American History Hit - How Did the Supreme Court Claim Power?

Episode Date: July 30, 2026

Can you think of a time in history when a law has been ruled unconstitutional by the Supreme Court?Having been used over 180 times, judicial review is one of the most important powers that the US Supreme Court has. So where did it come from?In this episode, Don and is joined by Professor Cliff Sloan to discuss the 1803 ruling of Marbury v. Madison. Cliff has served on all three branches of the Federal Government during his career. He now teaches at Georgetown Law, serves on the board of the Journal of Supreme Court History and is the author of 'The Court at War: FDR, His Justices and the World They Made'.Edited by Aidan Lonergan. Produced by Sophie Gee. Senior Producer was Freddy Chick.Sign up to History Hit for hundreds of hours of original documentaries, with a new release every week and ad-free podcasts. Sign up at https://www.historyhit.com/subscribe.  All music from Epidemic Sounds.American History Hit is a History Hit podcast. Hosted on Acast. See acast.com/privacy for more information.

Want to explore even more history? Sign up to History Hit, where you will discover history from around the world. From the American Revolution to prehistoric Scotland, there is plenty to discover. With your subscription, you'll unlock hundreds of hours of exclusive documentaries with a brand new release every week, exploring everything from the ancient world to World War II. Just visit historyhit.com slash subscribe to bring the past alive. More than two centuries ago, in the closing days of John Adams' administration, our second presidency, the defeated president, John Adams, and his Federalist party rushed to fill the federal courts with their own appointees

before the incoming president, Thomas Jefferson, took office. Several commissions were signed and sealed, but a few were not delivered. One of those commissions belonged to a Maryland businessman named William Marbury, and this man's determination to claim his job would unexpectedly produce perhaps the most consequential Supreme Court decision in American history. This is the story of the landmark case of Marbury v. Madison. Hello, folks, this is American History Hit. I'm Don Wildman. Thanks for tuning in. Since its establishment in 1789, the Supreme Court has found some 180 acts of Congress, wholly or partly unconstitutional, reviewing each case, hearing arguments, and making its supreme decisions. Of course, this is one facet of our system, the famous checks and balances. 250 years on, we all take this for granted. Each branch of our

federal government checking the other. That's how everything will remain in balance, theoretically. But this grand idea really didn't come to pass officially until 15 years after the Constitution was ratified. It emerged with Marbury v. Madison. And today we'll learn how this all-important president was set, with Professor Cliff Sloan, who as an attorney has argued in the Supreme Court seven times. He has served in all three branches of the federal government and now teaches constitutional law and other subjects at Georgetown Law. He serves on the board of editors of the Journal of Supreme Court History and is the author of the Court at War, FDR, his justices, and the world they made, as well as co-authoring The Great Decision, Jefferson Adams, Marshall,

and the Battle for the Supreme Court. Professor Cliff Sloan, honored you could join us. Thank you for coming. Well, thanks so much for having me. I appreciate it. Marbury v. Madison, the case decided upon in the Supreme Court in 1803, which defined the essential role court would play in the governance of the nation. Let me warn listeners here at the top. We're going to get into some legal weeds, but then we're going to burst out into some big open ideas. So before we go diving into the nitty-gritty, Cliff, just tell us why we should care. How big a deal is this story? Well, Marbury is a very big deal because it is the first time that the Supreme Court strikes down an act of Congress as unconstitutional.

