Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court

by James Macgregor Burns

  The Marbury case threw Marshall into a personal, political, and judicial thicket. Apart from his own role in the matter, his brother James was a key witness for Marbury. The chief justice might have—perhaps, should have—recused himself, but he chose not to and instead confronted the options. If he agreed with Marbury and ordered the commission delivered, Jefferson and Madison might happily defy him, setting a precedent that could hobble the court for years to come. But if he found in favor of the administration, that would expose the court’s weakness in the face of executive authority, again setting a dismal precedent.

  Marshall’s opinion in Marbury v. Madison was a brilliant solution to the dilemma. First the chief justice found that Marbury had a right to receive his commission and that Jefferson was not entitled to withhold it. Further, Marbury had the right to turn to the courts to compel its delivery. To this point, Marshall seemed to be paving the way for confrontation with the president. But then he performed a dramatic sidestep that would transform American constitutional history. He ruled that the grant of jurisdiction to the Supreme Court in such cases as Marbury’s by the 1789 Judiciary Act “appears not to be warranted by the constitution,” in conflict with Article III, which defined the court’s jurisdiction. In such instances of conflict, Marshall wrote, “the constitution, and not such ordinary act, must govern the case.” Thus, that portion of the Judiciary Act was unconstitutional and void. The Supreme Court was powerless to remedy the obvious wrong done to Marbury.

  But by striking down a measure that gave him a tiny authority, Marshall secured a far greater one—the power to declare acts of Congress unconstitutional. “It is, emphatically, the province and duty of the judicial department to say what the law is,” Marshall asserted. This judicial power “extended to all cases arising under the constitution.” With these words, Marshall laid the basis for a power of judicial review of acts of Congress—indeed over the acts of all branches of the national and state governments—so absolute and sweeping that it would eventually create a supremacy of the Supreme Court over American government.

  How did Jefferson and his fellow Republican leaders respond to Marshall’s coup? With outrage, denunciation, threats? The reaction was in fact quite muted. Some in Congress used the decision as further proof of the Federalist plan to dominate the government from the judiciary. Defendant Madison, father of the Constitution, left no written trace that he gave, then or ever, a moment’s thought to Marbury and its implications. In the most obvious sense, the decision was a win for Republicans—Marbury never would receive that commission. What galled Jefferson—and he returned to it for the rest of his life—was Marshall’s lecture to the president that he should have delivered the commission. For one thing, it was, as Jefferson would point out, a “gratuitous interference,” since Marshall had gone on to hold that the court lacked jurisdiction. More important, it was an invasion into the executive’s department, where the president must have the final word on such issues. As Jefferson saw it, it was this that “would make the judiciary a despotic branch.” Marshall, “travelling out of his case,” asserted power the court did not possess. On these same grounds, Jefferson never disputed the court’s authority to strike down a portion of the Judiciary Act of 1789, since the issue was its own jurisdiction.

  In the end, the president’s insistence on viewing the decision through narrow, departmentalist eyes blinded him to the wider implications of Marshall’s muscular claim that it was the “duty” of the court to “declare what the law is.” The chief justice’s huge, historic victory, with its twining of politics and principle that would become characteristic of landmark Supreme Court rulings, was all the more effective because his foes seemed hardly aware of it.

  THE REPUBLICANS ’ small win in Marbury did not stall their push to overturn the Federalist bench, though by evading open conflict, Marshall had made the task more difficult. Even more frustrating to the Republicans was the Constitution itself. Justices, with their life tenure, were immune from a “general purgation of office.” “By a fraudulent use of the Constitution, which has made judges irremovable,” Jefferson wrote sourly, Federalists “have multiplied useless judges merely to strengthen their phalanx.”

  The Constitution provided but one remedy—impeachment. Before tackling the Supreme Court, Republicans made a trial run with lower court judge John Pickering, who had long suffered from nervous disorders that deteriorated into alcoholism and insanity. Even Federalists acknowledged his incapacitation—but they wanted to keep him on the bench so that their enemies could not name a replacement. After a year of preparation, Republicans had little trouble convicting Pickering in the Senate, on a straight party vote in March 1804, but to do so they had to find a deranged alcoholic guilty of “high crimes and misdemeanors.” It was an ugly affair. Even before the trial began, Jefferson conceded that “this business of removing Judges by impeachment is a bungling way.” Would it not be better, he had suggested, if “the President, on application of Congress should have authority to remove any Judge from office”? But that would require a constitutional amendment, an even slower and more uncertain process.

  Since, as Jefferson insisted, “the good work of reform cannot be delayed,” congressional Republicans next set their sights on a member of the high court, the rabidly partisan Samuel Chase, whose recent outrages included a jury charge while on circuit in Baltimore that featured condemnations of the Judiciary Act’s repeal, a harangue against universal suffrage as leading to “Mobocracy,” and a warning that Jefferson’s “modern Doctrines” of “equal Liberty and equal rights” would be the destruction of “peace & order, freedom and property.” The effort to impeach Chase had started in 1803, but the justice did not come to Senate trial until 1805, when the Republican managers bungled away their case, unable to show, even to the satisfaction of Republican colleagues, where Chase’s gross misconduct amounted to an impeachable offense. In the end, Chase was not convicted of any of the eight charges against him.

