REMARKS BY WILLIAM H. REHNQUIST
THE SUPREME COURT HISTORICAL SOCIETY
2001 ANNUAL LECTURE
JUNE 4, 2001
THE SUPREME COURT IN THE NINETEENTH CENTURY
I shall talk to you this afternoon about the Supreme Court in the nineteenth century. Given the current emphasis on modernity and the immediate present, there are many audiences before which a speaker would hesitate to talk about a subject so far back in time. But surely the Supreme Court Historical Society should not be one of them.
We shall see, at the beginning of the nineteenth century, a Court which has not yet found its role, and whose principal impact is deciding which litigant wins in a particular lawsuit. Chief Justice John Marshall appointed in 1801 changes that; he and his successor, Roger B. Taney, are the dominant figures in the Courts over which they preside. From 1801 until 1864 -- sixty-three years -- the Nation had only two Chief Justices, at the same time that it had fifteen Presidents. In the latter part of the nineteenth century, the Chief Justices are less dominant and influential, sharing their authority with several notable Associate Justices. By the end of the century, the Court is beginning to wrestle with the many problems facing the nation after a little more than a century of existence.
Today, the federal judiciary, headed by the Supreme Court, is regarded as a co-equal branch of the federal government, along with Congress and the Executive Branch. But in the first decade of the new republic -- from 1790 to 1800 -- the judiciary was very much a junior partner. The Supreme Court's present-day status is due in large part to John Marshall, who served as Chief Justice for thirty-four years -- from 1801 until 1835.
During the first decade of the new republic, the Supreme Court got off to a very slow start. It decided a total of sixty cases in this ten-year period -- not sixty cases per year, but about six per year, because there was so little business to do. The Justices met in the national capital for only a few weeks each year. They spent the rest of their time riding circuit and sitting as trial judges in their respective circuits -- from Portsmouth, New Hampshire to Savannah, Georgia.
John Jay, the first Chief Justice, was a rather elegant New Yorker. He was appointed by George Washington in 1789. In the conference rooms where you will hold your reception this evening, there are portraits of each of these early Chief Justices, and only Jay is shown wearing a red robe. He had held most of the important positions in the state government of New York, and was half English and half Dutch -- just the right combination for political success in New York at that time.
In 1794, Washington decided that he needed a special ambassador to go to the Court of St. James and negotiate with Great Britain various disputes that had come up as a result of the Treaty of Paris of 1783 which had ended the Revolutionary War. He picked John Jay, and Jay sailed for England in the spring of 1794, and did not return until the summer of 1795. There is no indication that he was greatly missed in the work of the Supreme Court during this time. When he returned, he found that he had been elected Governor of New York in absentia -- can you imagine that sort of thing happening today? -- and resigned the Chief Justiceship to assume what he regarded as the more important job -- Governor of New York.
The next Chief Justice who actually served was Oliver Ellsworth of Connecticut, who had been a delegate to the Constitutional Convention and the chairman of the House Judiciary Committee in the First Congress. But Ellsworth, too, was selected for a special mission -- this time to France -- by President John Adams, who succeeded George Washington. He left for France in the fall of 1799, and fell ill while there. He submitted his resignation to President John Adams in December 1800.
Thomas Jefferson had defeated John Adams in the presidential election of 1800, but in those days the term of the outgoing President expired not on January 20th, as it does today, but on March 4th, and the terms of members of Congress were similarly longer. Thus for several months after they knew the outcome of the election, John Adams and the Federalists continued to control the Presidency and both Houses of Congress.
Adams first wanted to reappoint John Jay as Chief Justice, but Jay declined. Adams ultimately chose as Ellsworth's successor John Marshall, a Virginia Federalist of considerably different stripe than Thomas Jefferson. In his Autobiographical Sketch, Marshall recounted the circumstances of his appointment:
"When I waited on the President with Mr. Jay's letter declining the appointment he said thoughtfully "Who shall I nominate now"? I replied that I could not tell, as I supposed that his objection to Judge [Paterson] remained. He said in a decided tone "I shall not nominate him." After a moment's hesitation he said "I believe I must nominate you".
In those days, confirmation hearings not being what they are today, Marshall was quickly confirmed by the Senate on January 27, 1801.
To illustrate the low estate of the Supreme Court at this time, the federal government was in the process of moving from Philadelphia, which had been the capital for ten years, to the new capital of Washington in the District of Columbia. The White House -- then called the President's House, was finished, and John Adams was the first President to occupy it. The Capitol building had been constructed on Capitol Hill, and was ready for Congress, though it was not nearly the building we know today as the Capitol. But no provision whatever had been made for housing the Supreme Court. Finally, at the last minute, a room in the basement of the Capitol was set aside for the third branch, and in that rather undistinguished environment the Court would sit for eight years.
John Marshall was born in the Blue Ridge foothills of Virginia, about fifty miles west of present-day Washington. He had very little formal education. But by the time he reached twenty-five years of age, he had served as a Captain commanding a line company of artillery in the Battles of Brandywine and Monmouth during the Revolutionary War. He had also suffered through the terrible winter at Valley Forge with George Washington and the rest of the Continental troops. It was this experience which led him to remark that he looked upon "America as my country, and Congress as my government." Not an unusual sentiment today, to be sure, but quite an unusual sentiment for a Virginian at that time.
After mustering out of the service, he studied law very briefly, attending the lectures of George Wythe in Williamsburg, and was admitted to the Virginia Bar. In 1782 Marshall was elected to the Virginia legislature, serving for two years before he resigned to return to his law practice. He was again elected to the Virginia legislature in 1787, where, despite the tide of anti-Federalist sentiment in Virginia, he was an ardent supporter of ratification of the Constitution.
During the next several years, Marshall continued in the Virginia assembly and with his law practice. He turned down President Washington's offer to become Attorney General, but in 1797 agreed to President Adams' request that he serve as a member of a delegation sent to France to resolve the mounting tensions between the two countries. This episode, of course, came to be known as "the XYZ affair."
