John Marshall: The Man Who Made the Supreme Court

The life of John Marshall (1755–1835) spans the first and formative decades of the United States. Born in colonial Virginia, Marshall fought for American independence under George Washington, whom he revered as the beau ideal of a true republican and memorialized in a biography. “For the rest of his life,” Richard Brookhiser writes, “John Marshall saw Washington as his commander and himself as one of his troops.” And so, when Washington personally urged Marshall to run for Congress in 1798, he didsuccessfully, representing Virginia’s 13th District from 1799–1800.Like Washington, Marshall was a Federalist. John Adams tapped him to be U.S. Secretary of State in 1800. After the momentous 1800 election, in which Adams and the Federalists lost both the White House and Congress to Thomas Jefferson and the Democratic-Republicans, Adams appointed Marshall chief justice of the U.S. Supreme Court the month before Jefferson’s inauguration. Marshall and Jefferson were cousins, and though both were patriots, they were indefatigable political foes. Marshall swore Jefferson into office, then used Supreme Court legal opinions to continue the Federalist battle against the Democrats for the next 34 years. When he died, Andrew Jackson was president. Roger Taney—author of the Dred v. Scott infamy—succeeded him as chief justice.Richard Brookhiser surveys Marshall’s “public career and its effects” in his engaging new study. This is not a comprehensive biography of the great man. In many ways, it is the story of the most significant cases he tried: Marbury v. Madison, United States vs. Burr (in which Jonathan Edwards’ grandson and Alexander Hamilton’s killer stood trial for treason), Fletcher v. Peck, Trustees of Dartmouth College v. Woodward, McCullough v. Maryland, Cohens v. Virginia, Gibbons v. Ogden, the Antelope case (touching on slavery), Ogden v. Saunders (a bankruptcy case, this Ogden being the nephew of the previous Ogden—evidence of a litigious family, no doubt; also, the only case in which Marshall wrote a dissenting opinion), The Cherokee Nation v. Georgia and Worcester v. Georgia (both cases dealing with Georgia’s abominable treatment of Native Americans), and Barron v. Baltimore, among others.Though not well known today, outside the legal profession at least, these cases were flashpoints of controversy between a broadly Federalist vision of the American republic and a Democratic one. Was the United States a “union” or a “confederacy”? Where was the boundary between federal supremacy and states’ rights? Could Congress establish a Bank of the United States without explicit wording in the Constitution? More broadly, was the law a “debt against the living,” in which generations were obligated by the laws of previous generations? Or did “the land belong in usufruct to the living,” in which each generation passed laws as it saw fit? The words were Madison’s and Jefferson’s, respectively, but the sentiments were Marshall’s and Jefferson’s exactly.Brookhiser is a political journalist, not a lawyer, so his descriptions of both the facts of these cases and their relevance are easy to follow and enlightening. In a summary chapter on Marshall’s legacy, he notes that Marshall brought “dignity” to the Supreme Court. How it tried cases and how it rendered opinions strengthened the hand of what Hamilton called “the least dangerous branch” of the federal government. If the membership and opinions of the Supreme Court loom large in the minds of Americans today, Marshall should receive credit.But more than the dignity of the Supreme Court, Marshall’s legacy, was “defending the Constitution as the people’s supreme act.” Brookhiser explains: “The people had made a new government, giving it new powers, and binding it with new prohibitions…. Marshall devoted his decades as chief justice to explicating and upholding the people’s government against the attacks of men he deemed demagogues in Congress, in the states (including his own Virginia), and in the White House (including his own cousin).” That defense relied on the Constitution’s “words” and—sometimes or—“the historical context of its creation.” Marshall knew both intimately. He had worked for the document’s ratification. He had witnessed the struggles and trials that had brought it into being.In the last months of his life, as his health deteriorated, Marshall feared for the future of the Constitution he had spent his life laboring to explain and defend. Marshall’s opinions “were substantially the policies of Washington and his most trusted aide, Alexander Hamilton”—slavery being the great exception. But by 1835, Jackson was in power, states’ rights were on the rise, and Roger B. Taney was in the wings. From then until the Civil War, an anti-Marshall view of the nature of the U.S. government and the meaning of its Constitution prevailed. It was as if the arguments between the cousins—Marshall and Jefferson—had never gone away.Today, we live in a vastly different era. Both union and emancipation are taken for granted, which they were not in Marshall’s era, not even by Marshall himself. But the court Marshall once led continues to fascinate and repel, depending on who wins and who loses before the bench. To that extent, as William Faulkner put it so well, “The past is never dead. It’s not even past.” We all live in John Marshall’s shadow.

