John Marshall: The Man Who Made the Supreme Court
by Richard Brookhiser
“John Marshall is the greatest judge in American history.” So Richard Brookhiser begins his latest Founding Father biography, John Marshall: The Man Who Made the Supreme Court.
In making this lofty claim on behalf of the Supreme Court’s longest-serving chief justice, Brookhiser also sets before himself a challenge: to craft a biography that proves the point. If that challenge includes creating a humanizing portrait of the man and bringing life to some of the most important cases in our country’s history, then Brookhiser covers his part of the bargain.
Brookhiser develops Marshall’s humanity by first sketching in Marshall’s close relationship with his father; it was John’s father who set John on a career in the law, homeschooling young John in Blackstone’s Commentaries on the Law of England. Father and son subsequently enlist together to serve the new country in the Revolutionary War, when John was only 20. The younger Marshall then serves under General George Washington, whom Marshall would much later eulogize as “first in war, first in peace, and first in the hearts of his countrymen.”
It was Washington’s belief in a strong federal government — the foundation for the Federalists and their papers — that led Marshall to adopt that same position in his political career and in his judicial opinions. That position often brought Marshall into conflict with his cousin, President Thomas Jefferson, the leading anti-federalist of their time.
After the Revolution, Marshall served as a member of Virginia’s House of Delegates charged with ratifying the Constitution, and went on to serve in Congress. It was his appointment to the U.S. Supreme Court by President John Adams that put him in place to develop the branch of government considered the weakest branch before Marshall took on leadership of the Court. Marshall raised the stature of the Court through a series of opinions that recognized 1) its role as the last word in constitutional application among the three branches (Marbury v. Madison); 2) the Constitution’s supremacy in regards to state laws that conflict with our founding document (McCullough v. Maryland); and 3) the importance of the Constitution’s Contracts Clause in freeing the channels of commerce in the new country (Fletcher v. Peck).
Through these cases and others, Marshall left his indelible mark on our country. But on the most important moral issue of the time — slavery — Marshall failed. As Brookhiser makes devastatingly clear, it is not hindsight bias to hold Marshall’s inadequacy on the issue against him. Many early American leaders, and state governments, recognized the monstrous immorality of slavery. But Marshall “let the institution live and thrive.” Whether this failure on Marshall’s part undercuts Brookhiser’s thesis — that Marshall is the greatest judge in American history, as Brookhiser puts it in the book’s opening line — is a question that each reader must answer for himself.
Early in the biography, Brookhiser shares an anecdote about an early-American game called Quoits, a game not unlike horseshoes. As an adult, Marshall was a lifetime member in a club built around the game. Brookhiser enjoyed the game because it allowed him a break from his labors, and because it allowed him to build relationships “across partisan and political lines.” Marshall’s bonhomie, not just in Quoits but also in his professional life, often induced justices appointed by Marshall’s political opponents to see the wisdom of Marshall’s federalist principles, and sign on to opinions reflecting those principles.
In a biography full of wisdom, this lesson — that sincere collegiality can have positive consequence for personal relationships and for the nation — may have the most meaning for our leaders today.
John Marshall: The Man Who Made the Supreme Court, is published by Basic Books and available at Amazon and Barnes & Noble.
Mark Miller is a board certified appellate practitioner, and a senior attorney for Pacific Legal Foundation in its Palm Beach Gardens office.