John Marshall (1755 - 1835)
John Marshall was born in a frontier town in what would become Faquier County, Virginia on September 24, 1755. John Marshall was the oldest of 15 children of Thomas Marshall and Mary Randolph Keith Marshall. Marshall's father was not formally educated, but was an ambitious man who was a successful surveyor and land agent for Lord Fairfax, who in shortly before the American Revolution owned almost one-fourth of Virginia. When Thomas Marshall died in 1802, he owned more than 200,000 acres in Virginia and Kentucky. Marshall's mother Mary was well-educated and apparently quite intelligent. Because he was raised on the frontier, Marshall was taught largely at home.
In the spring of 1775, the 19-year old Marshall became a lieutenant in a militia company in Faquier County. Marshall participated in several battles of the Revolutionary War as an infantry officer, was at Valley Forge with Washington during the winter of 1777-78, and eventually was promoted to captain and given the title "general" in the Virginia militia. In 1780, he met his future wife, Mary Ambler, who was called Polly, and began his law studies at William and Mary. Marshall was a member of the second law class there, taught by George Wythe. Wythe used Blackstone's Commentaries on the Laws of England as the basis for his lectures. These lectures lasted a little over two months, and in August 1780, Marshall became a member of the Virginia bar. In January 1783, Marshall, then 27, married Polly, who was 16. They had eight children, five of whom survived to adulthood.
In addition to practicing law and speculating in land, Marshall was a member of Virginia's Council of State and its House of Burgesses during the 1780s. Marshall served as a delegate to Virginia's ratifying convention in 1788. As one who believed in a strong national government, Marshall urged ratification of the Constitution, which Virginia ratified by a vote of 88-79. Although Marshall subsequently refused several offers to serve in the federal government, he agreed (in large part for financial reasons) in 1797 to go to France with others to negotiate with the French, who believed that American neutrality between France and Great Britain appeared to favor the British. The French foreign minister, Talleyrand, sent emissaries to Marshall and the other Americans. These emissaries, known to the American public as X, Y and Z, demanded loans for the French government and a bribe for Talleyrand. The Americans refused these demands, and when word leaked about the bribe, the XYZ Affair inflamed anti-French opinion in the Federalist Party. Marshall returned to the United States in June 1798, upset with the French but opposed to war with them. After Associate Justice James Wilson died in Fall 1798, President John Adams asked Timothy Pickering to write Marshall asking whether he would accept a nomination to the Court. Believing he would decline, Pickering also sent a second letter, asking Marshall whether Bushrod Washington, George's nephew, would make a good Associate Justice. Marshall received both letters the same day, declined the appointment and praised Washington. After a plea from George Washington, Marshall reluctantly agreed to run for Congress in the spring 1799 elections. In a highly charged contest, Marshall won a close election to the congressional seat in April 1799. On May 7, 1800, John Adams nominated Marshall to the cabinet position of Secretary of War, without Marshall's knowledge. Two days later, the Senate confirmed his nomination. Marshall requested the nomination be withdrawn, for his financial position required him to restore his law practice in Richmond. Adams, who wholeheartedly trusted Marshall, then fired Secretary of State Pickering, and nominated Marshall in Pickering's stead on May 12, again without consulting Marshall in advance. Marshall was confirmed as Secretary of State on May 13. The salary of Secretary of State was sufficient to support Marshall without resort to the practice of law, and Marshall's adventure in France had increased his appetite for policy and diplomacy. He accepted the position.
Adams ran for re-election in 1800, once again against Thomas Jefferson. In mid-December, the votes of South Carolina's electors (there was no popular vote at this time) were finally returned, and the votes gave Jefferson and his vice-presidential candidate, Aaron Burr, a majority of the electoral votes (73-65). Because Jefferson and Burr achieved the same number of electoral votes, the presidential election of 1800 was sent to the House of Representatives, which votes by state. The New York Federalist Alexander Hamilton preferred Jefferson to Hamilton's great rival Burr, but the House remained deadlocked (8 states in favor of Jefferson, 6 for Burr, and 2 states abstaining because they were equally divided) for 35 votes. On February 17, on the 36th vote, Jefferson won a majority of states. Jefferson became President on March 4, Burr became Vice-President and an outcast from his party, and Hamilton and Burr would duel in Weehauken, New Jersey in 1804, resulting in Hamilton's death. While the House debated the Presidency, John Adams nominated John Jay to the position of Chief Justice of the Supreme Court, succeeding Oliver Ellsworth, who had resigned. When Jay declined, Adams nominated Marshall on January 20. Marshall took the commission to the office of Chief Justice on February 4, while remaining Adams's Secretary of State.