After returning to Richmond, Marshall agreed to run for Congress at the urging of George Washington. During Marshall's election campaign, President Adams offered him a seat as Associate Justice of the Supreme Court. Marshall declined and Bushrod Washington, President Washington's nephew, was appointed instead. Marshall was elected to Congress in 1799, and at the time of his appointment as Chief Justice he was serving as Adams' Secretary of State. He was much better known as a politician than as a legal scholar.
When he became Chief Justice in 1801, the Supreme Court of the United States was very much like other courts of last resort, finally deciding cases between litigants but otherwise contributing very little to the manner in which the country was governed. Marshall's principal claim to fame as Chief Justice -- though by no means his only one -- is his authoring the Court's opinion in the famous case of Marbury v. Madison. Decided in 1803 -- two years after he became Chief Justice --
he turned what otherwise would have been an obscure case into the fountainhead of all of our present-day constitutional law.
The case arose out of a suit by William Marbury, who had been nominated and confirmed as a Justice of the Peace in the District of Columbia, against James Madison, whom Thomas Jefferson had appointed as his Secretary of State. Although Marbury had been nominated and confirmed, his commission had not been issued by the time of the change in administration, and James Madison refused to issue it.
Marbury contended that once he had been nominated by the President, and confirmed by the Senate, the issuance of his commission was simply a ministerial task for the Secretary of State who had no choice but to issue it. He brought an original action in the Supreme Court, relying on a provision of the Judiciary Act of 1789 which said that the Supreme Court could issue writs of mandamus to any federal official where appropriate; he said that James Madison was a public official -- which no one denied -- and that a writ of mandamus -- recognized judicial writ available to require public officials to perform their duty -- was appropriate in his case.
Marshall's opinion for the Court is divided into several parts. He first addresses the question of whether one nominated and confirmed by the Senate is entitled to receive his commission without further ado, so to speak. He concludes quite reasonably that Marbury is entitled to his commission, and goes on to say that if Marbury has this right, surely the law must afford him a remedy. And, says Marshall, that remedy is a writ of mandamus, which exists just for this purpose.
But now comes the hidden-ball play. The next question Marshall asks in his opinion is whether it is proper for the Supreme Court to issue a writ of mandamus in this case. He agrees with Marbury that Congress in the Judiciary Act of 1789 authorized the Supreme Court to issue writs in such a case. But wait a minute, he says: Look at Article III of the Constitution. It says that the original jurisdiction of the Supreme Court -- that is, cases which may be brought in the Supreme Court in the first instance, without ever having gone to another court -- is limited to lawsuits between the states, and lawsuits involving ambassadors and other foreign ministers. Clearly this suit is not within the original jurisdiction provided by Article III of the Constitution.
So, Marshall goes on to say, we have an act of Congress saying the Supreme Court may do a particular thing, and the Constitution saying it may not. What is a court then to do under a system like ours? Marshall says that, unlike the British Parliament, which is supreme, no branch of the federal government -- whether it is the Legislative, the Executive, or the Judiciary -- is supreme. The Constitution is supreme, because it has been adopted by the people in the various states, and it delegates particular powers to each of the three branches. If any of these three branches may exceed their delegated authority, the whole idea of a written constitution is meaningless. So the Constitution must prevail over an act of Congress which is inconsistent with the Constitution.
But who will have the final say as to what the Constitution means in a situation like this? Marshall says that the Constitution is a written agreement among the several states and the people in those states, and the courts have always had the final say in interpreting the provisions of a written agreement. Therefore, it is the federal courts, and particularly the Supreme Court, which is the ultimate arbiter of the meaning of the Constitution. The Court ruled that the federal judiciary had the authority and responsibility to strike down those laws that violate the Constitution.
The opinion in Marbury v. Madison is a remarkable example of judicial statesmanship. The Court says that Marbury is entitled to his commission, and Madison is wrong to withhold it. It says that this is the sort of ministerial duty of a public official such as Madison which can be enforced by a writ of mandamus. But it concludes by saying that Congress -- in granting the Supreme Court the power to issue a writ of mandamus in a case like this -- has run afoul of the original jurisdiction provision of the Supreme Court contained in Article III of the Constitution. Madison and Jefferson are verbally chastised, but it turns out that there is nothing that the Supreme Court can do about it because Congress tried to give the Supreme Court more authority than the Constitution would permit. The doctrine of judicial review - the authority of federal courts to declare legislative acts unconstitutional - is established, but in such a self-denying way that it is the Court's authority which is cut back.
During the thirty-four years he served as Chief Justice, Marshall wrote most of the important opinions that the Court decided. In Gibbons v. Ogden, decided in 1824, he wrote the opinion adopting a broad construction of the power of Congress under its authority to regulate interstate commerce contained in Article I of the Constitution. In the Dartmouth College Case, he gave a generous interpretation to the prohibition in the Constitution against state impairment of the obligation of contract. One cannot name all of the significant opinions authored by Marshall; suffice it to say that by the time of John Marshall's death in 1835, the Supreme Court was a full partner in the federal government.
What was the secret of John Marshall's success? It was not that he was "present at the creation" because he was not; he was not the first Chief Justice, but the fourth Chief Justice. John Jay and Oliver Ellsworth were both able jurists by the standards of their time, but neither of them had the vision of constitutional government that Marshall did.
Marshall was certainly no more "learned in the law" than his colleagues on the Court, and there were probably several of those who would have been thought more learned than he was. Marshall also faced a built-in headwind against his views for the first twenty-four years of his tenure as Chief Justice; during this period the "Virginia dynasty" of Presidents -- Thomas Jefferson, James Madison, and James Monroe -- were in office, and these Presidents had quite a different view of the relationship between the federal and state governments than Marshall did. But the Justices they appointed tended eventually to side with Marshall, rather than to express the views of the Virginia dynasty. Surely exhibit A in this category is Joseph Story of Massachusetts, who was appointed by James Madison in 1811 but became Marshall's right bower during his long tenure on the Court.
