American History Tellers - Encore: Supreme Court Landmarks | The Predicament of John Marshall | 1

Episode Date: July 19, 2023

After the War of Independence, the new American government created the Supreme Court to be the final word on disputes that the states couldn’t settle. But at first, the Court was anything but Supreme.For nearly a decade, Congress and the President held the real power. In practice the Supreme Court was weak, ineffectual and disorganized – a post so unappealing that many men turned down nominations to serve on its bench.All that would change with the appointment of Chief Justice John Marshall and the arrival of a case called Marbury v. Madison — a political drama that would embroil the new President Thomas Jefferson, outgoing president John Adams, the U.S. Congress, and even the Chief Justice himself.Listen ad free with Wondery+. Join Wondery+ for exclusives, binges, early access, and ad free listening. Available in the Wondery App. https://wondery.app.link/historytellersSupport us by supporting our sponsors!See Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Wondery Plus subscribers can binge new seasons of American History Tellers early and ad-free right now. Join Wondery Plus in the Wondery app or on Apple Podcasts. As the Supreme Court makes headlines for several controversial and surprising rulings, we're bringing you a special encore presentation of our series on Supreme Court landmark decisions. We'll take a look back at cases like Plessy v. Ferguson, which enshrined separate but equal segregation for generations, and the recently overturned Roe v. Wade, which legalized abortion. These and other crucial Supreme Court decisions fundamentally changed the legal landscape of our nation. But just as with today's court, social movements and partisan politics often influence those decisions, sometimes in unexpected ways. It might seem

today as though the Supreme Court has never been more politicized, but as we'll see, from its very inception, our nation's highest court has never been immune from the biases and partisanship of its times. Imagine it's February 1790. Cold, clear morning in Lower Manhattan, the nation's capital. You're making your way across the ground floor of the Merchants' Exchange building. Usually it's a bustling open-air market, but today the cattle merchants have been cleared out. Upstairs, the Supreme Court of the United States is convening for the very first time. You're a young lawyer with a small, two-man practice.

You mostly try property cases in state courts. But this morning, you've come to the Supreme Court's opening proceedings to apply for the federal bar. You enjoy your work well enough. But somehow you didn't expect to spend so much time squabbling over inheritance claims and property lines. Once you join the bar, you'll be able to try cases at a federal level, maybe even important cases. The thought gives you a thrill. The second floor meeting room is dim and drafty and crammed full of people, mostly lawyers like yourself and a few newspapermen. Over here, William. Your partner

calls out to you, and you spot him in the gallery. You make your way over and take a seat next to him. At the bench, three men in dark robes stand around conferring with each other. You recognize one of them as John Jay, the chief justice. Only three justices? Yeah, apparently bad weather up north suspended most travel. The other three are presumably traveling as quickly as their coaches will allow. Oh, that's too bad. Which one is that one in the wig? Oh, him? Yeah, William Cushing.

Judging by his fashion sense, he's still under the impression that it's the 1770s. Shush, he'll hear you. He should hear me. He looks like a spaniel in that wig. No doubt it reeks to high heaven. I'd say the same thing about this federal court. Well, you seem determined to get us thrown out. I am simply thinking out loud. State courts still have the run of things, as they should. You and I try our cases there. I'm happy to lend you my support, but what good will come of you

being on the federal bar? Well, besides promoting government tyranny, you mean? Nah, you're being short-sighted. Who knows what will come of this court? Before your partner can respond, the justices take their seat behind the bench, and the court crier brings the proceedings to order. Oh, yay, oh, yay, oh, yay. All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the court is now sitting. God save the United States and this Honorable Court. There's a long pause. Then Chief Justice Jay leans over the bench to address the court. Due to inclement weather and travel conditions, only three justices are today present.

As this court has not met its quorum, the proceedings are hereby adjourned. This court will reconvene tomorrow morning. It's my hope that a fourth shall be arrived by then. You fight off disappointment as your partner turns to you chuckling. Well, that was the shortest session of court I have ever attended. I hope it lived up to your expectations. He can crack jokes all he wants, but you'll be back here tomorrow until you're confirmed.

It may not look like much now, but the justices in this dim, drafty room carry one-third of the power of the nation behind them, a power that you hope to someday leverage to shape your country. Hey, this is Nick. And this is Jack. leverage to shape your podcasts. From Wondery comes a new series about a lawyer who broke all the rules. Need to launder some money? Broker a deal with a drug cartel? Take out a witness? Paul can do it. I'm your host, Brandon James Jenkins. Follow Criminal Attorney on the Wondery app or'm Lindsey Graham, and this is American History Tellers.

