Empire of Liberty: A History of the Early Republic, 1789-1815 (75 page)

Marshall set out to remedy this situation. He sought to solidify the Court by cutting down on the previous practice of each justice issuing his own opinion seriatim, a practice that was customary in both the eighteenth-century English courts and American state courts. Instead, he convinced the associate justices in most cases to reach a collective decision (usually written by him), thus enhancing the Court’s authority by having it speak with one voice.
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It was not that he imposed his opinions on his strong-minded colleagues. Instead, he turned the Court into “a band of brothers” and worked at building consensus through friendly discussion and more than an occasional glass of wine. The Court had a rule that it would indulge in wine-drinking only if it were raining. Marshall would look out the window on a sunny day and decide that wine-drinking was permissible since “our jurisdiction extends over so large a territory that the doctrine of chances makes it certain that it must be raining somewhere.”
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During the first four years of Marshall’s tenure, from 1801 to 1805, the Court handed down forty-six written decisions, all of them unanimous. Marshall participated in forty-two, and in each of these he wrote the opinion of the Court. Even after 1810, when there were more Republican than Federalist justices, Marshall continued his amiable dominance. Joseph Story, who had entered the Court in 1811 at the age of thirty-two as a Republican and a teetotaler, quickly succumbed to Marshall’s charm and
wine-drinking and became a fervent supporter. All in all between 1801 and 1815 Marshall wrote 209 of the Court’s 378 opinions.
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Ultimately Marshall’s greatest achievement was maintaining the Court’s existence and asserting its independence in a hostile Republican climate. He began by changing the lordly image of the Court. Under the Federalists the justices had tended to wear either individual academic gowns or robes of scarlet and ermine in imitation of the King’s Bench of England—dress that one Republican senator called the “party-colored robes” of an oppressive judiciary.
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By his example, Marshall induced his colleagues into wearing the plain black republican-style robes that the Virginia judges used.

This symbolic rejection of monarchism was only the first step in Marshall’s efforts to escape from the partisan politics of the 1790s. He strenuously sought to reach some sort of accommodation with the other branches of the government, and at least up to the War of 1812 he tried as much as possible to avoid too direct a confrontation with the Republicans. All of his evasion and caution, as he later told Justice Story, was based on his quite sensible fear that the justices might be “condemned as a pack of consolidating aristocratics.”
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In a series of decisions the Court retreated from some of the advanced positions the Federalists had tried to establish for the judiciary and federal law in the 1790s. Since the fiery partisan charges to grand juries by Federalist judges and justices, especially those of Justice Chase, had aroused the political passions of the Republicans, the chief justice quickly set about trying to change Federalist judicial behavior. He self-consciously refrained from injecting political statements in his grand jury charges and refused to have them published in the newspapers, “saying that he had laid it down as a rule from which he did not intend to depart.”
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Since the Federalist claim that the English common law ran in the federal courts had aroused such intense Republican hostility, he suggested in 1800 that this was not the case and blamed the currency of “this strange & absurd doctrine” on “some frothy newspaper publications.”
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Yet this sly suggestion was a bit disingenuous, since Marshall denied the
presence only of “the common law of England” in the courts; he agreed that versions of an American common law existed in each state, which judges of both the state and federal courts could invoke. But even this was too exposed a position, and in several decisions between 1807 and 1811 Marshall’s Court declared that “the jurisdiction of the courts of the United States depends, exclusively, on the constitution and laws of the United States.”
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Finally in
United States v. Hudson
(1812) the Court decided that the federal courts did not possess any criminal common law jurisdiction after all. Although this decision swept away a number of lower federal court precedents and reversed two decades of Federalist claims, it was probably inevitable. The issue, as the Court said, had been “long since settled in public opinion.”
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Even in the 1807 trial of Aaron Burr, which Marshall regarded as “the most unpleasant case which has ever been brought before a Judge in this or perhaps in any other country which affected to be governed by laws,” the chief justice subtly undermined earlier Federalist positions.
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In his decision he rejected the broad definition of treason the Federalists had used in the 1790s in prosecuting the participants in the Whiskey and Fries rebellions and instead interpreted the Constitution’s definition of treason narrowly. Speaking for the court, Marshall declared that conspiracy to levy war and actual levying of war against the United States were “distinct offenses,” and “conspiracy is not treason.” Planning to wage war, enlisting soldiers, even marching to a meeting place before an “actual assembling” of an army—these were not enough to constitute treason. In effect, Marshall ignored the arguments of the prosecution and the testimony of 140 witnesses and through his narrow interpretation of the law virtually determined by himself the outcome of the trials of Burr and his associates.
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The Republicans were furious. They enthusiastically supported their president who had brought the case to court and denounced Marshall for writing “a
Treatise
on the best way of committing treason without detection or punishment” and for “conniving in the escape of the traitor.” By outlining the law in the way that he did to the jury, Marshall, the Republicans complained, had effectively usurped the jury’s role and had undermined that sacred and popular institution. So angry were the Republicans
with the decision that they overlooked the fact that Marshall had repudiated the English doctrine of constructive treason exploited by Federalists in the 1790s. All they could see in the decision was judicial arrogance and usurpation, and many vowed once again to reduce the Court “to its proper limits.” For his part Jefferson thought the decision demonstrated “the original error of establishing a judiciary independent of the nation.”
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Although a Republican mob in Baltimore hanged Marshall in effigy, much of the furor over the Burr decision soon subsided.

