A Republican president and Congress declare war on the federal courts, eliminating newly created judgeships and canceling the Supreme Court session so the court can’t meet for more than a year. The chief justice, who considers the president a populist demagogue, fears further attacks on judicial independence. The president accuses his former vice president of treason, and the chief justice presides over the trial himself, upholding a subpoena that requires the president to turn over relevant evidence. And after the vice president is acquitted, the chief justice leads a court that represents the last bastion of resistance to mob rule, defending the sanctity of contracts against attacks from populist presidents and the states, upholding the power of Congress to regulate the national economy and forcing the president and state courts to acknowledge the supremacy of the Constitution.
Chief Justice John Marshall’s battles with Thomas Jefferson and then Andrew Jackson, the two populist presidents in question, seem freshly relevant in our age of renewed anxieties about the future of the American republic. And, as Richard Brookhiser’s fine new biography, “John Marshall,” makes clear, the polarization of the age of Marshall matched (or even surpassed) our current battles over the composition of the Supreme Court. What differed in Marshall’s day was the great chief’s ability to win over Republican justices appointed by his archrival, Thomas Jefferson, and to join him in a series of unanimous opinions. By persuading the justices to set aside their partisan differences and to speak in one voice, Marshall established the court as an emblem of bipartisan legitimacy in a polarized time.
As Brookhiser’s compact and balanced account makes clear, Marshall famously transformed the judicial branch into one fully equal to the president and Congress in stature and legitimacy. And he did so by declining to pick political fights he couldn’t win in the short term while declaring broad constitutional principles that would shore up the authority of the courts in the long term. Read more