A People's History of the Supreme Court

by Peter Irons

  Riding a wave of nationalistic and anti-French sentiment, the Federalists put the Republicans on the defensive. The Rev. Timothy Dwight, president of Yale, delivered a sermon in which he claimed that Jeffersonian Republicanism would make “our wives and daughters the victims of legal prostitution” as Frenchmen supposedly encouraged their wives and daughters to practice. A Federalist writer urged that Republicans should be treated “as we should a TURK, A JEW, A JACOBIN, OR DOG.” Diatribes like these turned the voters—white men with property, many with wives and daughters-against the Republicans, and swept the Federalists to an overwhelming victory in the 1798 congressional elections.

  The Federalist victory emboldened the party’s leaders to push through Congress in 1798 a set if three laws that reflected popular fears of the “alien” French and their “seditious” American supporters. The Naturalization Act lengthened the time of residence needed for American citizenship from five to fourteen years. The Alien Act allowed the president to direct the deportation of “all such aliens as he shall judge dangerous to the peace and safety of the United States” or who engaged in “secret machinations against the government.” Two shiploads of French citizens promptly sailed for their homeland to escape jailing and forced deportation.

  The Federalist law that most directly affected American citizens was the Sedition Act, which directly confronted the First Amendment’s provision that “Congress shall make no law . . . abridging freedom of speech, or of the press.” This law authorized criminal prosecution, with fines or imprisonment as penalties, for the utterance or publication of any “false, scandalous and malicious” statements that might expose Congress or the president to “contempt or ridicule.” Republicans in Congress denounced the Sedition Act as a clear violation of the First Amendment, but they were voted down in both houses.

  Federalist prosecutors, placed in office by President Adams, immediately began a witch-hunt that rivaled those of colonial Salem and the more recent McCarthy era. Their first victim was Mathew Lyon of Vermont, his state’s Republican congressman. Lyon had written and published a letter to his constituents which accused Adams of “a continuous grasp for power” and an “unbounded thirst for ridiculous pomp, foolish adulation and selfish avarice.” Under the law of the time, based on the English common law of “seditious libel,” establishing the truth of a statement was a defense against conviction. Representative Lyon had the bad luck to appear before Supreme Court Justice William Paterson for trial, while Paterson was sitting as a circuit judge. And he had the bad judgment to ask Paterson from the witness stand if the justice had not dined with Adams and observed his “ridiculous pomp and parade.” Paterson replied that the president had always displayed “much plainness and simplicity” at dinner. Adams was, in fact, a pompous man, but Paterson was determined to send Lyon to jail, regardless of the president’s conduct at the dinner table.

  Paterson did not even allow Lyon’s lawyer, Anthony Haswell, to present a defense, over Haswell’s strenuous objections. The justice instructed the jurors to find Lyon guilty, which they promptly did, and Paterson sentenced him to four months in jail. Paterson later convicted Haswell of sedition for charging that federal marshals had mistreated Lyon during his jail term. Lyon got some measure of revenge against Paterson and the Federalists. While he sat behind bars, his loyal and admiring constituents returned him to Congress by a landslide over his Federalist opponent.

  Justice Samuel Chase not only rivaled but exceeded Paterson in zealous persecution of Republicans. Chase had publicly urged Congress to adopt the Sedition Act, and he gained the sobriquet of the “hanging judge” for his conduct in trying John Fries for “treason” in 1800. Fries, a militia captain, led a troop of armed farmers against federal tax collectors in Pennsylvania. His mutinous acts reminded Federalists of Daniel Shays, who had led a similar rebellion in 1787. Justice Chase, sitting as a circuit judge, was so determined to punish Fries that he dispensed with even the rudiments of fair trial. Explaining that he wanted to speed up the proceedings, Chase showed the hapless defendant’s lawyers—before the trial even began—his ruling that Fries could not challenge the constitutionality of the Sedition Act. Since this claim was the basis of their defense of Fries, the muzzled lawyers were so outraged they withdrew from the case. Chase rushed through the trial and sentenced Fries to death. John Adams, however, faced a presidential campaign against Thomas Jefferson and did not wish to stain his hands with his opponents’ blood. He pardoned Fries and avoided being labeled the “hanging president.”

  Justice Chase made many enemies during his trials of Republicans for “seditious libel” of President Adams. His bullying of lawyers dismayed even his political allies. District judge Richard Peters, a loyal Federalist, complained, “I never sat with him without pain, as he was forever getting into some intemperate and unnecessary squabbles.” Chase missed the entire Supreme Court term that began in August 1800 because he was campaigning across Maryland for President Adams, denouncing Jefferson as a dangerous “Jacobin” who would impose the terrors of the French Revolution on his American opponents. Jefferson would not forget Chase’s attacks on his character and policies.

  Before the Sedition Act prosecution ended in 1800, every Supreme Court justice had presided at trials and had sentenced Republicans to fines or imprisonment. Flushed with victory in the “XYZ affair,” the Federalists misjudged the public’s attachment to the Constitution and squandered their support in prosecuting their Republican critics. President Adams lost his office to Thomas Jefferson and the Federalists lost control of both houses of Congress. Only in Abraham Lincoln’s presidential campaign against Stephen Douglas in 1860 and Franklin Roosevelt’s attacks on the Supreme Court’s “Nine Old Men” in 1937 did judicial power become national issues that matched the debate between Federalists and Republicans over the Sedition Act prosecutions.

