When Alexander Hamilton sat down to write Federalist No. 78 in 1788, he was making a promise to a skeptical nation. The judiciary, he argued, would be the 'least dangerous' branch of government — possessing 'neither force nor will, but merely judgment.' It would be a bulwark against legislative encroachment and executive tyranny, staffed by men of such 'integrity and moderation' that the republic's liberties would be secure in their hands.
That promise has not been kept.
What Hamilton could not have anticipated — or perhaps what he feared but dared not say aloud — was that the judiciary's independence from democratic accountability would become not a shield for liberty but a fortress for a professional class determined to protect its own power. The very insulation from popular control that Hamilton celebrated as the judiciary's greatest virtue has become its greatest vice: a mechanism by which lawyers and judges govern themselves, discipline themselves, and — most critically — protect themselves from the consequences of their own corruption.
What the Founders Actually Said
The Founders were not naive about the dangers of unchecked power. Jefferson warned repeatedly that 'the germ of dissolution of our federal government is in the constitution of the federal judiciary — working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction.' Madison, in Federalist No. 51, insisted that ambition must be made to counteract ambition — that no branch of government could be trusted to police itself.
Yet the legal profession has constructed precisely the self-policing system Madison warned against. State bar associations — private organizations funded by mandatory dues from attorneys — investigate complaints against attorneys. Judicial conduct commissions — staffed overwhelmingly by judges and lawyers — investigate complaints against judges. The fox guards the henhouse, and has done so for two centuries.
The Numbers Tell the Story
In 2024, state bar associations received approximately 125,000 formal complaints against attorneys nationwide. Of those, fewer than 3% resulted in any public discipline. Fewer than 1% resulted in suspension or disbarment. The system is designed not to discipline attorneys but to protect them — to process complaints in ways that reassure the public while changing nothing.
The judicial conduct system is, if anything, worse. Across all 50 states, judicial conduct commissions receive tens of thousands of complaints annually. The overwhelming majority are dismissed without investigation. A fraction result in private admonishment — a secret rebuke that appears on no public record. Public discipline of judges — censure, suspension, removal — is vanishingly rare.
The Reconstruction We Need
The Founders gave us the tools to fix this. Article III's 'good behavior' standard for federal judges was intended as a mechanism for removal — not, as the judiciary has interpreted it, as a guarantee of lifetime tenure immune from congressional oversight. The impeachment power exists. The jurisdiction-stripping power exists. What is lacking is the political will to use them.
A judiciary accountable to the people it serves — not to the professional guild that staffs it — is not a radical idea. It is the idea the Founders had before the lawyers took over.