The Virginian Who Shaped the Supreme Court Into a Constitutional Powerhouse

After the draining fight over Brett M. Kavanaugh’s nomination to the U.S. Supreme Court, it’s easy to forget that the court was once a career and a constitutional backwater.

That all changed with the appointment and subsequent effort of one man: Richmond’s own John Marshall.

I asked Joel Paul, a professor at the University of California Hastings Law School and author of “Without Precedent: Chief Justice John Marshall and His Times” how Marshall changed the court and how we arrived at the knock-down, drag-out confirmation fights we see today.

Paul said Marshall “helped make the Supreme Court we know today.”

When Marshall joined the court in 1801, “it was considered a constitutional afterthought,” Paul said.  In its first decade, Paul notes, the court decided just 63, mostly admiralty, cases. As Paul notes in his book, “there were so few federal laws that interesting questions rarely arose.”

A bigger deterrent to taking a Supreme Court job, however, was the prospect of having to ride circuit.

“Justices were expected to ride around the country on horseback and to listen to arguments from poorly trained lawyers,” Paul writes.

“Nobody wanted a job on the court then,” Paul told me.  “It was hell. In Marshall’s day, people were relieved just to have somebody who would take the job.”

Marshall didn’t want the job, either. He wanted to return to Richmond, his family and his private law practice. Paul said he accepted the appointment out of “loyalty to the Federalist Party and John Adams.”

And, unlike the bruising Kavanaugh confirmation fight, Marshall was confirmed in a single day.

But once on the court, Marshall went to work making the constitutional afterthought into a fully functioning third branch of government.

One way he did that, Paul said, was “insisting the court speak with one voice,” ending the practice of each justice writing a separate opinion on every case.

“Marshall wrote opinions most of the time,” Paul said, employing his “gregarious, charming personality and sweet-talking people to his side.”

Of the roughly 1,100 cases decided during his more than three decades of service, only 35 or so were not unanimous.

“This helped give the court more authority and elevate its standing,” Paul said. It also had the perhaps unintended consequence of  “increasing the stakes every time someone was nominated” for a vacancy.

The court’s prominence also rose significantly after Marshall’s first big case: Marbury v. Madison.

“After Marbury,” Paul said, “the court could strike down legislation and check the executive branch. This made the court much more important than it had been before.”

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