On 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.