And it establishes the power and authority and duty of the Supreme Court to rule on statutes and their constitutionality. This is the case, the case that really defines the Supreme Court as we know it today. It all comes about in the most unlikely circumstance. Can you lead us into the story? It starts with the election of 1800, right? Yes, it does. And it's quite a story in terms of what happens with the election of 1800. But it also even begins in the 1790s, because at the time of Marbury, the process of government

was very new and primitive in the U.S. and the role of the Supreme Court was very new and primitive. And so, first of all, in terms of the political story as setting this stage for 1800. And in terms of the political story, of course, George Washington had served for two terms. And then in 1796, we really had the first contested election between John Adams and Thomas Jefferson. And it was relatively tame affair. and under the Constitution at that time, the person who got the second most votes in the Electoral College became vice president. So even though Jefferson had run against Adams,

he got the second most votes, and so he became vice president. And so he had Adams as president and Jefferson as vice president. And then in the election of 1800, by then, for various reasons, political parties had emerged, the federalist party of Adams and the Democratic Republic, party of Jefferson. And in 1800, it was a very bitter, vicious personal election. This is the Federalist and the Democratic Republicans, the Federalist being George Washington, Jonah Adams, and now Jefferson is in charge of this new party that's going to vie for power. This is the first time that we have that reality in America politics, right? Right. The first time it's really very, very fiercely contested is in 1800. It emerged a little bit

in 1796, but 1800 is really where you have the full development of political parties in a bitterly contested election. And you have Jefferson beating Adams, the incumbent president. This had never happened in our history before. It was a remarkable thing in the development of the world that you had this peaceful election that would change power. But then there's a very important wrinkle because Jefferson, running mate was Aaron Burr of New York. And everybody understood at the time that Jefferson was running

for president and Burr was running for vice president. But at the time, there was no distinction in terms of president or vice president in terms of votes in the electoral college. So Jefferson and Burr had a tie in the electoral college. And as part of that, Burr decided, well, maybe he didn't want to just defer to Jefferson after all. He had received the same number of. of votes. And Congress was then controlled by the Federalist Party, who also had lost Congress in the election. And the Federalists hated Jefferson because of this very bitter campaign. And so it became a fight between Jefferson and Burr and the outcome. Because there wasn't a majority, it went to the House of Representatives with each state having one vote. And some states were tied in their

delegations and some states were abstaining. And so for 35 ballots, the House of Representatives couldn't decide on Jefferson or Burr. And there were all sorts of rumors of possible other plots to install a federalist. It was really chaos. And at that time, the new president was inaugurated on March 4th instead of January 20th. And up until mid-February, it was still undecided. And finally, on the 36th ballot, on February 17th, just a couple weeks before John Adams' presidency was going to end, finally Jefferson was elected as the president. There's a period of time that's really important in the story between the election and the inauguration, which is March, months at a time. And again, this is the first time that we're going to see the machinations of party politics at hand here.

And that's the key point in this story, because the federalists are going to try to manipulate things. They're going to try to hold on to power that they have now lost in this election. That's really important to keep in mind that there's four months or so to do this. And in that period of time, as the federalists are the lame duck ones there and Adams as well, they begin doing something about the judiciary, right? They begin creating these new positions in the judiciary with the intent of filling those positions with people that believed in their politics, right? Absolutely. This is the midnight judges. And Adams and the federalists were determined in the few months that they were still in power as lame ducks to put as many federalists as they could in the judiciary, in the federal courts. And also in 1800, for the first time, the District of Columbia had just become the capital. And so there were all sorts of new jobs that had to be filled in the District of Columbia. including the position of justice of the peace. And that was a very important position at the time,

which had a lot of authority. And so one of the things that the federalists did is they created lots of new federal judgeships, and they also created lots of new positions of justice of the peace in the District of Columbia. And Adams, you know, to his credit, he accepted the election results. He never challenged it. And again, this was very historic. It was the first time an incumbent president had been thrown out of office. But on the other hand, he was determined to get as many federalists into these new federal judgeships and these new justice of the peace positions as he possibly could. And he was up late on his last night in the White House, administering, trying to get these judges in the day before he had sent nominations up to the

Senate, the federalist Senate had promptly confirmed them. And his last, Last night in office, Adams is up late signing the commissions, and the commissions are the formal documents that appoint somebody to these federal office. And he's signing them and sending them off to be delivered really up to his very last hours in the White House. It's a frenzy. It's a frenzy to get as many federalists as possible on the federal bench and injustices of the peace positions.

