The United States Supreme Court is a coequal branch — alongside the US Congress and the office of the President of the United States. All of these are institutions, not men (and women), in our time of intense impersonalization. The originalists on the Right attempt to twist constitutional interpretation to conform to the intent of the Founders — if those great men did not write ir or say it, the matter ends there. In today's essay, a legal scholar takes up these issues and many others in an examination of the life and thinking of John Marshall, the third Chief Justice of the United States. If this is a (fair & balanced) survey of legal and constitutional history, so be it.
[x TNR]
The Operative
By John Fabian Witt
This is a review essay of John Marshall: The Man Who Made the Supreme Court (2018) by Richard Brookhiser.
TagCrowd Cloud of the following piece of writing
Imagine a pivotal moment in the history of the Supreme Court. A longtime partisan political operative is nominated and confirmed to the court. The party putting him forward is in the peculiar position of controlling all three branches of government, and yet is acutely concerned about future shifts in the political winds. The selection of this new justice is part of a larger project of packing the federal courts with party loyalists.
This scenario is far from unprecedented: It was in these circumstances that President John Adams appointed John Marshall in 1801. Histories of the US Supreme Court often start with Marshall, who served for 34 years as chief justice of the United States, until his death in July 1835. Marshall was not the first chief; three others served briefly before him. But he was the chief justice who established the court as a major institution in the life of the republic. For two centuries, narrators of the American experience have lionized him as the figure who rose above party and upheld the Constitution as law rather than politics. In the best-known passage from Marbury v. Madison, his most famous opinion, Marshall distinguished legal imperatives from mere “political acts” and asserted that “it is emphatically the province and duty of the Judicial Department to say what the law is.”
An aging John Adams said in 1825, “it is the pride of my life that I have given this nation a Chief Justice” like Marshall. Joseph Story, who served alongside Marshall on the Supreme Court, wrote Marshall’s epitaph: “Here lies the expounder of the Constitution of the United States.” President James Garfield proclaimed that Marshall “found the Constitution paper and made it power.” Oliver Wendell Holmes Jr. summarized the conventional wisdom when he said in 1901 that “if American law were to be represented by a single figure, skeptic and worshipper alike would agree that the figure could be one alone, and that one, John Marshall.” Gordon Wood, perhaps the leading historian of the early republic, rates Marshall as “the greatest Chief Justice in American history”; one legal scholar went a step further and claimed that “literally every published survey has ranked John Marshall as the ‘greatest’ justice.”
Richard Brookhiser’s new biography of Marshall follows in this tradition. A National Review conservative and one of the early #NeverTrumpers, Brookhiser has written several books on the framers of the Constitution, with titles such as What Would the Founders Do? and George Washington on Leadership. The men of the founding era, Brookhiser believes, “had right ideas about man and society.” They “believed in rights, grounded in nature” rather than derived from the government. Their generation, Brookhiser argues elsewhere, embodied “principles” and “civic habits” that “have served us well” for nearly two and half centuries. Brookhiser calls Marshall “the greatest judge in American history” and presents him as the last man of the great founding generation, heroically carrying the ideas and virtues of the framers forward into the nineteenth century.
The difficulty for Brookhiser is that his life of Marshall is too detailed and careful to sustain such mythmaking. In Brookhiser’s short and captivating biography, Marshall emerges as the institution’s first great partisan operative: a man who managed with extraordinary success to reassemble a judicial branch in American government from the broken pieces of the Federalist Party. Marshall did not build the court by cantilevering it above politics. Through a mixture of good fortune and extraordinary political judgment, he adroitly redesigned the court’s mission to align with the otherwise forsaken program of John Adams and Alexander Hamilton. Two centuries later, getting the politics in this story right matters. For the career of the great chief justice continues to this day to calibrate our expectations for the court.
