John Marshall and the Origins of Supreme Court Leadership

ROBERT G. SEDDIG

"The least dangerous branch of the American government is the most extraordinarily powerful court of law the world has ever known..."[1] The power which Alexander M. Bickel attributes to the United States Supreme Court has come gradually. Nowadays, owing in large part to the development of the American doctrine of judicial review, the Supreme Court is a major national policy making institution.[2] We accept Bickel's statement as legal aphorism. The wellspring of such power lies in the case law and procedure of the Court in its infancy. It is inevitable, then, that legal scholars devote much attention to the Supreme Court in an inchoate period: The Jay and Ellsworth Courts (or, the Pre-Marshall Court, as it is often called), 1789-1800, and the Marshall Court, 1801-1835. From such beginnings, we can learn about the Supreme Court as an institution of politics and law.

The heritage of John Marshall, fourth Chief Justice of the United States, is not limited to constitutional law. To the important precedents of Marbury v. Madison,[3] McCulloch v. Maryland,[4] Dartmouth College v. Woodward,[5] and Gibbons v. Ogden[6] to mention four whose "radiating potencies" go far beyond the actual holdings of the decision–we must add the precedent of effective court leadership. The judicial statesmanship which Marshall contributed to the Republic in the first third of the nineteenth century is manifested not only through constitutional interpretation, but also through the manner in which he shaped the Court as a legal institution. The tradition of leadership--both within the Court and without--begins with John Marshall who, according to Oliver Wendell Holmes, indisputably is the "one alone" to be. chosen "if American law were to be represented by a single figure."[8]

Leadership and the Supreme Court

Before he became Chief Justice, Charles Evans Hughes wrote that

So pervasive was John Marshall's influence that it became the tradition after 1835 to designate a Court period by the name of its Chief Justice. Some may dispute this. More recently, Justice Potter Stewart argued:

As primes inter pares, the Chief Justice is in a unique position to influence. But as both Hughes and Stewart have said, his "actual influence" will depend on a number of factors.

In approaching leadership on the Supreme Court, the obvious starting point is the Chief Justice who "does have some authority which other members of the Court do not possess." The "head position" within a group provides the opportunity, and perhaps the expectation, for leadership. "The Chief Justice has the opportunity to be first among equals, but may not seize the opportunity."[12] In other words, the office could be what the occupant chose to make it in defining his role. In assessing the origins of Supreme Court leadership, it is critical to understand how John Jay, Oliver Ellsworth, and Marshall shaped the role as Chief Justice, for they set the tone for future generations.

Supreme Court leadership has a social and task component.[13] The task leader is concerned with "production emphasis" and consequently "makes more suggestions, gives more opinions, orients the discussion more frequently, and successfully defends his ideas more often than the others."[14] The social leader is more concerned with successful interpersonal relations within the group: he "attends to the emotional needs of his associates by affirming their value as individuals and Court members."[15] D. Grier Stephenson has argued that task leadership, in turn, has managerial and intellectual aspects. Managerial leadership consists of staying abreast of the docket, maintaining a maximum degree of court unity, expeditious direction of judicial conference, and thoughtful and deliberate assignment of opinions. An intellectual leader is one who could present his views forcefully and persuasively, be a principal source of ideas and doctrine, and provide tactical and strategic guidance in political dilemmas.[16]

In assessing the origins of Supreme Court leadership in the nineteenth century, it is important, especially as we consider internal leadership, to conceive of the Court as a small group with the Chief Justice as its titular head. This provides a set of "given conditions" from which we can begin our analysis. Our principal concern is with the leadership of John Marshall, but some understanding of the Pre-Marshall Court is necessary. The traditions which Chief Justices Jay and Ellsworth established are important in our assessment of changes which occurred after 1801.

The Pre-Marshall Court

In naming John Jay first Chief Justice of the United States, President George Washington urged him "...to bring into action the talents, knowledge and integrity which are so necessary to be exercised at the head of that department which must be considered as the keystone of our political fabric."[17] With some hyperbole, Charles Warren argues that of "all appointments to be made, that of Chief Justice... was by far the most important and had given to the President the greatest concern."[18] The six-member Court met for the first time in New York on February 1, 1790, with three members absent. There was little business until August 1792:

Chisholm v. Georgia,[20] and Georgia v. Brailsford,[21] allowed the Jay Court to render important judgments on the nature of state sovereignty. Yet the principal judicial tasks took place on circuit. As a consequence, there was little inducement for the Justices to develop a sense of teamwork and cooperation: the "institutional arrangements governing Supreme Court action during the first decade of its existence were conducive to individuality in decision making to a degree that has probably never been approximated since 1800."[22] Following the English practice, the Justices delivered their opinions seriatim. English court norms decreed that, generally speaking, judges rarely consulted each other or rendered a general opinion. "Guidance, if not control, over any change in this tradition... would, one might suppose, rest with a Chief Justice."[23] In this regard, Chief Justice Jay was not innovative, for he continued the English custom. Such solo performances "permitted the expression of shades and variations in reasoning, whether in concurrences or dissent, which has scarcely been equaled since."[24] However, in Jay's last decision, he felt the necessity for an unequivocal declaration on whether United States District Courts possessed all the powers of a Court of Admiralty, especially in light of the Neutrality Proclamation of April 22, 1793. The Chief Justice delivered an "opinion of the Court," although by "electing to use the decretal form to register its unanimous opinion," the Court "evaded entering into the reasons for its conclusion respecting the power of the District Court."[25] Nonetheless, the precedent for a single opinion was established.

On June 29, 1795, Jay resigned to become governor of New York, not having sat as Chief Justice since February, 1794. The Senate rejected the nomination of John Rutledge as second Chief Justice on December 15, 1795; three months later it approved Oliver Ellsworth, principal architect of the Judiciary Act of 1789, as Chief Justice.

