Justin Fox — The Business-Friendly Legislature Known as SCOTUS

In his 1978 Cornell Law Review article "The Supreme Court as a Legislature," law professor Geoffrey C. Hazard Jr. points out that the Constitutional Convention in Philadelphia in 1787 seriously considered creating a "Council of Revision" to review and amend the work of Congress — an explicitly legislative role that to a certain extent the Supreme Court inherited. In Federalist Paper No. 78, Alexander Hamilton acknowledges that, while it is the job of the judicial branch to dispassionately ascertain the meaning of the Constitution, judges might "be disposed to exercise WILL instead of JUDGMENT." Appointing them to lifetime terms, he continues, might at least contribute to an "independent spirit" keeping their decisions from being too obviously political. And the landmark 1803 Marbury v. Madison decision, in which the Supreme Court first asserted its authority to void the actions of the executive branch and the decisions of the legislative branch, has long been cited as an example of Realpolitik as much as jurisprudence.

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The Business-Friendly Legislature Known as SCOTUS

Justin Fox | editorial director of the Harvard Business Review Group

The command system at the top of the American economy — the "politically independent" Fed and SCOTUS, neither of which are elected or accountable to the people.