The Great Chief Justice

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Because of the steady accretion of top government power in the judiciary under Marshall’s benevolent despotism, sporadic efforts were made from Jefferson’s Administration through Jackson’s to cut the Justices down to democratic size. Proposals included limiting the terms of the Justices (Jefferson once suggested six years as enough), packing the Court with new members, giving the last word on constitutional issues to the Senate instead of the Court, requiring a five-out-of-seven vote to call a law unconstitutional, and the outright repeal of Section 25 of the Federalists’ old 1789 Judiciary Act under which the Court had first taken on, and under which, technically, it was still exercising, the right of judicial review. That all these Court-hobbling schemes came to naught, despite Presidential backing for several of them, was due in large measure to Marshall’s masterly over-all long-range strategy.

For Marshall, after his initial announcement of the Court’s supremacy over Congress in Marbury v . Madison—a decision which actually reduced in a minor way the Court’s own power, not Congress’—never again called a congressional act unconstitutional. On the contrary, thirty-odd years’ worth of his subsequent significant rulings tended toward enlarging the powers of Congress at the expense of the powers of the states. Why, then, should Congress want to restrict, by either simple statute or constitutional amendment, the very Court that was always championing and expanding Congress’ own powers? For all the political hostility of most congressmen and senators, individually, to what Marshall and his Court were really doing in the regular and often ruthless protection of property rights, they were lulled or flattered into inaction against the Court by the protection-of-Congress phrases in which he cloaked his more immediate and more specific purposes. By the time later Congresses finally caught on to what Marshall had so dexterously done in his politico-economic shell game (the pea of top government power was under the Supreme Court shell, not the Congressional shell, all the while), later Supreme Courts had built so solidly and sonorously on Marshall’s words that all efforts to override or undercut judicial supremacy were considered akin to treason.

This judicial supremacy, this rule by judges, was Marshall’s major and most fundamental contribution to the American scheme of government—not that he created or first invented it, for he did not, but that he established it, emblazoned it into the unwritten Constitution, for the use of generations of Justices to come. Even more than his go-right-ahead encouragements to Congress and his stop-right-there strictures to state legislatures, the assured audacity with which he lifted his own branch of the federal government from neglect and contumely to respect and power helped fashion a cohesive, consolidated nation.

For 34 long years, John Marshall, at political odds with every Administration since his appointment save perhaps John Quincy Adams’, had braved and bested the growing forces of liberal democracy, had blended boldness and subtlety, force and charm, selective logic and a sort of home-baked law, to stand his ground for the brand of conservative and essentially autocratic government in which he so deeply believed.

“I am prejudiced, as all men are prejudiced,” says Fred Rodell, professor of law at Yale University. “I tend to admire liberals or lookers-after-the-other-fellow more than I admire conservatives; yet awareness of my own leaning has led me … to try to give the devils their more than due.” This is his brilliant study of the greatest conservative “devil” of them all, John Marshall, and it is also colored by Rodell’s admitted enthusiasm for men of courage and intellectual honesty, whatever their politics. It is taken from a chapter in his new book, Nine Men: A Political History of the Supreme Court from 1790 to 1955 , and appears through the courtesy of Random House, Inc.