John Marshall: The Man Who Made the Supreme Court

By Richard Brookhiser. Published by Basic Books [Hachette] NY 2018

To better appreciate where the start-from-scratch governance structure of the American Republic is today, read this biography of John Marshall by Richard Brookhiser. It is a compact Horatio Alger-like story of the youngest and relatively unheralded member of the esteemed company of founders. The book benefits from a sprightly style of biographical details infused with jurisprudential thematic cases. It pulls together key developments of the young Republic, through the prism of Marshall's service over decades as chief justice of the United States Supreme Court, fashioning and flexing newly found muscles, spanning six presidencies.

This little book orients—and should stabilize a bit—any reader towards a confidence that the whole nation is still in a good place nowadays, in part because it providentially landed in good hands at its outset. One is left to ponder, though, where the nation might have ended up, “but for” a John Marshall, “The Man Who Made the Supreme Court.” The two hundred and seventy-seven pages of the easy-to-read, yet erudite and nuanced, book are enhanced by an excellent notes section, with a helpful index, and a wide bibliography that includes several other more comprehensive biographies of this pre-eminent nation-shaping figure. (Many excellent book reviews are also available through standard internet searches.)

The author's evocative subtitle gives a full measure of credit where it is due. But even that fails to give value-added credit for the transformative contributions he rendered to the young nation. This youngest founder, an “accidental” chief justice, is renowned for superb judicial third-branch leadership, to be sure, but his service to the nation's tripartite checks and balances governance—unique in history—is less understood and under-appreciated. That distinctive measure of accomplishment was significantly due to his ingenious out-maneuverings of the grandiose intellect and ambitions of his distant cousin, the renowned and celebrated Founder-President Thomas Jefferson.

History, some experts opine, is shaped by larger-than-life figures who are challenged to meet and solve momentous historical events and upheavals that cross their paths. How these individuals handle the major challenges in their times and circumstances define the legacies of greatness or failure—fame or infamy. Among the most notable figures in the American presidential pantheon, of course, are George Washington, Abraham Lincoln, and FDR—no need here to repeat the well-known highlights of their tenures, and their well-deserved fame for how they met the defining crises of their times.

Professor Brookhiser makes a well-proven case to put Marshall on such a high pedestal. He crisply leads the reader through the admirable biographical details of Marshall's life, leading up to his becoming the “accidental” fourth chief justice, a storyline in itself told with wide-eyed fascination. Marshall comes to the high office at an early age (45 in 1801) and lives long enough and well enough to serve for 34 years, spanning six presidencies. And he encounters and conquers monumental cases and crises in that long tenure.

On the United States Supreme Court scale, no one comes near to John Marshall's fame and lasting contributions. He is unique because he bridges the founders as one of the youngest persons among that remarkable assemblage in the revolutionary and formative stages of the nation. He served as a young soldier under General Washington, including during that winter at Valley Forge, along with Alexander Hamilton. He later leaps up to and retains the top rung of the judicial branch with the opportunity to impose his vision of the nation, as he understood its formative intentions from those first founders he observed, learned from, and worked with firsthand.

Early on founders like Hamilton deemed the judicial branch the weakest and least dangerous among the three branches established under the Constitution; John Jay, too, as I shall describe further. Marshall, through his shaping of the Constitution, however, got to prove them all wrong and quite dramatically.

A driving force for him was that the defining document emanated from the people, not from some confederated consent of the states. To him, the document itself was the linchpin and even the superseding organic and dynamic centerpiece of the new nation. That Constitution thus acquired and retains its overwhelming staying power principally because he gave it an almost spiritual vitality and parentage. Notably, that view was not “originally” contemplated nor expressed as such, except later through the voice and words of subsequent cases that Marshall carefully chose and adjudicated. No nation before or since was “ruled” in this way.

It is not insignificant that his distant cousin and fellow Virginian, President Thomas Jefferson, so greatly renowned for his intelligence and major contributions as a founder, held different views for the provenance and direction of the nation. A clue to why Marshall tipped in the direction he took may be found in his tutelage under Alexander Hamilton, a key nationalist. Marshall's admiration of Washington also vastly influenced his mature development in the school of the Hamiltonian Federalism over the states rights Jeffersonian preference. (By the way, it is not well known that, during his tenure as chief justice, Marshall wrote the first-hand and definitive biography of George Washington. Even that extra-judicial exertion exacerbated the animosity with Jefferson, who was not kindly dealt with in the book.)

Justice Story, who later served with Marshall as friend and colleague, offered a graceful and admiring appraisal of the chief's greatness, reminding historians that leaders such as he “are found only when our need [the nation's] is the greatest.” This was a kind of forecast of the nation's finding Lincoln at the moment of its greatest need a few decades later. If Jefferson's view of the pre-eminence of states rights over Marshall's had prevailed, who can possibly know how that might have skewed the course of history at the Civil War crossroads.