Our history, your story. On our show, we take you to the events, the times, and the people that shaped America and Americans. Our values, our struggles, and our dreams. We'll put you in the shoes of everyday citizens as history was being made. And we'll show you how the events of the times affected them, their families, and affects you now. The Supreme Court is one of the founding institutions of the United States government, vested with a power that equals that of the President and the Congress. But it wasn't always that way. After American colonists gained their independence from the British, they needed to create a viable government.

By 1789, they'd formed a constitution that divided power among the President, Congress, and the Supreme Court. Before nearly a decade, it was Congress and the President that held the real power. In practice, the Supreme Court was weak, ineffectual, and disorganized, a post so unappealing that many men turned down nominations to serve on its bench. But all that would change with the appointment of Chief Justice John Marshall with the appointment of Chief Justice John Marshall and the arrival of a case called Marbury v. Madison, a political drama that would embroil the new President Thomas Jefferson, outgoing President John Adams, the U.S. Congress,

and even the Chief Justice himself. Marbury v. Madison would unequivocally assert the power of the judicial branch, permanently altering the balance of power and government. But first, Chief Justice John Marshall would have to find his way through a partisan minefield. This is the first in a seven-part series about Supreme Court decisions that transformed America and forged the country we know today. This is Episode 1, The Predicament of John Marshall After the eight-year American War of Independence finally came to an end, the leaders of the former colonies suddenly had to figure out how to run a new, diverse country. Their answer was the Articles of Confederation, a charter which bound the thirteen former colonies into a loose alliance.

But as territorial disputes and conflicts over taxation arose, it quickly became clear that a loose alliance would not be enough to keep the colonies together. So, in the hot summer of 1787, 55 delegates came together in Philadelphia to revise the country's charter. The new constitution was adopted in September of that year. The Supreme Court was established alongside the presidency and the Congress as a three-part system of governmental checks and balances, attempting to ensure that one branch would be no powerful than the other. Although delegates hotly debated the powers of the president and Congress, they spent very little time discussing what the federal judiciary might

actually look like or how it would work. In 1789, Congress passed the Federal Judiciary Act, laying out specifics that weren't covered in the Constitution. The Judiciary Act formally created a court of five justices and one chief justice. Their positions were not considered political appointments. Justices were to serve as long as they exhibited good behavior, which was otherwise understood as life terms. The six men would ensure that the principles contained within the Constitution were observed in the nation's

courts. Lastly, the Supreme Court would function as an appellate court, a kind of legal last resort. It would be where justices make the final ruling on cases that states couldn't resolve. all. That same year, in 1789, Congress met for the first time, and George Washington became the first President of the United States. Washington nominated John Jay to be the nation's first Chief Justice, and he was quickly confirmed in the Senate. Jay was just 45 years old, but a veteran of politics, diplomacy, and one of the founders of the country. He came from a wealthy merchant family and once wrote that those who own the country ought to govern it. Jay may have assumed that as Chief Justice he would debate heady matters of pressing national or international affairs, or perhaps he expected that the position would pay better than the $500

a year he could have made as Secretary of State. In both cases, Jay was disappointed. Supreme Court justices met only a few times a year and had to spend much of their time traveling from state to state, sitting in on homegrown disputes that local judges couldn't settle. It was called riding circuit and not a pleasant part of the job. With rocky, unpaved roads, long stretches of foul weather, and unpredictable accommodations, the life of a traveling federal judge posed many challenges. In a journal from 1790, Jay described his trip from Albany to Hartford, rating the quality of the lodgings as pretty good, tolerably clean, and in one case, simply bad. Disillusioned with a job, John Jay resigned his position after only five years to become governor of New York.

