Why does Hamilton believe so strongly in the independence of the courts?

For me, this has been the summer of Alexander Hamilton—not because of Broadway’s hit musical, but because of Federalist 78, one of Hamilton’s greatest essays (and that’s grading on a steep curve), written in defense of the then-proposed Constitution’s framework for an independent judicial branch.

I had reason to return to the essay several times in recent months, in classes that I was fortunate to teach for the Hertog Foundation and the Hudson Institute, and in conversations that I’ve had recently with thoughtful Washington policymakers reflecting on the Supreme Court’s role in American government and society today. Written in 1788, Federalist 78 is famous (among lawyers, at least) for its description of the federal judiciary as “the least dangerous branch,” and for its defense of judicial independence and the constitutional power of “judicial review,” by which courts declare statutes unconstitutional. But teaching Hamilton’s essay and other Federalist Papers to students, and discussing it with friends and colleagues, I’m struck by how Hamilton’s most luminous lines overshadow some of the less well-remembered passages, as well as the broader context in which they were written. Today, more than ever, we should focus on these overshadowed aspects of Federalist 78. Americans are once again debating the Supreme Court’s role in American government and society, in light of Justice Antonin Scalia’s passing, the nomination of Judge Merrick Garland to replace him, and years of controversial decisions from the Court on questions of free speech, religious liberty, same-sex marriage, executive power, regulatory overreach, and more. In these debates, we would do well to understand Federalist 78—and not just its famous lines.

The place to begin is a letter by “Brutus,” a pseudonymous critic of the then-proposed Constitution, in March 1788. (Historian Herbert Storing later included it as “Brutus No. 15” in his landmark collection of anti-Federalist papers.) Reacting to the Constitution’s proposal to give federal judges life tenure (that is, “during good behaviour”), removable by Congress only through impeachment, Brutus blasted the proposed federal judiciary in terms that seem familiar to modern debates:

The framers of this constitution appear to have followed that of the British, in rendering the judges independent, by granting them their offices during good behaviour,