John Marshall was not the first chief justice. The Supreme Court was formed in 1789, shortly after the Constitution was ratified, and Marshall was appointed in 1801. But the Court had little business in its early days, and the period of Marshall's chief justiceship, which extended until his death in 1835, was the formative era in the history of the Supreme Court and in the interpretation of the Constitution. Marshall dominated the Court, and his opinions shaped our constitutional history decisively by establishing the right of the Supreme Court to invalidate legislation as unconstitutional, by defining "commerce" broadly and affirming the power of Congress to regulate it comprehensively, by immunizing federal instrumentalities from state taxation ("the power to tax is the power to destroy" is one of Marshall's famous pronouncements), by limiting the effect of the Eleventh Amendment on the power of the federal courts to control state behavior, by affirming that Congress had implied as well as express powers to legislate, and by much else besides.
Through these decisions Marshall established the Court as a powerful branch of the federal government and the Constitution as a charter of national power. Before Marshall, the role of the Court in the constitutional scheme, and the degree to which the Constitution had established a powerful national government in place of the weak confederation that had preceded it, was uncertain. By the time he was finished, there was no doubt on either score, though the continued resistance of the South to the concept of a strong national government later exploded into civil war.
Marshall is one of the greatest figures in the history of the United States. But was he a great judge? Writing on the hundredth anniversary of his appointment as chief justice (this year is the two hundredth anniversary), Oliver Wendell Holmes was not so sure. With a touch of envy he acknowledged that "there fell to Marshall perhaps the greatest place that ever was filled by a judge." "Fell to" is the key: Holmes could not "separate John Marshall from the fortunate circumstance that the appointment of chief justice fell to John Adams, instead of to Jefferson a month later, and so gave it to a Federalist and loose constructionist to start the working of the Constitution." And Holmes continued: "A great man represents a great ganglion in the nerves of society ... and part of his greatness consists in his being there." In other words, Marshall and we were lucky. For Holmes was unwilling to say that "Marshall's work proved more than a strong intellect, a good style, personal ascendancy in his court, courage, justice and the convictions of his party," so that "if I were to think of John Marshall simply by number and measure in the abstract, I might hesitate in my superlatives."
It is correct that greatness is the juncture of aptitude and opportunity, and so it is always due in part to luck. But I think that what Holmes--a man of erudition and culture, a man touched by genius, a man congenitally ungenerous in his assessment of others--was saying, with considerable insight, is that Marshall was simply not a very interesting person. He was just a very clever lawyer with considerable political savvy and experience, and generously endowed with what we would call "people skills." (None of these qualities, incidentally, were strongly marked traits of Holmes himself.) Marshall shared with Holmes great rhetorical flair, but unlike Holmes he was not introspective (he left few personal papers), or cultured, or speculative, and he was an avid businessman.
Holmes's essay delivered the verdict of a leading legal intellectual of 1901 on Marshall. Today, when virtually all legal intellectuals are law professors, one of them, David Currie, the author of the magisterial survey The Constitution in the Supreme Court (1985), finds Marshall markedly deficient in the qualities of a good judge, even of a good law student. In Marshall's most important opinion, Marbury v. Madison, which established the power of the Supreme Court to invalidate acts of Congress, Currie finds
invocation of the constitutional text less as the basis of decision than as a peg on which to hang a result evidently reached on other grounds, a marked disdain for reliance on precedent, extensive borrowing of the ideas of others without attribution, an inclination to reach out for constitutional issues that did not have to be decided, a tendency to resolve difficult questions by aggressive assertion of one side of the case, and an absolute certainty in the correctness of his conclusions. ... Marbury illustrates among other things [Marshall's] tendency to conclude that the Constitution means what he would like it to mean.
Currie acknowledges that Marshall "impressed thirty-four years of constitutional decision with his own personality as no one else has ever come close to doing." In fact, "this utter domination is perhaps the greatest tribute to the force of John Marshall." Greatest, because the opinions themselves are no great shakes.