Eventually, President Washington found a replacement in Oliver Ellsworth, but he too would not last long before resigning himself as chief justice. Throughout the 1790s, the court ruled on few cases of lasting significance. The vast majority of cases in the new country were decided at the state level. So, with appeals at the federal level still rare, the Supreme Court never managed to build up enough strength to gain importance on the national stage. And even by 1800, the Supreme Court was still weak, but the political landscape in Washington had shifted. Two official political parties had formed, with competing visions of what the young nation should look like. The Federalists championed the cause of a strong central government,

while the Republicans promised an agrarian vision of strong individual states capable of managing their own affairs. The hotly contested election of 1800 pitted incumbent President John Adams, a Federalist, against two Democratic-Republican challengers, Aaron Burr and Thomas Jefferson. The election produced an electoral tie, and when the dust settled, it was still unclear whether Jefferson or Burr would be president. But John Adams and the Federalists had definitely lost. Not just the presidency, but their majority

in Congress, too. In the long winter of that year, President Adams turned his attention to the one branch of government he could still control, the courts. With the resignation of Oliver Ellsworth, Adams had the chance to appoint a new chief justice to the bench, someone sympathetic to the Federalist cause, and he rushed to try to get his allies sworn in. Imagine it's January, 1801. Washington, D.C. is a frozen sheet of glassy fields and muddy, unpaved streets. You wrap your scarf tighter around your neck as you approach the back entrance to the president's new residence. They're calling it the White House, though currently its color more closely resembles the flat gray of a tired horse. Inside, you find John Adams sitting in a small, dark room. Adams is the first president to live in the building, and you must admit he and Abigail were brave to do so. Despite a roaring

fire, the place is dreary and damp. Ah, please don't mind the mess. This house is, as ever, a work in progress. It's the first time you've seen your old friends since before the Christmas holiday, and the two of you embrace fondly. John. John. I was sorry to read about the election. There's no need to rehash it. It's over now. What do you think the Republicans will do? Whatever they wish.

The president sighs and turns to look out the window. Sleety rain dries against the glass. Jefferson comes off like an arrogant bore, but he could be worse. Abigail and I had him for a New Year's Day meal. He comported himself with dignity. He didn't steal any silverware. He didn't set anything on fire. You try to hide your surprise.

It's hard for you to imagine the two men being chummy in the same room. Well, I'm glad to hear you got along. Well, I thought I had one last trick up my sleeve. Until this letter from John Jay came this morning. I had hoped he would take up the position of Chief Justice once again. And how did Jay reply? Oh, he made his refusal quite clear. Adams picks up the letter from his writing desk and reads it out loud. I left the bench perfectly convinced that under a system so defective, the court would not obtain the weight and dignity essential to supporting the national government. Ah, I see. Yes, he had the job once. He hated it, and he didn't mind telling me so. So who will it be then? William Cushing? William Patterson? The current justice would be quickly

confirmed. I did consider those men. But the Post requires someone younger than me, and the full vigor of middle age, I think. I've been thinking about John Marshall. Really? You're Secretary of State. Well, he's 45. He used to be a lawyer. I'm sure it would come right back to him. You're aware that he's cousin to Thomas Jefferson. I am indeed, yes. If Jefferson becomes president, then the irony would be delightful. Marshall could represent Federalist interests for some time to come, much longer than any Republican would be president. But the question is, will he accept it? The court isn't a desirable position. John Jay just made that clear. In fact, it seems plain that most men would rather do something else entirely.

And this is true. But perhaps this can be because they're not clever enough to see the benefits of the federal bench. John Marshall is a clever man. Perhaps he can use the position to his advantage. In the dark and dreary White House parlor, you can see your old friend's eyes begin to light up. John Adams is also a clever man. And this court nomination may just be the last trick up his sleeve. John Marshall wasn't the most obvious candidate for Chief Justice. He had no previous judicial experience.

In fact, he'd turned down previous offers from President Adams for positions as Attorney General and Associate Justice of the Supreme Court. Born in 1755, John Marshall grew up in Northern Virginia. He was a cousin to Thomas Jefferson on his mother's side, but a legal dispute over estate inheritance severed ties between the two families. Marshall grew up working on a farm, the oldest of 15 children, while Jefferson grew up surrounded by wealth on an estate with 500 slaves. Still, Marshall was able to enlist in the Continental Army, and after that, study law at