And each commission is signed and sealed, you know, quite practically speaking. officially by the Secretary of State, which is John Marshall, right, under Adams. And that is a really important factor here. The commission for that Justice of Peace was presented to, or was going to be presented to a man named William Marbury. And William Marbury was a Maryland businessman and a big federalist supporter. He was, you know, one of those guys who was sort of, you know, in line for a new job. And so off that commission was supposed to go. But the brother of of John Marshall had the job, James Marshall, to take these commissions around, and he never delivered that commission to Marbury. Key point in the story.

Right. It's an amazing development because in the frenzy there, and John Marshall has enlisted his brother to deliver them, and James Marshall, the pile is too big. He can't carry all of them. And so he leaves a few of the commissions on a table in the State Department, and he means to kind of come back and deliver them later. But in the chaos, they never get delivered. Interesting. Wow. So Marbury v. Madison hangs on an undelivered package, essentially. That's the beauty and simplicity of this story, and then it gets a little more complicated.

So the next step in this process is to understand that during that period of time from November to March, the Supreme Court Chief Justice Oliver Ellsworth resigned due to poor health. Also, it's the end of his, you know, it's all the spirit of that time, this big transition. To fill the vacancy, Adams nominated John Marshall, his Secretary of State at the time, very famous name in American history. And Marshall is confirmed, but also at the same time remains in his job as Secretary of State. It's all this wiggly stuff that's going on. And it is his role to deliver commissions for appointed judges. As you say, on the final day of, as president, March 1st, 1801, Adams nominates William Marbury to this Justice of the Peace, and we're often running on a very difficult situation. Tell me about what unfolds from that point. The next Secretary of State is going to be James Madison, right? Yes, exactly. So, you know, Jefferson becomes president and appoints his close friend and ally, James Madison, to be Secretary of State. And at the time, the Secretary of State, there weren't very many cabinet departments and the Secretary of State was responsible for these commissions and getting

them delivered. And Marbury, as you said, he had been nominated and confirmed, but he never got his commission. And so he said, I want my job that I've been duly appointed to and confirmed to. Now, the other part of this is that there's a political dimension to this, because Marbury, and there were a couple of other federalists who were in the same position as Marbury. And they're actually very much against Jefferson. And so they decide to file suit in the Supreme Court against the new Secretary of State, James Madison, saying, give us our commissions. But the political dimension to this is that they're very upset that Jefferson is blocking these last minute appointments by Adams, these midnight appointments by Adams. And so December 1801 is actually

the first time the Supreme Court is meeting since Jefferson became president. And so these federalists, including Marbury, see an opportunity. They want their jobs, but they also see an opportunity to really strike a blow against Jefferson by filing suit against his very close ally Madison. And so that's the case, Marbury v. Madison. And the case that they file on the Supreme Court in December 1801 is saying, give us our commission. We are entitled to it, and they want an order from the Supreme Court directing Madison to deliver the commission so that they can take office. Yeah. That order is called a writ of mandamus, an official order that tells, you know, the government they have to give the job that they promised. It's basically just to clarify

Right. It's in order that they have to comply with the law. And so he's saying, you violated the law by refusing to deliver the commission, even though I was duly nominated and confirmed. And so there should be an order of mandamus ordering the delivery of the commission. I'll be back with more American history after this short break. Okay. So let me keep the audience, I hope, up to speed here, because this is an incredibly important decision that's going to be made. that works in our everyday lives today. But it starts out with this grievance, this basically, hey, I had a job and I was given it, what the heck? And it's such an interesting story because it starts so practically and then goes into another level. The first confusion I have when I approach the stories, how does this guy Marbury and his allies there go straight to the Supreme Court?

