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Posted by on Aug 31, 2010 in Law, Politics | 0 comments

Supreme Court – Not What You Think: Part II, 19th Century Activism

After the election of Thomas Jefferson and the routing of the congressional federalists in the 1800 elections, the federalist dominated Congress reconvened in a lame duck session to pass the Judiciary Act of 1801. It expanded the number of federal circuit courts from the original 3 to 16, reduced the number of Supreme Court Justices from six to five to give Jefferson one less to appoint, and added scores of federal judicial positions. Prior to Jefferson’s inauguration in March of 1801, President John Adams moved to fill the new positions and did so until his final day in office, known as the “midnight appointments”. Upon taking power, the Jeffersonian republicans repealed the Judiciary Act, vacating the new positions filled by Adams and increasing the number of Justices on the Supreme Court back to six. Later in Jefferson’s presidency, the number would be increased to seven in 1807.

Prior to Adams leaving office, Chief Justice Ellsworth took ill and resigned. After unsuccessfully offering the job to former Chief Justice John Jay who declined, Adams nominated his Secretary of State, John Marshall, to the position. Though Marshall was an unpopular choice with his fellow federalists, the Senate under pressure from Adams confirmed the appointment. Adams would later call his appointment of Marshall “the proudest act of my life.” For just over a month, Marshall held both positions, Chief Justice and Secretary of State. Marshall would serve as Chief Justice for 34 years and became the first Chief Justice to die in office, his three predecessors all having resigned. His 34 year tenure remains the longest of any Chief Justice.

Marshall was known for long conversation in local taverns while riding the circuit. His dress was often described as slovenly. He reputedly served spirits during Court conferences when it rained to maintain a jovial spirit among the Justices. When it did not rain, he would announce that it must be raining in one of the circuits and would bring out the spirits. There is no evidence that he is related to Jimmy Buffett or had any influence on the line, “It’s five o’clock somewhere.”

Beginning with its decision in Marbury v. Madison, the Marshall Court moved to enhance both the power of the federal government and the Court itself. Marbury v. Madison was a contentious case that drew national attention. Prior to the decision, and with many still chafing from the Chisholm decision, the case was attended by calls for the impeachment of the Supreme Court in its entirety. Marshall crafted a nuanced triparte opinion that gave comfort to all but victory to none, quieting the fervor for impeaching the existing Court. The opinion found that Marbury had a right to his commission as an Adams’ “midnight appointee”, but that the Court could not require the Jefferson administration to give it to him.

In the process, the decision also asserted that it was the exclusive province of the courts to be final arbiter in interpreting the meaning of the Constitution. The doctrine is found most profoundly in what reads almost like an afterthought. After asserting the supremacy of the Constitution over all other laws, and overruling part of the Judiciary Act of 1789, Marshall said, “It is, emphatically, the province and duty of the judicial department, to say what the law is.” That pronouncement, a radical assumption of power by the Court at the time, is still followed today.

The subsequent unsuccessful attempt to impeach Justice Samuel Chase put to final rest the idea of impeaching the entire Supreme Court. It did, however, result in one notable quote. A federalist senator opposed to Chase’s impeachment said, referring to President Thomas Jefferson and Vice President Aaron Burr,

“We are indeed fallen on evil times. The high office of President is filled by an infidel; that of Vice-President by a murderer.”

The notion of federal supremacy, as opposed to state law, took deep root during the controversy surrounding the establishment of the national bank. In 1819, the Marshall Court took up the question of Maryland imposing a tax on the national bank in an attempt to drive it from the state. Maryland argued , as reported at the time:

“Where does the Constitution say Congress has power to create a national bank? … Nowhere! He thundered. It lists specific powers, and making banks is not one of them. Mr. Webster says it implies such a power. Nonsense!”

The Court found the argument of Daniel Webster, representing the bank, more persuasive. The Marshall Court found that,

“because the Union is emphatically, and truly, a government of the people, it must prevail over the states. To specific powers of Congress, the Constitution adds powers to make all laws ‘necessary and proper’ for carrying them into effect.”

The ruling went on to find that so long as the ends of federal legislation are constitutionally legitimate, Congress may use all means which are appropriate, and not specifically prohibited, to achieve those ends.

Virginia filed an official protest. Ohio “seized” assets by force from the national bank. The controversy raged until Andrew Jackson vetoed renewal of the bank’s charter in 1836.

The assertion of federal supremacy, or assault on states’ rights depending on one’s view, continued when the Supreme Court ruled on Virginia’s attempt to prevent the sale of federal lottery tickets in the state. The Virginia General Assembly passed a resolution that the Supreme Court had no jurisdiction to hear the case. Marshall insisted that the Court hear it anyway.

Then came the “steamboat cases”. At the time, states were giving exclusive, often monopolistic, licenses to freight carriers within the state, including steamboats. These included monopolies on the Hudson River granted by New York and a similar monopoly at the Port of New Orleans. Interstate hostilities grew to the point that New Jersey passed a law allowing its citizens to seize steamboats owned by New Yorkers.

Meanwhile, the federal government passed its own law regulating steamship operation for national coastal trading. The Marshall Court again took the side of federal supremacy, overturning state laws to the contrary. As a result of the decision, not only did steamboats navigate under federal regulation, but steam cars and railroads soon used the precedent to cross state lines and move across the country.

Chief Justice Marshall was replaced in 1836 by Andrew Jackson appointee, Roger Taney. Prior to his nomination for Chief Justice, Taney had twice before been rejected by the Senate. He was the first cabinet appointee to fail in the confirmation process when Jackson nominated him to be Treasury Secretary. When Jackson later nominated Taney to a vacant position as an Associate Justice of the Supreme Court, Whigs blocked the vote and introduced legislation to abolish the open Supreme Court seat.

Called a “political hack” and reviled by the likes of Daniel Webster, Taney’s confirmation battle for Chief Justice raged for three months. Conservatives feared what his democratic leanings would mean for property. Nowhere was the concern more pronounced than in southern states where “property” included slaves. Some went so far as to threaten to shoot slaves in the field rather than have their “property rights” stripped by the Supreme Court. It was an odd fear given that Taney, as Jackson’s Attorney General, had written opinions supporting South Carolina’s law forbidding free Blacks from entering the state and had argued that Blacks could not be U. S. citizens.

In 1857, Taney, far more inclined to states’ rights than his predecessor John Marshall, presided in the now infamous Dred Scott decision, where the Court found that slaves were indeed “property” and could not achieve citizenship by living for years in free states. The law of Missouri, a slave state, would prevail. Taney and two other Justices dissented. Dred Scott’s “owner”, after battling for years in the courts over his “property rights”, freed him.

One lawyer, then running for the U. S. Senate, chafed at the ruling. “One decision settles one case; it does not even settle the law, still less the future of the country,” said unsuccessful Senate candidate Abraham Lincoln.

Later, when Lincoln suspended habeas corpus, Taney challenged him. Taney went to Baltimore where he personally issued a writ of habeas corpus to bring one John Merryman before the court for explanation of his detention. The writ was prevented from being served by a military sentry. Taney responded by challenging the President’s right to usurp legislative and judicial power, calling on him to uphold the law and honor the courts. Congress backed Lincoln’s decision, but after the war and with Taney then dead, Merryman’s writ was heard, and he was set free.

Sources: Wikipedia;;;; Constitution of the United States (annotated); and the Supreme Court Historical Society.

This is Part II of a series. The early years of the Court were examined in Part I. Part III will look at the years beginning with and following the Civil War.

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