In June 2022, the Supreme Court of the United States overturned Roe v. Wade.
Regardless of your position on that outcome, consider the mechanics of how it happened. Nine people, appointed for life, confirmed by a Senate that represents states rather than population, accountable to no election and no recall, made a decision that immediately altered the legal rights of 167 million American women. There was no vote. There was no appeal. The constitutional amendment process that could theoretically reverse such a decision has succeeded twenty-seven times in 235 years and requires supermajorities in both Congress and the states that the current political environment makes nearly impossible.
The decision was 5-4. It turned on the votes of three justices appointed by a president who lost the popular vote and confirmed by a Senate majority representing a minority of the American population.
This piece is not about whether the outcome was correct. Reasonable people hold strong and opposing views on that question and the underlying constitutional issues are genuinely complex. This piece is about the structure, about the fact that nine unelected, lifetime-tenured officials exercise this kind of authority over the daily lives of 335 million people, with no meaningful check, and that a writer named Brutus predicted exactly this in January 1788 and explained precisely why it would happen.
The Prediction in Full
Brutus published his eleventh letter on January 31, 1788. He was analyzing Article III of the proposed Constitution, the judiciary article, and what he found alarmed him more than almost anything else in the document.
The Court, he argued, had been designed in a way that would guarantee its expansion of its own authority over time. Lifetime tenure insulated justices from democratic accountability. No branch had a meaningful check on the Court’s interpretation of the Constitution. The Court would be the final arbiter of what the Constitution meant, including what the Constitution said about the Court’s own authority.
He wrote:
“The judges under this constitution will control the legislature, for the supreme court are authorised in the last resort, to determine what is the meaning of the constitution… The power of this court is in many cases superior to that of the legislature.”
He predicted that justices, interpreting the Constitution from positions of permanent insulation from popular will, would interpret their authority expansively. They would apply not just the text of the Constitution but what he called its “spirit”, using broad principles to justify reaching questions that the text did not clearly address. And they would do so without any mechanism by which the citizenry, or the other branches of government, could correct them when they went wrong.
He asked the defining question directly: if the Court decides wrongly, what is the remedy?
His answer, the honest answer built into Article III, was that there was none. Not as a practical matter.
What “No Check” Actually Means
The Federalists, particularly Alexander Hamilton in Federalist #78, argued that the Court’s independence from democratic pressure was a feature, not a flaw. An independent judiciary, insulated from majority will, was necessary to protect individual rights from the tyranny of majorities. You wanted judges who could not be pressured by elections to rule the way the majority wanted.
Brutus did not disagree that judicial independence had value. His argument was more precise: independence from democratic pressure is not the same as independence from accountability. The question was not whether courts should be insulated from day-to-day political pressure, but whether any body should exercise final, unreviewable authority over the rights of citizens with no mechanism for correction when it errs.
His answer was no, and his argument was not about distrust of judges but about the nature of institutions. Any institution with final, unreviewable authority will, over time, expand that authority. The incentive is inherent. And when the expansion produces wrong outcomes, the absence of a correction mechanism means those wrong outcomes persist.
He proposed, as the remedy, some form of review: mandatory retirement ages, mechanisms for democratic override of Court decisions that struck down legislation, structural checks that would give the other branches or the citizenry some meaningful recourse. None were adopted. The Court James Madison described as “the least dangerous branch” proceeded to become the one with the most durable authority over American life.
The Decades of Evidence
Brutus’s concern was structural, not ideological, which is why the evidence for his argument spans every era and every ideological direction the Court has moved.
The Court invalidated the federal income tax in 1895. Congress reversed it with a constitutional amendment in 1913, one of the rare cases where the correction mechanism actually worked, and it took eighteen years.
The Court struck down dozens of New Deal programs in the 1930s, producing a constitutional crisis that ended only when President Roosevelt threatened to pack the Court with additional justices, a threat that caused the Court to reverse course without any structural change. The crisis was resolved by institutional intimidation, not by the functioning of any designed check.
The Court has since used the Commerce Clause to authorize federal regulation of activity with almost any conceivable connection to economic activity (Gonzales v. Raich, 2005) and to strike down federal healthcare mandates as exceeding Commerce Clause power (NFIB v. Sebelius, 2012). Both positions cannot simultaneously be correct. The difference is the composition of the Court between those decisions.
In recent years, the Court has: - Eliminated a constitutional right that had existed for fifty years (Dobbs, 2022) - Sharply limited federal agency authority to regulate in areas where Congress has not spoken with specificity (West Virginia v. EPA, 2022; Loper Bright, 2024) - Reshaped the boundaries of affirmative action (Students for Fair Admissions, 2023) - Extended significant immunity to presidents for official acts (Trump v. United States, 2024) - Continued shaping voting rights, religious liberty, gun regulations, and the administrative state
Each of these decisions has been defended by its supporters with arguments about the Constitution’s text and history. Each has been attacked by its opponents with counter-arguments about the same text and history. The debates are real. But beneath them is the structure: nine people decided these questions, with no appeal, and the citizenry had no direct mechanism to respond.