So, Jefferson the brilliant and flashy one, and Marshall the hard-working quiet deliberative craftsman, jurist par excellence, pushed hard for different paths for the young nation in those early 1800s. Marshall's philosophy prevailed by his prudent use of judicial power, proportionate to the cases, occasions and circumstances. His view has stood the test of time as a counterpoint to Jefferson's Southern gentility and Parisian panache. Modest Marshall went about taking care of his judicial duties while taking care of his wife Polly. A measure of this full gentleman may be found in a small reference in “First”, Evan Thomas' recent excellent biography of Justice Sandra Day O'Connor. The author reports from one of her law clerk interviews that while taking friends on a tour of the court, Justice O'Connor pointed to a portrait of John Marshall and commented that “he was her favorite justice” not because of his great opinions but rather because he went home every night to serve dinner to his “sickly wife” Polly. And yet he was renowned for showing up at court every day for every case on his large and varied docket in those days of circuit responsibility, as well.

While Marshall benefitted from the gift of staying power over decades, his judicious overlay of judicial authority as the final word ended up trumping the imperial notions that Jefferson and Jackson brought to the presidency because he turned out to be politically more astute and practical than they were. One delicious tidbit that Brookhiser recounts, for example, is Marshall's appraisal of his cousin Jefferson as he was battling to defeat Adams for his second term—describing the soon-to-be victorious President as a “populist demagogue” and a man of not “pure morals.” Is it any wonder that Jefferson intensely disliked Marshall and was utterly frustrated over and over that he could do nothing to reduce or eliminate Marshall's institutionally self-defined amassment of enormous “undemocratic” judicial power and influence over events set in motion, thanks to Adams' bequest to the nation in naming him chief justice!

Over the long haul, after all, the other founders were gone and had served out their limited roles, while Marshall plowed ahead, thanks to his lifetime Article III “job.” No one else survived as long with continuing authority to enjoy the panoramic picture-window purview and role in the historical development of the nation. If an individual is graced with God-given gifts and tools of character and intelligence, the sky becomes the limit. Marshall was such an individual and used his gifts and tools wisely and fully. Brookhiser describes him as having a charmer's manner, understated in his perceived modesty, though nonetheless ambitious, but not on some self-aggrandizing scale. He understood and wielded the psychology of leadership very well. (Some of this reminds of the descriptions of a modern Associate Justice William Brennan who it is said cadged together “the rule of nine,” without being a chief, by like gifts of the art of insouciant persuasion. Benjamin Cardozo also springs to mind from descriptions of his collegial affectionate relationships with his colleagues on the New York State Court of Appeals as chief judge.)

Marshall seemed intuitively to know when to hold back and he did not rule by sweeping fiats. For example, his most illustrative and transformative principle—judicial review was back-doored through Marbury v. Madison. It is at best a dictum for what it did not actually decide, and at worst an advisory pronouncement not at all necessary to the ruling of the case and controversy itself. He molded it with a nuance that frustrated Jefferson's plan to defy it as a mandate of the court. Instead, the president was left to fulminate against its “undemocratic” effrontery. Brookhiser unpacks this part of the story with an admiring astonishment that Marshall was able to pull this off and that it has endured virtually unscathed as a cornerstone of the nation's jurisprudence and governance.

In another such example of the Battle of Titans, President Andrew Jackson sarcastically remarked after the Trail of Tears cases involving Native Americans where Marshall ruled against the cruel injustice of the president's removal policies that Marshall made his ruling now let him enforce it. Jackson, like Jefferson, presaged the egotistical backhand of Josef Stalin referring to the power of the pope “But how many divisions does he have?” To be sure, the judicial branch and the chief justice also have no divisions to blunt executive force by their three little words “Ordered Decreed Adjudged.” On the other hand over the centuries, judicial institutions and “the nature of judicial process” possess something thankfully more potent and valuable—the public trust and respect, warts and all—an almost mystical belief and innate trust in the neutral magistrate principle.

Brookhiser also amusingly interposes how a master first founder, John Jay, held the chief justice's job early on, left it, and would have had it again (he was named, confirmed and renounced it). Jay didn't think the job would amount to anything, as Brookhiser notes. Jay viewed the chief's role as “defective” and “lacking energy, weight, dignity.” That incredible miscalculation by the famed New York jurist and governor, founder and Federalist Papers author changed the nation's history. While his magnificent portrait adorns the center position of honor above the New York Court of Appeals chief judge's center chair seat on the bench at the Court of Appeals of the State of New York, Jay enjoys no parallel place of prominence for service at the magnificent “Marble Palace” on First Street in Washington, D.C.  And by the way, what a different place that is today from where Marshall conducted the Supreme Court's early years of business in a dark, dank, and crammed basement area of the old Senate chamber. The direction of the nation and the Supreme Court's role would, I think, have turned out very differently had Jay visualized and taken the job, for what it could be—one of those “what if” hypothetical historical games people play.

Indeed, young founder John Marshall would at best have been relegated to a footnote of the nation's early history, remembered only as a lesser Revolutionary War soldier figure, and an accomplished early lawyer, among many, from Richmond, Virginia, to boot. His other public roles, after all, were relatively minor, even as secretary of state to President John Adams for a short stint.