I think Marshall's success arose from several sources. He had a remarkable ability to reason from general principles, such as those set forth in the Constitution, to conclusions based on those principles. And in a day when legal writing was obscured and befogged with technical jargon, he was able to write clearly and cogently.
But every bit as important, I think Marshall probably had an outgoing personality and was very well liked by those he moved among. Here his service in the military probably made him a more engaging personality than someone who had simply drafted writs of replevin for his entire adult career. The familiar story of the dinner ritual when the Justices were in Washington perhaps illustrates this point. The Justices all stayed at the same boarding house, and had their meals together during their few weeks in Washington. If it were raining, they would have a glass of wine with dinner. They looked forward to this ritual, and one day were expressing regret that the weather outside was fair and sunny. But Marshall said "somewhere in our broad jurisdiction it must surely be raining," and from then on they had a glass of wine with dinner every day.
One occasionally hears the expression that an institution is the lengthened shadow of an individual. It may be risky to suggest that any institution which has endured for two hundred ten years the way the Supreme Court of the United States has could be the lengthened shadow of any one individual; but surely there is only one individual who could possibly qualify for this distinction, and that individual is John Marshall. John Adams, after his retirement from the Presidency, said, "John Marshall was my gift to the American people."
At the time of Marshall's death, Andrew Jackson was serving his second term as President of the United States. He appointed his loyal lieutenant Roger B. Taney of Maryland to succeed Marshall as Chief Justice. Taney had a first-rate legal mind and was a clear, forceful writer. Like Marshall, he did not believe in legal learning for its own sake, and he realized that constitutional law required not only legal analysis, but also vision and common sense. The Taney Court over which he presided for twenty-eight years was less nationalist in its orientation than was the Marshall Court. The principal doctrines of the Marshall Court remained in place, but they were tempered by a greater willingness to uphold state authority. In the Charles River Bridge case, for instance, decided in 1838, the Court in an opinion by Taney limited the scope of the earlier Marshall Court decision in the Dartmouth College case, saying that implied covenants would not be read into state contracts for purposes of the impairment of Contracts Clause. In Cooley v. The Board of Wardens, the Court held that some activities, even though within the scope of congressional authority over commerce, could nonetheless be regulated by the States until Congress had acted. There were dissents on both ends of this case; Justice McLean of Ohio would accord no such power to the States, and Justice Daniel of Virginia -- surely one of the most extreme champions of state's rights ever to sit on the Court -- would have allowed the state regulation even though it were contrary to an act of Congress.
Taney's long and otherwise admirable career is, unfortunately, marred by his opinion in the ill-starred Dred Scott case, in which he opined that even free blacks could not be citizens for purposes of diversity jurisdiction, and that Congress lacked the constitutional authority to ban slavery in territories that had not yet been admitted as states. Charles Evans Hughes rightly described the Dred Scott decision as a "self-inflicted wound" from which it took the Court at least a generation to recover.
Towards the end of Taney's tenure, Abraham Lincoln became President and appointed several new Justices to the Court whose opinions would have little in common with those of Taney. But one of them, Samuel F. Miller, left this memento of his feeling for the aged Chief Justice:
"When I came to Washington, I had never looked upon the face of Judge Taney, but I knew of him. I remembered that he had attempted to throttle the Bank of the United States, and I hated him for it. I remember that he took his seat upon the bench, as I believe, in reward for what he had done in that connection, and I hated him for that. He had been the chief spokesman for the Court on the Dred Scott case, and I hated him for that.But from my first acquaintance with him, I realized that these feelings toward him were but the suggestions of the worst elements of our nature, for before the first Term of my service on the Court had passed, I more than liked him; I loved him. And after all that has been said of that great, good man, I stand always ready to say that conscience was his guide and sense of duty his principle."
Taney was in his mid-eighties, and looked feeble, when he swore in Abraham Lincoln as President in 1861. But he continued to serve as Chief Justice until his death in 1864. His long tenure prompted Ben Wade, an abolitionist Senator from Ohio, to remark that "no man prayed harder than I did that Chief Justice Taney would outlive the administration of James Buchanan. But now I am afraid that I have overdone it." Actually, Taney remained on the job because he needed the income to support himself; at that time, no provision was made for pensions for federal judges.
Lincoln now had an opportunity to appoint a successor, and he pondered several different choices. Finally, in an act which epitomizes his absolute magnanimity - he nominated his former Secretary of the Treasury, Salmon P. Chase. While in that office, Chase had committed the unpardonable sin of seeking to wrest the Republican nomination away from Lincoln by use of the extensive patronage of the Treasury Department. But Lincoln chose him because he thought he would vote to uphold the Greenback Laws, passed during the Civil War to make paper money legal tender in order to finance the war. But he added a cautionary note -- Chase would be a good Chief Justice if he could just give up his presidential ambitions.
For most men the Chief Justiceship would have been enough, but not for Salmon P. Chase. He was an able man, a devoted foe of slavery, but an egotist through and through. One of his detractors said that there were four persons, rather than three, in his trinity. During his rather brief tenure on the Court - from 1864 until his death in 1873 - his ambition for the presidency never left him. He authorized the submission of his name as a presidential candidate to the Republican convention in 1868, and when that convention turned to U. S. Grant, he authorized the submission of his name to the Democratic convention. There he actually received a few votes before losing to Horatio Seymour of New York, who in turn lost the election to U. S. Grant. Again in 1872, Chase made inquiries not only of the Republican convention, but of the Liberal Republican convention in Cincinnati, a small splinter group of the party. Neither one was interested.