William and Mary. By 1787, he was a familiar face in Richmond, Virginia courtrooms, a gregarious, loose-limbed lawyer representing mostly disputes over property. Often casually dressed, he had a habit of flailing his arms or raising his voice to a piercing screech. But the eloquence of his arguments and his flair for the dramatic ensured he would always have a receptive audience. Marshall was elected to ratify the Constitution, and he agreed with the Federalist principles that were written into the document. It made perfect sense to Marshall that state sovereignty and a strong national judiciary could coexist. During the 1790s, Marshall entered politics under the Federalist ticket. By then, his cousin Jefferson

had already become an international political celebrity and champion of Republican ideals. The two men embodied conflicting ideas of just how to run the new nation. But it was Marshall who would find himself on a frigid afternoon in January 1801, sitting in council with the outgoing President John Adams. Although the outcome of the election was still undecided, it was clear Adams was a lame duck. When John Jay turned down Adams' offer to take up the position of chief justice again, Adams called Marshall to the White House. Who shall I nominate now? The president asked him. Marshall suggested William Patterson, already an associate justice. But the president then surprised Marshall by responding, I believe I must nominate you. Marshall was too stunned to reply. He knew that chief justice was

not a political position. In order to do his job, he would have to make decisions based on evidence and on judicial interpretation of the law. The nation had become fractured politically. What good would an obvious partisan like him do on the court? After considering the president's nomination for a few days, Marshall accepted the position. He would always disagree with Jefferson and the Republicans, but he would try to rise above partisanship and provide the moderation the country so desperately needed. But what John Marshall could not foresee was that the first major case of his tenure would be politically explosive, and that Marshall would find himself squarely in the center of the controversy.

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On January 27, 1801, the Senate confirmed John Marshall to the position of Chief Justice of the Supreme Court. Marshall's appointment was greeted with a few grumblings from Republicans, but his reputation for moderation and intellect won out, and he took his position on the bench just one week later. President Adams, who still had just over a month left in office, allowed Marshall to serve simultaneously as both Secretary of State and Chief Justice, a rare but not unheard of situation in the young, small government. Adams' thinking was it was improbable that anything legally untoward would happen over the next month.

But he was wrong. The Supreme Court met in a dark, ground-floor room of the still-unfinished Capitol building, but not far from the ornate Senate chambers. It was officially called Committee Room No. 2, and the justices were forced to share space with the Federal District Court and the D.C. Court of Appeals. Few spectators ever wandered in, as there are few cases for the court to consider. Chief Justice Marshall's fellow justices included his boyhood friend Bushrod Washington, former President Adams' nephew.

William Cushing had served since the very first court and still shunned popular fashion, dressing in a tri-cornered hat and wig. Samuel Chase of Maryland was the court's intellectual, and Alfred Moore, standing four and a half feet tall, distinguished himself by being the shortest man to ever serve. The sixth man on the bench was William Patterson, who often complained in private that it was not he who'd been appointed to Chief Justice. Slowly, Marshall began to bring the disparate members of the court together. He arranged for the justices to live at a district boarding house while the court was in session. Fifteen dollars a week covered rent and board, candles, firewood, and wine. Justices jostled

with members of Congress, who also lived in the boarding house, and often slept two and three to a room to save money. During the month of February of that year, the boarding house and often slept two and three to a room to save money. During the month of February of that year, the boarding house, like the rest of the Capitol, was consumed by talk of who was going to be the next president. Burr and Jefferson, both Republicans, had tied with 73 votes each in the Electoral College. Under the Constitution, a tie meant that the House of Representatives would have to decide which of the Republican candidates would become president. But after multiple votes, neither candidate could secure a majority in the House.

It finally took the switch of a single delegate from the state of Delaware to tip the presidency into Thomas Jefferson's hands. Marshall's assessment of his cousin's political party was bleak. In a letter, Marshall worried that the Democratic Republicans could only be divided into two types, speculative theorists and absolute terrorists. He hoped Jefferson would act moderately and not find himself drawn into the latter category. But Marshall also hoped for the nation to prosper under the new administration and for the dust surrounding the contested election

to finally settle. But another political storm was brewing closer to home. In the last few weeks of his presidency, John Adams and the remaining Federalists in Congress passed hurried legislation that vastly expanded the judiciary. It was an obvious maneuver to create new circuit courts and then fill those seats with Federalist sympathizers. The press quickly took to calling these appointments the Midnight Judges. Along with judgeships, Adams nominated 42 men to serve as Justices of the Peace for Washington, D.C. This number was alarmingly high for an area that contained fewer than 15,000 residents. Republicans in the Senate were appalled, but there was nothing they could do to stop the nominations from clearing.

John Marshall, still the acting Secretary of State, spent the last days of the Adams administration collecting commissions for the 42 new Justices of the Peace. Each commission had been signed by the President, and it was Marshall's job to stamp the commission letters with the official seal of government and send them out to be delivered. But a problem arose when by midnight, March 3rd, Marshall still had not delivered all of the commissions. The next morning, Thomas Jefferson would be president, and John Adams, the man who granted the commissions, would be as far from Washington as carriage could take him.