John Marshall was born on September 24, 1755, into an upwardly mobile family on the frontier of English settlement in colonial Virginia. Marshall’s father, Thomas, was a childhood friend of George Washington; the two boys had attended school together, and in the 1750s they served together as young men in the colonial Virginia militia. Like Washington, Thomas Marshall was a surveyor and foot soldier in the European acquisition of the Americas—sometimes with musket and sword, more often with surveyor’s chain, fountain pen, and law book. From early in his youth, John Marshall understood that his family’s fortunes turned on the elder Marshall’s maneuvering in the eighteenth-century real estate market.
Following his father’s example, the younger Marshall made a life in war, law, and land speculation. In the War of Independence, father and son both served admirably under George Washington. The younger Marshall was injured in the Battle of Germantown. And as the war went on, Washington became Marshall’s mentor and political hero. Marshall’s experience in the Continental Army, including the winter of 1778 at Valley Forge, instilled in him an intense sense of national identity—one that would endure even when identifying with the nation as opposed to his own state became a matter of bitter partisan controversy.
As the war wound down, Marshall took a course in law at William and Mary and was admitted to the bar. Lawyerly skills served him well as he joined in his father’s land speculations. Post-revolutionary law practice proved lucrative: In the 1780s, Marshall’s practice boomed in Richmond, where he represented hundreds of Virginia debtors in their efforts to evade British creditors. Marshall brilliantly put off his clients’ obligations, sometimes for as long as two decades.
Marshall entered politics, too. In 1782, he took a seat in the Virginia House of Delegates. Three years later, he became a member of the Richmond City Council. In June 1788, he participated in the Virginia ratifying convention, where he offered a powerful defense of the Constitution hammered out in Philadelphia the previous summer. Marshall’s argument for the Constitution rested on the expanded powers it offered the federal government; on its usefulness in meeting national security imperatives; on the protections it offered to private property; and on the strong judiciary it created. He would maintain these views throughout his life.
In some respects, at least, Marshall’s views fit easily in late-eighteenth-century white Virginia. While he never owned nearly as many slaves as his cousin and rival Thomas Jefferson, Marshall was nonetheless deeply and inextricably enmeshed in a slave society. When he married in 1783, his new father-in-law gave him three horses and one enslaved person, a young woman named Robin. In later years, some 130 slaves tended Marshall’s fields, growing tobacco and other crops. Another twelve or so worked in his home in Richmond.
In other respects, however, Marshall’s ideas about the proper organization of American society were increasingly at odds with the views of Virginia voters. In the 1790s, his neighbors tended to follow the Democratic-Republican Party of Thomas Jefferson. Marshall, however, remained a dedicated Federalist. He supported the creation of a national bank and strong national powers more generally. He favored manufacturing, the assumption of state debts, and neutrality or even a pro-British stance in the wars of the French Revolution. White Virginians mostly resisted such policies. The state had already paid down its debt from the Revolution. A powerful federal government threatened to saddle Virginia with new taxes that would pay other states’ debts. Manufacturing held little interest in the South. And the British navy promised to obstruct the trade on which the South’s agricultural economy depended.
In 1799, when Washington persuaded Marshall to run for Congress, Marshall’s local reputation and his neighbors’ personal respect for him propelled him to victory, despite Virginia’s increasing opposition to the Federalist platform. Marshall nevertheless aligned himself more and more closely with President John Adams. In the spring of 1800, Adams appointed Marshall as his new secretary of state, hoping that naming the Virginian would improve the declining political fortunes of Federalists in the South. But Marshall was not enough; that fall, political calamity struck for Federalists around the country. The party of Jefferson swept the Electoral College and the Congress.
With Jefferson set to take office in March 1801, Secretary of State Marshall used the intervening months to craft a blueprint for the Federalist Party in exile. Marshall’s strategy rested on remaking the judiciary as the last holdout of Federalist power. When in late 1800 then-Chief Justice Oliver Ellsworth fell ill and resigned, Adams nominated Marshall to be chief justice. A lame-duck Federalist Senate quickly confirmed him even as he remained secretary of state. The Congress hurriedly passed the Judiciary Act of 1801, too, which President Adams signed, creating 16 circuit court judgeships for Federalist appointees and substantially increasing the authority of the lower federal courts. A further piece of legislation authorized Adams to appoint 42 new justices of the peace for the District of Columbia. All 42 were Federalists.
