Hail to the Chief

George Washington was an inspiring leader, and Thomas Jefferson could turn a phrase; but to federal judges, the greatest of the Founding Fathers was undoubtedly John Marshall, chief justice of the US Supreme Court from 1801 to 1835, who forged the rule of federal law in American life. In his four-volume Life of John Marshall (1916), Albert J. Beveridge writes, “The work of John Marshall has been of supreme importance in the development of the American Nation, and its influence grows as time passes.” But Beveridge then cautions that “such exalted, if vague, encomium has been paid him, that, even to the legal profession, he has become a kind of mythical being, endowed with virtues and wisdom not of this earth.” Nonetheless, Beveridge’s biography is largely a panegyric to Marshall, and the titles of more recent biographies, such as Jean Edward Smith’s John Marshall: Definer of a Nation (1996) and Harlow Giles Unger’s John Marshall: The Chief Justice Who Saved the Nation (2014), indicate how much Marshall is still viewed with an awe that may inhibit critical thinking.

Something of a correction, however, is provided by a fine new biography of Marshall by Joel Richard Paul of Hastings Law School. While Paul greatly admires Marshall, he conscientiously provides the evidence on which a more nuanced assessment of Marshall may be made. In particular, it may be suggested that Marshall, while hugely instrumental in assuring for the federal judiciary its limited supervisory role over the legislative branch, exhibited a subservience to the executive branch that continues to haunt us.

Certainly there was a heroic aspect to Marshall’s rise to prominence. While it is commonplace to think of him as a member of the colonial Virginia aristocracy, in fact he was the proverbial “poor cousin.” Although his maternal grandmother had been born a Randolph (a fabled “First Family of Virginia”), she was disinherited after being caught in flagrante delicto with a Scottish minister, James Keith. Banished to the barely developed wilds of western Virginia, the two eventually married, but the taint of scandal continued to hang over their children, including Marshall’s mother, Mary Keith, who, bereft of money and connections, wound up marrying a farmer of modest means. In frontier fashion, they lived in a two-room log cabin in Germantown, Virginia, while raising fifteen children, of whom John Marshall, born in 1755, was the eldest.

Unlike his second cousin Thomas Jefferson, who was born on a large plantation and received years of private tutoring before entering the College of William and Mary at age sixteen, Marshall was largely self-taught and had no more than one year of formal schooling. His first job of any consequence was as a soldier in the Revolutionary War, in which, during the winter at Valley Forge, he met George Washington, who thereafter served as one of his mentors. (Years later, Marshall wrote a five-volume biography of Washington that, as Paul puts it, “was the first of many presidential biographies to flop.”)

Following the Revolutionary War, Marshall enrolled in the law curriculum at the College of William and Mary, but again unlike Jefferson (who graduated from the college with highest honors), he lasted only six weeks before dropping out. Nevertheless, he passed the bar examination and became licensed to practice law in Virginia.

On these limited foundations, Marshall built a command of the law and a skill in oral and written advocacy that quickly made him a leader of the Virginia bar. In the manner of the day, his law practice was extremely varied, involving everything from drawing up simple wills, deeds, and contracts to negotiating and, where necessary, litigating complex commercial matters, with the occasional criminal case thrown in for good measure. But in a bar that also featured Jefferson, Edmund Randolph, Patrick Henry, and James Monroe, Marshall quickly established a reputation as one of the best. Whether this bespeaks genius or simply perseverance, there can be no doubt that he was an early example of that idealized American prototype, the “self-made man.” It also did not hurt that, by all accounts, he was convivial, honest, dependable, good-looking, self-effacing, well connected, and capable of inspiring confidence.

Like many lawyers, Marshall had a penchant for politics, and in the turmoil that eventually led to the drafting of the Constitution in 1787 and the subsequent battle over its ratification, he sided with the Federalists in favoring a stronger central government, while many prominent Virginians—cognizant of Virginia’s status as the largest and wealthiest of the former thirteen colonies—backed the anti-Federalists in wanting the states to retain near-total sovereignty. When the Federalists prevailed and the Constitution was ratified, Marshall became, in effect, the Virginian to whom the Federalists (whose primary base was in New England) would turn when they needed a local man to articulate their cause.