Julius Goebel, Holmes Devise historian of the 1790s, concludes that "[u]ntil Ellsworth took his seat on the Bench such evidence as we have does not indicate that the place of Chief Justice had been one of leadership."[26] Ellsworth's senatorial career attests to his capacity and potential for institutional leadership, although the limited duration of his Chief Justiceship reduced the chances for such development. "By all accounts, he presided over the Supreme Court with perfect self-possession, and he knew how to assert the dignity of his office if any one, even one of his brethren on the bench, offended against it."[27] Ellsworth did try to promote shorter opinions, and there is some indication that, toward the end of his tenure, the Justices would try to achieve consensus and present a single opinion either through their chief or the senior Justice. The percentage of opinions delivered seriatim declined, while the percentage of majority opinions by the Chief Justice increased.[28] "Actually the trend toward the elimination of separate opinions had already set in during Ellsworth's Chief Justiceship...."[29] In 1800 during Ellsworth's French mission the Justices reverted to the older practice, but the expectation that a single opinion might flow from unanimous decision did exist.[30] Major alteration in internal procedure occurred after John Marshall became the fourth Chief Justice on February 4, 1801. In no small measure, the change was a response to intensified party conflict between the Federalists and Republicans: "there is a good deal of historical evidence which indicates that the evolution of the Supreme Court's internal procedures and customs was strongly influenced by the currents and eddies of political conflict."[31] But, moreover, the change in internal procedure is only one of a number of indicators that John Marshall was an exceptionally effective leader.

Court Leadership and Chief Justice John Marshall

The fourth Chief Justice, John M. Shirley wrote:

In personality, John Marshall, from an early age, possessed a rare combination of traits that, taken alone, might indicate the potential for leadership.[33] Such potential appeared during his American army career at Valley Forge: "he could deal with diverse and disgruntled people and encourage them not always to agree but at least to respect and understand one another...."[34] Marshall was particularly adept at successful social relations, owing to a combination of traits and "personal magnetism." "It is," Albert J. Beveridge says, "interesting to search for the sources of his strange power."[35] Joseph Story, a colleague on the Marshall Court after 1811 and an eminent American jurist, attested to Marshall's capacity:

At an early age Marshall realized the necessity for a strong national government, an important political attitude that his fellow countrymen in Virginia were to challenge throughout his career. Until he was forty-one, he had refused all appointments to public service that might interfere with his career and the development of a strong financial base for his family.[37] He accepted reluctantly President John Adams' appointment as one of three ministers to France in 1797. One year later he refused a nomination to become an Associate Justice on the Supreme Court, suggesting that Bushrod Washington be named in his place; later in 1798 he was elected to the U.S. House of Representatives where he sat for one term before becoming Secretary of State in Adams' administration. A loyal Federalist, Marshall abstained from supporting such Federalist excesses as the hated Alien and Sedition Acts. "The future Chief Justice understood the temper of the American people far better than his Federalist associates in New York and Washington...."[38] Marshall was devoted both to George Washington and to John Adams, as well as to Federalist political philosophy. "Such political loyalty and influence can easily make a man a federal judge, but no amount of popularity can make a judge so appointed a great jurist."[39]

When Chief Justice Marshall sat for the first time in the February 1801 Term it was quickly apparent that he intended major changes. The growing threat of Republican challenges to the federal judiciary after the election of President Thomas Jefferson no doubt inspired Federalist judges to work together. To such Federalist determination, the new Chief Justice added procedural innovations that promoted still further cohesion. The new modes of procedure gave the Chief Justice "a key role in the decision-making process and seriously reduced the independence of the individual Justices in this process."[40]

In the place of individual, often conflicting opinions, Marshall urged a single majority opinion which would represent the expression "of the Court." Such an opinion would enable the Court to speak as one voice, thereby increasing its own stability and prestige.[41] The quest for a single opinion inevitably increased the importance of bargaining and persuasion among the Justices. Majority opinions were to become in many cases collective, rather than individual, instruments of the law.[42] Furthermore, the elimination of seriatim opinions had the net effect of increasing greatly the need for interaction among the Justices.

Marshall's proposed innovation went beyond the majority opinion. The principal spokesman for the Court, he proffered, was to be the Chief Justice--a direction in which Ellsworth was moving at the end of his brief career. "Since it is the majority opinion alone that furnishes the principal rationale for court decisions and draws the implications of the decision for those in similar litigations, leadership in this instance... [is] highly effective in promoting the leader's point of view in the law."[43] No doubt Marshall sought to enhance the importance of a position which the Republican Aurora had deemed a "sinecure" just a month before he took office.[44] The single-voice majority opinion strengthened both the Supreme Court and the Chief Justiceship.

During his thirty-four years on the Supreme Court John Marshall was, by all accounts, an eminently successful leader. Such a conclusion applies not only to his internal management of Court business, but also to the judicial statesmanship for which be is better known. Marshall's conception of national unity and strength created an indispensable cornerstone in the development of American society and politics. Felix Frankfurter said:

Marshall did not dominate the Court either through repression or social cajolery. Nor was he merely a "court manager."[46] Marshall's leadership produced a careful orchestration of social, political, and legal objectives in which all Justices were concerned and intimately involved. The new Chief was able to foster a spirit of cooperation and teamwork. The Court became a "family," hardly an inappropriate term for seven men who roomed and boarded together during court sessions in Washington.[47]

1801-1810: The Establishment of Judicial Power

When John Marshall became Chief Justice, Supreme Court prestige was at low ebb. In spite of very modest beginnings, the Court had established a basis of power before 1801; Congress felt it necessary to overrule an unacceptable decision in Chisholm v. Georgia, only by amending the Constitution.[48] As early as 17%, American politicians were not inclined to treat a decision of the Supreme Court lightly. Yet, as R. Kent Newmyer suggests, "[n]ot only had the Court failed to capture the high ground, but the power it did hold was in jeopardy.[49] Political attacks upon the Court and its practices intensified after Jefferson's election. Rapid turnover in Court personnel, a relatively light caseload, and a diminishing pool of qualified talent for Court appointment all threatened to reduce Court prestige even more after 1801. Marshall's perceptions of the judicial function and related procedural innovations were to come precisely at the right time.

