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The judiciary is the unelected branch of the federal government, yet of late it has been thrust into the center of the political arena as a bone of contention, maybe even a contestant. In January 2010, the Supreme Court gutted federal limits on corporate campaign spending on the grounds that they violated the First Amendment. In his State of the Union address six days later, President Barack Obama chided the justices seated before him for “open[ing] the floodgates for special interests.” Two and a half years later, the court narrowly upheld Obama’s Affordable Care Act, with conservative Chief Justice John Roberts siding with his liberal colleagues. Immediately the pundits asked: Had Roberts tailored his vote to deflect more presidential criticism? Especially in an election year when “Obamacare” was sure to be a major campaign issue?

The judiciary and the presidency have been in each other’s faces for a long time. The first clash pitted Chief Justice John Marshall against President Thomas Jefferson. Marshall’s win in that struggle established the independence of the courts, including their power to strike down federal laws—but it also set them up to be a political lightning rod in years to come.

Marshall and Jefferson reached their high offices one month apart. Marshall became chief justice in February 1801, a lame-duck appointee of outgoing President John Adams. Jefferson, Adams’ successor, was inaugurated in March. They were cousins and members of the same Virginia gentry, but political rivals— Marshall was a Federalist, Jefferson a Republican. They also deeply disliked each other. Marshall thought Jefferson was a fraud whose libertarian rhetoric masked an itch for power. Jefferson feared Marshall’s sinuous mind. “When conversing with Marshall,” Jefferson said, “I never admit anything….So great is his sophistry you must never give him an affirmative answer or you will be forced to grant his conclusion. Why, if he were to ask me if it were daylight or not, I’d reply, ‘Sir, I don’t know, I can’t tell.’”

Jefferson came into the White House buttressed by Republican majorities in both houses of Congress. By contrast, all Marshall could rely on to persuade his fellow justices and to appeal to the public was his brains— and his considerable charm. “I love his laugh,” one admiring colleague wrote.

Jefferson struck the first blow when Congress, acting on a suggestion in his inaugural address, cut back the circuit court system as an economy measure, eliminating over a dozen judgeships, most held by Federalists. Federalists protested that the Constitution guaranteed life tenure for federal judges, so long as they exhibited “good behavior.” Republicans countered that they weren’t punishing judges, only getting rid of their jobs. But Jefferson soon showed that he wanted to punish individual judges too. In February 1803, he asked the House of Representatives to look into the behavior of John Pickering, a district court judge in New Hampshire who was a deranged alcoholic. By bringing him to the attention of the House, which holds the power of impeachment, Jefferson was defining Pickering’s disability as a high crime or a misdemeanor. If Congress could use the impeachment power to dismiss drunken judges, could it be used for other purposes?

Shortly after Jefferson fingered Pickering, he turned to Samuel Chase, an associate justice of the Supreme Court. Chase, nicknamed “Bacon Face,” was a choleric Federalist with a ruddy complexion. In May 1803 he declared, in a lecture to a grand jury, that Jefferson and his party were turning the government into a “mobocracy.” Jefferson called Chase’s remarks “seditious” and asked a friendly congressman to impeach him too.

Meanwhile, Marshall was not idle. A suit against the Jefferson administration, Marbury v. Madison, had been brought before the Supreme Court. William Marbury, another of John Adams’ last-minute appointees, had been made a justice of the peace in the District of Columbia. But Jefferson withheld Marbury’s commission. Marbury asked the Supreme Court to issue a writ of mandamus (Latin for “we command”) ordering James Madison, Jefferson’s secretary of state, to give him his job.

In February 1803, the Supreme Court decided the case. The ruling was unanimous, as many decisions of the Marshall court were, with the opinion written by Marshall himself. He found that Marbury’s commission was valid. But he also concluded that the law Congress passed in 1789 allowing the Supreme Court to issue writs of mandamus was invalid, because the Constitution had not given the Supreme Court such a power. Any “law repugnant to the Constitution is void,” argued Marshall, and it is “emphatically the province and duty of the judicial department” to make that clear. So the court rejected Marbury’s petition, but in the process enunciated a principle that Jefferson called “a very dangerous doctrine indeed.”

Marshall had laid down a momentous marker, the foundation of judicial review. But could he and his colleagues keep their jobs? In March 1804 the Senate, which tries impeachments, removed the hapless Judge Pickering from the bench. In December the House voted to impeach Justice Chase. If Chase fell, everyone believed Chief Justice Marshall would be targeted next.

The Senate’s trial of Justice Chase began February 4, 1805. The partisan breakdown of the Senate looked bad for Chase. Of 34 senators, 25 were Republicans and only 9 were Federalists; 23 votes (two-thirds) would be necessary to convict. But the case against Chase had its problems. The lead prosecutor was John Randolph, a young Virginia congressman who was eloquent but eccentric and ignorant of the law. He presented eight charges, one concerning Chase’s “mobocracy” remarks, the others all old business (“nauseating littlenesses,” one senator called them). Chase was defended by a team of the best lawyers in America.

The case hinged on the essential nature of impeachment. Was it removal for misbehavior of any kind, including expressing opinions that Thomas Jefferson disliked? Or was it a punishment for indictable offenses? Randolph floundered, pleading illness and even at one point the loss of his notes. The defense hammered at Chase’s innocence of any actual crime. One of the witnesses called to testify to Chase’s good conduct was none other than Chief Justice Marshall; his demeanor under cross-examination by Randolph was dignified and calm.

On March 1 the Senate voted. Eight times all 34 senators were asked to say “Guilty” or “Not guilty.” Thanks to Jefferson’s overreaching, Randolph’s bungling and Chase’s dream team, Chase was cleared on every count.

Jefferson would go to his grave complaining about the power of the judiciary, but he never made another serious effort to rein it in. Marshall continued to preside over the Supreme Court, both intellectually and socially. When the justices dined together to discuss cases, their custom was to order wine if the weather was wet. But Marshall liked to say on sunny days, “It must be raining somewhere.” He died in 1835, nine years after Jefferson.

The great face-off between Jefferson and Marshall insulated the judiciary from routine interference by Congress and the president. But the “province and duty” of striking down unconstitutional laws that Marshall asserted in Marbury v. Madison has left a mixed legacy of power and vulnerability. The Dred Scott decision of 1857 repealed the Missouri Compromise— and made the court a punching bag for Abraham Lincoln and the second Republican Party. When the court struck down New Deal legislation in the 1930s, President Franklin Roosevelt tried to restructure it. Only a voter backlash—and some timely rulings in favor of the New Deal—saved the court as we know it.

Genial John Marshall extended the court’s reach, at the expense of its peace of mind and its reputation for impartiality.


Originally published in the December 2012 issue of American History. To subscribe, click here.