The Great Chief Justice


He did not stay king by throwing his weight around, by parading his Chiefship to his officially slightly inferiors, nor by sternness and severity of manner. By contrast to the oft-imagined picture of Marshall as austere, autocratic, coldly impressive—as a stronger John Jay, a tougher Charles Evans Hughes—the man was a thoroughly likable, approachable, outgoing and easygoing figure in his relationships with people, blessed with a gangling, rough-cut charm that made personal friends out of political enemies. In the intimate theater of the Court, his strategic talents masked by his effortless magnetism served to win to his purposes, one by one, almost every new Justice who was sent up to do him battle. On the larger stage of national politics, the same strategic genius came into play at a different level. He needed every ounce of it to wage successful war against his most outspoken major antagonist, President Jefferson—to whom, by the irony of events, he had administered the oath of office.

It was Jefferson who threw down the gauntlet in his first Presidential message, where he offhandedly presented “to the contemplation of Congress” the existing federal court system “and especially that portion of it recently enacted”—meaning, as was apparent to all, the Federalists’ Judiciary Act of 1801, under which the new circuit judgeships had been hastily set up and manned with Federalist judges. Not that the Republican Congress needed any such reminder; they not only repealed the Act but, slightly worried that Marshall’s Court would declare the repeal unconstitutional (because of the guarantee of lifetime tenure for all federal judges) they actually closed down the Supreme Court for a year under their constitutional power to make “such regulations.” Marshall obeyed this edict and bided his time; his first big chance, or challenge, had come to him a short while before.

This challenge stemmed from another last-minute move of Adams’ outgoing Administration, in which he had appointed no less than 42 new justices of the peace for the District of Columbia but had done it so late that he had no time to make out their formal commissions. Jefferson, right after his inauguration, ordered his secretary of state, James Madison, to withhold a batch of these commissions, and four of the would-be J.P.’s—headed by a William Marbury who thus made his name a byword in Supreme Court annals—asked the Court to order or, in the legal term, “mandamus” Madison to deliver their commissions to them. A preliminary order of Marshall’s was contemptuously ignored by Madison, and when Congress shut down the Court for a year the whole affair was still unfinished business, waiting to be settled when the Justices reconvened.

The case of Marbury v . Madison, seen in retrospect, ranks as the most important decision in all Supreme Court history—judged by its potency as a legal precedent, a guiding authority, a basis for linking new decisions to old. Yet the actual ruling was of practically no contemporary consequence, since the term for which President Adams had named Mr. Marbury a D.C.J.P. (D.C.J.P.’s are not lifetime federal judges) had just about expired by the time the ruling was made. This fact did not stop Marshall—who thoroughly understood the implicitly fundamental challenge to the judiciary which fairly bristled from the Jefferson-Madison course of action—from turning a tiny and almost academic immediate issue into a mighty and abiding principle of constitutional law. To do so, however, he had to face and hurdle a dilemma which would have stymied a man less imaginatively bold.

Marshall was well aware that if the Court ordered the delivery of the commissions to the Marbury quartet, the Administration would disregard this mandamus, leaving the Court helpless to enforce it and hence humiliated. He was also aware that if the Court bowed to the Administration by simply saying that Madison was within his rights in refusing the commissions, the judiciary would be publicly confessing its ignominious and perhaps irreparable submission to the executive. What Marshall did was a stroke of political genius, salted with lawyerly adroitness. He declared in ringing tones that Marbury and the rest were clearly entitled to their commissions; he excoriated Madison and especially Jefferson for not handing the commissions over; and then, in his master thrust, he held that the Supreme Court technically did not have the power to order the commissions delivered. To so hold, he had to take the audacious step that made Marbury v . Madison a milestone in the nation’s history (though some might call it a millstone around the nation’s neck). Speaking for a unanimous Court, he ruled that the section of the old, original Judiciary Act of 1789 (not of 1801) which said the Supreme Court could issue such orders or “writs of mandamus”—and which had stood unchallenged and been used regularly for years—was a violation of the Constitution and therefore completely void.