We're so used to things going through so many levels. How the heck does he go straight to the highest one? Well, that becomes a very important part of the story. The Judiciary Act of 1789 had a provision that gave the Supreme Court the authority to issue writs of mandamus. And so that law that was passed in the first year of our government in 1789 didn't say anything about requiring that somebody go to a lower court first. Now, the Supreme Court, under the Constitution, there is a limited category of cases where you can go directly to the Supreme Court, if it involves an ambassador, for example. But here, the view was that this Judiciary Act of 1789 says you can go to the Supreme Court for Rue to Man Damas, doesn't say anything about having to go to a lower court first. Hmm, okay. You've noted the Judiciary Act of 1789. In my understanding of the story that's really important to hang your hat on, which was passed by Congress. This was the

job of the Supreme Court to issue such rits. That's what's going to come up for conversation and be challenged. And that's going to have the long-term effects that we'll later talk about. February 11, 1803, the Supreme Court hears the case of Marbury v. Madison. How complicated is this process? How hard do people argue it and how long does that process go on? Well, they don't just argue it. Because he's filing in the Supreme Court for the first time, it's actually a trial in the Supreme Court. There's never been a trial. There are witnesses, there's testimony. It's just over a period of a couple days. And Marbury is represented by the former Attorney General of the United States, Charles Lee, who's one of the most eminent lawyers in the country. And he's

calling these clerks from the State Department. And they're not too crazy. about having to testify, and they're saying, well, do I have to answer that question, and John Marshall's ruling on those. But on the other hand, the Jefferson administration is treating this case with disdain. And so even though the Attorney General, Levi Lincoln, is in the court, he refuses to play any role as a lawyer. At one point, he has to testify as a witness, but he doesn't put on any witnesses. He doesn't make any arguments. And it's interesting, at one point, after Charles Lee has put on his case, and then John Marshall, as the chief justice and the other justices are there, and he turns to Levi Lincoln and asks him for the government's

case, and he says, I have no instructions, I have nothing to say. And Marshall kind of looks around the courtroom, and he says, well, does anybody have anything they want to say that might help us here? and nobody responds. So the only side that put on a case was Marbury. And it's a sign of the contempt that the Jefferson and Madison had for this whole proceeding. Because they thought there's no way that the Supreme Court can challenge us. And there's no way it even has any authority to be mixing into our decision not to deliver the commission. So that's how the case unfolded. And they're actually, witnesses and then arguments to the court. That's key. I mean, that the president, the executive branch did not really take the judicial branch that seriously, right? That was their assumption was that

they didn't have that big a voice in the proceedings of government. Is that true? Yes. I mean, the Supreme Court at that time was very weak and ineffectual. Nobody had any respect for it. you know, the first Chief Justice, John Jay, had resigned in 1795 to be governor of New York. And in late 1800, when there was a vacancy, Adams tried to reappoint him. And John Jay wrote to Adams, he didn't want it because he was convinced that it would never have any weight or dignity. The Supreme Court would never have any weight or dignity in our system. I mean, that's how, and there are many examples of this, but the Supreme Court was not taken seriously. institution at that time at all. And that's because in the Constitution, it really doesn't get

that much power. They don't really have that much language that says, and it all ends with the Supreme Court, as we all assume it does today. That's not in the Constitution. Well, what the Constitution says is that the judicial power of the United States is in the Supreme Court, but it doesn't elaborate and it doesn't specify in explicit language, for example, that the Supreme Court has the power to set aside statutes at the federal level or the state level that are unconstitutional. If you look at the Constitution, Article 1 addresses Congress, Article 2 addresses the President, Article 3 addresses the Supreme Court and the federal judiciary. Article 1 and Article 2 are far longer than Article 3. Article 3 about the Supreme Court is very brief,

and it's an indication of how they were thinking about it. And also, just look at the sequence there. Article 1 for Congress. then the executive branch, and then they get around to Article 3 with the judiciary. So did Marshall see this case as an opportunity to take on that situation, or did it just organically evolve that way? Well, we don't know exactly what his decision-making process was here, but in terms of whether it was conscious, whether it was instinctive, but in Marbury v. Madison, it's a remarkable decision where the Supreme Court for the first time strikes down an act of Congress as unconstitutional