His disdain for precedent in general was extraordinary. … He seldom missed the opportunity to rest a decision on two or three grounds when one would have sufficed. … Sometimes Marshall was highly literal in his reliance on the constitutional text … at other times … he reduced the text to an afterthought … time and again he seems to have been writing a brief for a conclusion reached independently of the Constitution. … In short, though Marshall has been generally admired, it is difficult to find a single Marshall opinion that puts together the relevant legal arguments in a convincing way.
These assessments raise questions that Kent Newmyer's fine biography can help us answer. How could Marshall have been so successful a chief justice if, in an era before there were any law clerks, he could not (or at least did not) write a single first-rate judicial opinion, and was not himself intellectually outstanding? May law professors perhaps have an erroneous view of what it takes to be a great judge, and of what makes a judicial opinion first-rate? Should greatness be assessed sub specie aeternitatis, or with reference to a person's historical circumstances?
Born in 1755 on the Virginia frontier to a man who later became a successful land speculator, Marshall had limited formal education (though it included some college and even a few months at William and Mary Law School). In person--and not in his judicial writing, which is formal and elegant--he displayed a rough-hewn, "down home" style sharply different from Virginia "aristocrats" such as Washington (a friend of Marshall's father) and Jefferson. According to Newmyer, Marshall was a genuinely modest man. I don't know how he knows this; none of Newmyer's speculations about what Marshall thought but did not say strikes me as convincing--a general problem of biography. But what is clear is that everyone who knew Marshall thought him modest.
He was, in addition, friendly, neighborly, outgoing, informal, unpretentious, easygoing, and seemingly devoid of malice: a very likable, even lovable--even "life of the party"--kind of guy. His laugh, Joseph Story said, was "too hearty for an intriguer." He was also (like David Boies, one of the best lawyers in America today) a famously bad dresser, and Newmyer explains that "his disregard for stylish dressing and the uncultivated twang in his speech ... distinguished him from the Anglicized gentry of the Tidewater and reminded him that he was not born to the purple"--reminded him, perhaps, but more importantly reminded others.
These personal traits turned out to be enormous assets to Marshall's chief justiceship in two respects. First, they were the key to his domination of the Court. Far from being a bully, he was ostentatiously deferential to his colleagues, solicitous of their suggestions, eager to compromise. To promote collegiality, he cunningly arranged that all the justices would live together in a boardinghouse in Washington when the Court was in session. Second, his personal popularity blunted opposition by his political enemies, who, as it happened, were centered in Virginia, his home state, where he spent most of his time. (The Supreme Court sat for only a couple of months a year during Marshall's tenure.)
Virginia was a hotbed of the ideology of states' rights, and Marshall was correctly perceived as an immensely influential proponent of national power. But his enemies--with the important exception of Jefferson--found it difficult to dislike him. Patrick Henry, one of Marshall's strongest opponents, nevertheless wrote a letter of support for Marshall in the latter's congressional campaign "to refute [the opposing candidate's] charge that Marshall was a closet aristocrat who traded Virginia's well-being to advance his political career." In his letter Henry declared: "Tell Marshall I love him, because he felt and acted as a Republican, as an American." It was not Marshall's only "ideology-defying personal friendship"; G. Edward White, another leading student of the Marshall Court, also has remarked upon Marshall's "extraordinary personality, a central trait of which was inoffensiveness."
Marshall had other significant assets besides his personality. He was an extremely clever lawyer. Before becoming chief justice, in 1801, in his mid-forties, he had more than two decades of successful law practice behind him. It is a characteristic of good lawyers, especially of good litigators, such as Marshall, that they are result-oriented. The desired outcome of the case is given them by the client, and they use all the rhetorical and tactical tricks of the lawyer's trade to achieve that outcome. Litigators are sophists, as Plato told us long ago. Marshall, said one contemporary observer, had the "wily intellect of a superb lawyer."
He wanted to make the Supreme Court, despite its apparent weakness, a fully co-equal branch of the federal government, and he wanted to make the Constitution authorize, indeed ordain, a powerful national government that would promote commercial values and check democratic excesses. He pursued those goals unremittingly, at times disingenuously, and even unscrupulously. A number of the cases that were his vehicles for achieving his goals were feigned or collusive, and so should have been dismissed out of hand (McCulloch v. Maryland, which involved the constitutionality of the Bank of the United States, is a famous example); and many could have been decided on narrower grounds (including Marbury v. Madison). Marshall treated the constitutional text as putty for judges to knead into constitutional law.