The Court that Marshall inherited in early 1801 was a weak and untested institution. It consisted of six men. In its twelve years of existence, it had been a revolving door. The Senate had confirmed 16 justices during that time, three of whom had declined to serve. Others (including Alexander Hamilton) had refused to be considered for the court at all.
The court’s docket inspired no greater confidence. When the court convened for the first time in 1790, it had no cases to hear and only two justices in attendance. There were no cases at the next term of the court later that year, either. In February 1791, the court seemed to have found its first case. But the parties settled before submitting their arguments. When at last a case reached the court later that year, the justices concluded that they lacked jurisdiction to hear it. By the end of the August 1800 term, after a decade in existence, the court had heard arguments or ruled on a mere 86 cases. Its most important decision, upholding a suit against the state of Georgia, had been almost instantly reversed by the Eleventh Amendment, which barred federal courts from hearing lawsuits against states.
The court was virtually homeless, too. Congress lent the court a tiny ground-floor room in the unfinished Capitol. The room had no bench, only individual desks for the six justices, set on a raised platform. The Architect of the Capitol [AOC], Benjamin Latrobe, described it as “a half-finished committee room meanly furnished, and very inconvenient.” The court would nevertheless sit there for the next seven years. There was no library, no office space, and no staff. There was not even an official publisher of the court’s opinions. The first publisher, a lawyer named Alexander Dallas, had declined to leave his home in Philadelphia to follow the court to the swamps of Washington, DC.
Making matters still worse, it was not yet clear to many Americans what exactly the authority of the new Constitution was. The unwritten English constitution, which was in some respects a model for its new American cousin, did not bind the Parliament. Neither did the post-Revolutionary state constitutions offer much clarity. Most were drafted by state legislatures, rather than by conventions of the people. Their provisions, like ordinary statutes enacted by the Parliament or by a legislature, were often amendable by the simple acts of subsequent Parliaments or legislatures. As Jefferson said about the Virginia state Constitution in 1781, the “ordinary legislature may alter the constitution itself.” The argument was abstract but the stakes were considerable. If Congress could alter the federal Constitution at will, and if new legislation altered the basic terms of the constitutional arrangement, then there would be little the Supreme Court could do to guard the republic from Congress’s authority.
Upon taking over the government in 1801, Jefferson’s loyalists set out to undermine Marshall’s plan for continued Federalist influence by further weakening the federal judiciary. Jefferson himself promised to begin by “lopping off” the new federal judicial officers. When the Seventh Congress convened for its first session in December, the new Democratic-Republican majority repealed the Judiciary Act of 1801 and canned the judges Adams had appointed to fill the new circuit judgeships. Congress brazenly abolished the court’s 1802 term so that Marshall would not have a chance to rule on the legality of the Republicans’ partisan maneuvering.
One move in particular drew attention. In the hectic last days of the Adams administration, Secretary of State Marshall had not managed to deliver all of the commissions for Adams’s last-minute Federalist justices of the peace. James Madison, Jefferson’s new secretary of state, found the duly executed commissions in his predecessor’s office and refused to deliver them. One of them was made out to William Marbury, a prominent Washington, DC, member of the Federalist Party. In the fight over the Federalist Party’s efforts to pack the courts, Marbury’s commission in itself was not especially important. But it offered Marshall an opportunity, which the new chief justice seized to chart a course for the Federalist-dominated court through the new political landscape of Jeffersonian America.