and does it in a way where they don't have to challenge Jefferson and Madison, but they do include a lot of criticism with it. And so exactly how that unfolded for Marshall, we don't know, but it's really a remarkable accomplishment on Marshall's part. Now, one thing I should mention And just in terms of the background of this question of what's called Judicial Review, the authority of the Supreme Court to strike down an act of Congress is unconstitutional, it's not as though that had never been thought of before Marbury. And in fact, in the Federalist papers, which are very influential, Alexander Hamilton and Federalist 78, pretty clearly seemed to think the Supreme Court would have that authority.

But one thing that I think a lot of people tend to overlook is that by the time the Marbury case came up, Jeffersonians, and they were the dominant searching party, had come to view the federal courts very critically because it was the only part of the government that had these federalists in it. And also, John Adams had crammed it with federalists. And there are all these very bitter statements by Jeffersonians that it's, that it's, you know, It's the last stronghold of the Federalists. And so by the time Marbury gets decided, there actually are a lot of Jeffersonians who are saying the Supreme Court does not have the authority to declare an act of Congress unconstitutional. And they're very, very firmly of that view. What is that unconstitutionality that we're talking about? I mean, again, I want to remind people, we're talking about a simple case where guy gets a job

and then he's denied it and he sues to get his job. but then it gets all expanded in this process. And what exactly is going to be unconstitutional? So let me present it the way John Marshall presented it. And he actually read the opinion and there was a crowd. There wasn't much to do in Washington those days and lots of people showed up to hear him read the opinion. And it was very dramatic when he read it because the way he presented it is he said there's three questions here. The first one is, does Marbury have a right to this job as Justice of the Peace? And he said, yes, he absolutely has a right to it. He was duly nominated and confirmed, and this was just a formality, and he has a right to it. Then the second one, second question is,

okay, does he have a remedy? Because that right was violated. And Marshall says, absolutely, he has to have a remedy work, country of laws, what good is a right if you don't have to have a remedy. He absolutely has to have a remedy for that. And at this point, there's a lot of anticipation in the room, because this sounds like he's going to rule in favor of Marbury and against Jefferson and Madison. And the opinion at this point has by far the most severe criticism of a presidential administration that's ever been in a Supreme Court opinion because he's saying they violated the law. They didn't deliver the commission and he had a legal right to it. And so everybody's sort of waiting there with hushed breath. And then Marshall gets to his third question,

does he have a right to the remedy that he seeks, which is an order of mandamus from this court? And there, Marshall says, no. He says, the Judiciary Act of 1789, says he can come to this court directly for it, but that's unconstitutional, because Article 3 of the Constitution, in almost all cases, sets us up as an appellate court. It's very, very rare and limited when you can come here as an original court, and you didn't go to a lower court first, Mr. Marbury. And so we don't have jurisdiction to address it. And so you lose. And so that's the court strikes down a law of Congress is unconstitutional for the first time. But it really is remarkable all of the things going on there because you've got this criticism of Jefferson and

Madison for violating the law. But of course, they are politically dominant. They might have defied the court if the court had ruled against them. So he includes this criticism in a way that doesn't actually issue in order to Jefferson and Madison. And at the same time, he establishes the extremely important principle that the Supreme Court has the authority and the duty to strike down a law that's unconstitutional. His famous sentence is, it is emphatically the province and duty of the judicial department to say what the law is to determine constitutionality. I'll be back with more American history after this short break.