Salmon Chase was not a great Chief Justice, and from now until the end of the nineteenth century, the Court would be as much influenced by several of its abler Associate Justices as by its Chief Justice. Three of these come to mind:
Samuel Freeman Miller, already mentioned, was born in the bluegrass country of Kentucky in 1816. For ten years he practiced medicine, but then tired of his work as a doctor, studied law while continuing to practice medicine. He was admitted to practice in Kentucky in 1847, but three years later moved to Keokuk, Iowa, because he wanted to live in a free state rather than in a slave state. He became active in Republican politics, and played a part in securing Iowa's votes for Lincoln in 1860. Lincoln appointed him to the Supreme Court in 1862.
Stephen J. Field was born in Connecticut in 1816, and grew up as one of nine children, several of whom were to achieve fame. His older brother, David Dudley Field, was a New York lawyer who obtained prominence by drafting the Field Code, which codified the common law in New York and was adopted in other states. Another brother, Cyrus Field, laid the transatlantic cable from Newfoundland to Ireland in 1867. Field began the practice of law with his brother in New York in 1841, but contracted the well known "gold fever" in 1849 and journeyed to California by means of the Isthmus of Panama. He became active in California politics and legal affairs, serving as Chief Justice of the state supreme court before Lincoln appointed him to the United States Supreme Court in 1863.
After the Civil War, cases began reaching the Supreme Court involving the Civil War amendments to the Constitution -- the Thirteenth, Fourteenth, and Fifteenth Amendments. The first important case of this kind to be decided was the so-called Slaughterhouse cases in 1873. Justice Miller wrote for a majority of five giving the Fourteenth Amendment a narrow construction, and saying that it was doubtful that it would have any application to individuals other than the newly freed slaves. Justice Field wrote in dissent that if this were so it was "a vain and idle enactment" which accomplished nothing. Though Field lost this round, it was his broader view of the Fourteenth Amendment, rather than Miller's narrow one, that would ultimately prevail with the Court.
The third of this triumvirate of Associate Justices was Joseph Bradley. He was born in upstate New York near Albany, the oldest of seven children of a subsistence farmer. Deciding that he needed some formal education, he dressed in a homespun suit and walked from near Albany to Rutgers University "on the banks of the old Raratan" in New Jersey -- a distance of about two hundred miles. He got his education, studied for the bar, and successfully practiced law in New Jersey. He was known as a "railroad lawyer" because of his clients, and was appointed to the Supreme Court by President Grant in 1869.
He authored the opinion of the Supreme Court in the Civil Rights Cases, one of its more important decisions of this era, saying that the Fourteenth Amendment applied only to government discrimination, and that Congress may not prohibit merely private discrimination.
Chief Justice Chase's presidential ambitions were not the only ones among members of the Court at this time. Stephen Field wanted to be considered for the Democratic presidential nomination on at least one occasion, and David Davis had always been more interested in politics than in law. Lincoln had practiced before Davis when the latter was a state court judge of a circuit in downstate Illinois, and when Lincoln became President, he appointed Davis to the Court. Davis wrote the Court's opinion in the famous case of Ex Parte Milligan, where the Court held that persons not in the military could not be tried before a military commission so long as the civil courts were open.
In the disputed election of 1876, where Rutherford B. Hayes, the Republican, and Samuel Tilden, the Democrat, vied for the office, the Supreme Court was drawn into the controversy not as a body, but because five of its Justices were named to a fifteen-member commission which would in effect have the final say as to how votes from the disputed states were to be counted. Two known Republicans and two known Democrats on the Court were easily agreed upon, but the fifth member from the Court, whose vote would obviously be decisive -- was harder to pick. One proposal which gathered considerable support in Congress was to pick the Justice by lot. Tilden, who was on the whole a rather cold and calculating individual, balked at this, and in one of his rare bon mots said that he might lose the presidency, but he would not raffle for it. Finally, Davis, who although a Republican appointee had shown considerable independence in his views, was chosen. He had received some votes for President at the Liberal Republican Convention in Cincinnati in 1872, and was hoping for a spot on one of the tickets in 1880. But just as the commission was about to begin its deliberations, the Illinois legislature elected Davis a Senator from that state, and he resigned from the Court to take his seat in the Senate. After much consternation, Bradley was chosen by the other four Justices as the most impartial, and was thereby put in an impossible position. If he were to vote with the Democrats in a way that would seat Tilden, he would of course be applauded for his impartiality and his independence. But if he were to vote in a way that would seat Hayes, he would be denounced as simply a partisan tool. He did vote to seat Hayes, and was accordingly denounced -- with little if any justification.
In 1896, the Court in an opinion by Justice Henry B. Brown of Michigan, ruled in Plessy v. Ferguson that the Equal Protection Clause of the Fourteenth Amendment was not offended if a State provided separate facilities for whites and blacks so long as they were equal. This decision ratified the Jim Crow regime in the South, and was overruled more than fifty years later in Brown v. Board of Education.
Miller died in 1890, Bradley in 1892. Field lived until 1897, and his last years at the Court were not happy ones. [Story]
In 1901, Theodore Roosevelt succeeded William McKinley when the latter was assassinated in Buffalo. His first appointment to the Supreme Court was caused by the retirement of Horace Gray of Massachusetts, and Senator Henry Cabot Lodge of Massachusetts urged him to appoint Oliver Wendell Holmes, Jr., then Chief Justice of the Supreme Judicial Court of Massachusetts. Roosevelt demurred until Lodge could assure him that Holmes was sound on the "Insular Cases." This incident illustrates the transience of constitutional doctrine. Surely not one law student in fifty could say what the "Insular Cases" were, and I daresay the same is true of most of my listeners this afternoon. But they were very important to the President at the turn of the century. The United States had defeated Spain in the Spanish American War, and had acquired Puerto Rico and the Philippine Islands as possessions and had acquired a temporary mandate to govern in Cuba. The question was whether the Constitution followed the flag; could Philippine citizens familiar only with the civil law system demand a right to jury trial? These questions have long since been either solved or disappeared, just as many of the questions which now perplex this Court will meet a similar fate a century from now.
