Magazine | November 12, 2018, Issue

Supreme Jurist

John Marshall, by Rembrandt Peale (Wikimedia Commons)
John Marshall: The Man Who Made the Supreme Court, by Richard Brookhiser (Basic Books, 336 pp., $30)

Here’s a question that shouldn’t stump any history buff but that is apt to baffle more than a few: Who served both as secretary of state and as chief justice of the Supreme Court?

If the riddle leaves him whom you query bewildered, add these conspicuous details: The jurist and statesman was among the Revolutionary War vets who survived the winter at Valley Forge, and he helped lead the fight for the Constitution’s ratification in Virginia. One of three American diplomats who refused Talleyrand’s bribe request in the XYZ Affair, nearly sparking a war with France, he was then tapped by Washington to run for Congress. There he served briefly as a Federalist. Later, while employed as the country’s foremost judge, he found the hours in which to compose a popular multivolume biography of our first president, based on Washington’s own papers. Then, while “riding circuit,” he presided over Aaron Burr’s trial on charges of treason.

Yet most of these actions are considered rather trivial in comparison with John Marshall’s main achievement: As the chief justice of the Supreme Court for 34 years, he shaped it into an institution meriting broad reverence and wielding not inconsiderable clout. The subtitle of longtime National Review senior editor Richard Brookhiser’s new biography — “The Man Who Made the Supreme Court” — is not hyperbole. It’s safe to say that the highest court and the entire judicial branch of government would never have gained their present influence without him. And since the balance of power among the three branches has been essential in providing our government’s stability, and as Marshall played a vital role in devising the legal principles underlying the creation of our national economy, it follows that the country might never have become a great power without him.

All this compels us to ask why he remains a mysterious figure, someone few of us can picture and fewer still would claim properly to understand. That sphinx-like quality has proved tempting to biographers, and Brookhiser’s volume is the third to appear since the beginning of 2016. It is also the first that is genuinely satisfying.

This is due largely to the author’s penetrating intelligence and his style, which is both elegant and readable. It’s also reflective of his somewhat unusual approach to his tale.

Marshall was unlike many of his illustrious contemporaries in that we know little about his inner life. It’s widely believed that he destroyed many of the letters he exchanged with his beloved but profoundly neurotic wife, Polly. For this reason, we are without a window into his domestic existence like the one afforded by the missives between the Adamses. Nor is his life’s story en­livened by any whiff of scandal, such as is offered by Alexander Hamilton’s affair with Maria Reynolds or might be aroused by the presumptive relationship between Thomas Jefferson and Sally Hemings. Although Marshall was famously convivial and charming, the grand dramas of his soul are largely hidden from us. Though he was twelve years younger than Jefferson, who was his second cousin, Marshall was a far more restrained personality, and, in many respects, it is he who is a true figure of the 18th century. It is his kinsman and hostile rival who seems to us more familiar and like our own contemporary in his at times unbridled emotionalism.

Recognizing this, Brookhiser has wisely chosen to write what is essentially an inspired political and legal history of the early republic, with Marshall serving as the focal point. But, in common with almost all the author’s works, it aims to follow the pattern of Plutarch in its brevity, its felicitous prose, and its emphasis on meaningful analysis over the presentation of mountains of detail. 

One cannot but be struck by its timeliness. Implicit throughout is the question of what the Court’s powers ought to be, and consequently it serves as a reminder that the controversy over Brett Kavanaugh’s nomination was, so to speak, injudicious. Surely the conception of executive authority of a prospective member of the Court should have mattered far more than uncorroborated allegations of sexual wrongdoing and definitions of what precisely “boofing” is.

The story of Marshall’s magistracy starts with a case in which he himself was a principal: Marbury v. Madison. As John Adams’s secretary of state, he had pressed the seal on the order appointing William Marbury as a lower-ranking federal judge. Then he had deputized his brother James to deliver it to the post office, a task his sibling failed to complete before the last hour of the presidential term had ended. That provided an opening for the new administration to refuse Marbury his appointment, an act that commenced the lawsuit that is commonly said to have established the principle of judicial review in American jurisprudence.

This is a myth, as judicial review had been a widely accepted idea in Anglo-American common law in the years leading up to the Revolution and during the period following it. It was approvingly referred to in Hamilton’s Federalist No. 78. What Marshall accomplished in Marbury was to insinuate the doctrine into a case in which he chose not to directly challenge the president’s power. He accomplished this by acceding to the rejection of Marbury’s appointment, saying that the law that gave Marbury his position, the Judiciary Act of 1801, had been unconstitutional and was therefore null and void. Undoubtedly Marshall’s decision was informed by his awareness that the Court’s position was feeble and that if he were to try to force Jefferson into giving Marbury his post he might be ignored, and this would further diminish the Court’s meager reputation.

As an active participant in the debates over the Constitution’s ratification, Marshall had a keen awareness of what it intended, and his jurisprudence focused especially on bolstering three of its most crucial passages: the supremacy clause, the commerce clause, and the contracts clause. These were central to his rulings in three significant cases, McCulloch v. Maryland, Dartmouth v. New Hamp­shire, and Gibbons v. Ogden. The immediate effects of all three rulings were slight, but their implications were immense. The first, involving actions taken by Maryland against the first Bank of the United States, greatly circumscribed the ability of the states to impose themselves on federal institutions. The second, dealing with control of the New England college, affirmed both the immortality and the property rights of corporations. The third, which considered the status of a monopoly on steamboat travel along the Hudson River, established the paramountcy of the federal government in matters of trade between and among the states. Taken together, these and a score of other cases gradually produced a foundation for federal authority and interstate commerce.

Marshall’s tenure as chief justice remains unequaled. One can gain some sense of just how long it was from a simple datum: He administered the oath of office to five presidents at nine inaugurations.

His ability to create a strong Court depended not only on this weight of time but on his extraordinary personal skills, which allowed him to pull together the different judges so that the overwhelming majority of his Court’s decisions were unanimous and without separate concurrences. That unanimity was aided by the Court’s size and its seasonal engagement. Composed of just six members for much of the period and resident in Washington for only a few months each year, it was easier to stitch together, as Marshall generally arranged for the justices to stay in the same boarding house, where they ate dinner together and made toasts to one another each night. However, this would have been of no value had Marshall not also possessed an imposing mind that commanded respect from his fellow justices and the nation at large.

Brookhiser ends by asking whether the self-regarding assertion of supremacy professed by the current Court is what the Founders intended and whether it is what we ourselves might wish. Marshall’s achievement was to raise the Court from virtual irrelevance, a condition that had prompted two of the three chief justices who preceded him to resign. Yet he was circumspect about what the Court’s role should be.

In the ratification debates, Marshall explained pointedly that if Congress “were to make a law not warranted by any of the powers enumerated, it would be considered by the Judges as an infringement of the Constitution which they are to guard.” In such a case, “they would declare it void.” This duty required examining the Constitution’s precise words, and it obliged jurists not to usurp legislative functions. Among the most original of “originalists,” Marshall would surely have looked with scorn upon rulings such as Judge Roberts’s in the Obamacare case (National Federation of Independent Business v. Sebelius), which affirmed the notion that the federal government may use its tax powers to take charge of health care, no matter that this is nowhere enumerated or even vaguely implied in the Constitution. One hopes that Judge Kavanaugh will not show himself to be equally indifferent to its plain meaning. Should he wish for a good reminder of what his duty is, he could hardly do better than to read this superb account of the life of America’s greatest jurist.

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