And this is the key moment. This is the fork in the road of this case and of this nation. Because on one hand, Marbury's going to lose because he doesn't get his job out of this. And so in a sense, you feel like, well, okay, that doesn't make any sense because Marshall is saying he deserves the job and that's how the law is and it should have worked. But the law that he's talking about is the Judiciary Act of 1789. which had instructed the Supreme Court to act like it shouldn't act, as it doesn't now, which is a lower court function, right? And so by reviewing that essential law, he has pushed the Supreme Court up a level and said, we don't do this, therefore that's unconstitutional. And at that moment, it's the first time that the Supreme Court has equaled itself to the other branches. It has power to oversee the law on a constitutional level. Absolutely. It has established that cornerstone of our constitutional system. And that is extremely important. And, you know, something that illustrates its importance, if you go to the

National Archives, they have a hall with the charters of freedoms. And you see a copy of the Magna Carta. They have a copy of the Declaration of Independence. They have a copy of the original Constitution. They have a copy of the Bill of Rights. And the very next thing that they have, and the only other thing in the room is a copy of Marbury v. Madison. Wow. Because they say it is a cornerstone of our constitutional system establishing this principle of judicial review, this principle that the Supreme Court has the authority and the duty to strike down statutes that are unconstitutional. That's what's so tempting, you know, in the play-by-play of this, to imagine that Marshall, you know, sitting alone in his office says, this is my chance. This is our chance to elevate this function into a much higher

level, loftier level, and he was going to use this case to do that. It may be the case, it may be not. And again, we don't have the hard evidence of him writing about it, but I think that absolutely is the case. I think he saw all of the pieces coming together and he thought, this is the perfect opportunity to chisel this very important principle into our constitutional structure. Well, then I'm right to be choked up because that's how I honestly feel. I know this is, I'm talking to a lawyer here, so I'm sure it feels that way to you. But honestly, when I, you know, go looking for what is the genius behind the country? There's plenty of things to look at. But really what is so exciting to me is that men like this, men and women, take these moments

and say, this is what needs to happen in this country. This is need, these decisions have to have long-term effects. And that is a beautiful thing. You know, that's a really exciting notion. Well, and, you know, Marbury v. Madison has been a beacon for the Supreme Court during some of its most challenging times. Like, for example, the Nixon tapes case where the court unanimously ordered President Richard Nixon to turn over the Watergate tapes, which then led directly to his resignation, front and center in that opinion is Marbury and invoking Marbury and emphatically the province and duty of the Supreme Court to rule on the constitutionality of, his withholding the tapes. At the height of the school integration crisis after Brown versus Board of Education, again, in a very important opinion, the court unanimously orders that Brown be enforced. And again, very, very much relies on Marbury v. Madison. You know, as you mentioned, I co-authored a book about Marbury. And one thing that was very, very moving to me when I would give

talks on the book after it came out is that almost invariably after the talks, some people would come up to me who had been raised in different countries and countries that had challenges with the rule of law. And they would talk about how important Marbury was to them and how meaningful it was to them in a country facing those challenges to have that example of an independent judiciary with the authority to declare unconstitutionality. Now, one thing that I also just want to emphasize on this, this doesn't mean at all that we're all going to agree on the Supreme Court's decisions about whether something is constitutional. There's going to be, and there should be a lively debate about that. But this principle that we have an independent

judiciary that is the final arbiter of constitutionality in the courts is something that is is very important and meaningful. Right. And the key is that they don't have to go back to the Constitution and change that language. This is about precedent, which, you know, is a normal part of legal procedures. But this is the first time the Supreme Court starts dealing with that on that level, where they're really comparing laws to the Constitution and deciding whether they fit. That, again, what we're so used to, what we take for granted about the Supreme Court, had to be established as a practice. Right, exactly. And around this, time, pretty soon after this, the Supreme Court also established the principle that it would

review and determine the constitutionality of state laws as well. Now, you know, in terms of acts of Congress, the Supreme Court having established this power was pretty judicious about using it. It didn't declare another act of Congress unconstitutional until the infamous and terrible decision in Dred Scott. It was really after the Civil War, and then in the 20th century, when the Supreme Court got much more active in declaring statutes unconstitutional. But this principle, this decision of Marbury v. Madison from 1803 was established and was very much serving as this sort of fundamental principle of our system. It completes the triangular structure of checks and balances. The Constitution gives Congress the power to impeach and remove officials, including judges,