Until President Jefferson first had an opportunity for appointment in 1804, the composition of the Court was wholly Federalist. Of the Associate Justices, William Paterson--urged as a possible successor to Ellsworth--and Bushrod Washington were able jurists. The new Chief Justice was strongly attracted to Washington, the nephew of the first President, a social relationship that would continue until 1829.[50] Likewise Samuel Chase was a man of genuine ability; his political excesses, however, led to impeachment, but not conviction. The remaining two, William Cushing and Alfred Moore, were less able. Cushing was in ill health much of the time after 1801 until his death in 1810; Moore "made scarcely a ripple in American judicial history."[51] Generally speaking Marshall's Federalist colleagues were men of considerable political and legal stature and, "consequently, were not apt to accept any domineering by a new member of the Court even if the novice were the Chief Justice."[52]

"It is clear that Marshall sought to maintain a nice balance between his two overriding objectives--expounding officially his basic Federalist constitutional theory and maintaining a solid judicial front as a means of enhancing the authoritativeness of the Court."[53] One cannot dissociate Marshall's constitutional philosophy from his conception of the judicial function. In many cases--as W. W. Crosskey and others are quick to point out--Marshall's position of conservative nationalism is modified, even adulterated, by the desire to maintain unity.[54] In short, Marshall was not a "high Federalist." "John Quincy Adams and Joseph Story consciously distinguished between levels of Federalism when they described John Marshall as a 'federalist of the Washington School."'[55]

Marshall spoke for the Court in every case over which he presided through 1804; there was but one concurring and one dissenting opinion.[56] In this initial period of "federalist unanimity," the new Chief Justice firmly established a number of norms which were to affect the internal operation of the Supreme Court throughout its history. As we have seen, the establishment of such norms was attributable both to external political conditions and to Marshall's role conception. To this we must add personality: "Marshall, though firm and decided, was by nature a moderando."[57]

The norms which Marshall urged upon the Federalist group were: the importance of unanimity, at least as the Court presented its opinion; the minimization of dissent and internal argumentation; a willingness to compromise, which led to "fluidity of judicial choice;"[58] the maintenance of internal harmony, cooperation, and teamwork in both task and social concerns; and the importance of the position of Chief Justice as the locus of leadership functions.[59] Marshall achieved the acceptance of such norms through domination and authoritarianism. In group dynamics, this is all the more important because such norms became the consensus of the group by 1804. By 1804 all of the Justices sought to achieve the same objectives that Marshall had urged in the beginning. The real test, of course, was to come after 1804 when presumably, Jeffersonian appointees might challenge the ideological and behavioral homogeneity.

Internal unity was but one ingredient in the quest for increased judicial strength. Two cases in 1803, Stuart v. Laird,[60] and Marbury v. Madison,[61] laid the foundation for a strengthened, increasingly independent judiciary. In Stuart the Court, Marshall not sitting, upheld the constitutionality of the Judicial Repeal Act of 1802, which had the effect of returning the judiciary to the institutional arrangements of 1789, including the arduous task of circuit rid-mg for members of the Supreme Court. Justice Paterson's opinion gives the appearance of unanimity, although there is reason to believe that Chase considered the circuit riding requirement as unconstitutional.[62] Stuart manifests the same limited construction of the doctrine of judicial review as Marshall's opinion in Marbury v. Madison. Marbury is Marshall at his best. Although a traditional, legal approach to the questions Marbury presented could have led to a denial of jurisdiction, thereby precluding discussion of the more important constitutional issues, the Chief Justice turned the questions around--"twistification" Jefferson called it[63]--so that he might first discuss the merits and the doctrine of judicial review. He "took the engaging position of declining to exercise power which the Constitution held from it, by making the occasion an opportunity to assert a far more transcendant power."[64] The case is significant not only because it firmly implanted the American doctrine of judicial review--a doctrine, to be sure, that was evolving throughout the 1790s[65]--but also because "Marshall seized this opportunity to establish the Court as supreme arbiter over both Congress and the Executive."[66] Marbury is but one of many indications of Marshall's intense commitment not only to the strength of an independent judiciary (for in this case the Court protected itself from an unconstitutional enlargement of its original jurisdiction) but to the vitality of national institutions generally.

The Republicans not only sought to reduce the number of federal judgeships, as they had with the Repeal Act of 1802, but also to "affect the personnel of the courts, either through actual removal or through intimidation."[67] Justice Chase was spared his position when the administration was unable to muster the requisite majority in the Senate; federal Judge John Pickering of New Hampshire, however, was removed. Jeffersonian Congressmen introduced constitutional amendments to facilitate the removal of judges. As Donald C. Morgan suggests, the conflict was never more intense than in 1804 when President Jefferson sent his first appointment, William Johnson, Jr., to the Supreme Court. "Of his loyalty to Jefferson and his intentions to sustain Jeffersonian doctrine there is little doubt."[68]

Johnson represented the first "threat" to the internal security of the Federalist Supreme Court, for, as we have seen, the norms of internal unity were well settled by 1804. Johnson had three possible courses of action:

The new Justice soon learned the power of group norms. "[I] was not a little surprised to find our Chief Justice in the Supreme Court delivering all the opinions in cases in which he sat, even in some instances when contrary to his own judgment and vote. But I remonstrated in vain; the answer was he was willing to take the trouble and it is a mark of respect to him...."[70] The course of action which Johnson chose he recounted in a letter to Jefferson many years later:

Johnson had "bent to the current," although his strong will and somewhat modified Republican ideology had a marked effect upon internal operations and, often, if only through concurrence or dissent, interpretation of law. And, as Morgan ably demonstrates, "more than any other judge he could lay claim to having established the principle and practice of dissent."[72]

From 1805 until 1810, the Republicans were able to gain minority representation. Henry Brockholst Livingston replaced Paterson in 1807 and Thomas Todd filled a newly-created seventh seat in 1808. The frequent absence of both Justices Chase and Cushing increased the importance of the new members. Yet the statistics of this period indicate that Marshall was able to persuade his new colleagues that he should put forth most majority opinions.

With the exception of 1810, Marshall wrote from 88 to 100 per cent of the majority opinions in each of these years; and he wrote all opinions in constitutional cases with the exception of Stuart v. Laird.

In 1807 Johnson registered his first dissent in Ex Parte Bollman,[73] a case which involved a petition for a writ of habeas corpus for Erick Bollman, an accomplice of Aaron Burr, who was committed for treason. In his opinion, Johnson described the internal pressure not to dissent a "painful sensation."[74] Johnson was not alone in the minority in Bollman (although no other Justice signed the dissenting opinion); furthermore, he had wanted to dissent a year earlier in Ex Parte Burford[75] but he acquiesced in the majority.[76] In 1808 and 1809 the number of dissenting opinions increased markedly, owing in no small measure to the contributions of Johnson and Livingston. The number of tin-reported dissents is difficult to assess accurately, but we do know, for example, that Mr. Justice Todd had wanted to dissent with Johnson in Rose v. Himely[77] but he chose to remain silent.