  Impeachment as a political weapon proved, as Jefferson later wrote, “a mere scare-crow.” But it had so frightened John Marshall that he proposed a remarkable compromise of the judicial independence he otherwise defended so ferociously. Rather than impeach justices who delivered objectionable opinions, Marshall suggested, Congress should be given an “appellate jurisdiction” over the court—the power to reverse opinions it “deemd unsound.” The chief justice mooted this idea in a private letter to Chase; after the impeachment scare passed, it was never heard of again.

  IF REPUBLICANS could not abolish the Federalist Supreme Court, nor pick off its members one by one through impeachment, they would have to rely on the president’s power of appointment to pack it with their own partisans. But here they suffered a double frustration. The rapid coming and going of justices in the court’s first decade, which gave Washington and Adams fourteen appointments, all but ceased after the Republicans took power. Justices now clung to their seats, even as health or finances failed. Over the course of twenty-four years, three Republican presidents—Jefferson, Madison, Monroe—had a total of only seven appointments, just enough for a full bench after Republicans in Congress made a gift to Jefferson by enlarging the court with a seventh seat in 1807. And Marshall and Bushrod Washingon continued to occupy two of those seats well past the end of the Republican era in the mid-1820s.

  A second, graver disappointment was that Republican packing could not make the Supreme Court a vehicle for the party’s principles. Its appointees failed to shake John Marshall’s Federalist grip. It was not that Republicans lacked talent in their huge pool of lawyers and politicians. The first of Jefferson’s three appointments, in 1804, was his most distinguished—William Johnson, a brilliant young attorney and state judge from South Carolina with impeccable Republican credentials, termed a “zealous democrat” by a Federalist senator. Johnson was also described as bold and independent, but, once on the court, his Federalist brethren brought him to heel. After he dissented in an early case, he would recall years
later, “during the rest of the session I heard nothing but lectures on the indecency of justices cutting at each other” and decided that he “must either submit to circumstances or become such a cypher in our consultations as to effect no good at all. I therefore bent to the current.” It would take many years—and Jefferson’s dismayed promptings—before Johnson would speak in an independent voice.

  Jefferson’s two other justices also quickly joined the chorus of silence behind John Marshall—Brockholst Livingston, to all appearances a Republican stalwart in New York who on the court regressed to the Federalism of his youth; and Thomas Todd, who at forty-two had been chief justice of Kentucky’s highest court for six years when Jefferson nominated him to the Supreme Court. Though Todd came from a region where Marshall’s nationalizing jurisprudence was especially resented, he never disagreed with the chief justice in a constitutional case. He was on the court for nineteen years and wrote one dissent, five lines in 1810.

  But Jefferson could continue to hope. After his retirement, he greeted the death in 1810 of the last survivor of Washington’s original bench, Justice Cushing, with the cheering thought that at last “we have a chance of getting a republican majority in the supreme judiciary.” In fact, Madison’s two appointments—the second when Samuel Chase died in 1811—made five nominal Republicans on the bench. But those two epitomized the unpredictability of Supreme Court appointments, since they actually strengthened Marshall’s grip. Gabriel Duvall was an early Republican with long experience as a Maryland legislator and judge. For nearly a decade he had served Jefferson and Madison as comptroller of the United States. But after he fell into the black hole of Marshall’s court, he was scarcely heard from again, the author of fifteen opinions in twenty-three years, all in minor cases.

  Madison’s other appointment was the most consequential of the Republican era. Joseph Story was a man of inexhaustible interests and ambitions, a lawyer, politician, poet, banker, constitutional scholar, and Republican leader in Massachusetts. But Federalist domination of the state made compromise necessary for advancement, and Story’s willingness to cross national Republicans led Jefferson to label him a “pseudo-republican.” When he saw that Madison might consider him for the court, Jefferson warned his friend that Story was “unquestionably a tory.” But after three failed attempts to fill Chase’s seat, Madison named Story, who, sure enough, soon became Marshall’s most powerful intellectual collaborator in a partnership that lasted until the chief justice’s death a quarter century later. Sharing Marshall’s determination to expand judicial power in the service of aggressive nationalism, Story was anything but a silent justice, second only to Marshall in authoring opinions, many in landmark cases, but with only a handful of dissents.

  With Story’s appointment, the Marshall Court took enduring form. Between 1811 and 1823, there were no vacancies, the longest such period until the end of the twentieth century. Though packed with Republicans, it was, emphatically, John Marshall’s court. Its voice—the “opinion of the Court”—was, in major cases, Marshall’s, and though he would consult with Story and Bushrod Washington, he did not circulate drafts, which meant that his opinions, “although subscribed to by the Associate Justices,” as historian G. Edward White put it, “had not even been read by the subscribers.”