Eventually, however, Marshall rose to national prominence, largely as a result of the so-called XYZ Affair. In 1797, newly elected president John Adams sent Marshall and two other envoys, Charles Pinckney and Elbridge Gerry, to Paris to try to negotiate an end to French depredations of US shipping that were a side effect of the ongoing war between Britain and France. But when the Americans reached Paris, they were approached in turn by three emissaries—X, Y, and Z—of the French foreign minister, Charles Maurice de Talleyrand-Périgord, who demanded a personal bribe as the price of an audience.

When it subsequently became known that the Americans had stoutly refused to pay any bribe, even at the cost of their mission, they became national heroes. After Marshall returned from France in June 1798, parades were held in his honor and, as Paul describes it, “church bells rang for hours, cannons roared, and crowds lined the streets.” Less than a year later, Marshall, an avowed Federalist, was elected to Congress from a Virginia district that was otherwise staunchly Republican (the Republicans, or Jeffersonians, being the successors to the anti-Federalists). And just a year after that, in May 1800, Adams appointed Marshall secretary of state.

Not long after Marshall took office, however, the Republicans swamped the Federalists in the national elections of November 1800, winning majorities in both houses of Congress. In the subsequent voting in the Electoral College, Jefferson, after initially being tied with Aaron Burr, was elected president. (A few years later, Marshall, as chief justice, would preside over the trial of Burr for treason, which ended when Marshall, to the dismay of Jefferson, directed the jury to acquit Burr.)

In response to these Republican victories, the lame-duck Federalists decided to pack the federal courts with as many of their own as they could induce to take on judicial appointments. First in line was Marshall, who on January 27, 1801, was confirmed by the departing Federalist Senate as the fourth chief justice of the United States.

Marshall, like many other notable lawyers, had previously refused nomination to the Supreme Court. Indeed, it was no great thing to be a Supreme Court justice in those days, for the Court’s docket was largely limited to maritime cases; the real action was in the state courts. The justices also had to live together in boardinghouses and “ride circuit” over muddy roads and difficult terrain to hear cases in various locations far from Washington.

Paul speculates that Marshall accepted the appointment as chief justice “out of a sense of duty.” Specifically, Marshall viewed Jefferson as a hypocrite and a demagogue:

For Marshall’s whole life, from the poverty of his boyhood to his service in the Continental Army to his political fights in Virginia, he had been locked in a bitter rivalry with the cousin who was born with all the advantages that Marshall’s family had been denied…. [In Marshall’s view] Jefferson was a radical ideologue, and Marshall had witnessed how French ideologues had undermined the rule of law. Jefferson lacked genuine empathy and embodied precisely the kind of elitism that he attacked in theory.

In these circumstances, according to Paul, Marshall, in accepting appointment as chief justice, “saw himself as defending the Constitution against the onslaught of the Jeffersonians.”

Perhaps. But as Paul also mentions, Marshall’s political career was likely finished, as his district in Virginia had returned to being solidly Republican. Moreover, the Supreme Court position would provide financial security, since Marshall’s law practice, largely placed in abeyance during his sojourn in Washington, was unlikely to earn him as much as the chief justice’s salary of $4,000. Perhaps too he was not as embarrassed as he professed to be about becoming a national celebrity, and was not immune to what is now known as “Potomac fever.”

In any event, Marshall had plenty of company among Federalists who accepted these lame-duck appointments. The outgoing Federalist Congress created sixteen federal circuit judgeships and forty-two new positions for federal justices of the peace (low-level judicial functionaries). All these positions were filled by Federalists nominated and confirmed in Adams’s last days in office, giving rise to the satiric title of “midnight judges.” In Jefferson’s view, “The Federalists have retired into the judiciary as a stronghold, and from that battery all the works of republicanism are to be beaten down and erased.”