There was some experimentation with internal procedure after 1805, but the dominant mode continued to be majority opinions written by the Chief Justice. Dissent increased. Furthermore, when the Court did divide, "the size of the majority and the identity of the dissenters often remained a mystery, a condition that led to confusion both for contemporaries and for later scholars."[78] For example, a careful examination of majority opinions shows that Marshall used the terms "majority of the Court" and "unanimous" on different occasions.[79] Taken at face, such word choice indicates variations in internal cohesion. Occasionally, as in Rose v. Himely, the "majority of the Court"-- two--was embarrassingly small.[80]

The Republican attack on the Court continued through the Burr Trial in 1807, although the grounds for a limited rapprochement lay just below the surface. "[T]here had, in fact, always been a theoretical affinity between judicial power and the Republican policy of limited government.... The shift in the positions of the two parties after 1800 paved the way for reconciliation.... It became painfully clear to the Republicans that national authority depended heavily on the federal courts."[81]

The issues of national power played an important part in the case law of this period. In United States v. Fisher,[82] Marshall broadly construed a congressional statute to allow the national government priority in the collection of debts. In 1809 the Court, ostensibly in a unanimous opinion, repudiated an effort by Pennsylvania to interfere with the enforcement of decrees by the U.S. District Court. The assertion of national authority not only drew the two political parties more closely together, it also increased internal harmony within the Court. "In cases involving state power, however, the seeds of later divisions were planted."[83] In one of the most important cases of this early period, Fletcher v. Peck,[84] the Court voided a Georgia law which had, in effect, repealed earlier grants of land.[85] Johnson's appeal to natural law principles--thereby avoiding the increasingly difficult question of interpreting the contract clause--saved this concurrence from being an open dissent.[86] Finally, the "first dissenter" diverged from Marshall on the nature of congressional control of court jurisdiction.[87] The departure of Federalists from the Court not only affected internal operations, but also created divergences in two of three areas of constitutional interpretation.[88]

Of "Jefferson's three appointees, only one, William Johnson, gave promise of fulfilling the goal of a multi-voiced judiciary."[89] One might expect that Livingston also would speak out, for he had dissented frequently as a member of the New York Supreme Court presided over by James Kent. "Upon joining the Marshall Court, however, he became almost moot by comparison...."[90] And Thomas Todd likewise was silent during the twenty years he spent on the Court.

As an effective leader, Marshall, with consummate skill, had been able to persuade members of his Court to agree to a variety of norms he considered important. "[O]ne variable that needs to be measured [in understanding the group phase of decision making is the extent to which judges on a collegial court value unanimity. The accuracy of votes as indicators of judicial values on policy questions declines as the importance of unanimity to judges increases."[91] There is little question about the strength of the norm favoring unanimity during this period; its effect upon the three Republican members is evident in the small number of dissents and concurrences, apologies in Court opinions, and personal correspondence. Both Marshall and Washington worked diligently to perpetuate this norm, and, as we shall see, they were able to bring Joseph Story gradually to agree with the importance of such a practice.

Marshall's accomplishments in this period, especially in the initial sessions in 1801 and 1803, but also with the coming of Republican Justices, are remarkable. Furthermore, the extent to which Marshall chose to speak for the majority--a majority which often varied greatly in size--indicates task leadership unequalled since. And yet, from all evidence available, Marshall accomplished tasks and established norms without domination, but through a modus operandi which included democratic consensus, compromise, and persuasion. To many his "peculiar influence" was attributable largely to personality.[92] His democratic manner, gregariousness, and exceptional sensitivity toward the feelings of others[93] were clearly important ingredients in Marshall's leadership effectiveness. Joseph Story, in a laudatory note, indicated many of the critical components of such complex leadership in his characterization of the Court conference:

1811-1825: The Golden Age of Constitutional Interpretation

The origins of Supreme Court leadership lay firmly in the first decade of Marshall's Chief Justiceship, and likewise that decade is important as federal judicial power assumed full legitimacy.

United States v. Peters (1809)[95] marked the beginning of a "golden age" of constitutional interpretation for the Marshall Court. Only three members--Marshall, Livingston, and Washington--were present for the February 1811 Term, and no session ensued. From 1812 to 1823 the composition of the Court was constant; in 1811 President James Madison appointed Joseph Story and Gabriel Duval to replace Chase and Cushing. Former President Jefferson argued that "it will be difficult to find a character of firmness enough to preserve his independence on the same bench with Marshall...."[96] With the appointments of Story and Duval, in name, at least, a majority after 1812 was Republican. Owing to the increased Republican predilection toward national power "as well as to the steady and directing influence of the Chief Justice, the Republican members of the Court gradually espoused the cause of nationalism--Justices Johnson and Story at times exceeding Marshall in urging the expansion of the powers of the federal government and the consequent diminution of the authority of the states."[97] James McClellan argues convincingly that historians have exaggerated the "directing influence" of Marshall on Story in the 1810s.[98] Irrespective of such assertions one cannot deny the strong bond that developed between Marshall and Story; they grew to be of like mind in the protection of vested rights and the development of the doctrine of national supremacy. And, after some early dissenting opinions by Story, their agreement extended to internal norms and procedures.[99]

Following the War of 1812, the United States experienced a resurgence of national unity and enthusiasm. "Having thwarted invasion from abroad and having survived disunion at home, Madison's administration was eager to turn again to the internal development of the country."[100] And, as Newmyer suggests, the "diverse economic energies of the agrarian South, the commercial- industrial North, and the burgeoning West appeared to be the foundation blocks of a self-sustaining economy."[101] President Madison's program included a protective tariff, national bank, and federally-funded internal improvements. Should questions arise about such national policies, the Supreme Court had emerged from the early struggles of the century best qualified to speak authoritatively on the Constitution.