  But the Federalists did not lose everything in the 1800 elections. During his single term in office, Adams had the opportunity to place three justices on the Supreme Court. The first opening came in 1798, with the death of James Wilson. Adams chose Bushrod Washington, the first president’s favorite nephew, to fill the seat. His uncle had sent the younger Washington in 1782 to Wilson’s law office in Philadelphia, where he studied law and absorbed Federalist politics for two years. He then returned to Virginia and practiced law for another decade, often facing another young lawyer, John Marshall, in courtroom battles over property and contract cases.

  Adams did not reveal his reasons for picking Washington, but Virginia had not been represented on the Supreme Court since John Blair had resigned in 1796, and the president owed many debts to his predecessor. Bushrod Washington owed debts as well; he wrote his uncle after his nomination that “I could not upon a small piece of poor land in Westmoreland have paid debts which I owe, and supported my family.” Only thirty-six when he took his seat, Washington served for thirty years before his death in 1829, all but the first two under the tutelage of Chief Justice John Marshall, his former legal adversary. One fellow justice observed that Washington and Marshall “are commonly estimated as one judge,” and Washington disagreed with his formidable Chief in just three cases over three decades.

  The second justice Adams picked also came from his predecessor’s home state. James Iredell died in 1799, and Adams replaced him with another North Carolina lawyer, Alfred Moore, the state’s attorney general and a prominent Federalist. The best any friend could say of Moore was that he was among the “ornamental members of society.” President Adams had nothing to say about why he chose Moore for the Court. During four years of judicial service, Moore wrote just one opinion, in a maritime case than raised no constitutional issues. He left the Court in 1804 with hardly a ripple in his wake.

  The third and final Supreme Court choice of President Adams, John Marshall of Virginia, served as Chief Justice for thirty-four years and transformed the Court from a trickling stream into a mighty river in American law and politics, in more than a meta
phorical sense. Marshall and the Court he commanded swept away every dam and levee that state lawmakers, the Congress, and five presidents constructed in his path. What prompted President Adams to choose Marshall, a man with no prior judicial experience, as Chief Justice in 1801, an act that changed the course of American constitutional history?

  Marshall did not ride to the Supreme Court on a wave of acclamation, as his later reputation might suggest. He was not, in fact, among the candidates that Adams first considered for the post. Adams turned to Marshall, then serving as his secretary of state, largely to escape the crossfire of political and personal battles within the Federalist ranks. The resignation of Chief Justice Oliver Ellsworth in October 1800, just before Adams lost his office to Jefferson, offered the chance to place the Court under Federalist tutelage for years to come. But the most prominent candidates for the post were disabled by age, infirmity, or political wounds. The first problem Adams confronted stemmed from the machinations of Alexander Hamilton and his allies. Hamilton’s objections to the president’s policies, both foreign and domestic, led him to publish a widely circulated pamphlet, “Concerning the Public Conduct and Character of John Adams,” arguing that Adams was unfit to be president. Adams was notoriously thin-skinned, and took his revenge by dismissing three cabinet members who sided with Hamilton.

  The Hamiltonian attacks on the president also doomed their campaign to replace Ellsworth with Justice William Paterson, who later wrote to a friend that “if the president had put my name in nomination I should have considered it a complimental thing, a mere feather, which might tickle a vain mind, but which I neither wished nor wanted.” Paterson was exceedingly vain and clearly wanted the job, but Adams had no intention of elevating him to the Chief’s post. Moping to deflect the pressure for Paterson, Adams nominated John Jay, although the former Chief Justice had announced his decision to retire from public office. There is no record that Adams even consulted with Jay before sending his name to the Senate for confirmation in December 1800. Most likely, Adams hoped to avoid a bitter partisan battle before the presidential electors cast their votes. The electors were evenly split between Jefferson and Aaron Burr, who both ran as Republicans. Both men had earned Hamilton’s enmity, although he considered Jefferson more dangerous to the Federalists. John Marshall incurred Hamilton’s wrath as well by refusing his entreaties to support Burr and block Jefferson’s election. President Adams was determined to stay out of these political battles.

  On his part, Jefferson feared that Adams would nominate a Federalist firebrand like Paterson as Chief Justice, and expressed relief when Adams chose Jay. “We were afraid of something worse,” he wrote to James Madison. But something worse did happen to Jefferson and the Republicans. The Senate confirmed Jay, but he returned his commission and forced Adams to choose again. Jefferson had earlier expressed fear to Madison that the Federalists in Congress, having lost the election, would push through a bill “giving the gouvernment” to the Chief Justice or “to Marshall as Secretary of State.” Rumors of a Federalist plot to circumvent the electoral college proved unfounded, but Adams turned to Marshall as Chief Justice after Jay declined to serve. The extreme Federalists remembered that Marshall had refused to help block Jefferson’s election and reacted bitterly to his selection. Jonathan Dayton, a New Jersey senator, expressed his “grief, astonishment and almost indignation” to Justice Paterson. Conceding that Marshall was a lawyer of “respectable talents and standing,” Dayton questioned “the propriety of making a stand” against his confirmation. Dayton could only lament that Adams had displayed “such debility or derangement of intellect” in choosing Marshall.