  But Marshall’s real strength was in the forcefulness and consistency of his ideas. His determination to secure and extend the power of the court as the supreme interpreter and final arbiter of the Constitution—as the center of constitutional action—dovetailed with his unwavering nationalism, just as Republican hostility to Marshall’s power was of a piece with the party’s defense of states’ rights. At a time when the proper relation between the nation and the states remained unsettled, with wide implications for the founding values of life, liberty, and the pursuit of happiness, John Marshall put the Supreme Court firmly and effectively behind the drive for national power.

  LIBERTY, PROPERTY,and the nation’s economic growth were closely interwoven in Marshall’s mind. All three depended on the security of private rights of property, their protection against interference by government. An aggressive land speculator himself, Marshall believed that if entrepreneurs did not think that their investments were safe from “invasion” by law or regulation, they would not put their capital at risk. In a long series of cases involving the Constitution’s contract clause, Marshall enshrined property rights as a core constitutional value.

  The foundation was laid in 1810, with Fletcher v. Peck, a case with origins in 1795, when corrupted Georgia legislators had authorized the sell-off of 35 million western acres the state claimed to own. The acreage was scooped up by the four large companies that had bought off the lawmakers, and they in turn marketed it to other speculators. But in the 1796 elections, outraged Georgians gave the corrupt legislators the boot and the new legislature rescinded the land grant. But what about those who had bought the land? Did the repeal also rescind their title? Congress for years tried and failed to settle the disputed claims.

  Then John Marshall stepped in. His decision in Fletcher came down squarely for the speculators and against Georgia’s reform legislature. He held that the 1795 act was a contract to sell the land, and when “a law is in its nature a contract, when absolute rights have vested under that contract, a repeal of the law cannot divest those rights.” The state legislature, Marshall wrote, could not be “absolved from those rules of property which are common to all the citizens of the United States.” By transforming a political or public-policy issue into one of the common law of property and contract, and then embedding it in the contract clause, Marshall gave constitutional status to the “absolute right” of property.

  But the chief justice was, as usual, up to something more. While cloaking his decision in judicial restraint—by deferring to the 1795 Georgia legislature—he also asserted the court’s power of judicial review by rejecting the reformers’ 1796 reversal of the land grant.

  Fletcher was the Supreme Court’s first major decision to strike down a state law. As Marshall went on to assert federal power, he dropped the cloak of restraint. In another complex real estate case, decided in 1816, Martin v. Hunter’s Lessee, the court forcefully overrode a defiant decision by Virginia’s highest court. Because he had an interest in the case, Marshall recused himself, but his memorandum was the basis for Story’s opinion. To the assertion of the Virginia Court of Appeals that, under “a sound construction of the constitution,” the Supreme Court lacked jurisdiction to review state court judgments—and that states could defy federal mandates with impunity—Story answered that the Supreme Court’s reach did indeed “extend to cases pending in the state courts.” He reminded Virginians that because of the “ jarring and discordant judgments” emitted by state courts, the Supreme Court’s “revising authority” was essential, lest the laws and the Constitution itself be different in different states. “The public mischiefs that would attend such a state of things,” Story concluded, “would be truly deplorable.”

  Story’s insult to Virginia’s sovereignty provoked little outcry, but a decision three years later ignited a firestorm across the South. At issue was the constitutionality of the Bank of the United States, which had long been a hate object for Republicans as an intrusion by the federal government into the economy. Jefferson’s break with the Washington administration in 1793 had been hastened when he lost the constitutional argument over the Bank to Alexander Hamilton. Washington’s treasury secretary had insisted that the Bank was authorized by the “liberal latitude” of the Constitution’s “necessary and proper” clause, which recognized a wide range of “implied powers” beyond those enumerated.

  The Bank had been chartered in 1791 and when the charter expired twenty years later, Republicans had blocked its renewal. But the financial demands of the War of 1812 and an outburst of nationalism provoked by the war led to the chartering of the Second Bank in 1816. For two years, the Bank supplied easy credit, fueling a land boom in the West and South. But when
the bubble burst, the Bank foreclosed on thousands of farm mortgages and called in loans to state banks, forcing many to close their doors. States retaliated by passing laws to curb the Bank’s power. Maryland imposed a tax on all notes the Bank issued, which a cashier at the Bank’s Baltimore branch, William McCulloch, refused to pay. After Maryland courts upheld the tax, the Bank appealed to the Supreme Court.

  In McCulloch v. Maryland, decided as the Panic of 1819 was roiling the country, Marshall delivered his most sweeping declaration of national power. The federal government, he wrote, “is, emphatically and truly, a government of the people,” not of “sovereign and independent states.” It was “the government of all; its powers are delegated by all; it represents all, and acts for all.” Its powers were defined by the Constitution but not limited to those enumerated. There were also “implied powers” that were “necessary and proper.” The chief justice defined them in memorable words: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional.” And who was to give a “fair construction” to the “great outlines” of the Constitution? “On the supreme court of the United States has the constitution of our country devolved this important duty.” Should Congress exceed its powers, it would become the court’s “painful duty” to say that an act of Congress “was not the law of the land.”