At the very outset of his tenure as chief justice Marshall had revealed his strategy of retrenchment and conciliation and his genius for compromise while at the same time asserting the authority of the Court. He knew that the Republicans’ takeover of the Congress and the presidency in 1801 posed a serious threat to the judiciary, and he meant to blunt that threat. Although some Federalists were urging Marshall and the Court to confront the Republicans directly and declare their 1802 repeal of the Judiciary Act of 1801 unconstitutional, Marshall realized that such a direct clash could seriously harm the Court. Already Republicans in Congress were daring the Court to try to disavow the repeal of the Judiciary Act. “If the Supreme Court shall arrogate this power to themselves, and declare our law to be unconstitutional, it will then behoove us to act,” asserted Congressman John Nicholas of Virginia. “Our duty is clear.”
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Some such legislative reprisal against the Court was precisely what Marshall was trying to avoid; yet he did not want simply to roll over and surrender to the Republican Congress. Hearing the case
Stuart v. Laird
in circuit court in 1802, he accepted the legitimacy of Congress’s repeal of the Judiciary Act of 1801, a position later endorsed by the Supreme Court on appeal. If Marshall were to assert the Court’s authority amid this Republican anti-judicial climate, he knew it had to be done subtly and obliquely. The case of
Marbury v. Madison
(1803) gave him the opportunity.

W
ILLIAM
M
ARBURY
was one of the “midnight judges” appointed at the last minute by President Adams to be a justice of the peace for the District of Columbia. Adams, however, left office before Marbury’s commission could be delivered, and President Jefferson refused to deliver it. Marbury then brought suit in the Supreme Court seeking a writ of mandamus (a judicial command) requiring Secretary of State Madison to deliver his commission. (It was actually Secretary of State Marshall who had
failed to deliver Marbury’s commission on time, which made it awkward, to say the least, for Chief Justice Marshall to hear the case.) Many thought that the Court might openly challenge the authority of the president. But in a direct contest with the president the Marshall Court could only lose: if the Court refused to order Jefferson to deliver the commission, the Republicans would win by default; if, however, the Court did order the president to do so and he refused, the Court would be humiliated. The Court thus had to move in a roundabout way to assert its authority.

The Court’s opinion set forth in 1803 answered several key questions. Was Marbury entitled to his commission? And if so, did the law afford him a remedy? Yes, answered Marshall to both questions. Marbury had a vested right in the office for the term fixed by statute, and the law had to provide a remedy for a violation of a vested legal right. The first officer of the nation, said Marshall, “cannot at his discretion sport away the vested rights of others.” A collision with President Jefferson seemed imminent, but when Marshall asked and answered his third question he wisely evaded it. Was the remedy for this violation of Marbury’s right a writ of mandamus issued by the Supreme Court? No, said Marshall. The Supreme Court could not issue such writs because Section 13 of the 1789 Judiciary Act authorizing that power was unconstitutional: Congress did not have the authority to alter the original jurisdiction of the Supreme Court contained in Section III of the Constitution.
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By posing the questions in this unusual order Marshall was able to make his point without having to suffer the consequences. As Jefferson and other Republicans pointed out, the Court in its final question disclaimed all cognizance of the case, but in the first two questions declared what its opinion would have been if it had had cognizance of it.
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Thus Marshall indirectly asserted the Court’s role in overseeing the Constitution without the serious political repercussions that would have followed from a head-on collision with the Republicans. Since the American people regarded their written Constitution as “the fundamental and paramount law of the nation,” wrote Marshall for the Court, then it followed that “a law repugnant to the Constitution,” such as part of the 1789 Judiciary Act, “is void; and that courts, as well as other departments, are bound by that instrument.”
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Although Marshall’s decision in
Marbury v. Madison
has since taken on immense historical significance as the first assertion by the Supreme Court of its right to declare acts of Congress unconstitutional, few in 1803 saw its far-reaching implications. Certainly most Republicans were not troubled by it. If Marshall wanted to circumscribe the power of his Court, as he did in the Marbury decision, then he had every right to do so. But, said Jefferson, the judiciary was not the only branch of the government that had the right to interpret the Constitution. The executive and legislature could too. To grant the courts the exclusive authority to decide what laws were constitutional, declared Jefferson in 1804, “would make the judiciary a despotic branch.”
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Since Marshall had not explicitly claimed that the Court had an exclusive right and duty to interpret the Constitution, his assertion of judicial authority in the Marbury decision was limited and ambiguous. In fact, it was the only time in Marshall’s long tenure as chief justice in which the Supreme Court declared an act of Congress unconstitutional; indeed, no other Supreme Court did so until the
Dred Scott
decision of 1857. Probably Marshall’s
Marbury
decision can be best understood as another example of his policy of restraint and of getting the Court out of harm’s way, even as he managed to lecture the president on the dereliction of his duty in not delivering Marbury his commission. Although the decision did make a major statement about the role of the judiciary in America’s constitutional system, it did not and could not by itself create the practice of judicial review. Much more was involved.

S
UBSEQUENT HISTORY
has brought into question Alexander Hamilton’s claim in the
Federalist
that the judiciary was the “weakest” branch of the new federal government.
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The unelected, life-tenured judiciary grew remarkably strong, and at times became even bolder and more capable than the two elective branches in setting social policy. Certainly the federal judges, and especially the justices of the Supreme Court, precisely because they do not periodically have to face an electorate, have exercised an extraordinary degree of authority over America’s society and culture. The Supreme Court not only sets aside laws passed by popularly elected legislatures but also interprets and construes the law with a freedom that sometimes is virtually legislative in scope. Nowhere else in the modern world do courts wield as much power in shaping the contours of life as the Supreme Court does in the United States.