John Marshall: Judge or Statesman?

Over the last quarter-century, National Review senior editor Richard Brookhiser has earned the sobriquet “historian” for a string of accessible books, chiefly biographies of American founders and statesmen, beginning with George Washington and continuing with Alexander Hamilton, four generations of the Adams family, Gouverneur Morris, James Madison, and Abraham Lincoln. His most recent biography, of John Marshall, came out a couple of years ago and was reviewed here by Marc DeGirolami. (Brookhiser also discussed it with Richard Reinsch on the LibertyLawTalk podcast.)

As with his previous works on Washington and Hamilton, which resulted in biographical films broadcast by PBS, Brookhiser’s Marshall bio is now the basis of a fine documentary, this time available via Amazon, bearing the same title as his book, John Marshall: The Man Who Made the Supreme Court. As before, Brookhiser himself is the film’s narrator, guide to various sights, and interviewer. And he has assembled an impressive group of interviewees—historians, legal scholars, even a U.S. senator (Missouri’s Josh Hawley) and two Supreme Court justices (Justice Samuel Alito and Chief Justice John Roberts).

Clocking in at two and a half hours—a good hour longer than Brookhiser’s Washington film and a half-hour longer than his Hamilton—the Marshall documentary might have benefited from a little trimming. (Did we really need a visit to a boxing gym as a “metaphor” for the “contact sport” of politics in the founding era?) But as our genial host takes us to John Marshall’s boyhood home in Fauquier County, Virginia—then truly the western frontier—as well as to Valley Forge, Williamsburg, Richmond, Philadelphia, and Washington, with junkets for atmosphere by horse-drawn carriage and sailing ship, we get a good impression of the American republic’s tenuous beginnings, and of the causes of Marshall’s devotion to perpetuating our constitutional order.

Champion of the Court

Marshall’s formative experience as a young adult was his service as an officer of the Continental Army under Washington, and it produced in him a devotion to the Union—and to Washington and all his works—that made him a Federalist (though a moderate, never an ultra) for the rest of his days. Yet despite his service in Virginia government, and as a delegate to the state’s convention that ratified the federal Constitution, Marshall was not ambitious for national office once he established a prosperous legal practice. Even with the celebrity he enjoyed after the “XYZ Affair” of 1798, he ran for Congress reluctantly, at the insistence of his old commanding general.

Once in the midst of the nation’s political life, however, Marshall’s rise was rapid, from the House of Representatives to secretary of state to chief justice in the span of just two years. He was 45 when he took the center chair at the Supreme Court in 1801 as the fourth chief justice, and over the next 34 years (still a record length of service for a chief justice) he fully earned his reputation as the greatest judge in American history. At this point in the documentary, Brookhiser and his interlocutors settle into a consideration of a half dozen of Marshall’s most notable cases, each well situated in its historical context, with occasional sidelong glances at the jurist’s personal and family life.

By the time of his death in 1835, John Marshall’s Federalist Party was long gone, but to the public at large, he was a venerable figure.

In what exactly, though, does Marshall’s greatness lie? The first chief justice, John Jay, had declined to return to the post in 1801, telling President John Adams that he doubted the Supreme Court would “acquire the public Confidence and Respect, which, as the last Resort of the Justice of the Nation, it should possess.” Marshall proved Jay wrong. In some respects the Court was propelled by events into a more central role in the nation’s life; after all, the justices do not generate their own business, but decide cases initiated by others. But under Marshall’s leadership—with a unified opinion of the Court, most often composed by him—the Supreme Court became a vital unifying force for the nation as a whole.

This was so despite—or because of—the multiple collisions of Marshall’s Court with the ascendant political party in national politics: the Republicans under Thomas Jefferson, and later the Democrats under Andrew Jackson. Brookhiser et al. mention several times that Marshall and Jefferson were cousins, though there is no reason to believe that their family relationship had much effect at all, either way, on their mutual antipathy. (For the record, saying “they were cousins” obscures a fairly distant kinship. Jefferson and Marshall were second cousins once removed; the former’s maternal grandfather and the latter’s twice-maternal great-grandfather were brothers.) They had not grown up together—Jefferson was a dozen years older—or even as near neighbors, and appeared to know each other more through politics than through the web of Randolphs to whom they were both related.

