A People's History of the Supreme Court

by Peter Irons

  Long before Hunter and Martin took their dispute over the Farifax estate to court, the heirs of an earlier claimant named Joist Hite filed suit for title to 140,000 acres that Virginia had granted to Hite in 1731, land also claimed by Lord Fairfax. Litigation between the Hite and Fairfax families dragged on for more than fifty years, and finally came before the Virginia Court of Appeals in 1786. The lawyer for the Fairfax estate was John Marshall, whose father had been a plantation supervisor for Lord Fairfax. Marshall argued that the “long and quiet possession” of the disputed land by Lord Fairfax and the “various acts” of the state legislature recognizing his title were sufficient to defeat Hite’s claim. But Hite had in fact vigorously disputed the Fairfax claim and the Virginia legislature had granted the land to Hite. Marshall lost this case, and Governor Edmund Randolph later granted part of Hite’s land to David Hunter.

  Two factors made the suit between Denny Martin and David Hunter significant. First, John Marshall had a personal stake in this case. He and his brother James had bought Denny Martin’s claim to the Fairfax estate, a tract of some 300,000 acres of prime tobacco-growing land. Marshall stood to make a fortune if Martin’s claim to the land was upheld by the courts. Second, the case directly tested the power of the Supreme Court to reverse decisions of state courts. The Court had struck down a state law in Chisholm v. Georgia because it conflicted with the Constitution, but that case did not involve a ruling by a state court. The suit between Martin and Hunter dragged on for years in the Virginia courts, until Spencer Roane, the state’s chief justice, ruled in 1810 that John Marshall and his brother Thomas had violated “the principles of justice” in pressing Martin’s claim. Roane came close in his opinion, which ruled in Hunter’s favor, to accusing the Marshalls of fraud and unethical behavior.

  Denny Martin appealed the Virginia court’s decision to the Supreme Court. Chief justice Marshall wisely decided to absent himself from the arguments in Fairfax’s Devisee v. Hunter’s Lessee, as the case was known in 1813. He need not have worried about the outcome. Justice Story picked his way carefully through a maze of English common law, colonial statutes, state laws, and treaties. He emerged with a deed to the Fairfax estate in Denny Martin”s name. What his opinion did not say was that John Marshall and his brother had bought a large chunk of this deed and now held title to that part of the Fairfax estate known as “Leed’s Manor.”

  Story sent the case back to the Virginia court with instructions to enter judgment for Denny Martin’s “devisees,” who included John Marshall. Spencer Roane, a longtime political and personal enemy of Marshall (and the son-in-law of Patrick Henry), first consulted with Thomas Jefferson and President James Madison. He then wrote an opinion that denied the Supreme Court’s power to revew the decisions of state courts. Roane ruled that Section 25 of the Judiciary Act of 1789, which conferred this power on the Supreme Court, violated the Constitution because it infringed the “sovereignty” of the states, and that “everything done in this cause” by the Supreme Court was“unconstitutional and void, and should be entirely disregarded by this court.” For a state court to rule that a federal law was unconstitutional was akin to a man biting a dog. In this case, the dog bit back.

  Spencer Roane’s act of defiance brought the case back to the Supreme Court in 1816. Marshall again stepped down from the bench and Story again wrote for the Court. Story tiptoed up to the central issue, noting the “great importance and delicacy” of the questions posed in the case and bowing two the “great respectability” of the Virginia Court of Appeals, to which he expressed the “entire deference” of the Court “for the learning and ability” of its judges. After these polite words, Story moved in for the kill. He showed no deference to Roane’s arguments against federal supremacy over state courts. The Constitution was not established “by the states in their sovereign capacities,” Story wrote, but by “the people of the United States.” And the people withheld from the states any powers they granted to Congress, which had given the Supreme Court jurisdiction over cases that began in state courts and raised questions under the Constitution or federal law. “It is the case, then, and not the court, that gives the jurisdiction” to the Supreme Court, Story wrote with emphasis.

  Having lectured judge Roane in a schoolmaster’s tone, Story proceeded to impugn his integrity. “The Constitution has presumed,” he wrote, “that state attachments, state prejudices, state jealousies, and state interests, might sometimes obstruct” the “administration of justice” by state judges. What Story really meant to say was that Roane and other state judges would uphold their state’s interests against claims based on the Constitution, federal law, or treaties. “This is not all,” Story continued. “A motive of another kind” had prompted Congress to enact Section 25 of the Judiciary Act. “That motive is the importance, and even necessity of uniformity of decisions throughout the whole United States, upon all subjects within the purview of the constitution” In other words, state judges like Roane might block the Supreme Court’s drive for national judicial supremacy. “If there were no revising authority to control these jarring and discordant judgments,” Story continued, the “public mischiefs that would attend such a state of things would be truly deplorable.”