He also sat in cases in which members of his family had a direct financial interest and he had an indirect one; he spent a lot of time cajoling other justices in order to maintain an appearance, at times an illusion, of unanimity; he engaged in all sorts of tactical feints and thrusts that disguised his true intentions; he was an unabashed promoter of property and contract rights, and an uncompromising foe of populist state legislatures; and he did what he could to improve the electoral prospects of Federalists. Newmyer loves Marshall, but even he is struck by "how much interpretive latitude [Marshall] carved out for himself," by his "habit of glossing over complex factual problems," and by his insistence that "doctrinal purity was not as important as practical result." Marshall's attitude toward constitutional law was goal-oriented, manipulative, ideological, and at times politically partisan. It was not craftsmanlike, logically rigorous, or self-restrained.
Many of the criticisms that Currie and Newmyer and other modern scholars make of Marshall's judicial performance are anachronistic. It was much more difficult to keep track of precedents before the modern era of legal research aids, and modern conflict of interest rules are much more stringent than those of Marshall's time. The modern scholars also give too little weight, I think, to the power of Marshall's rhetoric. As Aristotle taught long ago, in areas in which exact reasoning cannot be employed and certainty is therefore unattainable, rhetoric is a legitimate as well as a powerful strategy of persuasion. Earlier I cited Marshall's famous aphorism that the power to tax is the power to destroy. Here is a minor example of his rhetorical panache, from a case in which the issue was whether the owner of neutral goods carried on a belligerent vessel called the Nereide should be deemed a co-belligerent, making the goods subject to being seized as a prize of war. (In this and in the following quotations, I have modernized Marshall's punctuation.)
With a pencil dipped in the most vivid colors, and guided by the hand of a master, a splendid portrait has been drawn exhibiting this vessel and her freighter [the owner of the cargo] as forming a single figure, composed of the most discordant materials, of peace and war. So exquisite was the skill of the artist, so dazzling the garb in which the figure was presented, that it required the exercise of that cold investigating faculty which ought always to belong to those who sit on this bench to discover its only imperfection: its want of resemblance. The Nereide has not that centaur-like appearance which has been ascribed to her. She does not rove over the ocean hurling the thunders of war while sheltered by the olive branch of peace. She is not composed in part of the neutral character of Mr. Pinto [the owner of the cargo], and in part of the hostile character of her owner. … She conveys neutral property which does not engage in her warlike equipments, or in any employment she may make of them; which is put on board solely for the purpose of transportation, and which encounters the hazard incident to its situation; the hazard of being taken into port and obliged to seek another conveyance should its carrier be captured.
And here, from the famous opinion in Marbury v. Madison:
It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case so that the Court must ether decide that case comformably to the law disregarding the Constitution; or conformably to the Constitution disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If then the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution and not such an ordinary act must govern the case to which they both apply. Those then who controvert the principle that the Constitution is to be considered, in court, as a paramount law are reduced to the necessity of maintaining that Courts must close their eyes on the Constitution, and see only the law.
And here, from McCulloch, is the declaration of "loose construction" that, as Holmes remarked, is one of Marshall's great legacies:
In considering the question [whether Congress has the power to create a bank as a measure "necessary and proper" to the carrying out of Congress's express legislative powers], then, we must never forget that it is a constitution we are expounding.
Marshall's success as chief justice was due also to his political experience and to his political acumen. Political adroitness was a natural extension of the personal qualities that made him such a likable person. But an extension it was: high-level political experience both in Virginia and in the national government (as emissary to Revolutionary France, as a member of the House of Representatives, and as secretary of state) convinced him (as had his service in the Continental Army during the Revolution) of the hopelessness of confederacy, and therefore of the need for a strong national government. These experiences also educated him in how far the Supreme Court could flex its muscles without impairing its influence. Marshall was careful to avoid outright confrontations with the other branches of the national government; the only federal statute he voted to hold unconstitutional, the statute involved in Marbury v. Madison, was a statute expanding the power of the federal courts.