In any event, the partisan politics that had roiled the country at least since the second term of George Washington, and that became a still more explosive business after the general’s death in 1799, threw off legal and constitutional issues like shrapnel from the parties’ mutual bombardments. Brookhiser and company take the viewer capably through the political and legal intricacies of Marbury v. Madison in 1803 (featuring the first fully argued decision that a provision of federal law was unconstitutional); the treason trial of Aaron Burr in Marshall’s Virginia circuit court in 1807; the quashed attempt at a hostile takeover of Dartmouth College by the state of New Hampshire in 1819 (which had political dimensions often overlooked but brought to light here); the national bank controversy of McCulloch v. Maryland the same year; the breaking of the New York steamboat monopoly in the 1824 decision Gibbons v. Ogden; the Marshall Court’s ruling on the legality of the international slave trade in the case of The Antelope in 1825; and the two cases concerning the fate of the Cherokee of Georgia in 1831 and 1832.

By the time of his death in 1835, John Marshall’s Federalist Party was long gone. Yet, though his most significant rulings had often been bitterly criticized by those who took the opposing constitutional views, to the public at large he was a venerable figure, admired for his brilliance, his probity, his equanimity, and his stature as the last of the great revolutionary patriots.

John Marshall: Statesman?

If there is a defect in this documentary portrait, it consists in the occasional straying of some of Brookhiser’s interlocutors into conventionally political explanations of Marshall’s behavior as a judge. In this respect, the film and its interviews are not as satisfying as Brookhiser’s book, in which the author comes to much more judicious conclusions.

The Marbury case is the most striking example of what I mean. Several of Brookhiser’s interviewees retail the conventional wisdom—an account of the case that I can find no earlier than Edward Corwin’s influential but wrongheaded treatment of it in 1914—that the chief justice artfully avoided issuing the writ sought by William Marbury, ordering the secretary of state to disgorge a copy of his commission as a justice of the peace, because Marshall knew the writ would be defied, which would be a blow to the Court’s authority. This is plausible, because the Jefferson administration could hardly have been expected to comply, but it happens to be speculation about Marshall’s thinking that lacks documentary evidence. Still, even without such evidence, this account would be strengthened if those who propound it would first find persuasive fault with Marshall’s course of legal reasoning in the case. But they do not. It is just possible, is it not, that the chief justice was right about the law from start to finish?

Still more striking is the assertion that Marshall’s adroitness extended to securing for his Court the power we now call judicial review—the authority to consider the constitutionality of acts of Congress and to disregard those held unconstitutional—in a kind of judo maneuver that triumphed over his nemesis Jefferson. Corwin called it “a deliberate partisan coup,” and several of Brookhiser’s interlocutors echo him. This bit of conventional wisdom not only lacks evidence, it flies in the face of the evidence we have. Ever since the ratification debates of 1787-88, every intelligent commentator on the Constitution had presumed that some form of judicial review was a solid inference from Articles III and VI of the text. For a dozen years, the Supreme Court had proceeded on the uncontroversial understanding that the power existed; it simply had not brought it yet to bear negatively on any statute.

Chief Justice Roberts perhaps sees a bit of Marshall in himself, or himself in Marshall, when he says that his predecessor’s overriding concern was “protecting the Court as an institution.”

As for Jefferson, the Court’s claim that it could disregard an unconstitutional statutory provision was the one feature of the decision about which he never complained—not a peep. What made his blood boil was having been told by a unanimous opinion of the Supreme Court that his administration had violated a man’s rights and shirked its legal duty to make amends to him. And it stung because it was true. Like the Anti-Federalist Brutus before him, Jefferson principally complained for the remainder of his days that Marshall’s Court did not exercise its power vigorously enough against acts of Congress that Jefferson’s party opposed. The Jeffersonians desired a more activist federal judiciary, so long as it came to the rescue of their theories of “states’ rights.”

