An incomplete look at legal giant
served as chief justice for 34 years until his death in 1835.
Over those decades, he united the court into a powerful institution, largely on the strength of opinions he wrote. His landmark rulings are at best eloquent and usually persuasive. In McCulloch v. Maryland, he laid out the contours of Congress’ commerce power; in Burr v. United States, he blunted the law of treason as a tool to punish political enemies; in Dartmouth College v. Woodward, he anchored the constitutional underpinnings of contract law; in Johnson v. M’Intosh, Cherokee Nation v. Georgia and Worcester v. Georgia, he gave birth to the entire field of federal Indian law.
But his most important creation is the doctrine of Marbury v. Madison — the idea that the Supreme Court has the power and the duty to invalidate acts of Congress that it finds in conflict with the Constitution. That result was by no means inevitable; to reach it, Marshall had to navigate a treacherous political landscape. If Brookhiser aims to reveal the politics surrounding Marshall’s career, he disappoints somewhat at this point. A fuller political profile of the Marshall years would give the reader more of the scope of his unlikely triumph.
Consider Brookhiser’s brief summary of America’s first constitutional crisis, the Alien and Sedition Acts controversy. Adams’ Federalists, he writes, “struck at enemies at home with laws allowing the president to deport aliens he deemed dangerous and the federal courts to prosecute libels on the federal government.” This understates both the sweep and the aim of the acts. They were, in fact, essentially part of an attempted coup by the Federalist Party. Faced with almost certain defeat in 1800, the Federalists tried to shut down criticism of their leaders. The acts didn’t aim at libels on the “federal government” — they made it a crime to criticize the president or Congress. But they pointedly did not outlaw criticism of the vice president — who was Jefferson, the certain challenger to Adams in 1800. The acts also put in place sweeping restrictions on immigrants. They were accompanied by a clumsy attempt to take control of the Electoral College away from the states and put it into Federalist hands.
After passage of the laws, as many as 20 Jeffersonian newspaper editors were prosecuted, and many were jailed; one member of Congress, Rep. Matthew Lyon of Vermont, was convicted of sedition. The attempt backfired: Jefferson and his supporters swept the elections in 1800, and the Federalists faded into history.
But before they exited, the lame-duck Federalist Congress installed dozens of loyalists on the bench. In fact, they created an entirely new layer of “circuit courts” full of partisans — and they installed Marshall as chief justice.
As soon as he took office, Jefferson — a distant cousin whom Marshall despised — sought to neuter the court and rid himself of Marshall.
Marshall headed off those efforts through his response in Marbury v. Madison. Federalist William Marbury had been approved as a justice of the peace by the outgoing Federalist Congress but was barred from the bench by Jefferson. Marbury sought an order from Marshall requiring Jefferson to allow him to serve. If the Supreme Court ruled against Marbury, it would be admitting that Jefferson’s partisan purge was lawful. If it ruled against Jefferson, the new president would gleefully tear up the order. There was no clear law that gave the court the power to issue orders to the president, and Marshall had no means of enforcing such an order. The Jeffersonian Congress could accuse Marshall of overreaching — and impeach him. But the chief justice proved too wily for Jefferson and Congress. In his opinion, he explained that Jefferson had lawlessly deprived Marbury of his property, in fact, his job — and in 18th-century political terms, that was the essence of tyranny. But