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. This narrative, familiar to law students, has certainly taken on new relevance in the age of Donald Trump, when battles between the president, the chief justice and the courts are once again provoking talk of constitutional crisis. Brookhiser, a senior editor of National Review and the author of several books on the founding fathers, draws no present-day parallels, but it’s impossible not to think of our current vexations when reviewing 19th-century Republican efforts to impeach Federalist judges. The House did indeed impeach a Federalist justice, Samuel Chase, for being “highly arbitrary, oppressive and unjust,” but after Marshall testified for Chase, the Senate acquitted him. Congress then expanded the size of the Supreme Court from six justices to seven, to give Jefferson the chance to fill vacancies with Republicans. But Marshall won over the Republican justices by convincing them of the court’s institutional legitimacy.
At a time of tribalism and polarization, culminating in threats by the states to nullify federal laws and secede from the Union, Marshall’s central idea, shared with his Federalist heroes George Washington and Alexander Hamilton, was that “we the people” of the United States as a whole are sovereign and united, as opposed to “we the people” of the individual states. “Our Constitution is not a compact” of states, Marshall wrote in an anonymous pamphlet defending his own opinion upholding Congress’s power to charter the Bank of the United States. “It is the act of a single party. It is the act of [the] people of the United States.” (Abraham Lincoln invoked the same argument in denying the South’s power to secede from the Union.) In an opinion echoing Washington’s Farewell Address, which had defined the United States as “one people,” Marshall wrote an eloquent paean to national unity: “In war, we are one people. In making peace, we are one people. In all commercial regulations, we are one and the same people.” Insisting that America was a republic rather than a direct democracy, he criticized Jefferson as a proto-Trumpian demagogue: “His great power … is chiefly acquired by professions of democracy. Every check on the wild impulse of the moment is [therefore] a check on his own power. … He looks, of course, with an ill will at an independent judiciary.” Jefferson’s allies, led by Senator Richard Mentor Johnson of Kentucky, responded by proposing to attack judicial independence by limiting the tenure of federal judges, preventing the federal courts from hearing cases, making judges removable by Congress, allowing the Senate to overturn the Supreme Court and increasing the size of the court to 10 justices. Although Johnson was a populist legend for having killed the Shawnee chief Tecumseh, these proposals went nowhere because of the bipartisan unity on the court that Marshall managed to inspire.
Could the Supreme Court under Chief Justice John Roberts, who has embraced Marshall as his model, play a similar unifying role in defending the Constitution against populist threats to judicial independence today? That depends on his fellow justices. And although Brookhiser’s biography reminds us that American politics has always been polarized, today the polarization threatens to transform the deliberations of the court. The life of Marshall reminds us of the urgent importance of Roberts’s efforts to persuade his colleagues to unite around a shared commitment to defending the legitimacy of the court by rising above partisan politics.