Alexis de Tocqueville arrived in America in 1831 originally to study prison reform. The young French liberal instead produced two volumes which still constitute the most insightful evaluations of the infant American Republic and its emerging political culture.

De Tocqueville was a brilliant observer of America and its people as they built a functioning democracy resting heavily on the notion of equality (for white men). But among his most prescient conclusions was that in democratic America, the courts would prove to be the final frontier. This endures.

It was not actually meant to be this way, and the addition of the United States Supreme Court to the pillars of government was not at first thought to be as significant as it has come to be. It was the case of Marbury v. Madison in 1803 where the Court determined that it would rule, where necessary, on the constitutionality, indeed legality, of measures embraced by the Executive and Congress which changed the balance.

The judicial branch of the United States government first asserted itself. It has never retreated from this role.

This brings us very much to the present, where the District Attorney for Manhattan has brought 34 felony charges against the 45th President of the United States, Donald J. Trump.

In the current state of play in polarised America, electoral contests are often fought with a ferocity that beggars belief.

The first African-American to serve as Manhattan DA is a Democrat, and how do we know this? Simply put, Alvin L. Bragg Jr. was elected to the office and he rests on the favour of the citizens of New York County.

This is a peculiar American democratic phenomenon.

The Revolutionary Army fought to eliminate the possibility of future King Georges and no future inherited authority. When in doubt, Americans went to the ballot box to elect their public officials. Indeed, it is claimed that in George Washington’s Continental Army, some of the regiments insisted on electing their own officers.

The ballot box was designed to be a clearing house for democratic contests and philosophical arguments.

Australians added to the appeal of the ballot box by insisting on secrecy, and there is no question that Australia’s mandatory voting requirements produce infinitely better results in the parliaments than voluntary systems, where the extremes can dominate.

In the current state of play in polarised America, electoral contests are often fought with a ferocity that beggars belief.

This applies not only to political offices, but to the judiciary as well.

If the question were posed about what was the most consequential ballot fought in America in recent weeks it would not be for a governor’s mansion or congressional office. It would be for the vacancy on the Wisconsin Supreme Court where northwards of US$40 million was spent.

The politics of Wisconsin reflect American divisions. The Governor Tony Evers, is a Democrat frustrated by a legislature that is significantly gerrymandered by the opposing Republicans. It is actually so heavily gerrymandered in the redistricting processes that a landslide to the Democrats at the polls may actually not deliver a majority in the state house in Madison.

On the other hand, a narrow Republican electoral victory delivers a comfortable legislative majority.

The states largely draw the federal boundaries for districts in the US House of Representatives. You do the maths. A redistricting process which is unfairly weighted delivers seats which could not be sustained by voters’ choices.

This is not confined to one party. Republican governor Arnold Schwarzenegger laboured mightily with blue ribbon commissions to reform the redistricting process in California. He failed, and Democrats continue to dominate the golden state’s electoral boundaries.

The ballot in Wisconsin became a straight-up contest between liberals and conservatives. It emerged as an intensely partisan contest, although technically it is not supposed to be so. The rival candidates were Judges Janet Protasiewicz and Dan Kelly and the ballot achieved national prominence. The issues at stake appeared to have been for liberals, abortion rights and redistricting. Currently, Wisconsin law prohibiting access to abortion for the state’s women is based on a law enacted prior to the Civil War.

For Republicans, Justice Kelly was determined to protect the legacy of former governor Scott Walker, who had severely curbed the rights of unionists in the state.

It is instructive to note that the outcome of the US Presidential election of 2000 was decided by a majority of Supreme Court justices in Bush v. Gore, not by a majority of voters. This is power.

A record-breaking campaign, in terms of finance, saw Judge Protasiewicz win comfortably with 55.5 per cent of the vote. For the first time in 15 years, the Court changed both hands and direction.

The US Supreme Court has at times been extraordinarily reactionary, as evidenced by the Dredd Scott decision in 1857 which held that slaves were not people, merely chattels. There is no doubt this contributed to the schism of the Civil War. The name of the chief justice of the day, Roger B. Taney, is forever stained by this decision.

Controversially in the 1930s, the Supreme Court set about striking down Franklin Roosevelt’s New Deal legislation with a will. FDR threatened to pack the Court with administration sympathisers, and remarkably the justices changed tack with social security in 1937. The constitutionality of acts of the federal government remained subject to debate, but politics triumphed and there was a seismic shift during FDR’s time in office.

The Court’s liberal reputation can be traced to the landmark civil rights decision, Brown v. Board of Education of Topeka, Kansas of 1954, which opened American schools to all students regardless of race.

But it was the Court led by Chief Justice Earl Warren that entrenched civil liberties, sometimes controversially, throughout the system of American justice, including the right to legal counsel. Ironically, Earl Warren was appointed by President Eisenhower and had previously been a Republican governor of California.

It is instructive to note that the outcome of the US Presidential election of 2000 was decided by a majority of Supreme Court justices in Bush v. Gore, not by a majority of voters. This is power.

Presently, there are at least five different ways to elect judges in America. This is unlikely to change and the battles are more than likely to grow fiercer. De Tocqueville could not have foreseen this.