The mode of a single-voice majority opinion continued, although the Chief Justice was more willing after 1812 to divide opinion-writing with his colleagues.[102] In 1812 Marshall wrote 65 per cent of the majority opinions; for thirteen years thereafter his average was about 40 per cent. In constitutional law cases likewise, there was greater diversity in opinion writing, especially in 1816 and 1823 when Story and Washington shared the responsibility. Justice Johnson, especially before 1819, continued to contribute disproportionately to dissent totals. Story too issued dissents with uncharacteristic frequency before he agreed to accept the norm which Marshall and Washington had fostered. About internal conditions in 1812, Story wrote: "We live very harmoniously and familiarly. We moot questions as they are argued, with freedom, and derive no inconsiderable advantage from the pleasant and animated interchange of legal acumen."[103]

The greatest degree of unanimity occurred in controversies concerning questions of national power; in this area, with some minor exceptions, one may describe the Court as an ideological monolith until 1823. There were however, more tentative explorations and divergences in relation to state powers and the doctrine of vested rights.

The precise role of the federal courts was a matter of intense debate between Republicans and Federalists; the problem had two facets:

jurisdiction and judicial power proper. In 1812 United States v. Hudson and Goodwin[104] raised for decision the matter of jurisdiction. Speaking for the majority (which we now know did not include Marshall and Story),[105] Justice Johnson ruled that the federal courts could not take jurisdiction over offenses made criminal under the English common law.[106] Courts, Johnson argued, might possess some limited inherent powers essential to their functioning, but jurisdiction over such criminal acts was not among them. The opinion was characteristic of Johnson's desire to defer to legislative--hence, popular--control over federal criminal jurisdiction. Story strove to "correct" the Hudson , took the Federalist path: "[n]ationalism and economic conservatism alike impelled them to exalt the judiciary..."[107]

By 1815 Story had become a confirmed nationalist, although the origins of such an ideology antedate his Court appointment. He joined Marshall and Washington to create a highly cohesive bloc whose members shaped the constitutional law and intra-court norms of this period. In his initial terms, Story had felt embarrassment about open disagreement, as in The Nereide (1815):

By 1818 Story indicated his preference for the establishment norms of Marshall and Bushrod Washington:

During this period Story became committed to the kind of unity the Court had enjoyed to 1810;[110] his eminent training in the law complemented Marshall's talents perfectly so that during the golden age both Justices contributed important leadership.[111] Story provided a specialized intellectual leadership," while Marshall continued to provide the necessary task and social leadership for which he and his Court are famous.[112]

Of the many important constitutional decisions in the golden age, several involve the interpretation of national power. So long as the

vexing issue of corollary state power was not intertwined, such decisions produced unanimity and firmness of purpose. "Indeed the unity seemed to deepen with the passage of time."[113] In McCulloch v. Maryland Chief Justice Marshall wrote a unanimous majority opinion upholding the constitutionality of the national bank. "[T]he genius of the McCulloch opinion lay not in its originality but in its timing, practicability, clarity, and eloquence."[114] The opinion, like those in Marbury, Cohens v. Virginia,[115] and Gibbons Ogden,[116] bore the mark of judicial statesmanship--the ability to shape and to foresee the destiny of the Republic through the mechanism of constitutional interpretation.

In Anderson v. Dunn[117] and Cohens v. Virginia, the Court supported congressional power over contempt and fixed firmly the appellate jurisdiction of the Supreme Court over state judiciaries. By 1821 Marshall and his colleagues had completed the foundation of the doctrine of national supremacy, even though a majority of the Court was Republican and in spite of the fact that there were internal disagreements about exclusive versus concurrent national powers.

By 1816--"the year of assertion"[118]–Story had become an important leader whose talents complemented Marshall's well: he had begun "sitting in silent dissent when the inherent criminal jurisdiction of the federal courts was denied by the narrowest of margins, and, similarly, his first opinions were the epitome of taciturn self-effacement."[119] Martin v. Hunter's Lessee,[120] asserted the power of federal courts to review the decisions of state judiciaries in all constitutional questions; in his majority opinion, Story insisted that Congress was constitutionally required to give the federal courts their full jurisdiction. Martin raised the difficult question of exclusive versus concurrent powers; on this subject there was internal division among the Justices. Johnson wrote a lengthy separate opinion in Martin putting forth a theory of concurrent powers "that made the Supreme Court the final arbiter of constitutional cases but also insisted that such authority operated only upon litigants and not upon state courts."[121] In general, in similar cases of the period, Story and Washington favored exclusive power, and Johnson, with the likely adherence of others, favored concurrent power.[122] Marshall, the "moderando," tended to side ideologically with Story and Washington, although he approached the question of power with a touch of pragmatism and flexibility, an implicit indicator at least of his willingness to compromise principles slightly in order to mediate.

In the "golden age," there is probably no more significant Term than that of 1819, the year of McCulloch v. Maryland. And within that Term, there is no more striking example of Marshall's leadership effectiveness than Sturges v. Crowninshield.[123] The decision held invalid a New York law of 1811 for insolvent debtors as it applied to existing contracts. The Chief Justice's opinion affirmed a concurrent state bankruptcy power, but, at the same time, had invoked the contract clause as a barrier against relief legislation. As the opinion was written, the decision held unconstitutional only retrospective state laws; the question of prospective legislation remained. Eight years later a badly divided court in Ogden v. Saunders,[124] held that a similar New York law of 1801 was constitutional as it operated prospectively. In speaking about the power to enact bankruptcy laws in Sturges, Marshall conceded that powers possessed by the states prior to the adoption of the Constitution were retained "except so far as they maybe abridged by that instrument."[125] In both cases Marshall appears to have treated bankruptcy and insolvency laws synonymously. In his dissenting opinion in Ogden v. Saunders, Marshall avoided discussion of bankruptcy laws and declared that state insolvency laws were unconstitutional whether they operated retrospectively or prospectively.

The Chief Justice effected a major compromise in the Sturges opinion.[126] Justice Johnson laid bare the modus operandi in his opinion in Ogden:

By examining relevant circuit court cases Roper has demonstrated that Livingston and Johnson (and probably Duval as well) "Gave in on upholding the retroactive operation of debtor relief laws, but wrung from Marshall the concession that the power to pass bankruptcy laws was concurrent."[128] Washington surrendered less than any of the other Justices. That both Story and Washington gave way to Marshall's compromise attests to the continued importance of internal norms. "Ironically, it was the Chief Justice, the alleged dominator of the Court, who seems to have conceded as much as his brethren."[129] There is, however, little irony here. To one familiar with Marshall's personality and the nature of effective Court leadership, the Sturges maneuvering should come as no surprise.

