In March 1990, I moved to Washington to take the post of Director of the Federal Judicial Center.  The Center is the training, research and planning agency of the federal courts.  It operates under a board chaired by the Chief Justice of the United States.  It has a sister agency--its big sister--the Administrative Office of the United States Courts which also functions under the oversight of the Chief Justice.  That office was then headed by a long-time bureaucrat, one Ralph Mecham, who had been thirsting to have his agency swallow the Judicial Center.  When I arrived, green and inexperienced in the ways of Washington, Mecham must have seen a golden opportunity to consummate a coup.  This was before email so memos began to fly back and forth as I sought to defend the independence of the Center.

Word of the brouhaha soon reached the Chief Justice who was not amused.  Both of us were told to appear before him.  We were ushered into the Supreme Court’s conference room.  Shortly Chief Justice Rehnquist appeared and read us the riot act.  In no uncertain terms he told us to stop the squabbling and get on with our work.  The meeting ended and we left for our respective offices.

As I walked out, the full import of having been in this historic setting sank in.  Within these paneled wall, and around this conference table where we had aired our squabble, historic decisions had been made.  The chair I had sat in had been occupied by justices, some of them great figures, deliberating over these decisions. This is where the justices finally reached a unanimous decision in Brown v Board of Education, where they had reined in President Truman in the steel seizure cases, and where a presidency had come to an end in the Nixon tapes case. If the walls could speak, they could tell of agonized debates over the decisions such as those that opened the way for the New Deal and that resolved the presidential election in Bush v. Gore.  It was a sobering thought that in many ways this modest setting had become the fulcrum of the country’s social, political and economic development.  And more importantly this place, which Justice Holmes described as having the uneasy stillness of the eye of a hurricane, is where the rights and obligations of Americans came to be defined.

That is because the Supreme Court became the ultimate interpreter of the Constitution.  That was not a given in the early years of the country.  Article III of the Constitution simply states that there shall be a Supreme Court and it defines it as a court of law with limited jurisdiction over cases in law and equity.  In the first ten years of its existence--from 1790 until 1800--few cases came before the court.  Only one was notable and that was an attack on the Court’s jurisdiction over suits against a State. One Chisholm, a citizen of South Carolina, had sued the state of Georgia to collect for uniforms he had supplied during the Revolutionary war.  Georgia claimed immunity from suit as a sovereign state.  The Court rejected the argument and held that federal courts could hear cases between a state and a citizen of another state. This decision roused a storm of protest because of fear that Tories and refugees would flock to the federal courts to try to collect their Revolutionary War claims from the states.  Georgia refused to comply and the Eleventh Amendment was quickly adopted stripping the federal courts of authority to try a State as a defendant in a private lawsuit.   This was one of the few instances in which the Supreme Court was overruled by a Constitutional amendment.

Many problems beset the Court in its first decade.  Attendance by the justices was one of them.  The lack of a quorum often caused cases to be carried over and sometimes required that sessions be canceled completely. In addition to sitting as the Supreme Court in Philadelphia twice a year, each Justice had to ride circuit trying cases and hearing appeals.  Justice Iredell from South Carolina, for example, had to tour North and South Carolina and Georgia on circuit in addition to his journeys to Philadelphia, a total of nearly two thousand miles a year.  He described himself as a traveling post boy and complained bitterly that no judge could conscientiously perform his duties.  Circuit riding was not only arduous but also dangerous; it resulted in frequent injuries from overturned stage coaches and other untoward events.  As a result, some justices resigned and others declined appointment to the Court altogether.

        And leadership was a problem.  John Jay, who had been a prominent diplomat, chief justice of New York and the leader of the House of Representative, served as the first Chief Justice but resigned to become governor of New York because he thought (after the Chisholm case) that the Court would never become an important player in the government.  Washington had to offer the position to four men before he was finally able to fill it by appointing Oliver Ellsworth, a member of the Connecticut supreme court and of the first Senate.

So lightly was the Court regarded that when the government moved from Philadelphia to Washington in 1800, no provision was made for it to be housed.  Not until the next year did Congress make available a small room on the ground floor of the Capitol described as a noisy, half finished committee room, meanly furnished and very inconvenient.  The Court had no library, no office space, no clerks, no secretaries.  Even its court reporter had resigned because he didn’t want to move from Philadelphia to Washington.

