John Marshall. Credit: Heritage Art/Heritage Images via Getty Images
Before Marshall became chief justice in 1801, the Supreme Court operated out of a borrowed room and wielded little authority.
When John Marshall was appointed chief justice of the U.S. Supreme Court in 1801, the nation’s highest court occupied a lowly position. There was no Supreme Court Building in the newly completed capital, Washington, D.C., so the six justices heard cases in a borrowed room in the basement of the Capitol Building. Their docket averaged 10 cases a year, mostly about shipping disputes.
“Before John Marshall, the Supreme Court was kind of irrelevant,” says Joel Richard Paul, a law professor at the University of California Hastings Law School and author of Without Precedent: Chief Justice John Marshall and His Times.
But over the course of Marshall’s 34-year tenure as chief justice—spanning six presidential administrations, making it the longest on record—the Supreme Court grew in prominence and power to become a true co-equal to the executive and legislative branches. Some of the foundational doctrines of American law, including the authority of the Supreme Court to interpret the constitutionality of legislation and executive actions, were doctrines that had no precedent before Marshall created them.
“They were principles that Marshall invented in order to work through some of the problems that the framers of the Constitution had not quite dealt with,” says Paul, “Like the relationship between the federal courts and the state courts, or the relationship between the powers of congress and the powers of the president.”
Along the way, Marshall used his remarkable intellect and down-to-earth camaraderie to win over political foes and shape the Supreme Court into a unified and dignified institution.
Marshall began his tenure as chief justice during a tumultuous transition. It was the very first time that the presidency changed hands from one political party to another. Marshall was appointed by John Adams, a staunch Federalist, but would serve under Adams’ arch political enemy, Thomas Jefferson, a Democratic-Republican.
In the waning months of his presidency, Adams hurriedly filled dozens of judicial vacancies with Federalists, including chief justice of the Supreme Court (Marshall was already serving as secretary of state under Adams). On his very last day in office, Adams nominated 42 men to serve as justices of the peace, but Marshall, acting as secretary of state, didn’t have time to complete the paperwork on four of the commissions, including one for a Virginia politician named William Marbury.
The minute Jefferson took office, he ordered his own secretary of state, James Madison, to reject Marbury’s nomination along with the remaining three. Then Congress, also controlled by Democratic-Republicans, started impeachment proceedings against Federalist judges, including a Supreme Court justice. As the story is typically told, Marbury decided to take a stand—he directly petitioned the Supreme Court to force Madison to hand over their commissions.
When Thomas Jefferson (right) took over the presidency from John Adams (left), Jefferson ordered that the nomination of William Marbury to justice of peace be rejected.
But while writing his book on Marshall, Paul uncovered a different origin for the landmark case, Marbury v. Madison. Paul contends that the case was a “setup” by Marshall himself “to assert the Court’s authority against Jefferson at a time when the Supreme Court’s very existence as an independent branch of government was threatened.”
Marbury was ultimately denied his petition, but for reasons carefully and brilliantly laid out by Marshall in his opinion. Marshall explained that Jefferson and Madison were wrong to block the nominations, and that Marbury was within his rights to sue in federal court, but most importantly Congress overstepped its constitutional authority when it passed a 1789 act allowing plaintiffs to petition the Supreme Court directly.
Paul says that Marshall’s opinion in Marbury v. Madison was momentous for two reasons. First, it was the first time that the Supreme Court ruled that a law passed by Congress was unconstitutional. That alone established the doctrine of judicial review, which is the authority of the judicial branch to check the legislative power of Congress.
Second, but not as well-documented, is that Marbury v. Madison also showed that the federal judiciary has the authority to check the power of executive branch officers like Madison, who thought so little of Marbury’s petition that he didn’t bother hiring a lawyer or showing up to the hearing.
“What Marshall says in this opinion is that the executive branch is not above the law,” says Paul. “That was unprecedented. Just think where we would be today if the federal courts didn’t have that power, like when the Supreme Court ordered Richard Nixon to turn over his tapes during Watergate. Nixon knew that he would be cutting his own throat, but he complied with the order, because Marshall established the court as a co-equal branch of government.”
Before Marshall joined the Supreme Court, the standard practice was for each justice to write their own opinion for each case. At that time, there were six justices on the Court, so every case generated six potentially warring opinions. That made it all but impossible for Supreme Court rulings to carry the weight of precedent, because even the justices couldn’t agree.
When Marshall became chief justice, he insisted that the Supreme Court issue a single unified opinion for every case. It would send a clear signal that the Court was the final word on all constitutional matters and that its decisions set the precedent for all lower courts.
“Over the course of the next 34 years, the Marshall court issued 1,129 decisions and all but 87 of those opinions were unanimous, which is incredible,” says Paul, particularly because most of Marshall’s fellow justices were nominated by Democratic-Republican presidents who vehemently disagreed with Marshall’s Federalist leanings.
Part of Marshall’s brilliance was the way that he won over political rivals, both with his consensus-building legal arguments and his chummy personality. For example, he insisted that all of the justices share rooms in the same D.C. boarding house, where they ate all of their meals together and unwinded with afternoon wine-drinking sessions.
“Marshall cultivated this ‘fraternity house’ culture among the justices,” says Paul. “They really bonded together.”
According to one popular tale, the justices had a rule that they would only drink wine on rainy days. On sunny days, Marshall would ask a fellow justice to check the window and see if it looked like rain. Wherever the report, Marshall would inevitably order wine, saying, “Our jurisdiction is so vast that it might be raining somewhere.”
In a series of landmark cases, the Marshall court issued unanimous opinions that elevated the Supreme Court as the ultimate arbiter of constitutional debates. Many of these decisions shaped the very nature of American law and governance.
Chief among the most influential decisions of the Marshall court was McCulloch v. Maryland, which pitted the states against the federal government over the issue of a national bank. The states argued that the Constitution did not explicitly give Congress the power to establish a national bank, but supporters of the bank pointed to Article I, Section 8, which gives Congress the authority “to make all laws which shall be necessary and proper” for carrying out its enumerated powers.
As was his custom, Marshall wrote the Court’s unanimous opinion, and his interpretation of the “necessary and proper” clause in McCulloch v. Maryland “dramatically expanded the powers of Congress,” says Paul. As long as the end was “legitimate… [and] within the scope of the Constitution,” wrote Marshall, Congress may use “all means which are appropriate . . . which are not prohibited.”
While McCulloch v. Maryland was ostensibly about the national bank, it also set the stage for another battle heating up between the federal government and the states: whether Congress had the right to regulate or outlaw slavery in the states.
Marshall owned enslaved people at his Virginia homestead, but he opposed slavery as an institution, says Paul. The decision in McCulloch was seen at the time as an open invitation by the Supreme Court for Congress to step in and end slavery, which angered the southern states.
Later opinions issued by the Marshall court protected Native American tribal lands from private land sales (Johnson v. M'Intosh), combatted monopolies by giving Congress clear authority to regulate interstate commerce (Gibbons v. Ogden), and established that the state can’t interfere with contracts between private parties (Dartmouth College v. Woodward).
“There was no other Supreme Court justice like John Marshall,” says Paul, “and no one who had a more enduring influence on what our country has become.”
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