Marshall was politically moderate. He was a Federalist distrustful of democracy and populism, and fearful of Jefferson as a radical in the grip of French Revolutionary ideas (Newmyer remarks that "the basic tenets of [Marshall's] jurisprudence" were "undying distrust of state legislative government and unqualified respect for the rights of private property"), but he was a moderate Federalist. He was allied with John Adams in opposition to the extreme Federalists who wanted to fight France, and he was opposed to the Alien and Sedition Act. As a consequence of these positions he was distrusted by many Federalists as a "wet"--which made him more palatable to the anti-Federalists.
This clever, political, conservative (but not too conservative), eloquent, and "clubbable" lawyer--this man who, in striking contrast to Jefferson, "moved comfortably in the experiential, nontheoretical gradualist world of incremental change"--does not sound much like Holmes either, or like a modern law professor. Yet it was his particular attributes (plus his longevity) that enabled him to exert such an enormous and generally salutary influence on the Court, on constitutional law, and on the nation. His skill at forging unanimity, for example, made the Court seem more businesslike and effective than the fractious legislatures with which, in effect, it competed for constitutional supremacy--made the Court seem, in Newmyer's words, "an oasis of rational discourse." Seemingly little things can make a big difference. By abolishing the previous practice by which each justice would deliver an opinion in each case, and substituting assignment to one justice to write an opinion for the whole Court, Marshall substituted a single voice (usually his own) for a cacophony.
Some people think that the Court took a wrong turn in Marshall's day, that he made the Supreme Court too powerful in relation to the other, more democratic branches of the federal government, and the federal government too powerful in relation to the states; that he succeeded too well in "identifying the Court with the Constitution." But the danger that the new nation might dissolve back into the loose association created by the Articles of Confederation, or even into a set of completely independent nation-states, was considerable in the first quarter of the nineteenth century, and John Marshall's Court did much to check these fissiparous tendencies. For this, most of us are profoundly grateful.
Could Marshall have achieved this coup by being a "good judge," in Currie's sense--scrupulous about the facts, respectful of precedent, insistent on deciding a case on the narrowest possible grounds? I doubt it. Those are, at best, precepts to guide judges in a mature legal system. But the creator of the system must be a buccaneer, like other innovators. He brings about, by main force as it were, a "paradigm shift" that enables his successors to practice "normal science." That is a pretty accurate description of the relation between Marshall and his avatars. Just as students of science find it easier to describe the "scientific method" used in normal science than to explain genuine innovation, so students of law find it easier to specify the qualities of a well-behaved and modest judge who follows the path marked out by the innovators than to explain the qualities of an innovator such as Marshall or Holmes. The distinction is obscured by Currie's implication that the qualities of a good judge are historically constant. It was the extraordinary fit between Marshall's kit of qualities and the volatile historical setting in which he worked that explains his success and his greatness.
His achievement was indeed remarkable. Yet Holmes was probably right in his intimation that the particular combination of qualities that carried Marshall to greatness (and with him the Court and the nation) is not terribly unusual--which, if so, makes luck loom very large in Marshall's success, as Holmes doubtless believed. Even today, a very bright lawyer, with a lively and attentive personality and genuine political aptitude, and with significant high-level political experience as well, and unobsessed with doctrinal purity, is not a rara avis in the American legal profession. There are quite a number of such lawyers in the judiciary itself--but they do not shine with anything like the brightness of John Marshall.
One reason for this sad situation, perhaps, is the decline of rhetoric. It is no longer emphasized either in education or in legal practice, or even in judicial opinion writing, which is nowadays largely delegated to fledglings, the law clerks. But finally we must remember, if we are to understand and to appreciate Marshall, that greatness is the result of the juncture of talent and opportunity, not of talent alone. If we dismiss (a bit unfairly) John Jay, John Rutledge, and Oliver Ellsworth, the three chief justices who preceded Marshall, and who in the aggregate served fewer than twelve years, and if we thus regard Marshall as the "real" first chief justice, then he is the occupant of a role that only one person can play in the history of a nation; and if that person plays it well, he will be the greatest judge in the nation's history. And that was the role that "fell to" John Marshall.
This article originally ran in the December 17, 2001, issue of the magazine.