Paul Finkelman’s account of antebellum decisions gets Justice Taney right, but not Justice Marshall, and especially not Justice Story.
Books about John Marshall do different things. Some concern Marshall’s political and constitutional thought, as well as his complex commitments to classical liberalism and republican principles. Perhaps the chief work of this type is Robert K. Faulkner’s classic and still unsurpassed The Jurisprudence of John Marshall (1968). Then there are more institutionally oriented studies. These draw larger lessons from Marshall’s life and times about the development, role, and influence of the Supreme Court in the early republic. Charles Hobson’s powerful The Great Chief Justice: John Marshall and the Rule of Law (1996) and R. Kent Newmyer’s John Marshall and the Heroic Age of the Supreme Court (2001) are notable contributions of this kind. So, in its way, is Edward Corwin’s idiosyncratic John Marshall and the Constitution (1919). (Who cannot appreciate, at least a little, a book with such extravagances as, “The Hildebrand of American constitutionalism is John Marshall”?)
Finally, there are the more biographical and personal works, the exemplar of which remains Albert Beveridge’s gargantuan, Pulitzer Prize-winning Life of John Marshall, published in 1916 (volumes 1 and 2) and 1919 (volumes 3 and 4), which has provided subsequent generations of academics ample fodder for Marshall mythmaking of a politically distinctive sort. Jean Edward Smith’s not-quite-so-meaty John Marshall: Definer of a Nation (1998) is a more recent, straightforwardly biographical study. Marshall books in this category certainly do not avoid legal and jurisprudential issues. But they also attend to Marshall the statesman, the politician, the lawyer, the friend, the confidant, and the family man. They are interested in how Marshall the man might illuminate Marshall the judge.
Richard Brookhiser’s John Marshall: The Man Who Made the Supreme Court is a new entry in this last genre. Unlike its predecessors, Brookhiser’s book is an elegantly succinct, readable, and accessible account of Marshall’s life. It explores Marshall’s virtues and personal qualities, as well as some of his shortcomings, to show their contribution to his impact on the Supreme Court. It does so while largely avoiding Marshall the father, the husband, the Christian, and so on, focusing instead on those salient character traits that can be gleaned from his public service.
Indeed, there is an ambiguity in the book’s subtitle. “The man who made the Supreme Court” might signal Marshall’s outsized role in fashioning the Supreme Court in his own self-image. There are some biographies, as Kevin Walsh has noted in his review in these pages of another recent Marshall book, that read Marshall as a kind of Romantic hero—the American Werther or Cagliostro of the judiciary. But there is another, and perhaps better, interpretation of the subtitle: that distinctive features of Marshall’s character as a man subtly but powerfully influenced the Court’s development under his stewardship.
John Marshall was a loyal man, especially to George Washington, and this is a foundational piece of Brookhiser’s history. Marshall served as a captain in the Continental Army and his experience and suffering in common with other soldiers at Valley Forge impressed upon him the evils of a weak central government and the great goods of American patriotism. But the bonds of the battlefield and of soldiery also created a lasting and profound loyalty to the commander-in-chief of the Continental Army.
“Most Americans admired Washington,” writes Brookhiser, but “Marshall’s reverence was personal, powerful, enduring.” His allegiance to Washington would inspire Marshall’s Virginia speeches in favor of constitutional ratification; reinforce his hostility toward French criticism of Washington’s policies of international neutrality; prompt him, against his own inclinations, to pursue higher political office; and move him, in the early 1800s, to compose his (alas) plodding biography of Washington, his only extended work of scholarship.
It was his loyalty to Washington that also fanned the flames of Marshall’s bitter and enduring enmity toward Thomas Jefferson, as different a man from Marshall as it is possible to be. Brookhiser artfully traces Marshall’s visceral loathing for Jefferson to the latter’s letter to a Florentine Anti-Federalist sympathizer, denigrating those “men who were Solomons in council and Sampsons [sic] in battle, but whose hair has been cut off by the whore England”—an obvious reference to Washington. Marshall would never forgive Jefferson for what he regarded as an act of betrayal to the great man. The hatred between these two Virginians and second cousins was mutual.
Yet the animosity was not strictly personal. Brookhiser shows how Marshall’s loyalty to Washington’s person was also loyalty to Washington’s political program and nationalizing aspirations. Together, these loyalties influenced Marshall’s own view, as the fourth chief justice of the United States, that the Supreme Court should exert a centripetal force on the nation’s politics. Those well versed in the legal issues in McCulloch v. Maryland (1819), Osborn v. Bank of the United States (1824), Trustees of Dartmouth College v. Woodward (1819), Cohens v. Virginia (1821), Gibbons v. Ogden (1824), and other pillars of the Marshall jurisprudential mansion will not discover too much that is new in Brookhiser’s chapters on the cases themselves, though Brookhiser cleverly brings them to life by foregrounding the context and the colorful personalities doing battle in them. His chapter on Cohens, for example, begins with an engaging discussion of the Cohen brothers’ arrival in America and the nature of their variegated businesses in financial services and lottery-running. His attention to these details makes for a pleasing story.