Imagine it's just past midnight in March 1801. An unseasonably warm spring in the capital has only served to bring on clouds of newly hatched mosquitoes. They seem to have followed you all the way to Georgetown. You tie the reins of your horse to a tether pole and swatting the air around you, you make your way inside a local inn.

It's the only place around here to get a decent pint of anything. It's the eve of the new inauguration. Tomorrow morning, Thomas Jefferson will take the oath of office and become the third president of the United States. And for the first time in your life, you couldn't care less about any of it. This evening, you submitted your resignation to the Department of State. You worked for President Adams, and now you'll work for yourself. Inside the inn, your colleague Benjamin is saving a seat for you. Took you long enough. Here, sit down. I'm not one to shirk my responsibilities.

I stayed until just before midnight, then we closed up shop. Well, I must say, you look a little bewildered. Like a man finally confronted with his own freedom. And it feels just as free as I suspected it might. I might be as free myself tomorrow. There's no guarantee the new administration will let me keep my job. You could try farming. Maybe you get a little piece of land next to mine in Virginia. I see. You've been a true Jeffersonian this whole time, trying to woo me into an ingrarium paradise. Bite your tongue, sir. The two of you chuckle and clink your glasses together. But there is one problem. What's that? President Adams' judicial commissions are still undelivered. Really? Secretary Marshall had them sealed and stamped, but they've just been sitting on his desk along with countless other papers. They haven't been mailed. I walked past them several

times. They were still there when I left this evening. Oh, good God, that's quite an oversight. There are several gentlemen out there who might be upset when they don't get the jobs they thought they might. Yes. And Federalists will lose what little power they still have. Maybe it'll be all right. If the letters are sealed and stamped, the position should be theirs. Yes, but if you think for one moment that Thomas Jefferson will allow any decision Adams made to stand if he can possibly reverse it, then perhaps you're a more gracious person than myself.

Oh, you're right, of course. Jefferson won't do a single thing he doesn't want to. Precisely. I worry a real mess is just around the corner. Come on, then! At just that moment, a fight breaks out not far from their table. Two men pummeling each other after too many beers. Isn't that strange a sight on the eve of inauguration?

Benjamin doesn't skip a beat. Well, it's good of you to be concerned, but cheer up. You'll soon be on the farm. Perhaps he's right. You're happy to put the politics of the district behind you. The double talk, the obfuscation. But still, a job is a job. And even though you've resigned yours, you still wonder about those undelivered commissions.

They belong to someone. And not many men will give up what's theirs without a fight. It's still not known why John Marshall failed to deliver all of President Adams' judicial commissions. Historians have many theories. Most probable is that in the crush of events leading up to the transition between presidencies and with Marshall serving two positions at once, he simply ran out of time. Whatever the reason, the next morning, Chief Justice John Marshall swore in his cousin, Thomas Jefferson, as the third President of the United States.

It was well known that the two men did not especially like each other. The day before the inauguration, Jefferson wrote Marshall a terse note, worried that the Chief Justice might show up late just to spoil the ceremony. Jefferson reminded him to arrive at twelve o'clock sharp. Marshall replied immediately, reassuring Jefferson that he was, quote, always punctual. Soon after the inauguration ceremonies were over, President Jefferson found the stack of unmailed commissions for the Justices of the Peace. At first, he was reluctant to deliver any of them. Jefferson wanted nothing to do with Adams' attempts to stack the judiciary. But he eventually changed his mind and ordered his Secretary of State, James Madison, to deliver some of them, along with a

handful of new picks made by Jefferson himself. Above all, Jefferson saw himself as an egalitarian and must have congratulated himself on being politically large-hearted. But still, 17 commissions never got delivered. Months went by, and it was not until December when John Marshall's court heard a petition from a lawyer representing a man named William Marbury. Just over 40 years old, Marbury had made a fortune in trading securities after the war and currently worked for the Department of the Navy.

