Lawyers Journal

This is the first of a three-part series the MBA will run discussing the contributions of the chief justices to this nation, summarizing their impact on the court and American history. As we look to learn from the “Shaping the Future of the Legal Profession” Annual Conference in March, some context for the rich history of the Supreme Court will provide a further appreciation of the past.

Since the establishment of the Supreme Court, 17 individuals have served as chief justice. All have contributed to the development of this nation and its laws. During the years immediately after ratification of the Constitution, three different men served as chief justice, all of whom were Federalists appointed by George Washington. The early court was not the robust institution that it has become today. That changed with John Adam’s lame duck appointment in 1801 of John Marshall, a Federalist. Chief Justice Marshall issued decisions that elevated the court to a status more equal to the legislative and executive branches, starting with his famous opinion in Marbury v. Madison, which set the precedent for judicial review of federal law. He presided over the court for 34 years, until his death in 1835.

Roger B. Taney, Marshall’s successor and an Andrew Jackson appointee, also profoundly influenced U.S. history with his infamous Dred Scott decision that may have hastened the nation’s plunge into Civil War. The court more vigorously acted to curb executive and legislative authority under Melville W. Fuller at the turn of the 20th century, and later under Charles Evans Hughes during Franklin D. Roosevelt’s presidency and the New Deal.

Perhaps the court’s high tide in overruling state and federal legislation occurred during Earl Warren’s tenure as chief justice in the 1950s and 1960s. That era saw the expansion of the court’s involvement in civil rights cases and efforts to limit governmental power over individuals, often at the expense of federal and state legislatures. President Richard Nixon’s appointments to the court, including Chief Justice Warren E. Burger and Associate Justice William H. Rehnquist, slowed this trend. It remains to be seen how the recently appointed chief justice, John G. Roberts, will influence American history, but his impact will likely be substantial.

After ratification of the Constitution, President George Washington selected John Jay as the first chief justice of the Supreme Court in 1789, to preside over five associate justices. The early court heard relatively few cases and decided, soon after its formation, that it would not issue advisory opinions for the other branches of government. The most significant case decided by the Jay Court was Chisholm v. Georgia, 2 U.S. 419 (1793), which upheld a South Carolina citizen’s right to sue the state of Georgia. At this time, the United States was a loose confederation of sovereign states, and the court’s decision troubled many Americans because it challenged state sovereignty. Chisholm was quickly overturned by the ratification of the Eleventh Amendment, which removed from the federal courts’ jurisdiction suits brought against a state by a citizen of another state.

While serving as chief justice, Jay was dispatched to London as a diplomat to negotiate a treaty with the British. Jay’s efforts resulted in a treaty entitled “A Treaty of Amity, Commerce and Navigation, Between His Britannic Majesty and the United States of America,” but popularly known as Jay’s Treaty. The treaty was intended to improve the young nation’s difficult relations with its former ruler by forming trade agreements and reaffirming the British commitment to remove troops from the Northwest Territories that Britain had ceded to the United States at the end of the Revolutionary War. However, the treaty also required the United States to honor debts to British creditors incurred before the conclusion of the Revolutionary War. At the time, many Americans were sharply divided over U.S. foreign policy. The Federalist Party, which controlled the Senate, preferred improving relationships with Great Britain, while the Republicans, led by Thomas Jefferson and James Madison, favored revolutionary France.

The Republicans assailed Jay’s Treaty as a capitulation to the British and a snub to the French, who had stood by the United States during the Revolution. Angry mobs burned Jay in effigy throughout the nation. The treaty was barely ratified by two-thirds of the Senate, and only because of Washington’s lobbying.

Jay resigned from the court in 1795. The animosity generated against him by Jay’s Treaty did not prevent him from serving two terms as governor of New York, a position that he held from 1795 until 1801. President John Adams offered to reappoint Jay as chief justice in 1800, but Jay declined, maintaining that the court lacked the energy needed to support the national government. Jay’s doubts about the court’s vitality would prove to be ironic, given the role that John Marshall, Adam’s subsequent choice for chief justice, would play in developing the powers of the federal judiciary.

Jay retired from public life after the end of his term as governor of New York in 1801. He died in 1829.