I shall talk to you this afternoon about the Supreme Court in the nineteenth century. Given the current emphasis on modernity and the immediate present, there are many audiences before which a speaker would hesitate to talk about a subject so far back in time. But surely the Supreme Court Historical Society should not be one of them.
We shall see, at the beginning of the nineteenth century, a Court which has not yet found its role, and whose principal impact is deciding which litigant wins in a particular lawsuit. Chief Justice John Marshall appointed in 1801 changes that; he and his successor, Roger B. Taney, are the dominant figures in the Courts over which they preside. From 1801 until 1864 - sixty-three years - the Nation had only two Chief Justices, at the same time that it had fifteen Presidents. In the latter part of the nineteenth century, the Chief Justices are less dominant and influential, sharing their authority with several notable Associate Justices. By the end of the century, the Court is beginning to wrestle with the many problems facing the nation after a little more than a century of existence
Today, the federal judiciary, headed by the Supreme Court, is regarded as a co-equal branch of the federal government, along with Congress and the Executive Branch. But in the first decade of the new republic - from 1790 to 1800 - the judiciary was very much a junior partner. The Supreme Court's present-day status is due in large part to John Marshall, who served as Chief Justice for thirty-four years - from 1801 until 1835.
During the first decade of the new republic, the Supreme Court got off to a very slow start. It decided a total of sixty cases in this ten-year period - not sixty cases per year, but about six per year, because there was so little business to do. The Justices met in the national capital for only a few weeks each year. They spent the rest of their time riding circuit and sitting as trial judges in their respective circuits - from Portsmouth, New Hampshire to Savannah, Georgia.
John Jay, the first Chief Justice, was a rather elegant New Yorker. He was appointed by George Washington in 1789. In the conference rooms where you will hold your reception this evening, there are portraits of each of these early Chief Justices, and only Jay is shown wearing a red robe. He had held most of the important positions in the state government of New York, and was half English and half Dutch - just the right combination for political success in New York at that time.
In 1794, Washington decided that he needed a special ambassador to go to the Court of St. James and negotiate with Great Britain various disputes that had come up as a result of the Treaty of Paris of 1783 which had ended the Revolutionary War. He picked John Jay, and Jay sailed for England in the spring of 1794, and did not return until the summer of 1795. There is no indication that he was greatly missed in the work of the Supreme Court during this time. When he returned, he found that he had been elected Governor of New York in absentia - can you imagine that sort of thing happening today? - and resigned the Chief Justiceship to assume what he regarded as the more important job - Governor of New York.
The next Chief Justice who actually served was Oliver Ellsworth of Connecticut, who had been a delegate to the Constitutional Convention and the chairman of the House Judiciary Committee in the First Congress. But Ellsworth, too, was selected for a special mission - this time to France - by President John Adams, who succeeded George Washington. He left for France in the fall of 1799, and fell ill while there. He submitted his resignation to President John Adams in December 1800.
Thomas Jefferson had defeated John Adams in the presidential election of 1800, but in those days the term of the outgoing President expired not on January 20th, as it does today, but on March 4th, and the terms of members of Congress were similarly longer. Thus for several months after they knew the outcome of the election, John Adams and the Federalists continued to control the Presidency and both Houses of Congress.
Adams first wanted to reappoint John Jay as Chief Justice, but Jay declined. Adams ultimately chose as Ellsworth's successor John Marshall, a Virginia Federalist of considerably different stripe than Thomas Jefferson. In his Autobiographical Sketch, Marshall recounted the circumstances of his appointment:
"When I waited on the President with Mr. Jay's letter declining the appointment he said thoughtfully "Who shall I nominate now"? I replied that I could not tell, as I supposed that his objection to Judge [Paterson] remained. He said in a decided tone "I shall not nominate him." After a moment's hesitation he said "I believe I must nominate you".
In those days, confirmation hearings not being what they are today, Marshall was quickly confirmed by the Senate on January 27, 1801.
To illustrate the low estate of the Supreme Court at this time, the federal government was in the process of moving from Philadelphia, which had been the capital for ten years, to the new capital of Washington in the District of Columbia. The White House - then called the President's House, was finished, and John Adams was the first President to occupy it. The Capitol building had been constructed on Capitol Hill, and was ready for Congress, though it was not nearly the building we know today as the Capitol. But no provision whatever had been made for housing the Supreme Court. Finally, at the last minute, a room in the basement of the Capitol was set aside for the third branch, and in that rather undistinguished environment the Court would sit for eight years.
John Marshall was born in the Blue Ridge foothills of Virginia, about fifty miles west of present-day Washington. He had very little formal education. But by the time he reached twenty-five years of age, he had served as a Captain commanding a line company of artillery in the Battles of Brandywine and Monmouth during the Revolutionary War. He had also suffered through the terrible winter at Valley Forge with George Washington and the rest of the Continental troops. It was this experience which led him to remark that he looked upon "America as my country, and Congress as my government." Not an unusual sentiment today, to be sure, but quite an unusual sentiment for a Virginian at that time.
After mustering out of the service, he studied law very briefly, attending the lectures of George Wythe in Williamsburg, and was admitted to the Virginia Bar. In 1782 Marshall was elected to the Virginia legislature, serving for two years before he resigned to return to his law practice. He was again elected to the Virginia legislature in 1787, where, despite the tide of anti-Federalist sentiment in Virginia, he was an ardent supporter of ratification of the Constitution.
During the next several years, Marshall continued in the Virginia assembly and with his law practice. He turned down President Washington's offer to become Attorney General, but in 1797 agreed to President Adams' request that he serve as a member of a delegation sent to France to resolve the mounting tensions between the two countries. This episode, of course, came to be known as "the XYZ affair."
