y accomplished their purpose,
however, by selecting for membership in that body, men whose political
record was satisfactory and whose views concerning judicial functions
were in harmony with the general plan and purpose of the Federalist
party. In fact, the scheme of government which they set up contemplated
no such possibility as the democratization of the Executive or the
Senate. If their expectation in this regard had been fully realized, a
judicious use of the appointing power would have been all that was
necessary to ensure a conservative court. Perhaps the framers of the
Constitution did not imagine that the power to increase the number of
judges would ever be needed to enable the President and Senate to secure
the co-operation of the Supreme Court. At any rate, the power given to
Congress and the President to enlarge the membership of that body was
not, in the opinion of the framers, a power that could ever be employed
against the conservative class, since the radical element, it was
believed, would never be able to control more than one branch of the
government, the House of Representatives. But, although it can not be
determined whether the Federalists had in mind the possibility of using
this power to control the policy of the court, it should be noted that,
according to their view of the government, it might be used by, but not
against, the conservative class. Nor is it likely that they would have
hesitated to use this power had it been necessary to the success of
their plan.

The failure of the Federalists to check the growth of democratic ideas
and the success of the more liberal party in bringing about the election
of Jefferson alarmed the conservative class. It was seen that if all
other branches of the government should come under the influence of the
liberal movement, the judicial check could be broken down. To guard
against this danger, an effort was made by the conservative interests
to mold a public sentiment that would protect the Supreme Court against
political interference at the hands of those who might wish to override
judicial opposition to radical measures. This took the form of what
might be called the doctrine of judicial infallibility. The judiciary in
general and the Supreme Court in particular were held up as the guardian
and protector of American liberty. The security of the people was
represented as bound up with the freedom of the courts from political
interference. At the same time i