John Rutledge, rejected by Senate

Washington appointed Rutledge as an associate justice of the Supreme Court in 1790, but Rutledge served in that position for only about a year before resigning to accept the position of chief justice of the South Carolina Supreme Court in 1791. Rutledge returned to the United States Supreme Court in 1795, this time as chief justice, following Jay’s resignation. He held this office for a mere four months. His tenure as chief justice is not remembered for any important decisions, but it was noteworthy for two reasons; namely, how he came to be chief justice, and how his term came to an end.

Article II, Section 2 of the Constitution authorizes the president to make recess appointments to fill vacant judicial positions while the Senate is in recess. However, these so-called “recess” appointments expire automatically when the Senate’s next session expires. Washington appointed Rutledge to chief justice as a recess appointment. After this appointment, Rutledge joined the chorus that attacked Jay’s Treaty, which had been supported by Washington and many members of the Federalist Party to reduce ongoing conflicts with the British. Although the Constitution authorizes the president to nominate Supreme Court justices, such executive power is subject to the advice and consent of the Senate. The Federalist-controlled Senate resented Rutledge’s criticism of Jay’s Treaty. There were also questions about Rutledge’s mental health, due in part to his reaction to his wife’s death in 1792. The Senate rejected Rutledge’s nomination 14 to 10. This rejection has been cited as an early precedent for the Senate using its constitutional power to deny a president’s appointment to the court because of the nominee’s political positions.

Rutledge died on July 18, 1800 in Charleston, South Carolina.

Oliver Ellsworth, promoter of the Constitution

After John Rutledge’s brief term, Washington nominated Oliver Ellsworth as chief justice. The Senate approved this nomination.

Ellsworth was a major participant in the drafting and ratification of the U.S. Constitution. Perhaps the most divisive problem facing the drafters in 1787 was representation of small states and large states in the national legislature. Some drafters advocated that representation should be based on the number of persons (both free and slave) residing in each state. Others proposed that representation should be equal for all states, regardless of the sizes of their populations. This proved to be a nettlesome problem until Ellsworth, together with fellow Connecticut delegate Roger Sherman, proposed what would come to be known as the Great Compromise. Under his plan, the national legislature was divided into two separate houses, the House of Representatives, which provides for representation weighted in favor of states with larger populations, and the Senate, which provides for equal representation of all states. Proposed legislation must be accepted by majorities in both houses before it can be passed along to the president. The Great Compromise laid the foundation for the national legislature and paved the way for ratification of the Constitution. It continues to operate as the blueprint for our national legislature to this day.

Unfortunately, the Great Compromise, by itself, did not completely solve the problem of allocating representation among the several states. The southern states, with their large slave populations, wanted their slave populations to be considered for purposes of determining representation in the House of Representatives. The northern states saw this as a disadvantage. Ellsworth favored the notorious Three-Fifths Compromise to address the disagreement. The Three-Fifths Compromise was added to the Constitution to allow southern states to include three-fifths of their slave populations for purposes of allocating representation in the House of Representatives.

Between 1789 and 1796, Ellsworth served as one of Connecticut’s first two senators in the newly created U.S. Senate. He collaborated with James Madison in drafting the Judiciary Act of 1789 governing the structure of the new federal judiciary.

Ellsworth served as chief justice from 1796 until his retirement in 1800. While chief justice, Ellsworth also served as a commissioner to France. The court’s activities during this period were unremarkable, especially compared with the constitutional law decisions that followed. One case of some interest was Calder v. Bull, 3 U.S. 368 (1798), which refused to extend the Constitution’s prohibition against ex post facto laws beyond criminal statutes.

After his retirement from the court, Ellsworth returned to the Connecticut governor’s council, where he served from 1801 to 1807. He died on Nov. 26, 1807 in Windsor, Conn.

John Marshall, father of American constitutional law

Thomas Jefferson’s election as president in 1800 was a rejection of President John Adams and his troubled Federalist party. Shortly before Jefferson’s inauguration, the defeated Adams appointed John Marshall as chief justice. This appointment riled Jefferson, not only because it denied Jefferson the opportunity to make his own selection, but also because Marshall had been a Federalist adversary of Jefferson in Virginia. Nevertheless, the lame-duck Federalist Senate confirmed Marshall’s appointment, and Marshall began his tenure as chief justice in February of 1801, mere weeks before Jefferson’s inauguration. Marshall actually served as secretary of state and chief justice simultaneously for about a month. His tenure as chief justice would last into 1835.

