With the country embroiled in a debate about the future of the Supreme Court, the 215th anniversary of the appointment of Chief Justice John Marshall invites us to consider the historical parallels to and lessons learned from one of the most influential judicial tenures in American history. The Supreme Court Historical Society and the John Marshall Foundation invited Jeffrey Rosen, president of the National Constitution Center, to speak on the “Great Chief Justice,” his clashes with Thomas Jefferson, and his considerable influence on later Justices.

At the start of the evening, Chief Justice John Roberts spoke fondly of the influence of his distant predecessor on the Court and its role in American democracy. Prior to Marshall, the Court’s position was secondary at best to the other branches. Roberts illustrated this point with the story of the issuing of the opinion in Marbury v. Madison. This monumental decision was announced not in the stately marble building where the Court sits today, but instead in the lobby of the boarding house where the Justices were staying – to accommodate Justice Samuel Chase’s gout. Roberts noted that, in other countries, constitutions were considered political documents. It was Marshall who changed the perception of the Constitution from a political document into law.

Rosen began his lecture by setting the stage for Marshall’s appointment. Just prior to his nomination, Jefferson and his Democratic-Republicans defeated the Federalists in the presidential election. Before turning over the presidency, President John Adams, a Federalist, sought to preserve federalism in the judiciary by making sweeping changes on his way out of office. Included in these changes were a reduction in the number of Justices, in an effort to prevent Jefferson from nominating one, and the appointment of a new Chief Justice. Adams’s original choice was former Chief Justice John Jay, who declined the offer. On January 20, 1801, Adams offered the position to his Secretary of State, John Marshall, who just happened to be in the room with Adams at the time. He accepted on the spot. Sometimes, as Rosen noted, “timing is everything.”

The differences between the Federalists and the Republicans on the role of the judiciary were vast. Republicans, suspicious of the federal government, viewed judges as subservient to the people, questioned the practice of judicial review, and thought that most constitutional disputes should be settled in local or state governments.  Federalists sought to strengthen the federal government, so it perhaps comes as no surprise that Marshall, himself a Federalist, wrote Marbury.

What is more illuminating is how he strategically set judicial review in motion. The government actually won the case, making it difficult for Jefferson to criticize the decision. Furthermore, Marshall exercised considerable restraint and would not go so far as to say that the Supreme Court would be the ultimate interpreter of the Constitution or that Congress would be bound by such decisions. His even-handed approach allowed for judicial review to be accepted as part of the role of the Supreme Court.

Over the course of his presidency, Jefferson attempted to nominate Justices who would effectively thwart Marshall’s judicial vision. However, according to Rosen, his three appointments (Justices William Johnson, Henry Livingston, and Thomas Todd) all fell under Justice Marshall’s “spell.” Marshall was known to have a pleasant, jovial temperament and a tendency towards compromise to secure unanimity in decisions. The result was a Court that enjoyed high unanimity with dissents less than ten percent of the time. Marshall himself was on the losing side in only one constitutional case during his thirty-four years on the Court. It was Marshall who ended the practice of each Justice writing a separate, or seriatim, opinion in favor of a single opinion of the Court. He effectively used his personable demeanor to lead. For example, he would often have his fellow Justices meet him to talk over some Madeira wine. A prudent man, he would only permit the indulgence when it was raining. However, as Marshall would note, their jurisdiction was so vast that it must be raining somewhere—so it was only reasonable to imbibe.

Rosen’s lecture also reflected on Marshall’s influence beyond his tenure. He posited that Marshall’s battles with Jefferson and ability to promote unanimity on the Court mirror the relationship between the tenures of Chief Justice William Taft and Justice Louis Brandeis. Taft served as Chief Justice from 1921 to 1930 and in many ways was a sort of reincarnation of Marshall. Rosen noted that Taft was the best consensus builder after Marshall, with eighty-four percent of the Court’s cases unanimous during his time as the Chief. Like Marshall, Taft was well-liked by his colleagues and was willing to compromise to achieve unanimity. As Taft explained, “I don’t approve of dissentings generally . . . it is better to have the law certain.”

Brandeis, who served on the Court from 1916 to 1939, had both personal and ideological battles with Taft, who vigorously opposed Brandeis’s confirmation. Brandeis was a fierce opponent of both big government and big business. For example, Brandeis wanted to break up big banks and bring them to a more local level, whereas Taft was more interested in big-government solutions such as prosecuting them. Like Jefferson, Brandeis championed the self-education of citizens and favored local governance as the best chance for democracy. Despite the marked differences in their judicial philosophies, however, Taft – like Marshall – was able to use his good-natured disposition to enforce a “team dynamic” on the Court, and Brandeis often “embraced the norm of consensus.” Many argue that Taft’s lasting legacy, like Marshall’s, lies more in his ability as a unifier on the Court than in his impact on constitutional law.

Rosen’s lecture focused less on Marshall’s jurisprudence than on the characteristics – charisma, amiability, leadership – that are ultimately his lasting legacy. Rosen concluded his lecture with a quote that illustrated this well:  as Chief Justice Charles Hughes once said, “Marshall’s preeminence was due to the fact that he was John Marshall.”

To listen to the entire lecture, please visit: http://blog.constitutioncenter.org/2016/03/audio-jeffrey-rosen-speaks-at-the-supreme-court-on-john-marshall/

Posted in Everything Else, Supreme Court history

Recommended Citation: Molly Runkle, Raise a glass (of Madeira) to the “Great Chief Justice”, SCOTUSblog (Mar. 18, 2016, 12:22 PM), http://www.scotusblog.com/2016/03/raise-a-glass-of-madeira-to-the-great-chief-justice/