As with Sturges, there was little internal unity in Dartmouth College v. Woodward a decision which produced a wave of concurring opinions and a single, opinionless dissent. Both Story and Washington wrote separate opinions vindicating Dartmouth College; Livingston, too, had written a separate opinion which was not published. Yet he endorsed all three opinions reaching this result. Johnson joined the Chief Justice, but explicitly withheld his approval from the opinions of Story and Washington, a further, though subtle, indication of Marshall's ability to create important bonds between divergent Justices like Johnson and himself. The Dartmouth College case, in holding that corporate charters were contracts which could not be impaired by state governments, served as an important precedent upon which the evolving doctrine of vested rights could rest.[130]

The conservative nationalism for which the Marshall Court is known was melded together in the 1819 term. "...Marshall expressed, as much as he led, opinion when at the Great Term he took the instrument of federal judicial supremacy, as cast by Story in Martin v. Hunter's Lessee, and inscribed upon the tabula rasa of the constitutional text a codex of national power and private property."[131] From 1819 to 1821, the Court handed down five epochal decisions which, taken together, form the constitutional backbone of the golden age of interpretation.

The number of dissents is markedly fewer after 1818:

By 1819 the Court had begun to draw fire, not only for its nationalist decisions but also because of "suspicion concerning the true views of the Republicans on the Court."[133] That suspicion was nowhere greater than with Thomas Jefferson who wrote to Johnson in 1822:

Johnson replied to Jefferson in a now famous letter that told much about internal procedures on the Marshall Court. In the years following his appointment, as Morgan demonstrates with painstaking care, Johnson became the "lone protestant against the irregularity of Marshall's procedures."[135] Johnson had struggled to maintain independence and courage, yet the normativeness of the Court had had its effect upon his behavior. Johnson's efforts were not without effect, for he "wrung from Marshall not only a grudging tolerance for individual expression, but in addition a greater opportunity for others to speak for the Court."[136] After 1812 Marshall had definitely abandoned his claim to be the sole author of majority opinions.

From 1812 until 1819 Johnson was willing to accept the norms of the Marshall Court and to acquiesce in compromise. After 1819 it appears, for a time, that Johnson virtually relinquished the rights that he had secured theretofore. "Although there is evidence that he extracted a quid pro quo from his brothers in the language of the reported opinions, he surrendered his independence and threw the weight of his silent vote behind the Court's pronouncements."[137] In his letter to Jefferson, Johnson had explained that he "bent to the current, and persevered until I got them to adopt the course they now pursue...."[138] Donald Morgan argues that the correspondence with Jefferson rekindled Johnson's spirit of independence and reform. Beginning in 1823 Johnson reasserted the importance of dissenting decisions; and he wrote in Gibbons v. Ogden that "[I]n questions of great importance, and great delicacy, I feel my duty to the public best discharged, by an effort to maintain my opinions in my own way."[139] Thereafter Johnson made it a practice to speak his mind in concurrence or dissent in matters of constitutional interpretation. "Generally, he moved steadily away from a strictly literal construction of the Constitution and toward the historical method Jefferson had advocated."[140]

By 1823 other changes occurred. Green v. Biddle[141] became a "rallying point for states' rights and anti-Court forces in the South and West."[142] Having heard argument three times, the Court voided Kentucky laws that provided that no claimant under Virginia title--bolstered by a 1791 agreement between Virginia and Kentucky in which the latter had agreed not to invalidate titles to land held under Virginia law--could take land until he had reimbursed the original settler for improvements made on it. Through Justice Washington the Court held that the laws violated the original agreement between the states and thus the contract clause of the Constitution. The majority opinion in Green--a case in which Marshall did not sit--represented the most expansive construction of the contract clause to date, following a liberal trend which originated with Fletcher v. Peck and continued with Dartmouth College. "Such an extension of the contract clause verged on the fantastic."[143]Johnson could not maintain his silence; the Court's exaggerated deference to property rights was beginning to disturb him more than it had in the 1810s, and, Johnson moved more in support of state power as the locus of public policy making.

In 1823 the composition of the Court changed with the appointment of Smith Thompson to succeed Livingston. The golden age was drawing to a close. The years 1812 until 1823 are, better than any, "the Marshall Court," when the Justices stood together to build the doctrines of national power and judicial supremacy. Internal opposition there was--especially with Johnson, Livingston, and, occasionally, Todd and Duval--although it "never crystallized, never organized into a permanent bloc."[144] That it did not, attests to Marshall's effectiveness as a leader. "Mutual respect, communal living, congenial principles, and personal friendship"--all, by the way, good indicators of solid group cohesion--"held dissent to an insignificant minimum, bound the Court together as never before or since, and enabled it to exploit the opportunities for lawmaking in the postwar period."[145]

William W. Story maintained that the death of Livingston "occasioned the first breach in the Judicial circle of the Supreme Court, from the time that my father became a Judge...."[146] In 1824 a combination of forces--increased public hostility to Court decisions, the appointment of Thompson,[147] Johnson's renewed spirit--provided a foretaste of the important transformation which was to affect the Supreme Court after 1825.

In the last of the important nationalist opinions, Gibbons v. Ogden, Marshall produced an "intricate blend of decisiveness and calculated vagueness that occupied solid nationalist ground, placated both extremes, and left the Court room to make future adjustments."[148] Marshall again eschewed distinct line drawing between national and state power, creating

There by a "flowing federalism" that left room to maneuver in the forthcoming development of state power.

To the surprise of many lawyers, the Court in 1825 refused to extend the admiralty jurisdiction of the federal courts to inland lakes and rivers.[149] The end of sweeping nationalist interpretations was at hand.

1826-1835: A Time of Transition

The 1826 Term was pleasant. Chief Justice Marshall wrote his wife, Polly, that the "harmony of the bench will, I hope never be disturbed. We have external & political enemies enough to preserve internal peace."[150] For two Terms, 1825 and 1826, the Justices had cast nary a dissent. Yet the internal harmony was to be short-lived.[151] The signs of change in 1824 and 1825 were, in fact, portentous.

