Anniversary Post: Chief Justice John Marshall

John MarshallOn this day in 1801, John Marshall was sworn in as the fourth Chief Justice of the Supreme Court. His greatest legacy is Marbury v Madison. It’s important because it is more or less where the Supreme Court being the ultimate arbiter of the meaning of the Constitution came from. When I first read about this in school, I thought it was great, because we were in that period when had a decent Supreme Court. But as is well documented in Ian Millhiser’s excellent book, Injustices, the Supreme Court has generally used its power in the most pernicious of ways.

The Supreme Court found itself in a difficult situation. Jefferson was president (Madison was Secretary of State). The administration was wrong to deny William Marbury his appointment as Justice of the Peace. You see, Adams had appointed him, but there was a mix-up, and Marbury never got his papers. Well, since it was an Adams appointment, and he and Jefferson were basically at war with each other, there was no way he was going to make good on it. The problem was, if the Court found for Marbury, Jefferson would just ignore it, turning the Court into a powerless bureaucracy.

So John Marshall came up with a trick: the Court didn’t have the authority to do anything to help Marbury (even though it claimed that the actions of the administration were wrong), but it did have the authority to interpret what the Constitution meant. So the Supreme Court managed to increase its power at the same time that it claimed it couldn’t help a relatively little guy caught in the middle of a fight between titans. Is that not America in a nutshell? We can always find ways to help the powerful become more powerful. But the weak must make it on their own.

11 thoughts on “Anniversary Post: Chief Justice John Marshall

  1. Mmmm, I have a different perspective. Marshall knew what needed to be done but he also knew there was no way to get it done except through some fancy legal dancing. And he knew it was going to happen again. So he came up with a way to do that would help in the long run.

    Judges have to do this more often then people realise because a lot of times the legislative and executive branches do something and we are stuck trying to enforce contradictions in the law. The number one case for this I think is Knox v Lee where SCOTUS had to authorize paper money without violating the constitution because the two other branches wanted something without having to actually work for it.

    I don’t like it because these things should never rest on a simple majority of 3-5 people wearing spiffy clothes.

    • That was much less push-back than I was expecting. I do understand that this kind of stuff is necessary. The world is not perfect. Even pure logic is not perfect. My expectations of the world are really very low. I’m just shocked that the world can’t even achieve them.

      • From me? That is odd. I don’t hold Marshall in that much reverence. He did some good stuff on the bench but it has always bothered me that too much of modern life rests on a fairly fragile system of judges ruling one way.

        • I thought knowing more about the law you might find my post wanting, given it was largely based on my memory of history classes I took long ago.

          • I think at most it mischaracterizes what Marshall did to the little guy-he wasn’t trying to hurt the guy, he just knew there was no way in hell the guy was going to take office. And to be honest, I am pretty sure William Marbury knew it. So saying it increased the Supreme Court’s power at the expense of the little guy is not really what happened.

            • I agree with that. I don’t think it was my intent to smear Marshall, because I don’t think he a bad justice. It was a given that Marbury was screwed. But it is an indictment of the system that he got screwed while the system managed to empower itself.

              • It is a balance of power issue-without it, too much of the legislative and executive would be to punish the minority for their not being the majority.
                The court had to take that power or else as you said, it would be useless.

                It is sad that this is the way it had to happen but what are ya gonna do?

                • I remember being shocked that it wasn’t that way to start. I mean, otherwise, the Court would not be equal to the other branches.

                  • The founding fathers were not as bright as people give them credit for and too many of them were legislators not executive or judicial.

                    • I’m fairly sure that “intelligence” is mostly a gift society gives you because of when and where you are born. Jefferson is a fascinating case. Had Thomas Paine been born in Virginia, would he have been a bigot too? Most likely.

                    • Eh, possibly. Depends on how high up the food chain. Jefferson was born into wealthy family with slaves but someone like Andrew Jackson was not. And I think that can have an impact.

                      Then again, Theodore Roosevelt and FDR were born into money…

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