In February of 1803, Chief Justice Marshall handed down the court’s decision in Marbury v. Madison. The facts of the case were mundane. In the waning days of his administration, Adams had appointed several of his political allies to federal judgeships, including William Marbury. Marshall, as secretary of state, had neglected to deliver Marbury’s commission, and Marshall’s successor, James Madison, acting on Jefferson’s instructions, refused to deliver it. Madison’s refusal prevented Marbury from taking his seat on the court. Marbury filed suit with the Supreme Court, seeking a mandamus requiring the delivery of the commission.

The court’s decision began with a conclusion that the Jefferson administration had no right to withhold the commission, but then proceeded to hold that the Judiciary Act of 1789, to the extent that it conferred original jurisdiction over Marbury’s case upon the Supreme Court, was unconstitutional. In arriving at this decision, Chief Justice Marshall expounded two principals that have become the cornerstones of American constitutional law. First, where an ordinary act of the legislature conflicts with the Constitution, the Constitution will govern; and second, it is the duty of the judiciary to recognize such conflicts and to resolve them in favor of the Constitution. The genius of the court’s opinion is that it expanded the judiciary’s role in the federal government, while denying the court’s own jurisdiction over Marbury’s suit. The court also cleverly avoided an immediate standoff with the executive branch, which the court probably could not have won at the time. More than 50 years would pass before the court would again find a federal law to be unconstitutional.

The Marshall Court issued landmark decisions defining governmental powers under the Constitution. In Martin v. Hunter’s Lessee, 14 U.S. 304 (1816), and Cohens v. Virginia, 19 U.S. 264 (1821), the Supreme Court established that federal law is supreme over state law. The court held in Dartmouth College v. Woodward, 17 U.S. (4 Wheaton) 518 (1819) that the contract clause of the Constitution prevented a state from usurping the powers to govern a private college established by a corporate charter. M’Cullough v. Maryland, 17 U.S. 327 (1819) involved an early interpretation of Congress’s powers under the Constitution. Congress had established a national bank, even though the Constitution does not specifically authorize Congress to do so. The court upheld this act of Congress, because the Constitution empowers Congress “to make all laws that shall be necessary and proper for carrying into execution” the specific powers of the federal government. Further, the court ruled that a state could not tax local branches of the national bank, noting that “the power to tax involves the power to destroy.” M’Cullough set the stage for the expansion of federal power that is today taken for granted.

The Marshall Court held in Gibbons v. Ogden, 22 U.S. 1 (1824) that the Constitution’s commerce clause gave the federal government, at the expense of the states, exclusive power to regulate interstate commerce. Future court decisions would cite Ogden to further expand the powers of the national legislature under the commerce clause, until today it is assumed that Congress can regulate virtually all activity that may potentially affect interstate commerce.

The United States underwent major changes in the early 1830’s, following the election of Andrew Jackson, a Democrat, as president. Jackson disliked Chief Justice Marshall, who was beginning his fourth decade as head of the Supreme Court. This antagonism was most evident in a pair of cases involving the Cherokee Nation. The state of Georgia had sanctioned settlement in Native American lands held by the Cherokee tribe. In a pair of decisions, Cherokee Nation v. Georgia, 30 U.S. 1 (1831), and Worcester v. Georgia, 31 U.S. 515 (1832), the Supreme Court made two significant rulings; first, that the Native American tribes were not sovereign nations, but were subject to federal law; and second, that the Georgia laws involving the Cherokee tribe were unconstitutional.

In a disgraceful chapter of American history, Jackson refused to support the court’s decision. Nearly 46,000 Native Americans were eventually compelled to migrate to the western territories. This forced relocation, which would come to be known as the “Trail of Tears,” resulted in thousands of unnecessary Cherokee deaths. The famous newspaper editor Horace Greeley would later report that after Marshall’s decisions in the Cherokee Nation cases, Jackson had responded, “Well, John Marshall has made his decision, now let him enforce it!” It is debatable whether Jackson actually uttered these words. However, his response to Marshall’s decisions was consistent with that statement.

Marshall died on July 6, 1835 in Philadelphia, after 34 years on the court. No chief justice has ever served for a longer term. He was among the last of a generation that fought for American independence from British colonialism, developed a federal Constitution unifying the newly independent states while assuring individual rights, and established a vigorous federal government for the young nation.