After returning to Richmond, Marshall agreed to run for Congress at the urging of George Washington. During Marshall's election campaign, President Adams offered him a seat as Associate Justice of the Supreme Court. Marshall declined and Bushrod Washington, President Washington's nephew, was appointed instead. Marshall was elected to Congress in 1799, and at the time of his appointment as Chief Justice he was serving as Adams' Secretary of State. He was much better known as a politician than as a legal scholar.
When he became Chief Justice in 1801, the Supreme Court of the United States was very much like other courts of last resort, finally deciding cases between litigants but otherwise contributing very little to the manner in which the country was governed. Marshall's principal claim to fame as Chief Justice - though by no means his only one - is his authoring the Court's opinion in the famous case of Marbury v. Madison. Decided in 1803 - two years after he became Chief Justice - he turned what otherwise would have been an obscure case into the fountainhead of all of our present-day constitutional law.
The case arose out of a suit by William Marbury, who had been nominated and confirmed as a Justice of the Peace in the District of Columbia, against James Madison, whom Thomas Jefferson had appointed as his Secretary of State. Although Marbury had been nominated and confirmed, his commission had not been issued by the time of the change in administration, and James Madison refused to issue it.
Marbury contended that once he had been nominated by the President, and confirmed by the Senate, the issuance of his commission was simply a ministerial task for the Secretary of State who had no choice but to issue it. He brought an original action in the Supreme Court, relying on a provision of the Judiciary Act of 1789 which said that the Supreme Court could issue writs of mandamus to any federal official where appropriate; he said that James Madison was a public official - which no one denied - and that a writ of mandamus - a recognized judicial writ available to require public officials to perform their duty - was appropriate in his case.
Marshall's opinion for the Court is divided into several parts. He first addresses the question of whether one nominated and confirmed by the Senate is entitled to receive his commission without further ado, so to speak. He concludes quite reasonably that Marbury is entitled to his commission, and goes on to say that if Marbury has this right, surely the law must afford him a remedy. And, says Marshall, that remedy is a writ of mandamus, which exists just for this purpose.
But now comes the hidden-ball play. The next question Marshall asks in his opinion is whether it is proper for the Supreme Court to issue a writ of mandamus in this case. He agrees with Marbury that Congress in the Judiciary Act of 1789 authorized the Supreme Court to issue writs in such a case. But wait a minute, he says: Look at Article III of the Constitution. It says that the original jurisdiction of the Supreme Court - that is, cases which may be brought in the Supreme Court in the first instance, without ever having gone to another court - is limited to lawsuits between the states, and lawsuits involving ambassadors and other foreign ministers. Clearly this suit is not within the original jurisdiction provided by Article III of the Constitution.
So, Marshall goes on to say, we have an act of Congress saying the Supreme Court may do a particular thing, and the Constitution saying it may not. What is a court then to do under a system like ours? Marshall says that, unlike the British Parliament, which is supreme, no branch of the federal government - whether it is the Legislative, the Executive, or the Judiciary - is supreme. The Constitution is supreme, because it has been adopted by the people in the various states, and it delegates particular powers to each of the three branches. If any of these three branches may exceed their delegated authority, the whole idea of a written constitution is meaningless. So the Constitution must prevail over an act of Congress which is inconsistent with the Constitution.
But who will have the final say as to what the Constitution means in a situation like this? Marshall says that the Constitution is a written agreement among the several states and the people in those states, and the courts have always had the final say in interpreting the provisions of a written agreement. Therefore, it is the federal courts, and particularly the Supreme Court, which is the ultimate arbiter of the meaning of the Constitution. The Court ruled that the federal judiciary had the authority and responsibility to strike down those laws that violate the Constitution.
The opinion in Marbury v. Madison is a remarkable example of judicial statesmanship. The Court says that Marbury is entitled to his commission, and Madison is wrong to withhold it. It says that this is the sort of ministerial duty of a public official such as Madison which can be enforced by a writ of mandamus. But it concludes by saying that Congress - in granting the Supreme Court the power to issue a writ of mandamus in a case like this - has run afoul of the original jurisdiction provision of the Supreme Court contained in Article III of the Constitution. Madison and Jefferson are verbally chastised, but it turns out that there is nothing that the Supreme Court can do about it because Congress tried to give the Supreme Court more authority than the Constitution would permit. The doctrine of judicial review - the authority of federal courts to declare legislative acts unconstitutional - is established, but in such a self-denying way that it is the Court's authority which is cut back.
During the thirty-four years he served as Chief Justice, Marshall wrote most of the important opinions that the Court decided. In Gibbons v. Ogden, decided in 1824, he wrote the opinion adopting a broad construction of the power of Congress under its authority to regulate interstate commerce contained in Article I of the Constitution. In the Dartmouth College Case, he gave a generous interpretation to the prohibition in the Constitution against state impairment of the obligation of contract. One cannot name all of the significant opinions authored by Marshall; suffice it to say that by the time of John Marshall's death in 1835, the Supreme Court was a full partner in the federal government.
What was the secret of John Marshall's success? It was not that he was "present at the creation" because he was not; he was not the first Chief Justice, but the fourth Chief Justice. John Jay and Oliver Ellsworth were both able jurists by the standards of their time, but neither of them had the vision of constitutional government that Marshall did.
Marshall was certainly no more "learned in the law" than his colleagues on the Court, and there were probably several of those who would have been thought more learned than he was. Marshall also faced a built-in headwind against his views for the first twenty-four years of his tenure as Chief Justice; during this period the "Virginia dynasty" of Presidents - Thomas Jefferson, James Madison, and James Monroe - were in office, and these Presidents had quite a different view of the relationship between the federal and state governments than Marshall did. But the Justices they appointed tended eventually to side with Marshall, rather than to express the views of the Virginia dynasty. Surely exhibit A in this category is Joseph Story of Massachusetts, who was appointed by James Madison in 1811 but became Marshall's right bower during his long tenure on the Court.