Marbury sued Secretary of State James Madison in the Supreme Court to compel delivery of his commission. Madison and the administration declined to dignify Marbury’s suit with a response. In any event, the suit made little headway, given that Congress had abolished the court’s 1802 term. When the case was finally argued in February 1803, Madison did not even appear, either through counsel or in person, effectively rejecting the court’s power to decide the case. The court, meanwhile, was not operating at full capacity. Two of the six justices missed the argument because of sickness. A third justice was rendered immobile by a bad attack of gout, forcing Marshall to read the opinion deciding the case from the living room of the justices’ boardinghouse.
Despite the inauspicious setting, or perhaps because of it, Marshall’s famous decision in Marbury v. Madison was a bravura performance. Brookhiser’s account captures much of the chief justice’s high-wire act. In a court barely hanging on to institutional credibility, Marshall walked his audience through the logic of his decision. Marbury had a right to his office because there existed a valid commission made out to him and all but delivered. When there is a right, Marshall continued, there is of course a remedy. (William Blackstone, whose book Commentaries on the Laws of England was the bible for lawyers of Marshall’s generation, wrote that “every right … must have a remedy, and every injury its proper redress.”)
At this stage of the opinion, Marshall seemed on his way to delivering a victory to his partisan ally William Marbury. But Marshall was a step ahead in a bigger game. What would happen if he ordered the secretary of state to deliver the commission? James Madison, with Jefferson’s support, would likely ignore such an order. The court had no way to back up its word. Its essential weakness would be revealed. Marshall thus needed a way to rule in favor of the Jefferson administration while saving face: a way out of a bad spot without saying as much. And so, having answered the case’s first two questions in Marbury’s favor, Marshall asked a third: Was the Supreme Court the right forum for Marbury to seek his remedy? And Marshall’s answer here was no.
Congress, Marshall said, had purported in the 1789 Judiciary Act to give the Supreme Court the power to issue orders to officers like Madison in suits like those brought by Marbury. The Constitution, however, defined the Supreme Court’s authority in such suits more narrowly. The case thus seemed to call on Marshall to decide whether a statute at odds with the Constitution was valid. “Either the law would have to be overruled,” Brookhiser writes, “or the Constitution ignored.” Here, then, was the big question that had been mooted since at least 1776. What was the status of a written constitution in the new republic? Jefferson had insisted that legislatures could alter constitutions themselves, perhaps even by ordinary legislative acts. Marshall, by contrast, had insisted at the Virginia ratifying convention that courts were the guardians of constitutions. And now this position offered the chief justice a way out of a hard spot. By ruling that the courts were empowered to strike down statutes contravening the Constitution, Marshall produced a win for the Jefferson administration that was also a win for the courts. It was a brilliant coup.
Yet Brookhiser’s version of the case misses the key step, one that reveals the full extent of Marshall’s political project in the crisis. The Judiciary Act of 1789, properly read, had not actually purported to extend to the Supreme Court the power to issue orders to officers like Madison in suits like Marbury’s. By its terms, the Judiciary Act only authorized orders “in cases warranted by the principles and usages of law.” If the order in question lay outside the powers afforded to the court by the Constitution, then the order was surely not “warranted by the principles and usages of law.” Marshall’s reading of the statute was thus unnecessary and arguably even tendentious. He had invented a conflict between the statute and the Constitution. He was confident that Jefferson and Madison would be satisfied with winning the battle over the commission. And so he took the occasion to submit a bid in the war over judicial power, confident that his partisan adversaries would overlook the sleight of hand. Privately, Jefferson fulminated. But Marshall was right.
The chief justice had managed a brilliant political maneuver in a case at the center of the great partisan firestorm of the age. And Marshall had explicitly based his opinion in Marbury on a claim that law was separate from politics. The chief justice’s political strategy turned on a denial that he was engaged in politics at all. In doing so, he established a tradition for legitimating judicial review of congressional action, one that lay (as Justice Robert H. Jackson would later put it, in a different context) like a loaded weapon in the Constitution. The court would not use it again until decades later, when it struck down federal statutes in two pro-slavery cases, an 1842 slavecatcher decision in Prigg v. Pennsylvania and the infamous 1857 decision in Dred Scott v. Sandford.