Roger B. Taney and the descent into Civil War

After Marshall’s death in 1835, Jackson appointed one of his loyalists, Roger B. Taney, as Marshall’s replacement. Chief Justice Taney would lead the court until his death in 1864 during the Civil War.

Jackson chose Taney as an associate justice to the Supreme Court, but the Senate punished Taney for his complicity with Jackson’s efforts to dismantle the national bank while Taney was temporarily appointed to be secretary of the treasury. The Senate blocked the appointment with delays until the session of Congress was nearly over. Taney ultimately prevailed in 1836, when a new Senate with a Democrat majority confirmed him as Marshall’s replacement.

One of the Taney Court’s early decisions, Charles River Bridge v. Warren Bridge, 36 U.S. (11 Peters) 419 (1837), limited the holding of the Dartmouth College case, and is of particular interest to Bay Staters. The Massachusetts Legislature had granted the Charles River Bridge Company the right to construct and maintain a toll bridge over the Charles River in 1785. The company’s charter was extended in 1792 for an additional 70 years. In 1828, the Massachusetts Legislature granted the Warren Bridge Company the right to build a competing bridge a few hundred yards from the older bridge. The new bridge was available to the public at no charge and, predictably, it ruined the older bridge’s income stream. The Charles River Bridge Company sued the Warren Bridge Company, alleging an impairment of its contract rights in violation of the Constitution. In a thoughtful opinion, Taney ruled in favor of the Warren Bridge Company, because the grant to the Charles River Bridge Company did not specifically state that it was exclusive.

The Taney Court’s legacy arises primarily from its decisions upholding the rights of slave owners and ensuring the continued bondage of slaves in the years leading up to the Civil War. The court ruled in Prigg v. Commonwealth of Pennsylvania, 41 U.S. 539 (1842), that Pennsylvania could not prosecute someone who had entered the state from Maryland to kidnap and recover a former slave and her child without first seeking judicial process. The court went further in Moore v. Illinois, 55 U.S. 13 (1852), declaring that any state law impeding the slaveholder’s right to immediate possession of his slave was unconstitutional. Given these prior decisions, the court’s ruling in Dred Scott v. Sandford, 60 U.S. (19 Howard) 393 (1857), might not have been shocking. However, Taney’s opinion in that case would go far beyond what was sufficient to dispose of the issue before the court, and would serve as an early example of judicial activism run amok.

Dred Scott was a slave who had been removed from Missouri, and continued in servitude in Illinois and Wisconsin territory, where slavery was illegal. Scott and his master later returned to Missouri, where Scott filed suit, arguing that his transportation into a free state and territory resulted in his freedom. A majority of the court disagreed. Taney rendered an opinion against Scott, citing clauses in the Constitution affording specific protections to slavery. Taney could have stopped there, but his opinion lurched forward, ruling that slaves and their descendants could not be citizens of the United States and could not seek redress in the federal courts, and that the Missouri Compromise enacted by Congress decades earlier was unconstitutional. This was only the second court decision declaring a federal law unconstitutional, the first being Marbury v. Madison. The court’s decision was later overruled by the Thirteenth, Fourteenth and Fifteenth Amendments shortly after the Civil War.

The Dred Scott decision caused an uproar in the northern states. The recently established Republican Party, which included Abraham Lincoln, harshly criticized the ruling. After the election in 1860 and into the Civil War, Lincoln and the chief justice remained antagonists. At the Civil War’s outset, the president authorized General Winfield Scott to secretly suspend the writ of habeas corpus. By May of 1861, numerous Maryland legislators had been quietly arrested and held without charges. In Ex parte Merryman, 17 F. Cas. 144 (1861), Taney, sitting as a circuit judge in the federal court in Maryland, ruled that the Constitution granted to Congress alone the power to suspend the writ of habeas corpus, and that the General Scott’s actions were unconstitutional. Lincoln ignored the chief justice’s decision, and continued the practice. The issue became moot when Congress ratified suspension of the writ in 1863.

Taney died on Oct. 12, 1864. His many years on the court have been remembered primarily for his opinion in the Dred Scott case and its part in the chain of events leading to the Civil War.

Look for Parts II and III of this special series in the February and March issues of Lawyers Journal.