The Life of John Marshall, Volume 3: Conflict and construction, 1800-1815

by Albert J. Beveridge

In executing his carefully determined purpose to have the Supreme Court formally announce the exclusive power of that tribunal as the authority of last resort to interpret the Constitution and determine the validity of laws by the test of that instrument, Marshall faced two practical and baffling difficulties, in addition to those larger and more forbidding ones which we have already considered.

The first of these was the condition of the Supreme Court itself and the low place it held in the public esteem; from the beginning it had not, as a body, impressed the public mind with its wisdom, dignity, or force.[350] The second obstacle was technical and immediate. Just how should Marshall declare the Supreme Court to be the ultimate arbiter of conflicts between statutes and the Constitution? What occasion could he find to justify, and seemingly to require, the pronouncement as the judgment of the Supreme Court of that opinion now imperatively demanded, and which he had resolved at all hazards to deliver?

When the Republicans repealed the Federalist Judiciary Act of 1801, Marshall had actually proposed to his associates upon the Supreme Bench that they refuse to sit as circuit judges, and "risk the consequences." By the Constitution, he said, they were Judges of the Supreme Court only; their commissions proved that they were appointed solely to those offices; the section requiring them to sit in inferior courts was unconstitutional. The other members of the Supreme Court, however, had not the courage to adopt the heroic course Marshall recommended. They agreed that his views were sound, but insisted that, because the Ellsworth Judiciary Act had been acquiesced in since the adoption of the Constitution, the validity of that act must now be considered as established.[351] So Marshall reluctantly abandoned his bold plan, and in the autumn of 1802 held court at Richmond as circuit judge. To the end of his life, however, he held firmly to the opinion that in so far as the Republican Judiciary Repeal Act of 1802 deprived National judges of their offices and salaries, that legislation was unconstitutional.[352]

Had the circuit judges, whose offices had just been taken from them, resisted in the courts, Marshall might, and probably would, have seized upon the issue thus presented to declare invalid the act by which the Republicans had overturned the new Federalist Judiciary system. Just this, as we have seen, the Republicans had expected him to do, and therefore had so changed the sessions of the Supreme Court that it could not render any decision for more than a year after the new Federalist courts were abolished.

Certain of the deposed National judges had, indeed, taken steps to bring the "revolutionary" Republican measure before the Supreme Court,[353] but their energies flagged, their hearts failed, and their only action was a futile and foolish protest to the very Congress that had wrested their judicial seats from under them.[354] Marshall was thus deprived of that opportunity at the only time he could have availed himself of it.

A year afterward, when Marbury vs. Madison came up for decision, the entire National Judiciary had submitted to the Republican repeal and was holding court under the Act of 1789.[355] This case, then, alone remained as the only possible occasion for announcing, at that critical time, the supervisory power of the Judiciary over legislation.

Marshall was Secretary of State when President Adams tardily appointed, and the Federalist Senate confirmed, the forty-two justices of the peace for the District of Columbia,[356] and it was Marshall who had failed to deliver the commissions to the appointees. Instead, he had, with his customary negligence of details, left them on his desk. Scarcely had he arrived at Richmond, after Jefferson's inauguration, when his brother, James M. Marshall, wrote him of the plight in which the newly appointed justices of the peace found themselves as the result of Marshall's oversight.

The Chief Justice replied: "I learn with infinite chagrin the 'development of principle' mentioned in yours of the 12th,"—sarcastically referring to the Administration's conduct toward the Judiciary,—"& I cannot help regreting it the more as I fear some blame may be imputed to me....

"I did not send out the commissions because I apprehended such as were for a fixed time to be completed when signed & sealed & such as depended on the will of the President might at any time be revoked. To withhold the commission of the Marshal is equal to displacing him which the President, I presume, has the power to do, but to withhold the commissions of the Justices is an act of which I entertaind no suspicion. I should however have sent out the commissions which had been signed & sealed but for the extreme hurry of the time & the absence of Mr. Wagner [Clerk of the State Department] who had been called on by the President to act as his private secretary."[357]

Marshall, it thus appears, was thoroughly familiar with the matter when the application of Marbury and his three associates came before the Supreme Court, and took in it a keen and personal interest. By the time[358] the case came on for final disposition the term had almost half expired for which Marbury and his associates had been appointed. The other justices of the peace to whom Madison had delivered commissions were then transacting all the business that required the attention of such officials. It was certain, moreover, that the Administration would not recognize Marbury and his associates, no matter what Marshall might decide. In fact, these appointees must have lost all interest in the contest for offices of such slight dignity and such insignificant emoluments.