The Non-Partisan Case
This structural critique is genuinely non-partisan, even if it has become politically coded to seem otherwise.
The left’s catalogue of grievances about the Court includes Dobbs, Shelby County v. Holder (which gutted the Voting Rights Act in 2013), Citizens United (which expanded corporate political spending in 2010), and Bush v. Gore (which resolved the 2000 presidential election). The right’s catalogue includes fifty years of Roe, the NFIB v. Sebelius decision upholding the Affordable Care Act, Obergefell v. Hodges (which established a constitutional right to same-sex marriage in 2015), and a long list of criminal procedure decisions they viewed as tilting the system toward defendants.
Both sides have been on the losing end of decisions they found catastrophic. Both sides have, when losing, expressed exactly the concern Brutus raised: that an unelected, unaccountable body was making decisions that should belong to the democratic process. And both sides have, when winning, defended the Court’s institutional authority in precisely the terms Hamilton used in Federalist #78.
The structural concern is the same regardless of which side you are on and which decisions you find intolerable: the design gives final authority over the most consequential questions in American life to nine individuals, without any meaningful check on that authority, and the outcomes depend entirely on who holds the appointments at any given moment.
Appointment as the Whole Game
Because the Court has no check, and because the Court’s composition determines its outcomes, every Supreme Court appointment has become a total political event, a generational stakes fight over who will exercise unreviewable authority for the next twenty or thirty years.
The hearings have become theatrical non-hearings: nominees answer no substantive questions about how they would rule, because answering honestly would generate opposition; senators ask pointed questions they know will receive non-answers; the whole performance is conducted for partisan audiences rather than for any genuine constitutional purpose.
The result is that the most consequential personnel decisions in American governance, choices that will shape constitutional interpretation for decades, are made through a process that provides no useful information and is understood by everyone involved to be primarily about vote counts.
Brutus did not foresee the specific mechanics of Senate confirmation battles. But he foresaw the dynamic: when final authority is concentrated in a body with no external check, the contest to control that body becomes the central political struggle. The fight over Court appointments is not a distortion of the system. It is the system behaving exactly as an unaccountable institution with final authority will cause it to behave.
What Reform Would Require
The Anti-Federalists proposed several structural remedies that were debated and rejected during ratification. Mandatory retirement ages. Some mechanism for congressional or state override of constitutional decisions, requiring supermajorities. Fixed terms for justices rather than lifetime appointments.
None of these were adopted. Contemporary reform proposals, eighteen-year staggered terms, expanding the Court’s membership, a rotation system that would give all circuit justices opportunities to sit on the high court, have been debated in recent years without legislative action.
The obstacle to reform is structural: the beneficiaries of the current arrangement are the justices themselves and the party that holds the appointments. The parties alternate in this advantage over time, but whichever party currently holds a majority has no incentive to restructure the institution, and the party out of power lacks the votes to do so. The Court cannot be reformed from outside when one party holds it and prefers not to be reformed, and the reform proposals from the other party tend to be motivated by their specific losses rather than structural principle.
Brutus saw this too. A body with final authority over its own authority, the Court is the final interpreter of the Constitution, including the constitutional questions about its own structure, will not cooperate in its own limitation.
The Citizen’s Position
You did not vote for any of the nine justices who decided the cases that have most directly shaped your life. You cannot vote against them. You cannot petition for their removal in any meaningful sense. The constitutional amendment process is available in theory and functionally unavailable in practice.
This is not a new complaint. It is the complaint Brutus raised before the Constitution was ratified, before the Court had heard a single case, before John Marshall had established the doctrine of judicial review in Marbury v. Madison. He read the design and predicted the outcome with enough precision that his letters read, in 2026, less like historical documents than like descriptions of the present.
He was not a prophet. He was a careful analyst who understood that institutions behave according to their incentive structures, and that an institution with final authority and no external check will expand that authority until it governs rather than adjudicates. He asked for a check. He was overruled.
The citizen who finds the Court’s power troubling, regardless of whether they are troubled by the current majority’s direction or by the prospect of a future majority’s direction, is responding correctly to a structural fact. Nine people have enormous, durable, unreviewable power over American life. There is no designed mechanism to hold them accountable.
That is what Brutus warned about. It is what the current institution is.
Brutus, Letters XI through XV, January 31 through March 20, 1788. Available at the Avalon Project, Yale Law School, and the Library of Congress American Memory collection. Alexander Hamilton, Federalist #78, May 28, 1788.