The thread running through the remarks of some of Brookhiser’s commentators is succinctly stated by Yale’s Bruce Ackerman: that John Marshall’s jurisprudence was marked by a kind of “political statecraft.” Again I would sound an unfashionable note of caution about such characterizations—unfashionable because it rests on an old-school presupposition that there are right answers to legal questions. First it is incumbent on the historian or legal scholar to show where a judge has departed from the law, giving the questions in a case the wrong answers. Then he may reasonably consider what moved the judge to behave so—whether it was simple error, or culpable distortion, and, if the latter, what political or personal agenda he was serving in place of the law.

Another example of this cart-before-horse analysis arises when the documentary presents the case of The Antelope, a complicated case concerning the international slave trade. Here Paul Finkelman has his innings as a commentator, insisting that Marshall’s personal standing as a slaveholder drove his decision to recognize the legitimacy of the trade under international law. To his credit, Finkelman attempts a legal critique of the ruling in the case, but for the most part he and other commentators deplore Marshall’s decision on moral grounds, insinuating that if he were really a friend of human freedom and dignity he would have found a way to free all the unfortunate captives discovered aboard the Antelope. The consensus view seems to be that this was a culpable failure of the high statecraft of which Marshall was capable on other occasions. But if a solid case can be made that the chief justice was right about the strictures of international law in 1825—and it can be—then what we have is a correctly decided case with tragic results. This is not an unfamiliar phenomenon in the law.

In short, too often Brookhiser’s commentators go to the “statecraft” explanation of Marshall’s behavior without giving the viewer the benefit of a persuasive legal critique of his work. But if the law, viewed from a perspective internal to it, supplies its own reasons for action, there is where the commentator’s work should begin. And it may satisfactorily end there too, if the conclusion is that the law itself supplied the ground of a decision. Somehow Marshall’s acknowledged greatness does not seem truly great unless his admirers attribute large dimensions of political statesmanship to him. Even Chief Justice Roberts—perhaps seeing a bit of Marshall in himself, or himself in Marshall—stumbles into this when he says that his predecessor’s overriding concern was “protecting the Court as an institution.” No doubt this did concern Marshall. But we have no solid reasons to believe that such a consideration outweighed getting the law right. And his lifelong commitment to getting it right was the real cause of his greatness.

As in Brookhiser’s book, the coda of the documentary is the course of events in an increasingly divided America after Marshall’s death in 1835, culminating in a case that had tragic—and tragically unacceptable—results because it was wrongly decided. That was of course the Dred Scott case in 1857, which made its own material contribution to the coming of the Civil War. And there, as Brookhiser and his interlocutors acknowledge, the most notable failure of the Supreme Court in its whole history came about because the chief justice and a majority of his colleagues thought they could play about with “statecraft.”

The proper contrast with Marshall—as Brookhiser’s book shows more clearly than this documentary—is not that the Great Chief Justice was a more gifted statesman than Roger Taney. It is simply that he had far more integrity as a judge.

Reader Discussion

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on February 12, 2021 at 11:57:24 am

Great man (I rank him among the top five Founders) and a super subject for many great books, of which we already have quite a few. Based on other reviews, it seems that Brookhiser's book adds nothing, although he is a talented populizer of the Founders, whose previous popular biographies serve the invaluable public service of introducing great men to an uninformed mass audience. His Marshall effort surely will add to that public service.

As for the documentary, it is off to a bad start. In interviewing Chief Justice Roberts about the Great Chief, the documentary wrongly dignifies a lowly Marshall-wannabe. Roberts' dolorous 15 year history on the Supreme Court proves, beyond doubt and debate, that he is a mere epigone of judicial statesmanship and talent, and that Roberts is unsuited for his office. Thus, Roberts is unworthy of the honor of discussing Marshall; deploying him to do so is a mere publicity ploy that wrongly cheapens Marshall and elevates Roberts. Further, as one who has seen numerous previous interviews of Roberts, I can attest to the fact that he is extraordinarily bland, hyper-cautious, and rarely says anything of consequence or that one does not already know. Roberts is a snore-inducing bore who very likely will detract even from the documentary's entertainment value.

Secondly, I note that the documentary demeans the Great Chief by likening him to yet another judicial pigmy, Justice Ginsberg. The promo for the documentary, in the link provide by Professor Franck, contains this line:
“…a documentary as lively as though ripped from today’s headlines and twice as timely. Missing RBG? Discover a new hero in John Marshall. -Tom Harrison."