But beyond these aesthetic details, Brookhiser’s account of these cases clarifies the relationship between Marshall’s loyalty to a single nation united—a commitment that, on occasion, spilled over into some less than compelling pseudonymous journalism—and his sweeping language in these monumental judicial opinions. Marshall was, Brookhiser argues, a populist, the kind for whom the Supreme Court stood as “a guardian—a protector and an expounder” of the first foundational act of popular sovereignty: the Constitution. Marshall’s commitment to the national project is perhaps nowhere more powerfully expressed than in Cohens, where one can hear echoes of his soldiering life: “In war, we are one people. In making peace, we are one people. . . . America has chosen to be, in many respects, and to many purposes, a nation.”
The world of early American politics, like today’s, was one of strong and mercurial personalities. John Adams, Alexander Hamilton, Thomas Jefferson, Gouverneur Morris—these were men of ability and charisma who could also be somewhat prickly and difficult. They engendered personal animosity just as readily as public allegiance. Not so Marshall. At least among the Federalist cohort, Marshall “liked all these men and was liked by all of them—a tribute to his good nature and lack of rough edges,” writes Brookhiser. Marshall’s good nature and affability, “lubricated by frequent applications of Madeira,” comes through charmingly in this account. (Just have a look at the mellow, off-burgundy complexion of the book’s cover.)
And his affability had political uses. He was a prudent and savvy man, whether in presenting “a picture of American earnestness and good faith” to contrast with French chicanery during the XYZ Affair of 1797-1798, or in using “caution” and “cunning” as a witness in the (ultimately unsuccessful) impeachment trial of Justice Samuel Chase in 1804. The opinion he wrote in Marbury v. Madison (1803) is in many ways of a piece with Marshall’s personality in this respect: careful, cutting deep where it mattered, and yet sagely deferential to the political opposition where it had to be. Jefferson would never be won over, but Brookhiser observes that for many others, Marshall’s sociability encouraged “friendships across partisan and intellectual lines.”
It also won him judicial allies, enabling him to unify the Court to speak and act as a single organism—in Brookhiser’s fine phrase, like a “coral reef” rather than as shards of calcium carbonate. Opinions for the Court as a unit, rather than seriatim opinions, became a common practice. Dissents and separate concurrences were discouraged. Marshall’s genial ways endeared him to his colleagues, from the silent and forgettable Gabriel Duvall to the brilliant and energetic Joseph Story. Story would remain devoted to the chief justice and would gush, “I love his laugh . . . I am in love with his character, positively in love.” Marshall’s bonhomie and its salutary effect on the Court, in combination with an unusual stability in personnel from 1812 to 1823, cemented the Court’s institutional power and prestige. He would struggle to maintain that harmony in the turbulent years of Andrew Jackson’s presidency.
Learned yet Sensible
It was John Adams, who, when appointing Marshall in 1797 as one of three commissioners to France to smooth out some of the ill will generated by the Jay Treaty, called him both “learned” and “sensible.” In Brookhiser’s telling, the unique combination of these somewhat different personal qualities served Marshall well in achieving high political office during the Adams administration, and in turn served the nation in Marshall’s many contributions to the Court. Where Jefferson was dazzling, piquant, and a prose stylist of incomparable flair, Marshall was simpler, a less flashy writer yet no less learned. “No one did the simple life more simply than John Marshall,” observes Brookhiser. “All the more reason for Jefferson to dislike him.”
At several points, Brookhiser describes Marshall’s opinion-writing style as oracular and yet moving from general principles systematically to particular legal conclusions. It is this special blend of the elevated and the commonplace, the philosophical and the practical, “peaks of eloquence separated by wide thickets of detail” (Brookhiser’s description of Marshall’s massive opinion in Cohens v. Virginia), that distinguishes Marshall’s writing in many of his most famous opinions.
At times, as in The Antelope (1825)—which held that the slave trade was consistent with the law of nations (if not with the law of nature)—the Marshallian approach served ends that, though perhaps technically sound, were morally odious. At others, as in Gibbons v. Ogden, his style of opinion-writing is remarkable for its closeness and care. Marshall’s claims about congressional power under the Commerce Clause in Gibbons are impressive, but so is his choice to fix on the narrower issue of New York’s interference with Congress’s coastal licensing scheme. Magnum in parvo.
Biographies of political and legal figures that focus on the personal qualities of their subjects imply something about the nature of government. At the very least, they suggest that government and the character of its leaders are not entirely disconnected phenomena, whether for good or ill. Perhaps this is not a message with much resonance today. But Brookhiser has made a strong case for it in this splendid book.