Having escaped the political peril of 1803, Marshall spent the next 30 years defending Federalist Party ideas as chief justice in the republic of Jefferson and then Jackson. In Fletcher v. Peck in 1810, he inaugurated a line of cases enforcing the Contracts Clause of the Constitution against state efforts to alter contractual obligations. The fact that the contract in question was a land sale by a corrupt state legislature for the benefit of insiders did not move Marshall from his commitment to the enforcement of deals. Nine years later, in Trustees of Dartmouth College v. Woodward, the chief justice enforced the Contracts Clause again to prohibit alteration of a state corporate charter. Marshall’s agenda, Brookhiser says, was to insist on the sanctity of contracts. Meanwhile, the nationalist in Marshall used the Fletcher and Dartmouth College cases to assert the authority of the federal Constitution over the actions of state governments.
Promoting the power of the federal government, Marshall committed the court to a position in the three-decades-old debate over a national bank. When the state of Maryland (like several other states) tried to tax in-state branches of the Second Bank of the United States, Marshall revisited arguments for a powerful central government that he had made in the Virginia ratifying convention in 1788. Echoing Alexander Hamilton’s 1791 defense of the power of the Congress to establish a national bank, Marshall’s opinion in McCulloch v. Maryland, decided in 1819, voiced as broad a conception of federal power as anyone has in two centuries since. On top of that, he construed the Supremacy Clause of the Constitution’s Article VI (“The Laws of the United States… shall be the supreme Law of the Land”) to prohibit state taxation of the Congress’s creations.
Marshall’s court also established its authority over the states’ supreme courts. And Marshall inaugurated the long tradition of a broad federal power under the Constitution’s Commerce Clause. In Gibbons v. Ogden, decided in 1824, he undid a monopoly charter granted to Robert Fulton and Robert Livingston by the state of New York for steamboat passage on the Hudson River, reasoning that the Congress’s grant of a coastal license to other steam vessels represented a valid exercise of the federal commerce power. Today the same Commerce Clause power authorizes much of the administrative state, ranging from food and drug regulations, to antitrust law, to the law of employment discrimination, and much more.
As Marshall aged, his ability to impose Federalist policies waned. In 1827, he wrote his lone dissent on a constitutional matter in 34 years on the bench, disagreeing with the court’s decision upholding a state bankruptcy law in Ogden v. Saunders. America’s evolving policies toward Native Americans also revealed the limits of Marshall’s authority in the later years of his term. When efforts to drive the Cherokee out of Georgia and across the Mississippi River came to the court, Marshall ruled against state statutes that aimed to make life east of the Mississippi miserable for Native Americans. This time, in Worcester v. Georgia, he commanded a majority of the court, striking down a Georgia law that interfered with Cherokee authority to govern native lands. President Andrew Jackson probably never said “John Marshall has made his decision; now let him enforce it!” despite journalists’ apocryphal claims to the contrary. But he predicted that Marshall’s opinion would fall “stillborn” in 1830s America. And for the most part he was right. White supporters of Jackson would push the Cherokee out of Georgia within a few years.
Six years after his Ogden dissent, Marshall issued an opinion in the case of Barron v. Baltimore holding that the Bill of Rights’ individual rights protections did not bind state governments. In freeing states from the national standards in the Bill of Rights, the case signaled the coming of a new era in which Federalist ideas about the strength of the federal government would have less sway in American politics. In 1835, two years after Barron v. Baltimore, Marshall died. The charter of the Second Bank of the United States soon expired. And in 1837, Marshall’s successor, Roger Taney, would replace Marshall’s strict insistence on the enforcement of contracts with a new and more populist program. Overturning a state-chartered bridge’s monopoly over passage across the Charles River, Chief Justice Taney deprecated Marshall’s beloved “rights of private property.” “We must not forget,” he wrote, “that the community also have rights.”