In 1801 Chief Justice Ellsworth died.  President Adams, with his term of office about to end, again nominated John Jay who declined to serve. Adams then submitted the name of John Marshall, the Secretary of State.  The nomination met with general disapproval among the Federalist leadership who believed the senior justice, William Paterson, should have been promoted to chief.  The Senate delayed a vote on the nomination in the hope that the President would change his mind and nominate Paterson.  But Adams refused to budge and the Senate reluctantly confirmed Marshall whom one Senator at the time described as President Adams’ “wild freak.”  And so, unrecognized and unexpected, began a new era for the Supreme Court under the leadership of John Marshall, who would become known as the great chief justice. And it raised the curtain on the dramatic confrontation between Thomas Jefferson and Marshall.

Marshall was born in Virginia in 1755.   He had been an officer in the Revolutionary War, commanding a line company before he was twenty-five.  He served under General Washington at Valley Forge.  His military service left him with a deep commitment to the idea of a strong, unified nation. After the war he was elected to the Virginia legislature and later to Congress.  In the closing days of the Adams administration, he served as secretary of state.  At the time of his nomination, Marshall was forty-five years old, was a highly regarded lawyer, but had never held judicial office.

On March 6, 1801, only days after he himself was sworn in as Chief Justice and at the request of the newly elected president, he administered the oath of office to Thomas Jefferson. Marshall and Jefferson were cousins but could not have been farther apart in their world view.  Jefferson, the  apostle of revolution and civil liberties, never overcame his dread of centralized government.  He spoke of the federal judiciary as the great object of his fear and warned, “Let the eye of vigilance never be closed against it.”  Marshall in turn never overcame the revulsion that he and Washington and Hamilton felt at the breakdown of government in the mid-1780s before the adoption of the Constitution.  Jefferson, he said, looks with ill will at an independent judiciary, The conflict between them raised the fundamental question: what kind of nation would the country become.

Just a few years ago, the Supreme Court struck down the so-called gun free schools act in a case called Lopez v. United States.  The Court held the act, which made it a crime to possess a gun in the vicinity of a school, to be unconstitutional because Congress had exceeded its power under the commerce clause.  There was debate over the merits of that decision but none over the Court’s power to declare acts of Congress unconstitutional.  The existence of that power had long been unquestioned.  How it came to be, however, was a pivotal event in the rise of the Court.

The story begins in the waning days of the Adams administration when  the Federalist-controlled Congress passed legislation creating forty-two new positions for justices of the peace in the District of Columbia, presumably to repay patronage debts.  When the Jefferson administration came in, the act was promptly repealed because it wanted no more federal judges. As it happened the commission of one of the  putative judges, William Marbury, had been signed by President Adams, but Marshall, then secretary of state, had failed to deliver it to Marbury. When the new administration took over, James Madison, Jefferson’s secretary of state, refused on Jefferson’s order to deliver it to Marbury.  So Marbury  went to the Supreme Court for a writ ordering Madison to deliver his commission.

The case put Marshall in a quandary.  If the Court issued the writ, Marshall expected that Jefferson and Madison would ignore it.  On the other hand, if the Court denied Marbury relief, it would appear that the Court ruled out of fear of the executive.  So Marshall crafted a decision in three parts.  The Court held first that Marbury was entitled to the commission and, second, that the law gave him a remedy by way of a writ.  It criticized Jefferson and Madison severely for withholding the commission.  But in the third part, the Court held that the law under which Marbury sought relief was unconstitutional because the Constitution did not authorize the Supreme Court to issue such writs.  It is with this third part that Marshall made history for it established the principle of judicial review of legislation.  While the Constitution is silent on this point, Marshall declared that it is the duty of the judicial department to say what the law is.  With that declaration, the Court became the ultimate arbiter of questions of law in the government, that is, it had the  last word on what the government could and could not do.  Though Hamilton in the Federalist had described the federal judiciary as the least dangerous branch, Marshall by his brilliant Marbury decision had made the Supreme Court the gatekeeper of constitutional interpretation and, as a result, the most powerful constitutional  court in the world.