There are many solid bios of the "Great Chief Justice" available, just two others came out this year. What I like about this one by Richard Brookhiser is that it avoids the pitfalls of being too detailed and too legal. At 307 pages (including notes and bibliography) it is long enough for a solid analysis, but not so long as to included loads of detailed information that would overwhelm the reader. Instead of discussing dozens of cases, the author instead takes his time and devotes single chapters to a number of important Marshall decisions. Not being a lawyer, he tries to follow Marshall's thinking as he examines each case, and any complicated concepts (such as mandamus) are explained in understandable lay terms. Brookhiser is also adept at painting just enough of the background history of what is going on so that the reader easily can match each decision to its historical context, and he accomplishes this without going into mind-numbing detail.The first 74 pages are devoted to Marshall's youth, service in the Revolutionary War, his role as Adams' Secretary of State, and appointment as Chief Justice. Once again, the author takes his time and does not cram too much information into the narrative. Two aspects of this period I found particularly interesting: (1) Marshall's lifelong devotion to Washington and his political concepts; and (2) just how rich a pre-Court background Marshall brought to his service as Chief Justice.The second sections (pp. 77-137) presents Marshall's initial cases, including some of the most important in American constitutional development: "Marbury v. Madison"; the use of impeachment against two Federalist justices; the infamous Burr "treason" trial; and the Yazoo land scandal litigation. The author's skill at rendering understandable analysis of complicated issues is demonstrated in the Burr chapter; historians are still arguing about what Burr was or was not up to in his plotting with General Wilkinson. Brookhiser's discussion is cogent and well disentangles this bizarre episode.The third section, covering pages 137-192, focuses upon the mature and confident Marshall in his prime, fully in control of his Court despite the efforts of Jefferson and other political opponents. Included are chapters on the Dartmouth College case decided under the contract clause; "McCulloch" which delineated the "necessary and proper" clause while limiting state power to tax federal instrumentalities; "Cohens v. Virginia" where Marshall denied any state judicial power to overrule Supreme Court decisions; and the famous Steamboat decision where Marshall articulated a vigorous theory of commerce that the Court is still grappling with today. Brookheiser covers a lot of constitutional law here, but makes it understandable by infusing it with the historical and political backgrounds to the decisions.The final section (pp. 195-260) deals with Marshall's "waning years." Here he confronts cases involving who owns slave ships seized by the government; the development of federal bankruptcy law; the two famous Cherokee Indian cases with which Andrew Jackson refused to abide; and the vital "Baron v. Baltimore" decision holding that the Bill of Rights did not apply to the states. The book concludes with an interesting epilogue on the legacy of Marshall, Jefferson, and Lincoln.This is not an advanced textbook on constitutional law, crammed with legal detail and extensive academic analysis--nor is it meant to be. Rather this is the Marshall bio for the average reader who has some interest, but is not looking for an expansive professorial analysis. By reading the book, one can be brought up to a fairly high level of understanding about Marshall, the importance of his decisions, and the historical background of his Court all in 300 or so pages. Concise but complete, the author has told Marshall's story effectively and in understandable terms. No reader can ask for more than that.

John Marshall was the fourth chief justice of the supreme court and served as a bedrock for many future judicial developments. He was a Federalist who greatly admired George Washington (as did everybody else, rightfully so) and served under him in the Revolutionary War. He was cousins with Thomas Jefferson, although the two hated each other their entire lives. Marshall served alongside 6 presidents.Some of the fundamental policies that Marshall established were the supremacy of the constitution (sorely needed in today's climate), the importance of contracts, and the role of the federal government versus state governments. His decisions were mostly logical and clearly articulated. I put in the qualifier "mostly" because unfortunately, like other men of his era, his great moral failing was in regards to slavery.I love the revolutionary period and am truly amazed at the number of geniuses who lived then. John Marshall is one of them. The supreme court plays a vital role in America and continues to be very relevant. It is fascinating to read about the lives and interactions of the different founding fathers. This book goes over some of the major court decisions and provides enough detail to convey the underlying themes, while keeping the overall book length manageable. The reason for four stars instead of five is that I place this book in a category with extremely high standards, a category that includes Chernow's Washington and Isaacson's Franklin. If you are interested in that period, there a ton of phenomenal books to choose from. This book is a great complement to them but is not quite up to that level. Highly recommend!

Lively but well-grounded bio of an influential and well-connected early jurist.