Defining the office: John Marshall as Chief Justice.

Author:Hobson, Charles F.
Position:2005-2006 Symposium: The Chief Justice and the Institutional Judiciary

Credit for making the United States Supreme Court a significant player in the American scheme of government has been attributed to the masterful leadership of John Marshall, Chief Justice of the United States from 1801 to 1835. By the latter year, the Supreme Court had acquired a kind of parity with Congress and the Executive that it did not possess in 1801. Central to this development was the Court's appropriation of the Constitution as its special preserve. Marshall and his brethren built up the Court's institutional strength by successfully asserting a claim to expound the Constitution and apply it as law in the ordinary course of adjudication. Although the Chief Justice's contribution to this enterprise far exceeded his proportional share as a single Justice, scholarship has long since exploded the myth of a heroic Marshall who dominated the Supreme Court by the sheer force of his individual genius and will. Such a myth ignores the historical reality that Marshall's success as Chief Justice resulted from the interplay between his exceptional leadership abilities and the peculiar circumstances of time and place that allowed those abilities to flourish and have effect. "A great man," Oliver Wendell Holmes famously said, "represents a great ganglion in the nerves of society, or, to vary the figure, a strategic point in the campaign of history, and part of his greatness consists in his being there." (1) Marshall, in short, was the right man in the right place at the right time.


    Marshall brought with him a sterling resume acquired as a soldier, state legislator, lawyer, diplomat, member of Congress, and secretary of state. Indeed, his life and career prior to 1801 seemed specially designed to prepare him for the office of Chief Justice of the United States. As a Continental Army officer who saw combat during the War of Independence, Marshall experienced firsthand the privations and sufferings of his fellow soldiers and gained a visceral understanding of the meaning of a weak central government. In the crucible of war, the future Chief Justice forged the nationalist principles and beliefs that he carried with him through life. The war also marked him for life as a member of the special fraternity of Revolutionary veterans, to which many of his fellow Justices also belonged. The camaraderie of a "band of brothers" formed no small part of the bond uniting the Chief Justice and his associates. (2)

    After the war, as a legislator and lawyer, Marshall pursued what amounted to an advanced course in public and constitutional law. Most important was his service in the Virginia ratification convention of 1788, a brilliant assembly whose debates constituted the most exhaustive contemporary examination of the Constitution next to The Federalist. His presence in the company of such luminaries as James Madison, Patrick Henry, and George Mason at this defining and clarifying constitutional moment left an indelible mark. It impressed him with a deep conviction that the Constitution decisively broke with the past by establishing a national government to replace a league of sovereign states. At the same time he recognized that antifederalism was by no means a spent political force but would continue to pose a formidable challenge to his own understanding of the constitutional settlement of 1788. (3)

    During the 1790s, Marshall emerged as an occasional but effective advocate for the Federalist administrations of George Washington and John Adams. Most notable in this regard was his defense of the constitutionality of the controversial commercial treaty with Great Britain (the Jay Treaty) while serving in the Virginia legislature in 1795. (4) Soon after, he made his only appearance as a lawyer in the Supreme Court, representing Virginia debtors in the "British debts" case of Ware v. Hylton. (5) He lost, but he acquitted himself well by demonstrating a mastery of the law of nations and skill in constitutional argumentation. He further demonstrated his expertise in the law of nations in 1797 and 1798 on a diplomatic mission to France. His dispatches defending American honor and dignity against the insulting behavior of the French catapulted him to the status of national hero. (6) Marshall's greatest forensic effort prior to becoming Chief Justice was his speech to Congress in March 1800 defending the President's extradition power under the treaty with Great Britain. (7) This speech displayed the qualities of a judicial pronouncement in the "grand style" that became Marshall's hallmark. President Adams brought Marshall soon thereafter into his cabinet as secretary of state. During his brief tenure in that office, Marshall further distinguished himself with a statement of American foreign policy whose magisterial tone and clear expression were characteristic of his great decisions. (8) In nominating Marshall to be Chief Justice in January 1801, Adams selected a person whose mastery of public and constitutional law gained him the immediate respect and deference of his fellow Justices. Already a statesman of great renown, Marshall raised the Court's prestige from the moment he donned the robe.

