American History Tellers - Supreme Court Landmarks | The Predicament of John Marshall | 1
Episode Date: October 21, 2020After the War of Independence, the new American government created the Supreme Court to be have the final word on disputes that the states couldn’t settle. But at first, the Court was anyth...ing 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 to new episodes 1 week early and to all episodes ad free with Wondery+. Join Wondery+ for exclusives, binges, early access, and ad free listening. Available in the Wondery App. hereSupport 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.
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Imagine it's February, 1790.
A 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.
Will, will you? 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.
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From Wondery, I'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 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 13 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.
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 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
boar, 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 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 & 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 27th, 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 ingrarian paradise.
I'll 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.
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 your 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 12 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 10 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 a constitutional showdown where
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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 and 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's 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. 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, 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 aloud.
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. On the next episode of American History Tellers, 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.
From Wondery, this is episode one
of Supreme Court Landmarks for American History Tellers.
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For more information on John Marshall and the early Supreme Court,
we recommend Without Precedent by John Richard Paul.
American History Tellers is hosted, edited, and produced by me, Lindsay Granfer Airship.
Audio editing by Molly Bach.
Sound design by Derek Behrens.
This episode is written by George Ducker.
Edited by Dorian Marina.
Our executive producers are Jenny Lauer Beckman and Marsha Louis.
Created by Hernán López for Wondery.