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on February 13, 2021 at 12:27:27 pm

As I vaguely recall from that time Roberts was under consideration for appointment, I read that he was being groomed, or had been grooming himself, to fill an eventual SCOTUS opening. He sought to be a solidly conservative operative but a legally non-controversial judge (i.e., bland and hyper-cautious, as you state). Do you recall anything in a similar vein?

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on February 14, 2021 at 12:34:08 pm

I get to reading these pieces later than you do, so I don't frequently comment because I most often find myself in agree with you. And I do so now. Chief Justice Roberts, though, I find to be so painfully sad, I want to see you and raise you in condemning his judgement and leadership of the court. If the standard be John Marshall, our John is the George McClellan of our day. "It is a Constitution we are expounding" not an institution. Roberts has failed in every significant way to engage the enemies of our foundational law, law which frames our civic and political society until it is amended only by the proper means provided for in the Constitution itself. He has declared in advance that he will face no issue that he can avoid by any means. And he hasn't the courage to risk popular criticism in meeting the fundamental questions head on though he has lifetime security precisely to do what might be unpopular. John Marshall, the revolutionary and founding father risked life and reputation for his country. What has John Roberts ever risked?

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on February 12, 2021 at 13:08:48 pm

No mention is made of the fact that Marshall was nominated by John Adams after he had lost the presidential election to Jefferson and that Marshall was approved by the lame-duck Senate that had a Federalist majority. To hear the complaints of law faculty regarding Trump's lame-duck appointment to the Supreme Court either speaks to ignorance or ideological blindness

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Eldon J Eisenach
on February 13, 2021 at 12:21:32 pm

I am confused by your "Trump's lame-duck" language. If Justice Coney Barrett (or is it Justice Barrett?) was confirmed by 10/26/20, prior to the 11/3/20 election, then neither Trump nor the Senate were in lame duck status at that time. Perhaps you were referring to the "prior year" gambit during an election year and how many liberal commenters thought Trump should face the same situation in 2020 that Obama faced with Merrick Garland in 2016?

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on February 13, 2021 at 14:01:29 pm

I think Eisenach's comment about "ignorance" is referring to ignorance of contemporary Democrats to the historical precedent of 1800 and the fact that (unlike the Republicans in 2016) after the Federalists lost control of both the presidency and the Senate in the the election of 1800, Adams and the Federalists attempted to retain some control of government by creating, appointing and confirming 16 new federal judgeships and dozens of new federal magistrates (the "Midnight Judges") and by appointing and confirming John Marshall as Chief Justice, literally, almost as Adams was walking out the White House door at night and heading for home (without even attending Jefferson's Inauguration.)

Moving ahead two centuries, in 2016 the Republicans controlled the Senate while Obama was President and refused to take up Garland's nomination until after the 2016 presidential election, deferring the matter of a new Justice until Trump was inaugurated, then promptly confirming his appointment of Gorsuch. Thereafter, Ginsberg died in 2020 just prior to the election in which the Democrats were to win control of the presidency and the Senate. Prior to that election and prior to the Democrats assuming control, Trump and his Senate majority filled Ginsberg's seat with Barrett.

Neither the Republican Senate nor the Republican president can be said to have been lame duck in 2020 when Barrett was nominated and confirmed. Yet, per their typical abuse of language, the Democrats liken the process to that of a "lame duck" procedure, arguing that Republicans should have awaited the outcome of the 2020 election and the "will of the electorate." (Truly, that is the same "will of the electorate" BS rationale which the Republicans had used against the Democrats and Garland in 2016, the dispositive difference being that in 2016 and 2020 the Republicans controlled the Senate, while in 2016 the Democrats controlled the presidency. It's all about exercising political power when one has it, not about waiting to hear the "will of the electorate."

The reference to 1800 is probably just a way of saying, "What are you Democrats crying about? Much worse was done in 1800 by a Federalist president and Senate which were truly lame duck."

But R2L is certainly correct in standing on accuracy: nobody was lame duck in 2016 when Garland was "tabled" or in 2020 when Barrett was nominated and confirmed.

A look at history and the election of 1800 is useful to mollify critics on 2016 and 2020. A look at facts in 2016 and 2020 is useful to reject them.

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Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.