Marbury was decided in a single opinion for a unanimous court. Before Marshall joined the Court, the Justices had each written their own opinions and followed the British practice of delivering them seriatim. Marshall believed the Court should speak with one voice.  In his 35 years on the Court, the Court decided some 1200 cases, almost all with an Opinion of the Court and over 90 percent unanimous. Marshall, who wrote more than a third of them and dissented only once on a constitutional issue, believed the Court spoke with greater authority when all the justices (seven at the time) spoke with a single voice. 

The justices were a close knit group at the time.  They met six weeks a year in Washington where Marshall arranged for all the justices, without wives, to live in the same boarding house. The justices took their meals together and walked together to and from the Court. They heard arguments six days a week from eleven in the morning until four in the afternoon; there were few briefs but the arguments often extended over days.  Counsel were usually heard in silence without interruption by the justices.  In the evening, after dinner, the justices would clear the table and discuss the cases they had heard argued, usually over some of Marshall’s fine Madeira.  The story is told that at one point the Justices decided they were imbibing too heavily and agreed to have their Madeira only on days when it was raining.  After three days of abstinence Marshall had had enough.  He asked Justice Story to step to the window to see if it looked like rain. Story announced that the sun was shining brightly.  “All the better,” Marshall replied, passing the  bottle. “Our jurisdiction is so large, and the laws of probability are such that it must be raining somewhere.”

Marbury v. Madison was only the first round in the battle between Marshall and Jefferson. Hostility had been festering between the Federalists and  Jefferson’s Republicans since before the Presidential campaign of 1800.  One cause was the Federalist Alien and Sedition Acts, bitterly resented by the Jeffersonians, the validity of which had been upheld by Federalist judges on circuit.  More importantly, Jefferson believed that when the people elected him, they had chosen a government to be in the hands of democratic as opposed to the federalist forces. Yet while he and his party controlled the executive and legislative branches, the federal courts were composed entirely of judges from the federalist party. He bemoaned the fact that in such a judiciary few die and none retire.  So he decided to do something about it.  Associate Justice Samuel Chase had long been a thorn in the side of the Republicans, having among other things,  campaigned for the reelection of President Adams while a sitting justice. When in 1803, Jefferson learned of a charge Chase had given to a Baltimore jury in which he criticized the Jeffersonians as a mobocracy threatening the independence of the judiciary, he wrote the Republican leader of the House urging impeachment of Chase.  The House promptly impeached Chase who, though intemperate, was a respected patriot and a signer of the Declaration of Independence.  Jefferson’s supporters made it clear that they intended to remove judges who held dangerous opinions and appoint men to their liking.  Once Chase had been removed, they would go after John Marshall and other judges.

Although independence of the judiciary had been one of the truths enshrined in the Declaration of Independence written by Jefferson, as president he believed that the courts did not have an important role to play in a democracy and that it was the will of the people expressed through their elected representatives--preferably at the state level--that would ensure freedom and self-rule.  He called Marshall and his fellow justices a gang of sappers and miners sabotaging the republican government from within.

Chase went on trial but in the end the Senate voted to acquit.  The verdict was a crucial  vindication of judicial independence.  It was a rejection of Jefferson’s theory that impeachment, rather than being a criminal proceeding, was a process for removing judges thought to be out of harmony with the will of the country.  Though presidents, and other politicians, have from time to time tried to take on the Supreme Court for unpopular opinions, none have succeeded. 