    Along with a wealth of experience, Marshall possessed attributes of intellect, learning, and personality that were ideally suited to leading a small assemblage of individual Justices and molding them into a collective entity that spoke with a single authoritative voice. He had a first-class mind, with keen powers of logic, analysis, and generalization that enabled him to master complex legal issues with quick and discerning comprehension. On first encountering the Chief Justice in 1808, Joseph Story observed a "vigorous and powerful" intelligence, who "examines the intricacies of a subject with calm and persevering circumspection, and unravels the mysteries with irresistible acuteness." (9) Two decades spent in close company as the Chief Justice's associate only confirmed this first impression. "In strength, and depth, and comprehensiveness of mind," Story wrote in Marshall's eulogy, "it would be difficult to name his superior." (10)

    Marshall's effectiveness as a leader did not depend on being the most learned lawyer on the Court; that honor clearly went to Story, who was a one-man publishing industry of legal treatises and commentaries. Marshall, to be sure, possessed a knowledge of legal science equal to his high judicial station, but his peculiar strength was mastery of general principles rather than "technical, or recondite learning." (11) As Story wrote, Marshall "loved to expatiate upon the theory of equity; to gather up the expansive doctrines of commercial jurisprudence; and to give a rational cast even to the most subtile dogmas of the common law." (12) Confident enough in his own abilities and knowledge, he could more than hold his own with those of greater learning. He was not afraid to admit ignorance, to seek enlightenment from the lawyers who argued in his courtroom and from colleagues who sat with him on the bench. Indeed, an engaging intellectual humility allowed Marshall to turn his lack of "juridical learning" to his advantage by acknowledging and deferring to his colleagues' superior knowledge. (13) He earned their trust and respect not by flattery or cajolery but by a genuine desire to draw on their particular expertise. This had the desired effect of making each associate feel as if his views mattered, as if he were an integral part of a common enterprise.

    Marshall's abundant charm, sociability, kindness, and unaffected modesty also served him well. At his behest, the Justices lodged together during Term time. In this informal boardinghouse setting that seamlessly mixed official business with the pleasures of social life, Marshall enjoyed the full play of his captivating personality. Having grown up as the oldest of fifteen children, Marshall was predisposed toward moderation and accommodation, to being agreeable, and willing to suppress his individual will in the interests of achieving familial harmony. These qualities proved useful in managing his "family" of brother Justices.

    Marshall was also blessed with a robust physical constitution, formed from a rugged, active youth spent in the salubrious climate of the Virginia Piedmont and strengthened from military service during the War of Independence. He carried with him through life the habits and discipline of a soldier. He remained the light infantry officer, the veteran of the camp and march, who could endure the hardship and discomfort of travel, often in primitive conditions. Supreme Court Justices in those days traveled frequently and far, not only sitting in Washington, but also holding circuit courts throughout the country. Marshall's circuit took him to Raleigh, North Carolina, twice a year. Life on the road took its toll on the Justices' health, but Marshall seemed to thrive on it.

    Marshall literally was always there, never missing a Supreme Court Term in thirty-five years. He was almost always the first Justice to arrive in Washington. Except for being laid up nearly two weeks by an injury from a fall during the 1824 Term, he never missed a day in court. He arrived a few days late for the 1830 Term because of his attendance at the Virginia Convention of 1829. During the 1826 Term he "had a pretty severe attack of the influenza," which did not keep him from attending court. (14) Until his death, Marshall's most serious health crisis occurred in the fall of 1831, when he underwent surgery in Philadelphia for the removal of bladder stones. The operation was a complete success, and he recovered in time to hold his November circuit in Richmond. (15) In 1833, Story reported that the venerable Chief Justice, then seventy-seven, was "in excellent health, never better, and as firm and robust in mind as in body." (16) His daily routine during Term time was to rise early and walk several miles before getting down to...

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