by the way, or presidents themselves. The president is given the veto power in the Constitution to restrain Congress with the authority to appoint members of the Supreme Court, with the advice and consent of the Senate. All these things are over there in those two branches. Now the Supreme Court has its power, and the checks and balances are complete. Again, in theory, in a beautiful diagram now that we all learn in grade school. That did not exist until there. Is it worth considering the counterfactual cliff? What would have happened had Marshall not had this motivation and had said, yeah, he gets his job, see you later? Well, let me say two things. I mean, one, it's not an entirely, you know, crazy system. In fact, that's the system with England and Parliament. There's

parliamentary supremacy as opposed to the court. And so, you know, so again, it's not, you know, an entirely unthinkable system. On the other hand, there also are many, many examples of countries without an independent judiciary where the result is a tremendous failing in terms of the rule of law. You know, Justice Sandra Day O'Connor said that because of Marbury, Every one of us has rights that no president and no Congress can take away from us. Chief Justice William Rehnquist said Marbury was the greatest single contribution Americans ever made to the science of government. And so this principle of an independent judiciary and the example of Marbury is something that countries turn to as they try to develop their rule of law. And so when you think about the counterfactual, sure, on the one hand you have the example of England,

But on the other hand, you have the example of many, many instances where it leads to a tremendous unraveling of the rule of law, a lack of accountability, a lack of checks and balances. And that's what's so distinctive about our system. It surprises me that Jefferson was so opposed to this. I mean, how did he see this working? He just saw the power with the people, right, in theory. Well, there are a lot of elements to Jefferson's reaction. And Jefferson hated the decision in Marbury v. Madison.

You know, a couple years later, there was the treason trial of Aaron Burr, and the U.S. attorney was prosecuting it, and Jefferson was keeping close tabs on it. And he told the U.S. attorney, he didn't want him citing Marbury v. Madison because he wanted Marbury declared not law. And it was a pretty recent opinion at that time. But I think there are a couple of dimensions to Jefferson's reaction. One of them is the one you mentioned, that he believed that the power rested with the people. He felt that the Judiciary was sort of unrepresentative. It's unelected. And of course, the political reality at the time again was that that's the only branch that doesn't have the Jeffersonians. It has the Federalist. But the other thing is the personal element with Jefferson. You know, he was cousins of John Marshall. They were, I think, second cousins once removed. And they hated each other. They absolutely loathed each other. And so he bitterly resented Marshall. And, you know, Marshall had become kind of fairly popular as the Chief Justice. And he very, very much, that rankled Jefferson. And also, he understood that Marbury had a lot of language criticizing him in Madison. You know, it had been Jefferson's decision not to deliver the commissions. He, a couple days after he was inaugurated, he went to the State Department. He had previously been Secretary State under Washington. He knew how the place operated. He saw the pile of commissions on the table. And he said, do not deliver these because he wasn't going to allow any more federalists to get their positions.

So he was very personally invested in and responsible for the decision. And he understood that the Marbury decision had lots of very severe criticism of him and Madison in it for violating the law. Yeah. Ever since, I mean, it's fair to say that this has never been really challenged. this essential role of the Supreme Court has never been really challenged as far as its role in the greater government, challenging laws as to whether they fit with the Constitution. Everything we hear about in the news, which we hear a lot about, is really below that level as far as, well, not for some sides, but it's generally about the federal judiciary and activist judges

and so forth. That's what we hear about in the news. But it's pretty amazing what Marshall, and I suppose not alone, accomplished at this moment, as far as lifting up that institution and giving it a lasting role that it really has preserved. Yeah, absolutely. And I think as a cornerstone of the system. Now, you know, every now and then, actually from both sides of the spectrum, there are criticisms of how Marbury is interpreted. And there are arguments that it should be construed much more narrowly.

