Thomas, J., concurring
ment in such a council would foster internal biases”). Opponents thus concluded that to include judges in the policy decisions inherent in the legislative process would be a “dangerous innovation,” one that would erode public confidence in their ability to perform their “proper official character.” 2 Farrand 75–76 (L. Martin); see also id., at 77 (“[T]he Supreme Judiciary should have the confidence of the people. This will soon be lost, if they are employed in the task of remonstrating ag[ainst] popular measures of the Legislature”).
The later history of the New York Council of Revision demonstrates the wisdom of the Framers’ decision. The Council naturally became politicized through its intrusive involvement in the legislative process. Over the course of its existence, it returned 169 bills to the legislature; the legislature, in turn, overrode only 51 of those vetoes and reenacted at least 26 bills with modifications. Barry 245. Moreover, “[t]he Council did not shrink from tough stands on controversial or politically charged issues.” Id., at 246. For example, early in its existence, it vetoed a bill barring those convicted of adultery from remarrying and one that declared Loyalists aliens. Ibid. Decades later, it very nearly blocked the bill authorizing the Erie Canal’s construction for policy reasons. P. Bernstein, Wedding of the Waters: The Erie Canal and the Making of a Great Nation 197–199 (2005). Some members of the Council opposed the bill due to “concern[s] about committing the state to this huge project before public opinion was more clearly and more emphatically in favor.” Id., at 198. Others were concerned that the legislation gave the canal commission arbitrary powers. Ibid. The canal legislation—one of the most important measures in the Nation’s history—survived the Council’s review only because Chancellor James Kent changed his deciding vote at the last minute, seemingly on a whim. Id., at 199.
The Council contributed to its own abolition in 1820,