The capstone of the rise of the Supreme Court during the Marshall years was the decision in McCulloch v Maryland.  There were other important cases in which the Court, among other things, held federal laws and  treaties to be the supreme law of the land and binding on the states and defined the federal government’s power to regulate interstate commerce.  But in McCulloch, Marshall  announced an interpretation of the Constitution that ensured the sovereignty of the federal government.  The case involved the question whether Congress had the power to incorporate the Bank of the United States and whether the state of Maryland could tax the Bank’s securities. Jefferson and  the Jeffersonians who succeeded him argued that because the Constitution was silent on the point, Congress lacked authority to charter a bank.  Marshall rejected the argument.  He ruled that though the  Constitution was silent on the subject of banks, it gave Congress in Article 8 the authority to make all laws which shall be necessary and proper for carrying into execution its enumerated powers. The powers enumerated in the Constitution included the power to borrow funds and to coin money. A bank was a legitimate instrument to execute those powers. By approving the Bank of the United States, Marshall gave content to what might have  seemed like an empty phrase,  the necessary and proper clause. His sweeping declaration--we must never forget that it is a constitution we are expounding--became the leitmotif for a broad reading the Constitution and the fountain head for  national power.  And because the Bank thus was an instrument of  the federal government, the state could not tax its securities.

 Marshall died on July 6, 1835.  On the next day, when his funeral cortege made its way through Philadelphia, the bells of the city tolled in his honor.  Suddenly, the greatest of them, the Liberty Bell in Independence Hall, made a strange sound.  It had cracked tolling the death of the Great Chief Justice.  It never rang again.

Marshall’s decisions laid the foundation for a truly national government.   One of his contemporaries observed: “If John Marshall had not been Chief Justice of the United States, the Union would have gone to pieces before the

general government had gotten underway. John Marshall saved the Union.” But ranking equally with his decisions was the course on which he launched  the Supreme Court.  When Marshall joined the Court, it truly was, in Hamilton’s words, the least dangerous branch. It was seen as just another court of law. There was little popular interest in its decisions and uncertainty over its future.  There was no legacy of judicial review and no heritage of an independent judiciary.  Through the force of his personality, clarity of thought, and commitment to a strong central government, he lent an aura of authority to the Court.  From a simple court of law it had evolved into a coequal branch of government.   Few would disagree with John Adams who said as he neared death, “My gift of John Marshall to the people of the United States was the proudest act of my life.”

Contrary to Hamilton’s prediction, the Court’s power  became enormous.  Unlike the other two branches, the Court has had the last word; it was not subject to checks and balances on the exercise of its power and  efforts made throughout its history to subject its decisions to legislative nullification or executive avoidance failed.  It is significant that during much of Marshall’s tenure, the predominant  political opinion of the country had been out of sympathy with the Court’s rulings.  The federalist view that there should be a strong central government fell out of favor after the defeat of John Adams in 1800, probably until the 1930s, but it drove the Marshall court. While time has vindicated Marshall’s interpretation of the Constitution, which laid the foundation for effective government,  the evolving role of the Supreme Court could be seen as anomalous in a democratic society.  The founders of course sought to  establish a republic, not a majoritarian democracy.  In creating the life tenured Supreme Court, they built a bulwark against the tyranny of the majority.  Yet this undemocratic branch has on occasion felt free to act without regard to the collective biases of the electorate. It has at times lagged behind popular sentiment, as when the Marshall court permitted the central government to curtail the powers of the states. At other times it has forged well ahead of popular opinion to render decisions that the political branch could not have sustained,  as in the case of the Warren court’s decisions on civil rights and criminal justice.  Over the long run the Court can be seen as having functioned as a kind of balance wheel, a rough sort of regulator of the  democratic process.

Which is not to say that the nine justices have been free from error. The Court has made widely acknowledged mistakes, such as the Dred Scott decision holding slaves to be personal property and enforcing the Fugitive Slave Law,  Plessy vs. Ferguson legitimating racial segregation under the cover of the separate but equal doctrine, and Korematsu vs. United States upholding the forced relocation of Japanese-Americans.  So  the Supreme Court’s course has at times been troublesome.  Abraham Lincoln was hard pressed when he had to confront  the dilemma posed by the Dred Scott decision.  What he said was that we believe in obedience and respect for the judicial department of government. “Its decisions on constitutional questions should control subject to be disturbed only by Amendments of the Constitution as provided in that instrument.  More than this would be revolution.  We think the Dred Scott decision is erroneous, he said.  We know the Court that has made it has often overruled its own decision and we shall do what we can to have it overrule this.  But we offer no resistance to it.”

Understanding the Supreme Court, then, requires one to take the long view.  If the Court’s work is ensuring the rule of law, it is  always a work in progress.


William W Schwarzer

October 2007