Marshall Court (1801–1835)

Author:Leonard W. Levy

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In 1801 the Supreme Court existed on the fringe of American awareness. Its prestige was slight, and it was more ignored than respected. On January 20, 1801, the day President JOHN ADAMS nominated JOHN MARSHALL for the chief justiceship, the commissioners of the DISTRICT OF COLUMBIA informed Congress that the Court had no place to hold its February term. The Senate consented to the use of one of its committee rooms, and Marshall took his seat on February 4 in a small basement chamber. At the close of 1809, Benjamin Latrobe, the architect, reported that the basement had been redesigned to enlarge the courtroom and provide an office for the clerk and a library room for the Justices. In 1811, however, Latrobe reported that the Court "had been obliged to hold their sittings in a tavern," because Congress had appropriated no money for "fitting up and furnishing the Court-room.?" After the British burned the Capitol in 1814 Congress again neglected to provide for the Court. It held its 1815 term in a private home, and for several years after met in temporary Capitol quarters that were "little better than a dungeon." The Court moved into permanent quarters in 1819. In 1824 a New York correspondent described the Court's Capitol chamber: "In the first place, it is like going down cellar to reach it. The room is on the basement story in an obscure part of the north wing.? A stranger might traverse the dark avenues of the Capitol for a week, without finding the remote corner in which Justice is administered to the American Republic." He added that the courtroom was hardly large enough for a police court.

The Supreme Court, however, no longer lacked dignity or respect. It had become a force that commanded recognition. In 1819 a widely read weekly described it as so awesome that some regarded it with reverence. That year THOMAS JEFFERSON complained that the Court had made the Constitution a "thing of wax," which it shaped as it pleased, and in 1824 he declared that the danger he most feared was the Court's "consolidation of our government." Throughout the 1820s Congress debated bills to curb the Court, which, said a senator, the people blindly adored?a "self-destroying idolatry." ALEXIS DE TOCQUEVILLE, writing in 1831, said: "The peace, the prosperity, and the very existence of the Union are vested in the hands of the seven Federal judges. Without them, the Constitution would be a dead letter.?" Hardly a political question arose, he wrote, that did not become a judicial question.

Chief Justice Marshall was not solely responsible for the radical change in the Court's status and influence, but he made the difference. He bequeathed to the people of the United States what it was not in the political power of the Framers of the Constitution to give. Had the Framers been free agents, they would have proposed a national government that was unquestionably dominant over the states and possessed a formidable array of powers breathtaking in flexibility and scope. Marshall in more than a figurative sense was the supreme Framer, emancipated from a local constituency, boldly using his judicial position as an exalted platform from which to educate the nation to the true meaning, his meaning, of the Constitution. He wrote as if words of grandeur and power and union could make dreams come true. By the force of his convictions he tried to will a nation into being.

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He reshaped the still malleable Constitution, giving clarification to its ambiguities and content to its omissions that would allow it to endure for "ages to come" and would make the government of the Union supreme in the federal system. Marshall is the only judge in our history whose distinction as a great nationalist statesman derives wholly from his judicial career. Justice OLIVER WENDELL HOLMES once remarked, "If American law were to be represented by a single figure, sceptic and worshipper alike would agree without dispute that the figure could be one alone, and that one, John Marshall." That the Court had remained so weak after a decade of men of such high caliber as JOHN JAY, OLIVER ELLSWORTH, JAMES WILSON, JAMES IREDELL, WILLIAM PATERSON, and SAMUEL CHASE demonstrates not their weakness but Marshall's achievement in making the Court an equal branch of the national government.

Until 1807 he cast but one of six votes, and after 1807, when Congress added another Justice, but one of seven. One Justice, one vote has always been the rule of the Court, and the powers of anyone who is Chief Justice depend more on the person than the office. From 1812, BUSHROD WASHINGTON and Marshall were the only surviving Federalists, surrounded by five Justices appointed by Presidents Thomas Jefferson and JAMES MADISON; yet Marshall dominated the Court in a way that no one has ever since. During Marshall's thirty-five-year tenure, the Court delivered 1,106 opinions in all fields of law, and he wrote 519; he dissented only eight times. He wrote forty of the Court's sixty-four opinions in the field of constitutional law, dissenting only once in a constitutional case. Of the twenty-four constitutional opinions for the Court that he did not write, only two were important: MARTIN V. HUNTER ' S LESSEE (1816), a case in which he did not sit, and OGDEN V. SAUNDERS (1827), the case in which he dissented. He virtually monopolized the constitutional cases for himself and won the support of his associates, even though they were members of the opposing political party.

Marshall's long tenure coincided with the formative period of our constitutional law. He was in the right place at the right time, filling, as Holmes said, "a strategic place in the campaign of history." But it took the right man to make the most of the opportunity. Marshall had the character, intellect, and passion for his job that his predecessors lacked. He had a profound sense of mission comparable to a religious "calling." Convinced that he knew what the Constitution should mean and what it was meant to achieve, he determined to give its purposes enduring expression and make them prevail. The Court was, for him, a judicial pulpit and political platform from which to address the nation, to compete, if possible, with the executive and legislative in shaping public opinion.

Marshall met few of the abstract criteria for a "great" judge. A great judge should possess intellectual rectitude and brilliance. Marshall was a fierce and crafty partisan who manipulated facts and law. A great judge should have a self-conscious awareness of his biases and a determination to be as detached as human fallibility will allow. In Marshall the judicial temperament flickered weakly; unable to muzzle his deepest convictions, he sought to impose them on the nation, sure that he was right. He intoxicated himself with the belief that truth, history, and the Constitution dictated his opinions, which merely declared the law rather than made the law. A great judge should have confidence in majority rule, tempered by his commitment to personal freedom and fairness. Marshall did not think men capable of self-government and inclined to favor financial and industrial capitalism over most other interests. A great judge should have a superior technical proficiency, modified by a sense of justice and ethical behavior beyond suspicion. Marshall's judicial ethics were not unquestionable. He should have disqualified himself in MARBURY V. MADISON (1803) because of his negligent complicity. He overlooked colossal corruption in FLETCHER V. PECK (1810) to decide a land title case by a doctrine that promoted his personal interests. He wrote the opinion in MCCULLOCH V. MARYLAND (1819) before hearing the case. Marshall's "juridical learning," as Justice JOSEPH STORY, his reverent admirer and closest colleague, conceded, "was not equal to that of the great masters in the profession.?"He was, said Story, first, last, and always, "a Federalist of the good old school," and in the maintenance of its principles "he was ready at all times to stand forth a determined advocate and supporter." He was, in short, a Federalist activist who used the Constitution to legitimate predetermined results. A great judge should have a vision of national and moral greatness, combined with respect for the federal system. Marshall had that?and an instinct...

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