal judiciary at the founding, and his structural insights remain among the most useful tools for analyzing American constitutional politics today.

Whichever side of the modern Court debates you find yourself on, you are arguing Brutus's argument — even if, like most participants in those debates, you are arguing it without knowing it.