I think Marshall's success arose from several sources. He had a remarkable ability to reason from general principles, such as those set forth in the Constitution, to conclusions based on those principles. And in a day when legal writing was obscured and befogged with technical jargon, he was able to write clearly and cogently.
But every bit as important, I think Marshall probably had an outgoing personality and was very well liked by those he moved among. Here his service in the military probably made him a more engaging personality than someone who had simply drafted writs of replevin for his entire adult career. The familiar story of the dinner ritual when the Justices were in Washington perhaps illustrates this point. The Justices all stayed at the same boarding house, and had their meals together during their few weeks in Washington. If it were raining, they would have a glass of wine with dinner. They looked forward to this ritual, and one day were expressing regret that the weather outside was fair and sunny. But Marshall said "somewhere in our broad jurisdiction it must surely be raining," and from then on they had a glass of wine with dinner every day.
One occasionally hears the expression that an institution is the lengthened shadow of an individual. It may be risky to suggest that any institution which has endured for two hundred ten years the way the Supreme Court of the United States has could be the lengthened shadow of any one individual; but surely there is only one individual who could possibly qualify for this distinction, and that individual is John Marshall. John Adams, after his retirement from the Presidency, said, "John Marshall was my gift to the American people."
At the time of Marshall's death, Andrew Jackson was serving his second term as President of the United States. He appointed his loyal lieutenant Roger B. Taney of Maryland to succeed Marshall as Chief Justice. Taney had a first-rate legal mind and was a clear, forceful writer. Like Marshall, he did not believe in legal learning for its own sake, and he realized that constitutional law required not only legal analysis, but also vision and common sense. The Taney Court over which he presided for twenty-eight years was less nationalist in its orientation than was the Marshall Court. The principal doctrines of the Marshall Court remained in place, but they were tempered by a greater willingness to uphold state authority. In the Charles River Bridge case, for instance, decided in 1838, the Court in an opinion by Taney limited the scope of the earlier Marshall Court decision in the Dartmouth College case, saying that implied covenants would not be read into state contracts for purposes of the impairment of Contracts Clause. In Cooley v. The Board of Wardens, the Court held that some activities, even though within the scope of congressional authority over commerce, could nonetheless be regulated by the States until Congress had acted. There were dissents on both ends of this case; Justice McLean of Ohio would accord no such power to the States, and Justice Daniel of Virginia - surely one of the most extreme champions of state's rights ever to sit on the Court - would have allowed the state regulation even though it were contrary to an act of Congress.
Taney's long and otherwise admirable career is, unfortunately, marred by his opinion in the ill-starred Dred Scott case, in which he opined that even free blacks could not be citizens for purposes of diversity jurisdiction, and that Congress lacked the constitutional authority to ban slavery in territories that had not yet been admitted as states. Charles Evans Hughes rightly described the Dred Scott decision as a "self-inflicted wound" from which it took the Court at least a generation to recover.
Towards the end of Taney's tenure, Abraham Lincoln became President and appointed several new Justices to the Court whose opinions would have little in common with those of Taney. But one of them, Samuel F. Miller, left this memento of his feeling for the aged Chief Justice:
"When I came to Washington, I had never looked upon the face of Judge Taney, but I knew of him. I remembered that he had attempted to throttle the Bank of the United States, and I hated him for it. I remember that he took his seat upon the bench, as I believe, in reward for what he had done in that connection, and I hated him for that. He had been the chief spokesman for the Court on the Dred Scott case, and I hated him for that. But from my first acquaintance with him, I realized that these feelings toward him were but the suggestions of the worst elements of our nature, for before the first Term of my service on the Court had passed, I more than liked him; I loved him. And after all that has been said of that great, good man, I stand always ready to say that conscience was his guide and sense of duty his principle."
Taney was in his mid-eighties, and looked feeble, when he swore in Abraham Lincoln as President in 1861. But he continued to serve as Chief Justice until his death in 1864. His long tenure prompted Ben Wade, an abolitionist Senator from Ohio, to remark that "no man prayed harder than I did that Chief Justice Taney would outlive the administration of James Buchanan. But now I am afraid that I have overdone it." Actually, Taney remained on the job because he needed the income to support himself; at that time, no provision was made for pensions for federal judges.
Lincoln now had an opportunity to appoint a successor, and he pondered several different choices. Finally, in an act which epitomizes his absolute magnanimity - he nominated his former Secretary of the Treasury, Salmon P. Chase. While in that office, Chase had committed the unpardonable sin of seeking to wrest the Republican nomination away from Lincoln by use of the extensive patronage of the Treasury Department. But Lincoln chose him because he thought he would vote to uphold the Greenback Laws, passed during the Civil War to make paper money legal tender in order to finance the war. But he added a cautionary note - Chase would be a good Chief Justice if he could just give up his presidential ambitions.
For most men the Chief Justiceship would have been enough, but not for Salmon P. Chase. He was an able man, a devoted foe of slavery, but an egotist through and through. One of his detractors said that there were four persons, rather than three, in his trinity. During his rather brief tenure on the Court - from 1864 until his death in 1973 - his ambition for the presidency never left him. He authorized the submission of his name as a presidential candidate to the Republican convention in 1868, and when that convention turned to U. S. Grant, he authorized the submission of his name to the Democratic convention. There he actually received a few votes before losing to Horatio Seymour of New York, who in turn lost the election to U. S. Grant. Again in 1872, Chase made inquiries not only of the Republican convention, but of the Liberal Republican convention in Cincinnati, a small splinter group of the party. Neither one was interested.