  Justice Story was clearly correct in holding that Section 25 of the Judiciary Act rested firmly on the Supremacy Clause of the Constitution. State judges could not defy the rulings of the Supreme Court. But Story was less clearly correct in upholding Denny Martin’s claim—in reality, John Marshall’s claim—to the Fairfax estate. Traversing the maze of colonial grants, state laws, and treaties was a daunting task, but the Virginia legislature had confiscated the estates of British Loyalists such as Lord Fairfax and granted their lands to Virginia citizens like David Hunter. Nothing in the Constitution prohibited this exercise of state power; Congress had not passed any laws in this field, and the Jay Treaty did not bind the states to its provisions. The Supremacy Clause clearly required state judges to obey the Constitution. But the Constitution was silent on the questions raised in Martin v. Hunter’s Lessee. justice Story’s contention that Spencer Roane and other state judges were “bound by obedience to the letter of the Constitution” begged the question; Story could point only to a strained reading of the Jay Treaty to support his claim that Virginia could not control the property rights of its citizens.

  Five years after the Martin decision, Marshall added the final blow to the nail that Story had driven into the coffin of state “sovereignty.” The Court ruled in 1821 in Cobens v. Virginia that states as well as individuals were subject to Section 25 of the judiciary Act of 1789. In this case, the Virginia courts held that a state law prohibiting lotteries barred the sale of tickets for the District of Columbia lottery, which had been authorized by Congress. The Cohen brothers, Philip and Mendes, appealed their conviction under the state law to the Supreme Court, arguing that the federal statute allowed them to sell lottery tickets in virginia.

  This should have been an easy case for any judge, since the federal statute did not authorize the sale of lottery tickets in states that prohibited lotteries. The Cohen brothers should have paid their fine and stayed out of Virginia, but they stubbornly persisted and presented Chief Justice Marshall with the chance to slap down his home state’s refusal to show proper deference to his Court. His opinion displayed the same combination of legal brute force and political dexterity that he had employed much earlier in Marbury v. Madison. Virginia’s lawyers argued in the Cohens case that principles of “state sovereignty” barred the Supreme Court from reviewing the decisions of state courts. They further argued that states could not be sued without their consent.

  Marshall answered both questions with single assertion of constitutional supremacy over state laws. He first conceded the “general proposition” that states must consent to being sued by anyone. But that consent, he continued, “may be given in a general law.” And what was that general law? The Constitution, of course. By ratifying
that document, the states had “surrendered” their sovereignty to the “great empire” of the United States. The Constitution included the provision in Article VI that “the judges in every state shall be bound” to defer to federal laws, “anything in the constitution or laws of any state to the contrary notwithstanding.” Those federal laws included Section 25 of the Judiciary Act. Marshall answered the defiant Virginia judges with a sterner lecture than Story had administered in his Martin opinion. “The constitution and laws of a state,” Marshall wrote, “so far as they are repugnant to the constitution and laws of the United States, are absolutely void.”

  What did this high-flown rhetoric have to do with the mundane questions in the Cohens case? Absolutely nothing, in fact. Having decided that state court rulings were reviewable by the Supreme Court, a conclusion that flowed inexorable from the Marbury and Martin cases, Marshall upheld the decision of the Virginia court that the state could bar the sale of “foreign” lottery tickets within its borders. This was a simple matter of statutory construction, one that judges generally perform without recourse to the Supremacy Clause of the Constitution. But Marshall was determined to force the surrender of his judicial enemies on state courts to the “supreme” power of the federal government, and to his Court’s “power of revising the decisions of local tribunals” when they conflicted with his nationalist reading of the Constitution.

  Marshall sounder like Victor Hugo in Les Misérables in sympathizing with the underdog who faced the bias of state judges. Even as he ruled against the Cohen brothers, Marshall turned them into compatriots of Jean Valjean. “However unimportant his claim might be,” he wrote of litigants in state courts, “however little the community might be interested in its decision, the framers of our constitution thought it necessary for the purpose of justice, to provide a tribunal as superior to influence as possible, in which that claim might be decided.” But were Supreme Court justices more “superior to influence” than state judges when their interests—both personal and political—were at stake? Cases such as Martin v. Hunter’s Lessee suggest that judges on courts from the lowest to highest are equally subject to the influence of their interests. John Marshall was not the only justice to profit from the rulings of the Supreme Court. And the interests of his political party certainly profited from the Marshall Court’s decisions.

  11

  “The Good and the Wise”

  The Marshall Court read the Constitution to promote economic expansion in the “empire” of the United States, as the Chief Justice characterized the growing nation in his Fletcher and Cohens Opinions. The most important provision in pursuing this goal was the clause in Article I that prohibits states from “impairing the obligation of contracts.” But the Court’s interpretation of this clause in the Fletcher case, which upheld corrupt and fraudulent contracts, proved damaging to the national economy. Encouraged by the Court’s ruling, land speculators borrowed huge sums for their investments from state banks, which operated virtually without governmental controls. Nine years after the Fletcher decision in 1810, the Supreme Court faced three cases that all stemmed from the financial panic that followed the collapse of the land speculation boom.

  The cases the Court decided in 1819 were hurried to argument and decision, With the looming economic crisis on everyone’s mind. The facts in each were quite different, but they all threatened the interests of those who controlled property. Each case raised the question of whether states could pass laws to benefit those with less property. These issues included state power to tax the national bank, state control over corporate charters, and state relief to “insolvent” debtors. But they all rested on the Supreme Court’s assertion of judicial supremacy over state lawmakers.