Equally amazing in that regard is that Marshall became Adams' choice by sheer default as the latter was going out the chief executive door, bitterly having lost the election to Jefferson. And his other appointments around that time that would become the infamous midnight appointments ironically led to the most significant twist of all—Marbury v. Madison. These virtually incredible twists of fortune might be laughed away in a work of fiction, yet they are the verified historical record. And they would not have happened “but for” Jay's low assessment of the job, and a few other “but fors.”

Brookhiser delightfully tells the story of Marshall's acceptance of the C.J. role with a diffident sense of aplomb, as he “bowed in silence” to President Adams. The president, in effect, tells his secretary of state that since no one else wants the job and you haven't come up with any other recommendations besides Jay who rejects it, then it is yours, as we have run out of time to make the appointment before Jefferson takes over! The author confirms the accuracy of this fantasy converted to reality.

Two words explain the miracle of how the Supreme Court came to be so central to the allocation and distribution of power among the three branches—“John” and “Marshall.” Brookhiser summarizes the Marshall legacy in his last chapter with a tantalizing montage of quotations from a series of early Marshall opinions, to wit, that the “intention of the instrument must prevail” and the intention was to be “collected from its words;” yet it must also be understood as “part of the history of the day.”

What a teasing glimpse that offers into the modern debates over originalism vs living organism! No words, expressly, “penumbrally,” or otherwise impliedly in the Constitution itself can be found to have granted the sweeping and previously unheard of review authority that Marshall discovered and molded into his court's awesome jurisprudence. As an “Original”—because he was there at the creation (though not at the Convention itself)—should Marshall then be given another title—the first herald of the “Living Organism” theory?

Without venturing a definitive choice, I pose a construct for an answer to that delicious continuing debate in this way. Marshall fervently wanted that People's charter, as he saw it, to survive. Like no one else among the founders, he sensed that someone had to be the guardian and final arbiter of the Constitution, as a long-term continuing document. Without that role and function being expressly declared and conveyed, he resolved that it fell into his portfolio of powers and duties, self-servingly or not, to fill the obvious gap (a sort of Cardozean “interstice” or a penumbral puzzle piece, perhaps?).

Brookhiser rightly lauds Marshall's extraordinary accomplishments. It is necessary, however, as the author does to avoid hagiography, for history to step back and notice a sobering smudge on the chief justice's escutcheon.  His extraordinary record of high-quality accomplishments and integrity on the highest bench of the land cannot insulate him from his human imperfection. Marshall was a typical Virginia slave owner of his times. In the development of human rights and implications for how the jurisprudence should deal with the slavery fuse and time bomb, he failed to have the vision and will to make a difference. Brookhiser is perhaps a tad too kind, it seems to me, in laying out how Marshall rationalized this defect away with the explanation that the law of nature—the equality of persons was fine for “declarations of independence” (another shot at Jefferson, and a poor one, at that)—but the “law of nations” and contracts “ruled in courts of law” under organic instruments of governance must prevail. (One poetry, the other prose, it has been said).

That demarcation and sophistry do not reflect honor on his or the court's record. He had opportunities in cases to engage boldly, as he did elsewhere, and make good history, too, and lay the groundwork for a reasoned solution. Instead, he hedged and one might say even blinked and ducked. While he surely reflected the culture and mores of his times, his own views of the nation's original sin of slavery caused him to fail to condemn and right and root out the evil to the extent his cases would allow as the cancerous legacy the nation's heritage that it was. He left the poisonous seed in the jurisprudence to metastasize into Dred Scott case only a few decades later. His lapse leaves more “but fors” and “what ifs.” Marshall's segregationist successor Chief Justice Roger Taney ironically advanced to the chief justice's role by the hand of President Andrew Jackson and is the divided court author of the infamous Dred Scott judgment.

By today's standards, I fear, Marshall could suffer some of his own “schadenfreude” at the intolerant hands of those who treat history with a tear-down enthusiasm and relativity that Einstein would not recognize. While there is no escape from uncomfortable facts, they need to be put in perspective to the whole picture frame. The warts are there and must be acknowledged, but not in a such a way as to besmirch and de-value the extraordinary accomplishments of the big picture and full panoply of accomplishments to the nation from leaders like John Marshall.

In sum, Marshall as chief justice, and his Supreme Court, and its modern successor institutional iterations are still the most respected among the public offices and officers that the nation trusts and almost reveres among the three branches. The judicial branch and process still strive more openly and quietly and modestly for integrity and intellectual honesty, despite occasional ideological eruptions and shibboleths that are inevitable, and that emanate from the slings and arrows of modern media culture with all their perverse immediacy and thoughtlessness.

Author Brookhiser should be thanked for a refreshing reminder that the Supreme Court and Marshall—who “made that institution” what it became and what is today, without military divisions—are to be appreciated. They remain bastions of liberty and justice for all—in all its sometimes excruciating and frustrating deliberativeness of time. Yet, thanks to extraordinary leaders like Chief Justice John Marshall, this nation enjoys more lasting structural strengths than the executive and legislative branches provide. Read and enjoy his fine book.

Joseph W. Bellacosa is a retired judge who served on the New York State Court of Appeals.