It was affecting the courts. I mean, on the one hand, in the first Trump administration, you had an official, very senior official who was very critical of Marbury. On the other hand, people today who are very upset about what the Supreme Court is doing advocate something called popular constitutionalism, where there should be a lot more emphasis on sort of popular understandings of the Constitution and the political branches. But I think it's safe to say that Marbury's basic role as a fundamental cornerstone of our system is very, very well entrenched. And there's not going to be anything that changes that. Yeah. John Marshall doesn't get the credit he's due.

Do you agree with that? Well, he's viewed as the great Chief Justice. You know, he served for 34 years from 1801 to 1835. and he has major, major landmarks, not only in Marbury, but as we were saying, with state decisions, with the scope of congressional power. So he absolutely was a very, very influential Chief Justice. Now, there has been a bit of controversy about Marshall in the last few years because of the extent of his slave holdings and some of his opinions related to slavery. But there's no question that he was extremely, influential in elevating the Supreme Court. You know, there are other things he did just institutionally

with the Supreme Court that were very important. One of them is that before Marshall came, there was no such thing as a majority opinion for the court. Every justice just issued his own opinion. And then people had to kind of figure out, you know, add them up and see, well, we had, you know, a few on this point and a couple on this point. Marshall said, no, we're going to have an opinion that speaks for the court. And that was very important in terms of the authority of the court. He also, for the first time, had the justices wear black robes. So they were all wearing the same robes. Before that, the justices would wear very brightly colored robes. They would just decide what to wear. But again, this was the idea, no, we're an institution. We're talking about the law. We're not

here as, you know, distinctive individuals. And then I have to tell you one other thing that he did to unite the court, which is that he had the justices live together in the same rooming house. You know, they would only be in Washington for a relatively short periods. And he had them for the first time stay in the same rooming house so that they would all get to know each other. It would allow them to have the majority opinion. And they would get together at night. And they had a rule that they could only have Madeira, the favored wine of the era, if it was raining outside. And so every night, he would have a justice go to the window and frequently the justice would say, well, you know, looks pretty clear out there. And Marshall would say, well, our jurisdiction is so vast. It must be

raining somewhere. Let's break out the Madeira. My last question is a personal one. I want to know what the night before your first Supreme Court day was like. Well, I will tell you, before I first argue it, extremely nerve-wracking. Of course, you know, I had gone over everything again and again and again and had moved courts and everything else, but it was still extremely nerve-wracking. And I actually remember having the thought, you know, every time in the past, when I have gone to speak and move my lips, sounds have come out. Is that going to happen this time? But, you know, the reality of a Supreme Court argument is that once you start, things are happening so quickly and you're fairly close to the justices and they're asking a lot of questions,

you don't have time to be nervous anymore. You're just in the middle of it. But you're absolutely right that that night before it was an extremely nerve-wracking night. I don't envy you, and yet I do. Amazing experiences. Professor Cliff Sloan is a professor at Georgetown Law and has been for many years a leading attorney in the political sphere in D.C. He authored the book we've referred to, The Court at War, FDR, his justices and the world. they made, as well as co-authoring another book, The Great Decision, Jefferson, Adams, Marshall, and the Battle for the Supreme Court. I have a feeling we're going to talk again. I hope we do, and I want to know why there are nine justices and not another number. So we'll come back

to that someday soon, I hope. Terrific. Thanks so much, Don. I appreciate it. Hey, thanks for listening to American History Hit. You know, every week we release new episodes, two new episodes dropping Mondays and Thursdays, all kinds of content from Mississippi. mysterious missing colonies to powerful political movements, to some of the biggest battles across the centuries. Don't miss an episode. By hitting like and follow, you help us out, which is great, but you'll also be reminded when our shows are on. And while you're at it, share it with a friend. American History Hit with me, Don Wildman. So grateful for your support.