Chief Justiceship of John Marshall, 1801-1835

Chief Justiceship of John Marshall, 1801-1835

by Herbert Alan Johnson

Editorial Reviews

Tinsley E. Yarbrough
This entry in the University of South Carolina Press' series on Supreme Court chief justiceships is a well-written, interesting survey of the Court during the tenure (1801-1835) of the jurist who will surely remain, for reasons of timing if no other, the "greatest" justice ever to serve on the nation's highest tribunal. Professor Johnson begins with a provocative discussion of Marshall's background, personal life, and personality, as well as the personalities and interrelationships of Marshall Court justices. Here and later the reader learns much about Marshall the husband, father, and colleague, as well as his relations with William Johnson, Joseph Story, and other justices and with such political figures of Marshall's period as Thomas Jefferson. Johnson also examines the personality traits that help to explain Marshall's enormous influence on the Court and the factors leading to the decline of that influence during the last decade of his life. A number of affecting anecdotes reflecting Marshall's humility, wit, and skill in molding a cohesive, productive, and collegial Court enliven these sections of the text. Professor Johnson notes at one point the Marshall Court's custom of consuming a bottle of wine when its conferences fell on rainy days. Preparing to open a bottle one sunny day, the Chief Justice hesitated only briefly, then observed, "Such is the broad extent of our jurisdiction that by the doctrine of chances it must be raining somewhere" (19). The author's eye for humor reaches beyond his principal subject. He quotes a Republican newspaper's contempt for Marshall's Federalist colleague Samuel Chase: "Cursed of thy father, scum of all that's base / Thy sight is odious, and thy name is Chase" (30). Subsequent chapters examine the relationship of the Marshall Court and its constitutional rulings to the politics of the period; the circuit court activities of Marshall Court justices, including the treason trial of Aaron Burr; the ground-breaking nationalist Marshall Court constitutional decisions relating to judicial review, congressional regulatory authority, federalism, and property rights; private law issues; and the developing body of international law and prize cases. Readers will probably find Johnson's treatment of the justices' circuit-riding duties and private law issues among the most enlightening, if not the most interesting, portions of the study. In fact, the author's discussion of Marbury, McCulloch, Gibbons, and other celebrated constitutional cases is relatively sketchy. Since such litigation has been the subject of extensive examination elsewhere, its limited treatment here, in a comparatively brief book, is understandable. If the study has a major theme, it is that the history of the Marshall Court is not, as David Currie once put it, the story of "John Marshall and the Six Dwarfs" (51). While obviously recognizing the Chief Justice's considerable influence over his colleagues, especially through 1824, Johnson also underscores the erosion of his subject's impact during his last years on the bench, a decline most vividly reflected perhaps in Marshall's dissent in Ogden v. Saunders, the 1827 contract clause case in which the Chief Justice registered his sole dissent in a major constitutional case. Included in that discussion, are several of the factors--among them, the appointment of Democratic justices zealous of state authority and the Chief Justice's failing health--that contributed to his declining power on the bench. Johnson devotes considerable attention to Smith Thompson (1823-1843) and other transitional figures between the Marshall and Taney eras and their impact on Marshall's influence. He also highlights the independence of certain justices from the Chief Justice in a variety of fields even when Marshall was at the zenith of his influence. This study is disturbing, however, in several respects. First, Professor Johnson gives the impression early on that he will connect the Marshall Court to the ongoing modern debate over interpretive and noninterpretive approaches to judicial review. He also discusses recent literature suggesting that Marbury v. Madison embraced a moderate, essentially text-bound version of constitutional interpretation and criticizing the noninterpretivism most closely associated with the Warren Court. Yet, except to note that "a single issue analysis or explanation of Marbury appears to be hazardous" (62), he appears content largely to summarize the thinking of others rather than present his own interpretation of Marbury. More disturbing is Professor Johnson's failure to relate his subject to recent Supreme Court decisions that appear to challenge Marshall Court constructions of national power and the role of the states in the federal system. Johnson's study appeared, of course, before the Supreme Court's recent ruling in Printz v. United States (1997), overturning provisions of the Brady handgun statute on Tenth Amendment/state sovereignty grounds. But several earlier recent cases, including United States v. Lopez, the 1995 decision invalidating a federal statute prohibiting firearms on school property, arguably have given congressional regulatory power a more restricted construction, and state reserved powers a broader reach, than the Marshall Court contemplated in such cases as Gibbons v. Ogden (1824) and McCulloch v. Maryland (1819). Admittedly, given the paucity of congressional regulatory legislation during Marshall's tenure, his Court's usual focus was on the impact of federal power on state authority to legislate in fields over which Congress had been delegated power rather than on the ultimate limits to national authority. Even so, readers could have benefited from Professor Johnson's comparison of Marshall and Rehnquist Court constructions of national and state authority. In view of the substantial biographical and related research already available on John Marshall, his era, and Court, one could argue that a brief general survey such as this one can serve no purpose not already better filled by the existing body of literature, or that a treatment built around a single overarching theme would have made a greater contribution to our understanding of the Marshall Court than the survey Professor Johnson has produced. As co-author of the John Marshall volume in the Holmes Devise History of the Supreme Court and former general editor of The Papers of John Marshall, Professor Johnson certainly possesses the credentials necessary for preparation of a thoroughgoing, sophisticated study of the Marshall Court and its period in American history. My assumption, though, is that his primary goal was to provide a useful introduction for readers not previously exposed to Marshall and his Court. If that was his purpose, he has succeeded admirably.

Product Details

University of South Carolina Press
Publication date:
Chief Justiceships of the United States
Product dimensions:
6.25(w) x 9.28(h) x 1.10(d)

Customer Reviews

Average Review:

Write a Review

and post it to your social network


Most Helpful Customer Reviews

See all customer reviews >