In the last days of the Adams administration, Congress passed, and Adams signed into law, the Judiciary Act of 1801. The Act reduced from 6 to 5 the number of Supreme Court justices (to be effective upon the next vacancy), eliminated existing circuit courts and the duty of Supreme Court Justices to hold court in the circuits when the Court was not in session (called circuit riding), and created new circuit courts, to which 16 new judges were appointed. It also expanded the jurisdiction of the federal courts. Jeffersonian Republicans intensely disliked this bill, and in January 1802, as a new session of Congress opened, a bill to repeal the Act was introduced. Shortly before that, on December 16, 1801, Charles Lee requested the Court issue an order to James Madison, Jefferson's Secretary of State, to show cause (that is, to explain in law) why a writ of mandamus (an order requiring that a nondiscretionary duty be performed) should not be issued by the Court. In addition to the Judiciary Act, the lame duck Federalist Congress enacted the District of Columbia Judges Act on February 27, 1801. On March 2 and 3, judges were nominated pursuant to both Acts and were confirmed. When Jefferson took the oath of office at noon on March 4, 1803, some of the commissions signed by John Adams had not been delivered. (Interestingly, it was the job of the Secretary of State, Marshall himself, to deliver the commissions.) One of those persons whose commissions was not delivered was William Marbury, and it was on Marbury's behalf that Charles Lee requested the show cause order. In March 1802, the Congress repealed the Judiciary Act of 1801, and also abolished the December and June terms of the Court. The repeal shifted the Court to one term (or session) per year, in February (before the 1801 Act, the Court met twice a year, its terms in February and August), which meant the Court would not meet again until February 1803, a gap of 14 months.
When the Supreme Court reconvened in February 1803, Marshall was faced with a dilemma. If he issued the writ of mandamus, the Secretary of State, James Madison, would ignore it. If he refused to issue the writ, it would appear that the Court had trimmed its sails due to political exigencies. Marshall's brilliant solution was to recast the case as one involving the Court's power to engage in judicial review, that is, to ascertain whether an Act of Congress meets the requirements of the Constitution. Marbury had requested the Court issue a writ of mandamus pursuant to jurisdiction granted by the Judiciary Act of 1789. Marshall held that Section 13 of that Act, which gave the Court jurisdiction to hear Marbury's claim, violated Article III of the Constitution. Based on the Supremacy Clause of the Constitution, any Act of Congress that was contrary to a provision in the Constitution was unconstitutional, and it was the Court's duty, as the body given the power to interpret the law, to hold unconstitutional Section 13 of the Judiciary Act of 1789. Thus, the writ would not issue in Marbury v. Madison. Jefferson won the battle, but Marshall won the war. Nine days later, the Court held constitutional the repeal of the Judiciary Act of 1801.
Marshall never again exercised the power of judicial review on behalf of the Court. His subsequent nationalistic interpretations of the Constitution (see McCulloch v. Maryland (1819)) did, however, establish the Supreme Court as a co-equal branch of the federal government in fact as well as theory. Marshall remained Chief Justice until his death in 1835. He was the dominant judicial figure of the first third of the 19th century. He established the "opinion of the Court," which meant that the Justices did not give their opinions individually (called seriatim opinions), but agreed to one opinion, usually written by Marshall himself. Additionally, Marshall fostered a collegiality among the members of the Court, so even when other Justices disagreed with the opinion of the Court, they regularly suppressed their dissents. During his 34 years at the Court, he officially dissented in a constitutional case only once, in Ogden v. Saunders. Marshall wrote 574 opinions during his term in office. The rest of his colleagues’ opinions during that time, whether majority, concurring or dissenting, total 573 opinions. In the 1810 Term, the Court decided 39 cases, and unanimous decisions were now the norm. Marshall delivered the opinions in 23 cases, six were per curiam (written by the Court as a whole, not by an individual Justice) decisions, and three were dismissed or withdrawn. Between 1811-23, the Court’s personnel did not change (a period that is nearly twice as long as the next period of stability, five years and eight months during the late 1970s and early 1980s), and Marshall's dominance of the Court was at its height. For example, in the February 1817 and 1818 Terms, only one dissent was recorded in each term, out of about 40 cases each year. Interestingly, during the 1817 Term, Marshall was the only dissenter, and in 1818, the dissenter was William Johnson. In contrast to his colleagues at that time, who wore the scarlet and ermine robes worn by English judges, Marshall wore a plain black robe, to emphasize his solidarity with ordinary Americans.
On Christmas Day, 1831, Polly Marshall died. John Marshall lived for another three and one-half years. He died on July 6, 1835, in Philadelphia. His last words, according to Joseph Story, were a prayer for the Union. Two days later, the Liberty Bell was rung to mourn his passing. It cracked, and has never rung again.