Marbury was one of the men granted the justiceship back in February, and now he and three other men wanted the jobs they'd been promised. Marbury's petition asked for a court order, known as a writ of mandamus, demanding that Secretary of State James Madison deliver the unmailed commissions. From his position on the bench, John Marshall must have been momentarily flustered. The case was filed as Marbury v. Madison, but what it represented was a direct indictment of a sitting president's actions. And the final decision on whether William Marbury could have his job had landed squarely in the lap of the Chief Justice, the very man who had sealed Marbury's commission ten months before but never mailed it. The whole affair was partly Marshall's fault, and now it would be up to him to figure a way out or face

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When Thomas Jefferson took over the presidency, the rivalry between the Federalists and his own party, the Democratic-Republicans, was tense. But over the next two years, that rivalry erupted into all-out political warfare. Outraged at outgoing President John Adams' enlargement of the federal court system, Republicans called for a permanent end to the federal judiciary. Falling short of that goal, they settled for the remarkable move of passing legislation that suspended the Supreme Court for its entire 1802 term. Thus, even though William Marbury and his co-defendants petitioned the Supreme Court in December of 1801, the court did not actually get to hear his case until early 1803. By then, Chief Justice John Marshall, along with the five other justices, were in a seemingly impossible position. Marbury v. Madison might as

well have been titled John Adams v. Thomas Jefferson. The first case on the court's docket directly implicated the actions of a sitting president, while Republicans in Congress were clamoring to put a permanent end to the federal judiciary. A constitutional crisis was in the wind. The Supreme Court would need to find its way through a political minefield and somehow still come up with a decision that was legally satisfactory and above suspicion. Marbury's lawyer was a man named Charles Lee. He was the former Attorney General to both Presidents Washington and Adams, and his sympathies to the Federalist cause were well known,

just as Chief Justice Marshall's were. When opening arguments began the morning of February 10, 1803, Lee spoke directly to Marshall in his court. He stood alone and unopposed. The defendant, Jefferson's Secretary of State James Madison, was nowhere to be found. Madison hadn't even bothered to send a legal representative to the court to defend himself. And if these proceedings weren't strange enough, the events in question just happened to involve the Chief Justice himself. As the former Secretary of State who'd sealed William Marbury's commission, the now Chief Justice was the most obvious person in the room to answer why it hadn't been delivered. But even though Lee presented testimony from various witnesses,

he never called Marshall himself to the stand. And he didn't call James Madison or President Jefferson as witnesses either, for Lee knew Jefferson could declare executive privilege for both himself and his secretary. After four days of testimony, Chief Justice Marshall looked around the courtroom and asked if there was anyone present who wished to speak on behalf of Madison. No one replied. The court would recess for two weeks before they would come to a decision. Imagine it's February 24, 1803. You're the publisher of a D.C. newspaper. You've been following the hearings surrounding the Marbury case, and this morning, the justices of the Supreme Court are set to announce their decision. Standing in front of Stell's Hotel, you happen to

catch Charles Lee, Marbury's lawyer, on his way inside the building. Mr. Lee! Mr. Lee! Could I have just a moment of your time? If you don't mind following me inside. They say it has warmed up, but the Potomac is still frozen, and so am I. You follow Lee inside the foyer of the hotel, where other people are gathered as well in chattering anticipation. Today is the day the justices will rule in your case. It is, and I look forward to whatever their decision might be. Both of you instinctually glance up at the hotel's landing, where the six justices are wrapping up their deliberations. Certainly you feel confident in your client's chances.

I feel confident that our case has been heard. In fact, it is one of the few I've tried in which the defendant has not once deigned to grace the courtroom with his presence. Will the court rule in Marbury's favor? Anything can happen. My client's case is solid. It has been so from the beginning. I just know that if I were Chief Justice, I'd be sweating buckshot, as the saying goes.

Why is that, sir? Well, consider this. President Jefferson has made it unmistakably clear that if the court holds for us, that he won't comply. They may rule in my client's favor, but the court has no actual power to enforce the decision. Could you explain a little more for our readers? Charles Lee frowns. His patience is wearing thin. You can see that there are other people in the room he'd rather be engaging with.

You could say that this court is entering into uncharted constitutional waters. Chief Justice Marshall faces two prospects. Either he bends to President Jefferson's will, or he stands on principle, and the president ignores his decision. Both prospects could diminish the court even further. So what you're saying is that the court and Chief Justice Marshall are trapped. But at this, Lee finally parts company with you. Over his shoulder, he calls out,

No, I never said that. You did. And if you quote me, I'll deny it. You're too busy scribbling down his response to take any offense. Whatever happens this morning, you'll have no problem selling some papers tomorrow. Chief Justice Marshall and his court were in a tight spot. Deliberations took place in a Washington hotel, where Justice Samuel Chase had been confined due to an illness. Marshall needed Chase for a quorum, as two other justices, place in a Washington hotel where Justice Samuel Chase had been confined due to an illness.