Both Jefferson and Marshall thus viewed Marshall’s ascent to the Supreme Court as part of a battle for the soul of America, however much it might also appear as part of a family feud. But whatever his motivations, Marshall’s timing in accepting the position was impeccable, for during his tenure the size and scope of the Court’s work expanded greatly, with a concomitant rise in its power and importance. For example, as the nation’s economy began to grow and become more interconnected, great questions arose about whether control over interstate commerce was to be relegated to the states, to the federal government, or to some combination of the two—questions the Marshall Court definitively answered in favor of federal control in cases such as Gibbons v. Ogden (1824).

Similarly, as the federal treasury, under Alexander Hamilton’s leadership, played an ever-larger part in banking, questions arose as to whether the federal power to tax and to issue currency indirectly conferred a power to create a federal bank, a question the Court again definitively answered in favor of a broad application of federal power in McCulloch v. Maryland (1819). In these and many other ways, the Marshall Court greatly enhanced the power of the federal government over the states, but in the process also enhanced the power of the executive.

Over the thirty-four years that Marshall was chief justice, the Supreme Court issued no fewer than 1,129 decisions. Remarkably, all but 87 of them (and all but 36 of the 547 opinions authored by Marshall) were unanimous, even though the Court was deeply divided throughout most of these years between Federalists and Republicans (who later evolved into Whigs and Democrats, respectively).

Paul attributes this unanimity not only to Marshall’s force of personality and character but also to his zeal for achieving consensus. And as a practical matter, the seven justices having to bunk together in the same boardinghouse must have put a premium on getting along with one another. But perhaps achieving unanimity was made easier by the fact that in so many of these early cases, they were writing on a relatively blank slate, largely unhampered by binding precedents (though they would look to English law for guidance)—hence the title of Paul’s book, Without Precedent. Conscious that they were literally creating the precedents that would bind future generations, the justices as a group may have been predisposed toward compromise and consensus.

This tendency was further enhanced by an important change Marshall introduced early in his tenure. Prior to his arrival, each justice rendered a separate oral opinion in each case, this being the style in English courts. But Marshall decided that the Court’s authority would be increased if it acted as a whole and issued a single opinion (or, if divided, a single majority opinion), delivered orally but then put in writing.

Too much compromise can, however, create its own problems. As a general matter, the Anglo-American legal system values consistency and predictability, while judicial decisions that lean toward compromise are often ambiguous and uncertain in their future application. The compromises forged by Marshall on the Supreme Court, although worded in the language of strong judicial oversight, sometimes entailed a barely concealed deference to unlawful executive action. Consider two of the most famous cases from Marshall’s tenure: Marbury v. Madison (1803) and Cherokee Nation v. Georgia (1831).

Marbury v. Madison is typically cited as the first case in which the Supreme Court, after flatly asserting its power to be the final arbiter of the meaning of the Constitution, implemented that power of judicial review by declaring an act of Congress unconstitutional. (The Court would not do so again for another fifty-four years, with the Dred Scott decision.) But perhaps Marbury v. Madison deserves a closer look, specifically for how it deferred to the power of the president.

The facts of the case were peculiar, and today would almost certainly have led Marshall to recuse himself. The appointments of the sixteen circuit judges (including Marshall’s brother James) and forty-two justices of the peace confirmed by the Federalists in the very last days of the Adams administration would not take effect until their formal commissions were signed by the president and the secretary of state (who also had to affix the Great Seal of the United States) and then delivered to the appointees. On Adams’s last day in office, March 3, 1801, the outgoing secretary of state—Marshall—duly cosigned all the commissions (they had already been signed by the president) and delivered them to the sixteen circuit judges (including James Marshall), but somehow neglected to arrange for the delivery of the commissions of the forty-two justices of the peace, which were found the next day on his vacated desk at the State Department. In due course the new president, Jefferson, still furious at the Federalist takeover of the judiciary, directed Levi Lincoln Sr., an interim secretary of state, not to deliver seventeen of these commissions, including that of William Marbury, who, joined by several of the other putative justices of the peace, then brought suit.