By all accounts, 1827 marks the unmistakable beginning of a period of change, a transition from the conservative nationalism of the golden age to the salient policies of the Taney Court with its emphasis upon dual federalism and state police power. These were "uncertain and hesitant years [which] form a marked contrast with that of the decade from 1815 to 1825 when, with something in the nature of a pontifical air, the Court was expounding and applying the principles of Hamiltonian nationalism."[152]

In 1827 Supreme Court sessions were lengthened to accommodate the increased caseload. Robert Trimble replaced Thomas Todd. And Marshall's leadership began to decline. More and more difficult was the maintenance of internal norms. Dissent increased sharply. Although Marshall continued to write about two-fifths of the majority opinions, he was compelled to dissent in two major cases, one involving constitutional interpretation. Likewise, Mr. Justice Washington--who with Marshall[153] and Story[154] formed the "old guard" on matters of internal unity and procedure--was moved to take an ideological position apart from his chief and to express a dissent, his first since 1818 when he had sided with Marshall and Johnson in The New York.[155] He said: "It has never been my habit to deliver dissenting opinions in cases where it has been my misfortune to differ from those which have been pronounced by a majority of this court...."[156] Unfortunately for Marshall, such "habits" were changing even, apparently, with such a close ally as Washington.

No case exemplified better the growing conflict than Ogden v. Saunders. It had been argued first in 1824, but owing to a division among the Justices, no decision was rendered until three years later. The Justices divided 4-3 over the constitutionality of a New York insolvency law so far as it was applicable to contracts made after passage of the legislation. We can only presume that the group atmosphere had changed so much that Marshall could not obtain concessions from his brethren--and in turn grant some himself--in a manner characteristic of Sturges v. Crowninshield in 1819. He was forced to dissent.

The Justices delivered opinions seriatim which may have weakened their impact and may well have encouraged Marshall to press hard his minority views."[157] Washington, Johnson, Thompson, and Trimble upheld the act following, in large measure, the reasoning in Johnson's pioneering opinion in Green v. Biddle. In "his major essay on property,"[158] Johnson held that in the absence of federal bankruptcy legislation a state act which applied to contracts made after its passage was valid without qualification. His opinion is indicative of a growing acceptance of the importance of state power; yet Johnson had not abandoned the excessive nationalism of his concurring opinion in Gibbons v. Ogden:

Marshall reaffirmed his position that under no circumstances could a state law negate the substance of a contract. He made no mention of the apparent Sturges "concession" that state bankruptcy laws might be valid in the absence of congressional legislation. Marshall was opposed to state insolvency laws because he felt that they would encourage speculation, an unwise use of capital.[160] But by 1827 "a majority of the members of the court were becoming increasingly concerned with the need to maintain for the states some degree of control in regard to the regulation of contracts."[161]

In Brown v. Maryland (1827),[162] the Court, speaking through Marshall, invalidated an act requiring all importers of foreign articles to take out a license. Using the "original package doctrine," he argued that there "is no difference, in effect, between a power to prohibit the sale of an article, and a power to prohibit its introduction into the country."[163] Nonetheless, as in Gibbons, Marshall did not preclude some concurrent authority by the national and state governments over articles while in the process of importation. The Chief Justice's continued suspicion of state power is evident in Weston v. Charleston;[164] yet there is evidence of a growing acceptance of state authority on Marshall's part in this period of transition.

The death of Washington in 1829 struck a further blow at the Marshall Court. In place of the old Federalist, President Andrew Jackson named Henry Baldwin, an erratic individual whose behavior contributed greatly to increased internal disruption.[165] For Trimble, who had served but one Term, Jackson, with some delay, named John McLean. Like Thompson, McLean was "almost immune to Marshall's logic and persuasive powers,"[166] even though the new appointee grew increasingly nationalistic in his constitutional interpretation during the Taney years. McLean was the first to select housing accommodations apart from his brethren, thereby upsetting another long-standing custom. Just as depressing as the changed composition of the Court were the politics of the new Chief Executive. Marshall made no attempt to hide his discomfort.[167]

From 1830 to 1835, Marshall was no longer able to lead in the effective manner of the preceding twenty-nine years. Consensus about internal norms disappeared. Dissent increased greatly after 1829. And in three notable in-stances, the Justices were forced to postpone decisions because internal conflict was so great. "The tide was now flowing toward the support of state regulations and toward judicial noninterference."[168] The evidence indicates that Marshall was pulled somewhat grudgingly into the transition period of the 1830s. He lamented the internal strife. He worried about eccentric newcomers who wanted to break long-standing custom and board by themselves. All of this represented a "revolutionary spirit,"[169] which, poignantly meant that the old Court was gone.

Throughout this last period Johnson, not Marshall, is perhaps the key figure.[170] "Justice Johnson, like so few Supreme Court members before or since, was in step with his political time, whereas Marshall, Story and their carbon-copy colleagues lagged increasingly behind."[171] Johnson's opinions in Green v. Biddle and Ogden v. Saunders pave the way for a smooth transition to the Taney Court and the development of state police power. Yet even in his nationalist opinions, Marshall had allowed room for growth, especially the growth of state-power over internal concerns. As Johnson says, "Small wonder that the Taney Court found within Marshall's decisions sufficient material from which to erect their own precedents without violation of the rule of stare decisis."[172]

During this last period Marshall began to change--a change not dramatic but perceptible. The paucity of primary sources from this period makes an assessment of such change difficult; perhaps it is indicative of a changing economic and political climate, as represented by the Jacksonian spirit perhaps indicative of the Chief Justice's continued attempts to lead, to moderate, and, of consequence, to compromise. Evidence of such change comes not from Ogden v. Saunders, Brown v. Maryland or Craig v. Missouri (1830),[173] for these are Marshall opinions squarely in the tradition of the golden age. One looks instead to Willson v. Blackbird Marsh Creek Co. (1829),[174] and Providence Bank v. Billings (1830).[175]

Chief Justice Marshall's opinion in Willson v. Blackbird "has met with widely varying interpretations, and has been considered inconsistent with the view expressed in Gibbons v. Ogden and in Brown v. Maryland. Marshall opened the way for state regulation when the federal government had not acted."[176] Nonetheless the decision increased uncertainty about the dormant state of congressional power. If nothing else, the Willson opinion marks a cautious movement away from the strongly nationalist opinions of a decade earlier.

