The Great Chief Justice


The Court of which Marshall took command, a Court which had been depreciated even below its original lowly status by Ellsworth’s why-bother indifference to its operations and by Chase’s rambunctious extrajudicial politicking, was regarded by most citizens with either apathy or scorn. The important thing was that Jefferson had been elected, the Republicans were in the saddle, and those federal judges who used to go around putting decent people in jail just for speaking their minds about politics would soon find out who was running the country now. Symbolic—and quite incredible today when the Court, in all its majestic dignity, meets in a marble temple that is one of the showplaces of Washington—was the fact that the architect of the new Capitol building had completely forgotten, or maybe deliberately failed, to provide a place for the Court to do its business. The great Chief Justice was sworn into office in a 24-by-30-foot committee room in the Capitol basement, politely furnished by the Senate for the Court’s use. In that tiny chamber, Marshall and his five associates began to hear the cases that were to raise the Court to prestige and pre-eminence.

Marshall’s associates, at the start, were of course all fellow Federalists. But within a few years, deaths plus the addition of a seventh Justice gave the Republicans an expanding beachhead on the high tribunal: and by 1811, a decade after Marshall took charge, five of the seven Justices were Republican-appointed, with only Bushrod Washington [the General’s unimpressive nephew], due to last another eighteen years, hanging on with his Chief from the old Federalist days. Still, the gradual filling of the Court with presumable opponents of Marshall’s political and legal views did not shift, until near the very end of Marshall’s long tenure, the course of Supreme Court decisions. Indeed, except for William Johnson, the vastly underrated Justice who was Jefferson’s first appointee and whose continuous if futile disagreement with many of Marshall’s rulings made him the first great Court dissenter, and Joseph Story, the nominal Republican who immediately became Marshall’s right-hand man, the other Justices of the Marshall era—forgotten names like Brockholst Livingston, Robert Trimble, Gabriel Duval—deserve scarcely so much as a passing mention in an account of the Court’s history. Marshall was the Court—and they were his pawns, his puppets.


Stark statistics tell part of the story. During Marshall’s whole incumbency, his Court gave the full treatment, meaning a decision plus an opinion explaining it, to 1,106 cases; in 519, or almost half of these, Marshall wrote the Court’s opinion; (a Chief Justice does well today to write one-eighth of the Court’s opinions, and Vinson, for instance, did not come close to this fraction). Of the 1,106 cases, 62 dealt with the “meaning” of the Constitution, thus embodying, one way or another, the most important facet of judicial review—and Marshall spoke for the Court 36 of the 62 times. How completely he guided his colleagues, even when he did not himself speak for them, is shown by the fact that he dissented from only y of all the 1,106 decisions—or in less than one per cent of the cases, a figure incredibly low when viewed against the habitually split Supreme Court of the mid-Twentieth Century.

By what Marshall magic did Federalist doctrine not wither but flourish as the law of the land, long after the electoral interment of the Federalist party and the eventual extension of this shifted political sentiment to the judiciary? The answer lies partly—strange as it may sound—in the cozy living arrangements whereby the Justices, under an almost sacred ritual established by Marshall, were together not only at work but before and after working hours, in a pleasant routine that discouraged deep disagreement (Justices are human beings) and put a premium on friendly capitulation to the views of the most cogently articulate. The answer lies partly in the skill with which Marshall took advantage of this day-after-day intimacy to exploit, now patiently, now pointedly, his persuasive personality. The answer lies largely in that personality.

For Marshall made of his Court a sort of close-knit men’s club, whose members lived and dined and wined with each other in the same Washington boardinghouse, wifeless while the Court was in session; and trudged together, through muddy or dusty streets, to and from their little courtroom in the Capitol basement; and did their most decisive work away from their official site of business, as legal discussion blended into political commentary or sheer social gossip and then drifted back to the cases, around the congenial board. In such close and common quarters, even more than in the stiffness of the formal consultation chamber, Marshall’s easy eloquence was at its best. Republicans might come and Federalists go, but Marshall stayed king of the cloister.