  Paterson’s diehard supporters made one last appeal, sending a delegation of Federalist senators to meet with Adams. Dayton reported to Paterson that Adams “was inflexible, and declared that he would never nominate you. Under those circumstances we thought it advisable to confirm Marshall, lest another not so well qualified, and more disgusting to the bench, should be substituted” for him. Dayton could not resist denouncing Adams as a “wild freak of a man, whose administration, happily for this country, is soon to terminate.”

  Dayton and his Federalist colleagues need not have protested Marshall’s nomination, which the Senate confirmed without dissent. Marshall gave far more to their nationalist cause, in more than three decades as Chief Justice, than Paterson—who left the Court in 1806 because of injury and illness—could possibly have accomplished. What distinguished Marshall from other competent lawyers like Alfred Moore, and made his reputation as the greatest Chief Justice in our history?

  Four factors—aside from good health and longevity—helped Marshall to turn the Supreme Court from what Hamilton called the “least dangerous branch” of government into a judicial leviathan. First, he possessed an iron will and fierce determination to have his way. Marshall’s portraits show a piercing gaze that reflects his solid inner core. Second, he placed his legal skills at the service of Federalist politics. He firmly believed in a strong national government whose primary objectives were the promotion of economic growth and the protection of property. Third, Marshall joined the grant of “judicial power” to the Supreme Court in Article III of the Constitution with the Supremacy Clause of Article VI to fashion the sword of judicial review, wielding it to cut down state laws that offended his views of the Constitution. Fourth, and perhaps most important, Marshall’s commanding personality allowed him to shape every justice—fifteen in all who served with him into his mold. The Marshall Court produced no “Great Dissenter” like Oliver Wendell Holmes. Dissents from Marshall’s decisions were few, and he only once voted with the Court’s minority in a significant case.

  Marshall’s background gives some clues to his later achievements. Born in 1755, he was the oldest of fifteen children in one of the leading families of Fauquier County in Virginia. His father was a planter and managed part of the great Fairfax estate, whose British owners controlled more than five million acres in twenty-one counties. Like his father, Marshall became skilled at land surveying, and he worked as a teenage assistant to his boyhood friend George Washington. When the Revolution began, he became a lieutenant in the Culpepper Minute Men at the age of nineteen, and rose to the rank of captain. Marshall distinguished himself in battle and endured the harsh winter art Valley Forge with General Washington.

  After his military service, Marshall studied law—for less than a year—at the College of William and Mary, was admitted to the bar in 1780, and practiced in Fauquier County and then Richmond for almost twenty years. He specialized in representing the owners of landed estates and used his legal fees to purchase a large chuck of the Fairfax estate, which made him a wealthy man in land and slaves. Like many ambitious lawyers, Marshall also played at politics, winning election to the Virginia legislature and the state convention that ratified the Constitution, at which he argued for a strong national judiciary. Following his triumphant return from France after the XYZ affair, Marshall turned hid sights to national office and won election to Congress in 1798. President Adams chose him as secretary of state in 1800, and during the last month of the Adams administration—after his confirmation as Chief Justice—Marshall served in both posts until Thomas Jefferson became president on March 4,1801.

  Four months elapsed between the national election in November and the change of administration the following March, a delay provided by the first Congress out of concern for bad roads and winter storms, which might keep electors from meeting and sending their votes to Congress. Hardly anyone foresaw the potential mischief that lame-duck lawmakers and presidents could create for their successors, particularly when control of Congress and the White House changed parties. The defeated Federalists in Congress met for their last session in December 1800 and passed a Judiciary Act that President Adams signed in February 1801. The law’s most notable provision would reduce the Supreme Court from six to five members after the next vacancy. Many people expected the elderly and frail Justice Cushing to reti
re soon, and the Federalists wanted to prevent Jefferson from choosing a Republican to replace him. Cushing, Althrough noticeably senile, depended on his judicial salary and hobbled to the Court until 1810.

  The Judiciary Act also created twenty-six new posts in the federal district and circuit courts, to relieve the Supreme Court of the detested burden of circuit-riding. With the nation’s capital moved so the District of Columbia, Congress established forty-five positions as “justice of the peace,” a minor judicial office that provided a small salary and fees for notarizing papers and handling small claims. Washington was still a small city in 1801 and hardly needed forty-five new judges. But as one Republican paper accurately noted, Congress had passed “a bill providing sinecure places and pensions for thoroughgoing Federal partisans.” President Adams and Congress spent considerable time picking and confirming the new district and circuit judges in the weeks before Jefferson took office. Faced with a deadline of midnight on March 3, Congress met into the night and rushed through confirmations of the new justices of the peace. Clerks quickly delivered their commissions to Secretary of State Marshall, who signed the parchment documents and stacked them on his desk.