Marshall needed Chase for a quorum as two other justices, William Cushing and Alfred Moore, had been so ill that they were not even present for the arguments of the case. On the morning of February 24th, John Marshall read the court's decision in the hotel's packed lobby. It ran for over 40 pages and took Marshall, with his laconic southern drawl, several hours to read loud. In the decision, Marshall answered three questions. First, did William Marbury have a right to his appointment as Justice of the Peace? Marshall found that he did. Second, could Marbury petition for a court order to have this commission delivered? Yes, again. Neither of these were surprises, but it looked as if the Supreme Court

was going to compel President Jefferson to give William Marbury his job. But then the Chief Justice pivoted. Marshall noted that the Judiciary Act of 1789 had given the Supreme Court the power to issue court orders, but according to the Constitution, only state courts could issue those orders. Therefore, Marshall argued, when Congress passed the Judiciary Act, it had violated the Constitution by giving the Supreme Court too much power. In other words, William Marbury was entitled to his court order, but it was impossible for the Supreme Court to grant him one, because doing so was unconstitutional.

Marbury was welcome to start over in circuit court and try again, but the Supreme Court's hands were tied. Marshall's decision was a masterful legal chess move. The Chief Justice had managed to decide in favor of neither party, avoiding the partisan predicament of having to side for or against a sitting president. At the same time, with just one decision, he'd made the Supreme Court just as powerful as the other two branches of government. Never before had any legislative action been declared unconstitutional. With Marbury v. Madison, Marshall claimed that the Constitution of the United States was a higher

form of law than any passed by Congress, and that only the Supreme Court had the power to interpret that law. Or, as Marshall wrote, it is emphatically the province and duty of the judicial department to say what the law is. This legal concept would become known as judicial review, and it would define the court's powerful role in the young nation. Public reaction from both Republicans and Federalists was generally positive, and before long it became clear that the constitutional crisis the nation had been heading toward was averted. Even Thomas Jefferson, after hearing of the decision, could only shake his head in wonder and aggravation. He'd long viewed his cousin as an intellectual rival, and privately cursed what he called Marshall's judicial twistifications.

In an 1804 letter following the decision, Jefferson wrote, When conversing with Marshall, I never admit anything. So great is his sophistry, you must never give him an affirmative answer, or you will be forced to grant his conclusion. Why, if you were to ask me if it were daylight or not, I'd reply, Sir, I don't know. I can't tell. John Marshall's decision in the Marbury case fundamentally shifted the balance of power in the new American government, ensuring the Supreme Court would be the final law of the land. Marshall would serve as Chief Justice for three more decades. His court would rule in landmark cases involving commerce regulation, the National Bank,

and the court's ability to declare state laws unconstitutional. But one of the most pressing questions for the young United States to address was their relationship with Native American tribes, specifically the land that Native people still claimed as their own. By 1832, these questions would lead Chief Justice Marshall once again into a political thicket and set his court, the presidency, and Congress on a collision course. For Monterey, this is Episode 1 of Supreme Court Landmarks for American History Tellers. On the next episode, the Supreme Court is drawn into a bitter dispute over the rights and freedoms of the nation's original inhabitants. Two different cases pit the Cherokee Nation against the governors of Georgia, while President Andrew Jackson is determined to expand American territory at all costs.

If you like American history tellers, you can binge all episodes early and ad-free right now by joining Wondery Plus in the Wondery app or on Apple Podcasts. Prime members can listen ad-free on Amazon Music. And before you go, tell us about yourself by filling out a short survey at wondery.com slash survey. For more information on John Marshall and the early Supreme Court, we recommend Without Precedent by Joel Richard Paul. American History Tellers is hosted, edited, and produced by me, Lindsey Graham for Airship. Audio editing by Molly Bach. Sound design by Derek Behrens. Music by Lindsey Graham. This episode is written by George Ducker. Edited by Dorian Marina.

Our executive producers are Jenny Lauer Beckman and Marshall Louie. Created by Hernan Lopez for Wondery. This is the emergency broadcast system. A ballistic missile threat has been detected inbound to your area. Your phone buzzes and you look down to find this alert. What do you do next? Maybe you're at the grocery store. Or maybe you're with your secret lover.

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