Salmon Chase was not a great Chief Justice, and from now until the end of the nineteenth century, the Court would be as much influenced by several of its abler Associate Justices as by its Chief Justice. Three of these come to mind:
Samuel Freeman Miller, already mentioned, was born in the bluegrass country of Kentucky in 1816. For ten years he practiced medicine, but then tired of his work as a doctor, studied law while continuing to practice medicine. He was admitted to practice in Kentucky in 1847, but three years later moved to Keokuk, Iowa, because he wanted to live in a free state rather than in a slave state. He became active in Republican politics, and played a part in securing Iowa's votes for Lincoln in 1860. Lincoln appointed him to the Supreme Court in 1862.
Stephen J. Field was born in Connecticut in 1816, and grew up as one of nine children, several of whom were to achieve fame. His older brother, David Dudley Field, was a New York lawyer who obtained prominence by drafting the Field Code, which codified the common law in New York and was adopted in other states. Another brother, Cyrus Field, laid the transatlantic cable from Newfoundland to Ireland in 1867. Field began the practice of law with his brother in New York in 1841, but contracted the well known "gold fever" in 1849 and journeyed to California by means of the Isthmus of Panama. He became active in California politics and legal affairs, serving as Chief Justice of the state supreme court before Lincoln appointed him to the United States Supreme Court in 1863.
After the Civil War, cases began reaching the Supreme Court involving the Civil War amendments to the Constitution - the Thirteenth, Fourteenth, and Fifteenth Amendments. The first important case of this kind to be decided was the so-called Slaughterhouse cases in 1873. Justice Miller wrote for a majority of five giving the Fourteenth Amendment a narrow construction, and saying that it was doubtful that it would have any application to individuals other than the newly freed slaves. Justice Field wrote in dissent that if this were so it was "a vain and idle enactment" which accomplished nothing. Though Field lost this round, it was his broader view of the Fourteenth Amendment, rather than Miller's narrow one, that would ultimately prevail with the Court.
The third of this triumvirate of Associate Justices was Joseph Bradley. He was born in upstate New York near Albany, the oldest of seven children of a subsistence farmer. Deciding that he needed some formal education, he dressed in a homespun suit and walked from near Albany to Rutgers University "on the banks of the old Raratan" in New Jersey - a distance of about two hundred miles. He got his education, studied for the bar, and successfully practiced law in New Jersey. He was known as a "railroad lawyer" because of his clients, and was appointed to the Supreme Court by President Grant in 1869.
He authored the opinion of the Supreme Court in the Civil Rights Cases, one of its more important decisions of this era, saying that the Fourteenth Amendment applied only to government discrimination, and that Congress may not prohibit merely private discrimination.
Chief Justice Chase's presidential ambitions were not the only ones among members of the Court at this time. Stephen Field wanted to be considered for the Democratic presidential nomination on at least one occasion, and David Davis had always been more interested in politics than in law. Lincoln had practiced before Davis when the latter was a state court judge of a circuit in downstate Illinois, and when Lincoln became President, he appointed Davis to the Court. Davis wrote the Court's opinion in the famous case of Ex Parte Milligan, where the Court held that persons not in the military could not be tried before a military commission so long as the civil courts were open.
In the disputed election of 1876, where Rutherford B. Hayes, the Republican, and Samuel Tilden, the Democrat, vied for the office, the Supreme Court was drawn into the controversy not as a body, but because five of its Justices were named to a fifteen-member commission which would in effect have the final say as to how votes from the disputed states were to be counted. Two known Republicans and two known Democrats on the Court were easily agreed upon, but the fifth member from the Court, whose vote would obviously be decisive - was harder to pick. One proposal which gathered considerable support in Congress was to pick the Justice by lot. Tilden, who was on the whole a rather cold and calculating individual, balked at this, and in one of his rare bon mots said that he might lose the presidency, but he would not raffle for it. Finally, Davis, who although a Republican appointee had shown considerable independence in his views, was chosen. He had received some votes for President at the Liberal Republican Convention in Cincinnati in 1872, and was hoping for a spot on one of the tickets in 1880. But just as the commission was about to begin its deliberations, the Illinois legislature elected Davis a Senator from that state, and he resigned from the Court to take his seat in the Senate. After much consternation, Bradley was chosen by the other four Justices as the most impartial, and was thereby put in an impossible position. If he were to vote with the Democrats in a way that would seat Tilden, he would of course be applauded for his impartiality and his independence. But if he were to vote in a way that would seat Hayes, he would be denounced as simply a partisan tool. He did vote to seat Hayes, and was accordingly denounced - with little if any justification.
In 1896, the Court in an opinion by Justice Henry B. Brown of Michigan, ruled in Plessy v. Ferguson that the Equal Protection Clause of the Fourteenth Amendment was not offended if a State provided separate facilities for whites and blacks so long as they were equal. This decision ratified the Jim Crow regime in the South, and was overruled more than fifty years later in Brown v. Board of Education.
Miller died in 1890, Bradley in 1892. Field lived until 1897, and his last years at the Court were not happy ones. [Story]
In 1901, Theodore Roosevelt succeeded William McKinley when the latter was assassinated in Buffalo. His first appointment to the Supreme Court was caused by the retirement of Horace Gray of Massachusetts, and Senator Henry Cabot Lodge of Massachusetts urged him to appoint Oliver Wendell Holmes, Jr., then Chief Justice of the Supreme Judicial Court of Massachusetts. Roosevelt demurred until Lodge could assure him that Holmes was sound on the "Insular Cases." This incident illustrates the transience of constitutional doctrine. Surely not one law student in fifty could say what the "Insular Cases" were, and I daresay the same is true of most of my listeners this afternoon. But they were very important to the President at the turn of the century. The United States had defeated Spain in the Spanish American War, and had acquired Puerto Rico and the Philippine Islands as possessions and had acquired a temporary mandate to govern in Cuba. The question was whether the Constitution followed the flag; could Philippine citizens familiar only with the civil law system demand a right to jury trial? These questions have long since been either solved or disappeared, just as many of the questions which now perplex this Court will meet a similar fate a century from now.