Marbury and his coplaintiffs filed with the Supreme Court an emergency application familiar to lawyers today: an “order to show cause” demanding that James Madison (who had now taken up his post as secretary of state) give reasons why he should not be “mandamused,” that is, forced to deliver the commissions. In response, Madison, declining to acknowledge the Court’s jurisdiction, chose not to appear, though he did send a lawyer. President Jefferson let it be known in advance that if the Court ordered him or Madison to deliver the commissions, the response would be a refusal.

The Court nonetheless held a four-day evidentiary hearing, during which it had to be proved that the plaintiffs had been confirmed as justices of the peace and that their commissions had been properly signed and sealed. But the actual signatory, John Marshall, could not be called as a witness, since he was presiding over the case as chief justice. Therefore, plaintiffs’ counsel introduced an affidavit from James Marshall, averring that the commissions had been signed and sealed. Although Paul argues persuasively that the affidavit was “most likely a complete fabrication” and that James Marshall probably had no personal knowledge of whether his brother had signed the commissions for the justices of the peace, John Marshall, sitting as the presiding judge, accepted his brother’s affidavit in evidence.

A few days after the hearing, the Supreme Court issued its decision. On the one hand, the Court held that the plaintiffs had a right to their commissions and that Madison’s refusal to deliver them or recognize the plaintiffs as justices of the peace was flatly unlawful: “To withhold the commission, therefore, is an act deemed by the Court not warranted by law, but violative of a vested legal right.” Furthermore, the Court stated, “the Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.”

According to the Court, the appropriate way to remedy the violation was to order the executive to deliver the commissions, i.e., grant mandamus. And the Judiciary Act of 1789 (the very first judiciary act passed by Congress) expressly gave the Supreme Court that power. But under the Constitution, the jurisdiction of the Supreme Court was limited, with exceptions not here relevant, to appellate jurisdiction; and while it could therefore issue mandamus to enforce its appellate decisions, to the extent that the Judiciary Act purported to give the Court the power to grant mandamus in a nonappellate proceeding, the act was unconstitutional. Too bad for Marbury.

As Paul points out, if the Court lacked the power to issue mandamus in this matter, why did it not simply dismiss the petition at the outset? Why undertake a four-day hearing (with all its doubtful shenanigans) and why, in any event, declare the failure to grant the commissions unlawful, when the Court should not be even hearing the case? Paul asserts that Marshall glossed over all this because he wanted a vehicle for asserting the power of the Court. In Marshall’s memorable words, it “is emphatically the province and duty of the judicial department to say what the law is,” even if it means declaring an act of Congress unconstitutional. But this bold assertion should not wholly blind us to the fact that Marshall is here trying to have it both ways. He first declares that the executive has acted unlawfully and that the Supreme Court has the final word. But he winds up mentioning that the Court has no power in this case to do anything about the clear violation of law it has determined the executive to have committed.

Paul nonetheless concludes, as have virtually all prior biographers:

Marbury v. Madison demonstrated Marshall’s political genius. He struck a pragmatic compromise that avoided a direct conflict with the president while he asserted the Court’s authority to hold both Congress and the executive accountable to the Constitution.

I think this is only partly true. By holding an act of Congress unconstitutional, the Court definitely asserted its power to serve as a check on legislative excess, even if, somewhat ironically, the excess consisted in giving too much power to the judiciary.

But how can it be said that the Court held the executive accountable to the Constitution when the opinion, having flatly determined that Madison had acted unlawfully when he refused to deliver the commissions, declined to enforce the law or vindicate the plaintiffs’ acknowledged rights? Marshall had already stated in the very same opinion that if the law is to mean anything, there must be a remedy for a violation of rights; and yet the opinion nowhere indicates what remedy Marbury might avail himself of. Looked at in this way, Marbury can be viewed as judicial posturing that barely conceals a submission to executive power.

In fairness, it must be noted that Marshall was writing at a time when the power of the Court to actually enforce its decisions was in doubt, and this remained true throughout his tenure. In the face of issues like slavery that were increasingly tearing the nation apart, it took courage for him to continually reassert the responsibility of the Court as the final arbiter of the law of the land. He did so, moreover, in a long series of monumental decisions, written in his inspiring and majestic prose, that in the end left no doubt that that was the Court’s view.