  The most important of these cases was McCulloch v. Mariland, which grew out of political battles—almost thirty years earlier—between Alexander Hamilton and Thomas Jefferson. Hamilton, secretary of the treasury under George Washington, had campaigned tirelessly for a national bank, viewing a strong federal bank as a source of capital for “national” projects like roads, canals, and ports. He succeeded in 1791, over the objections of Jefferson, then secretary of state, that creation of such a bank exceeded the powers delegated to Congress by the Constitution. Hamilton won this battle of cabinet members, and Washington, signed a bill establishing a national bank for a term of twenty years.

  The first charter expired in 1811, during James Madison’s first presidential term. Both the president and the Republicans in Congress opposed a second charter. But the War of 1812 with England had badly damaged the nation’s economy, and Congress now viewed a national bank as a source of capital for repairing the damage. A second national bank was chartered in 1816 with a capital of $35 million. Madison signed the bank charter in recognition, he explained, of “the general will of the nation.” In reality, he bowed to pressure from those who wanted to refuel the nation’s stalled economy.

  The rechartering of the Bank of the United States soon created an economic crisis, as the bank’s managers tightened credit in 1819, calling in loans and foreclosing thousands of farm mortgages. When hard-pressed debtors paid the bank in easy-money notes from state banks, the bank demanded payment from these banks in cash. With little money in their vaults, most of these state banks closed their doors. The Panic of 1819 swept across the country and provoked calls for relief from state legislatures. Several states passed laws that imposed taxes on the federal bank’s operations. Maryland levied an annual tax of $15,000 on banks not chartered by the state, a law that applied only to the Bank of the United States. When James McCulloch, cashier of the bank’s Baltimore branch, refused to pay the tax, state officials sued him to collect. Not surprisingly, judges in the Maryland courts ruled against McCulloch, who promptly appealed to the Supreme Court.

  Dozens of congressmen, federal officials, and lawyers crowded into the Court’s modest chamber in the Senate wing of the Capitol building to witness the oral arguments in McCulloch v. Maryland. They anticipated a clash of orators that would rival the best of Washington’s theaters for dramatic spectacle, and they were not disappointed. Daniel Webster headed the cast of lawyers for the Bank of the United States. No lawyer ever argued more times before the Supreme Court—he appeared in 168 cases—and no lawyer approached Webster in eloquence and confidence. During a public career that spanned fifty years, he served in both the House and Senate, first as a Federalist and then as a Whig. He also ran for president in 1836 (finishing a distant fourth in electoral votes) and later served under three presidents as secretary of state. By any measure, Webster was also the greatest corporate lawyer who ever lived.

  (The change in party labels requires a brief digression to avoid confusion. The Federalists changed their name to the Whig Party between 1836 and 1856, when they became the second Republican Party, adopting the name of their former opponents. The Jeffersonians who first called themselves Republicans abandoned that name in 1828—after using the hybrid title of Democratic-Republican or several years—to become the Democrats. If this sounds confusing, it is. But the nineteenth century saw a proliferation of party labels, including Free-Soil, Liberty, Union, American, and Anti-Mason.)

  Today, the Supreme Court limits argument in most cases to one hour, divided equally between the opposing parties. But the Court had a smaller docket in those days, and a greater taste for oratory. The arguments in McCulloch spanned nine days, and Webster spoke at greater length than any other lawyer. He covered familiar ground, expounding the ideas of Alexander Hamilton to approving nods from John Marshall. But the Court’s greatest applause went to William Pinkney, a former attorney general who shared the podium with Webster for the national bank. “I never, in my whole life, heard a greater speech,” Justice Story later gushed in praise.

  Webster and Pinkney both relied heavily on Hamilton’s written opinion to President Washington in 1791, arguing that Congress had more extensive powers than those enumerated in Article I of the
Constitution. Hamilton had pointed to the clause that empowers Congress to “make all laws which shall be necessary and proper” to execute the enumerated powers. Defending the first national bank charter, he read into this clause “a more or less direct” relationship "to the powers of collecting taxes, borrowing money, regulating trade between the states, and raising and maintaining fleets and avies.” The relation became more remote as Hamilton recited his list of congressional powers that supposedly authorized creation of a national bank.

  In his countering argument to Washington, Jefferson had replied that the national bank would not collect taxes, borrow money, regulate commerce, or finance the nation’s army and navy. Creating a national bank would not come within any of the enumerated powers of Congress. Hamilton’s reliance on the “necessary and proper” clause struck Jeffeerson as overreaching. The enumerated powers of Congress, he wrote, “can all be carried into execution without a bank. A bank therefore is not necessary, and consequently not authorized by this phrase.”

  Between them, Jefferson and Madison had appointed five of the seven justices who heard the McCulloch arguments. All five were nominally Republicans and presumably receptive to claims of states’ rights against the federal government. But the arguments of Maryland’s lawyers fell on deaf ears. Luther Martin, the state’s attorney general—who had reportedly argued the Fletcher case ten years earlier in a drunken state—was “rumored” to be inebriated during his McCulloch argument as well.