Brookhiser contends that as a judge, Marshall aimed to translate the insights of the framers into the constitutional law of the republic. Marshall wrote that the “great duty of a judge who construes an instrument is to find the intention of its makers.” In Barron v. Baltimore, Brookhiser observes, Marshall attended to what he called the “universal” understanding of the Bill of Rights at the time of its enactment: It was meant to protect individuals, Marshall explained, against the actions of the federal government, not those of the state governments. Brookhiser concludes that the lesson for interpreting the Constitution is clear: Marshall understood that the Constitution ought to be read (in Brookhiser’s words) “as it was written and as it was meant.”
Of course, “as written” and “as meant” [emphasis supplied] are two different things. But even setting this problem aside, Marshall’s record as chief justice suggests that he was under no illusion that constitutional law was about recovering the pristine virtue of the framers. Marshall did not serve as a conduit for a founding era consensus, because there was no such consensus to channel. The men who gathered in Philadelphia in 1787 broke into factions almost immediately after the ratification of the Constitution precisely because they had not resolved many of the most controversial questions of the day. Marshall took sides in continuing bitter controversies because there was no way to avoid doing so. He could hardly rely on either the original intent or the original meaning of the document to resolve those controversies, for he knew that there had been no more consensus on hard questions like the bank in 1787 than there was in 1819. Unsurprisingly, then, Marshall’s opinions relied not only on his own memory of the views of the Constitution’s framers, but also on the text and the purpose of the document and on background principles of the law. General ideas of sound policy, at least from the Federalist perspective, provided a guiding light for Marshall and his court.
In this, Brookhiser’s narrative shares the great shortcoming of a very common misreading of Chief Justice Marshall. It minimizes the politics at the heart of Marshall’s project. Brookhiser’s updated version of the conventional story presents Marshall as the Atlas of American law, hoisting the Constitution upon his broad apolitical shoulders. Understating the politics of the court’s founding years, however, is misleading. The idealized conception of Marshall’s years on the court underpins Brookhiser’s brusque dismissal of Franklin Roosevelt’s controversial and ultimately successful court-packing proposal in 1937. Brookhiser castigates Roosevelt’s plan to increase the size of the court as a “Rube Goldberg” remedy for decisions with which the president disagreed. But Roosevelt and Marshall stand together, not apart, as Brookhiser would have it. Both men were statesmen who powerfully shaped the political trajectory of American constitutional law.
Roosevelt was not the only president who considered remaking the court. Marshall’s adversary Jefferson added a seventh justice in 1807. Martin Van Buren carried forward the agenda of his political ally Andrew Jackson and signed legislation adding two more justices shortly after Marshall’s death. Abraham Lincoln signed a bill adding a tenth justice to the court at a crucial moment in 1863. Each of these presidents understood what Roosevelt and Marshall knew implicitly: The successes and failures of the court have turned on acts of statesmanship that are embedded in politics, not apart from politics.
Marshall’s ability to carry out the Federalist agenda for a generation after the party’s decisive defeat at the polls stands as a warning for what we may expect to see in our own time. Accounts of his life that downplay his politics make it harder to grasp this key point. Worse, the conventional story of Marshall encourages a dangerous cycle of thinking about American law. Unfounded hopes for the court’s ostensibly apolitical ideals produce undue disillusionment with the court’s political realities. The truth is that law is not independent of party. It never has been. Law is not reducible to party, either. But now more than ever we need a realistic account of how our courts work, one that can recognize the law’s long-standing and durable interconnections with the world of the partisan operative. ###
[John Fabian Witt is the Allen H. Duffy Class of 1960 Professor of Law at Yale Law School, His book Lincoln’s Code: The Laws of War in American History (2012) won the Bancroft Prize in history in 2013. See his other books here. Witt received a BA, summa cum laude and Phi Beta Kappa (history), a JD , and Senior Editor of the Yale Law Review, and a PhD (history) and was the winner of the John Addison Porter and George Washington Egleston dissertation prizes; all of the degrees awarded by Yale University.]
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