Among much else, the Marshall Court also ratified the supremacy of the federal government over state governments in those situations where their powers overlapped, defended the property rights of individuals against intrusions by both state and federal authorities (this approach very much reflecting Marshall’s Federalist views), made international law part of the law of the United States, and took an evolutionary view of the Constitution that would not be seriously questioned until the ascendancy of Justice Antonin Scalia. But few of these marvelous decisions dealt with challenges to the exercise of power by the federal executive branch.

One area where the exercise of executive power frequently did seem to run afoul of the law was in dealings with Native American tribes. Late in Marshall’s tenure, this conflict came to a head in the case of Cherokee Nation v. Georgia. The Cherokee occupied a good deal of land in the western part of Georgia, but when gold was discovered there in 1828, Georgia seized control of their gold mines and reasserted jurisdiction over their territory. President Andrew Jackson, the former Indian fighter, announced a federal plan to forcibly remove the Cherokee to lands further west and pushed through Congress the Indian Removal Act of 1830, which authorized him to implement his plan.

The Cherokee Nation fought back and filed a demand for injunctive relief in the Supreme Court, noting that a provision of Article III of the Constitution provides original (nonappellate) federal jurisdiction over disputes between a US state and “foreign States, Citizens, or Subjects,” which, the Cherokee argued, included them. Like Madison in the Marbury case, Georgia chose not even to appear, arguing that the Court lacked jurisdiction; and Jackson, like Jefferson before him, let it be known that he would not enforce the Court’s decision if it favored the Indians. Marshall’s opinion for the Court begins in stirring fashion:

This bill is brought by the Cherokee Nation, praying an injunction to restrain the state of Georgia from the execution of certain laws of that state, which, as is alleged, go directly to annihilate the Cherokees as a political society, and to seize, for the use of Georgia, the lands of the nation which have been assured to them by the United States in solemn treaties repeatedly made and still in force. If courts were permitted to indulge their sympathies, a case better calculated to excite them can scarcely be imagined.

But once again, as in Marbury, there is a catch. Even though the treaties to which Marshall makes reference clearly treat the Cherokee as an independent nation, the Cherokee are still not “a foreign state in the sense in which that term is used in the Constitution.” Rather, they and other Indian tribes are “domestic dependent nations.” In words that even admirers of Marshall should cringe to repeat, he explains that the tribes exist in a

state of pupilage. Their relation to the United States resembles that of a ward to his guardian. They look to our government for protection; rely upon its kindness and power; appeal to it for relief to their wants; and address the President as their great father.

So forget about relief from a federal court.

Paul is quite certain that this result was influenced by Marshall’s recognition that President Jackson would not enforce any decision favorable to the Cherokee: “Just as he had done in Marbury, Marshall ducked a direct confrontation with the president.” But another way to look at it is that once again, Marshall, for all his talk of judicial power, sacrificed the rights of innocent victims to Jackson’s raw exercise of executive power, hypocritically suggesting that the Indians, as wards of the federal government, should look to it, and not the federal courts, for relief from intrusions by the states, when he had all but acknowledged that this relief was a vain hope. In light of this decision, it is hardly surprising that a few years later the federal government exercised its “kindness and power” by forcing the Cherokee to march west over the Trail of Tears, thousands of them dying along the way.

I do not wish to be misunderstood. In hindsight, even the greatest heroes have some clay in their feet, and it is hard to think of another Supreme Court justice—not Oliver Wendell Holmes, not Louis Brandeis, not William Brennan—who so completely laid the foundations for a federal system of justice worthy of respect as Marshall did. As Paul’s fine volume repeatedly notes, Marshall not only empowered the federal judiciary but guided it to safety during some of the most perilous years in our nation’s history. Nor do I mean to suggest that every time a federal court dares to rein in the president, it seeks to serve the public interest, as opposed to the ideology of its momentary majority. But I do suggest that, for whatever reason, the Supreme Court has frequently been far more deferential to the president than to Congress—and that this imbalance took root in the early days of the Court.