Providence Bank v. Billings is a better indicator of change than Willson.[177] Rhode Island had chartered Providence Bank in 1791; thirty years later the legislature imposed a bank tax on capital stock. The stockholders of the bank argued that the tax was unconstitutional because it impaired the obligation of contract created by the original charter.

Marshall concluded that the Court could find nothing that indicated either of the parties intended a tax exemption: "The plaintiffs find great difficulty in showing that the charter contains a promise, either express or implied, not to tax the bank."[178] The opinion also emphasized the need to protect the integrity of the taxing power. Providence Bank is significant because it represents a retreat from the expansive interpretations of the contract clause as in Fletcher v. Peck, The Dartmouth College Case, and Green v. Biddle and because of its concern for the powers of government--especially state government. "If Taney had written the same opinion, historians would see it as another manifestation of his concern for 'community rights,' and even more likely, as further evidence of his 'state's-rights' proclivities."[179] Ogden v. Saunders "proved to be a turning point in terms of contract clause decisions. For in all the contract clause cases decided by the Marshall Court subsequent to 1827, the Court upheld every state act under consideration."[180] In other words, both John Marshall and his Court began to accept the limited interpretation of the contract clause which Johnson had urged in Green in 1823. "Justice Johnson pleaded for a construction of the contract clause which left the regulation of contracts largely to the wisdom of the state governments."[181] "Mr. Justice Johnson, at least, had discovered society;"[182] furthermore he had set the tone for the work of the Court in the last period. "Very possibly...it was pressure from Johnson and the new appointees that led Marshall, in 1830, to admit the vital importance of...[state taxation] power."[183]

The trend of Marshall's decisions after 1826 was unmistakably in the direction of state power, as it was with the entire Court. Morgan has said that "[o]ne is mystified by Marshall's role in many of the cases of this period."[184]Yet the evidence suggests change, a movement away from the "Marshall monolith" of the golden age. The decisions after Ogden--but preeminently Providence Bank--enabled Chief Justice Taney to "cut his 'new' constitutional cloth with Marshall's razor."[185]

In 1830 the long-standing custom of living and boarding together was broken, a further example of changing practices. "Judges Johnson and McLean do not live with us," Marshall wrote his wife, "in consequence of which we cannot carry on our business as fast as usual."[186] The concern continued, for he wrote Story on May 3, 1831:

In the fall of that year Marshall underwent surgery in Philadelphia for gallstones; a slow, painful recovery heightened his concern about the future. One month later, he wrote Story:

In spite of intense divisiveness, Marshall continued his quest for unity. "I am most earnestly attached to the character of the department, and to the wishes and convenience of those with whom it has been my pride and my happiness to be associated for some many years." Yet, Marshall went on, "I cannot be insensible to the gloom which lours over us."[189] He could

look back on the 1831 Term with some dismay. Not only had the norms of unanimity broken down, but the Court had become deadlocked over one of the most significant cases of the Jacksonian period, Charles River Bridge v. Warren Bridge Co.,[190] At issue was the interpretation of the original charter of the Charles River Bridge whose proprietors charged that the Commonwealth of Massachusetts had impaired the obligation of contract by chartering a second, competing bridge. The Court's construction of the contract clause was critical here, as it had been in Ogden and Providence Bank.

Stanley Kutler argues that Marshall did not favor the argument of Charles River Bridge, in spite of historians' mater-of-fact assumption that he had.[191] His evidence is convincing.[192] That Story failed to mention Marshall's concurrence in his views when the case was finally handed down in 1837 supports further the Chief Justice's stand after the first argument. If Kutler is correct, this is additional evidence of change in Marshall's constitutional philosophy in the direction of state prerogative and away from an expansive construction of the contract clause. It also suggests that by 1831 Marshall was no longer able to lead the Court out of stalemate.

Unable to reach a decision, the Court accepted a motion for reargument in 1833. "But it did nothing and the case continued on the docket as the last 'Marshall Court' rapidly disintegrated."[193]

Marshall's recuperation from surgery was so successful that he was in full vigor for the 1833 Term. At seventy-eight he rendered "the last of the series of vital decisions on constitutional law which had made the Chief Justiceship of John Marshall so memorable an era in American history."[194] Barron v. Baltimore,[195] held that the fifth amendment did not apply to the states, an opinion which demonstrates his continued deference to state power during this period.[196]

After 1832 the Supreme Court ceased to be a center of political attack. The caseload was concerned mostly with commercial and land questions. In the 1834 Term, Marshall was forced to add two important constitutional cases to Charles River Bridge because the Court could not reach a decision.[197] "The practice of this Court is, not (except in cases of absolute necessity) to deliver any judgment in cases where constitutional questions are involved unless four Judges concur in opinion, thus making the decision that of a majority of the whole Court."[198] Such was the character of a new court norm, one clearly indicative of internal disunity. Little important business came before the Court in 1835, Marshall's last Term. Within a few months after the Court adjourned, the Chief Justice's health began to fail; he died on July 6 after thirty-four years of service on the bench.

The decade from 1826 until Marshall's death marked a movement away from the monolith of the golden age; it was a period of uncertainty and change, yet it provided an important transition to the Taney Court after 1836. It was a period of transition as much for Marshall as for the Supreme Court. Unlike Johnson, Marshall was not well attuned in 1830 to changing economic and political conditions.[199] Marshall sadly yielded, as he said, 'to the conviction that our constitution cannot last.’"[200]

In conclusion, a monolithic view of the "Marshall Court" ignores important variations in constitutional interpretation and in Court leadership. Marshall had not, in fact, "dominated" his brethren during any of the three periods; he had provided effective task and social leadership. By 1835 the Chief Justiceship was a position of profound importance and power in the American political system. "Marshall's preeminence was due to the fact that he was John Marshall, not simply that he was Chief Justice; the combination of John Marshall and the Chief Justiceship has given us our most illustrious judicial figure."[201]

Acknowledgement: This essay was written as the result of research funded in part, by the American Bar Foundation, for which the author was a Fellow in Legal History, 1974-1975.

Endnotes