Judging the justice
In 1792, Thomas Jefferson wrote to James Madison that “nothing better could be done” than to make their fellow Virginian, John Marshall, a judge. Jefferson feared that Marshall, a Federalist ally of Alexander Hamilton, would run for Congress. A judgeship would keep him safely out of the way.
Alas for Jefferson! He achieved his wish. Marshall became the chief justice of the United States, after a brief stint in Congress and then as secretary of state. But far from a nonentity, Marshall became the longest-serving and most influential chief justice in history. From 1801 to 1835, he raised the court from a weak constitutional figment to a powerful nationbuilding tool, whose rulings often conflicted with the statesfirst mantra of the Jeffersonian Republicans.
Joel Richard Paul, a professor of constitutional and international law at UC Hastings College of the Law, has added a well-written and admiring biography to the long line of Marshall scholarship. The first sentence of “Without Precedent” establishes the stakes: “None of the founding generation of American leaders had a greater impact on the American Constitution than John Marshall, and no one did more than Marshall to preserve the delicate unity of the fledgling republic.”
Paul does not dwell on Marshall’s personal life. His youth is dispatched in less than 10 pages. Then it is on to the Revolutionary War, where Marshall’s service included the terrible winter at Valley Forge. Wartime deprivation shaped Marshall’s view of government, Paul argues, as the shortcomings of a loose grouping of states became clear: “Only a strong central government with the power to tax, regulate commerce, and raise an army could defend the nation effectively, [Marshall] concluded.”
Though a second cousin of Thomas Jefferson, Marshall was not rich, and his wife was sickly. So in the 1780s, Marshall sought to build his private legal practice, even as he became a powerful advocate for the new Constitution. But his talents pulled him into government. President John Adams asked him to serve as a commissioner to France, where his writings on French tactics of bribery and delay outraged Americans against France in the XYZ Affair. In 1798, George Washington insisted he run for Congress. Adams tapped him as secretary of state in 1800.
But it was Marshall’s appointment to the Supreme Court in early 1801 that would echo through history. By that point, Adams was a lame duck. Jefferson had won the presidential election and aimed to reverse many Federalist priorities. Indeed, the Republican Congress — no fan of the courts — even canceled the Supreme Court’s 1802 term.
When Marshall became chief justice at age 45, the court was vastly less powerful than today. It occupied a small room in the Capitol, and each justice wrote his own opinion. Its decisions attracted little attention.
Marshall changed all that. During his 34 years on the court, about 90 percent of the court’s opinions were unanimous (today it’s less than half ). He wrote about half the court’s opinions. He brought other justices along, even those appointed by Republicans, through personability and persuasiveness. “I am in love with his character, positively in love,” effused Justice Joseph Story, a Madison appointee.
Marshall built the court into an equal — or nearly equal — branch of government. He had a “natural talent for compromise and ... genius for invention,” Paul writes. He navigated deftly through perilous political shoals. He did not want his rulings to be toothless, yet neither did he want to provoke a Republican backlash as he built the court’s authority. Marbury vs. Madison, the unanimous 1803 decision that established the Supreme Court’s right to review Congress’ laws, still stands as the “single most significant constitutional decision issued by any court in American history,” Paul writes, even as he points out legal deficiencies in Marshall’s decision.
As a law professor, Paul is in his element when examining cases (many of which pertained to international and maritime law). He describes the Marshallled acquittal of Aaron Burr for treason in 1807 — which angered President Jefferson — as “the greatest act of political courage in his long career.” An 1824 decision that dismantled steamboat monopolies and promoted commerce across state lines made possible “a truly national economy,” Paul writes.
The Marshall Court clearly helped stitch the fledgling republic together, and Marshall’s personal story — eldest of 15 children, raised in a a log cabin, fan of Jane Austen — is compelling. Yet he deserves no 21st century musical. Marshall’s terrible flaw was slavery. For all his vaunted legal imagination, his actions showed only nominal empathy toward the human beings forced to work in his own household. There is no evidence that he beat slaves, yet neither did he free them after his death — or during his lifetime.
A tightly argued new book by legal historian Paul Finkelman puts the spotlight squarely on Marshall’s slaveholdings. “Supreme Injustice” examines the slavery impact of Marshall, Story and Chief Justice Roger B. Taney, Marshall’s successor, whose infamous Dred Scott decision denied Scott his freedom and held that African Americans could not be citizens. Marshall, Finkelman writes, “successfully prevented his court from confronting slavery directly.” He “never wrote an opinion supporting a claim to liberty brought by a slave.” If the court did reach such an opinion — and the Marshall Court heard more than 50 slavery-related cases — Marshall did not write it.
Paul is unduly gentle on this point, seeing Marshall as a product of his time, and more benign than many Virginia slaveholders. “Slavery was an inescapable fact, and Marshall could not avoid involvement in that institution both personally and professionally,” he writes, in a passive and roundabout turn of phrase. Paul believes Marshall “viewed slavery and the slave trade as an abomination.”
Yet Marshall’s actions, personally and on the court, fell far short of such sentiments. In an 1825 case, Paul writes that Marshall “had the opportunity to strike a blow against the slave trade,” but did not. Finkelman is more resolutely negative, and more persuasive. Marshall, he writes, did not apply his legendary legal creativity to slavery cases. During his lifetime, Marshall “was constantly buying slaves, accumulating more than one hundred and fifty by 1830, while also giving about seventy slaves to two of his sons between 1819 and 1830.” Paul, by contrast, writes that Marshall had “between seven and sixteen household slaves at any time.” The difference is plantation holdings around Virginia. Finkelman highlights them, while Paul seems unaware of the additional slaves.
Finkelman does not dispute Marshall’s legal prowess. But as he writes, “slavery does not accord with the narrative of ‘the Great Chief Justice.’ ” On this most important issue, John Marshall failed.