Though the first holders of the job thought it more
a burden than a position of honor or power, the office
of Chief Justice of the United States has a pivotal
role in the American constitutional system, thanks mainly
to John Marshall (1755-1835). Born in Virginia in 1755,
Marshall was a veteran of the Continental Army and one
of the first students to hear the law lectures delivered
at the College of William and Mary by George Wythe.
Marshall distinguished himself as a rising young attorney
and as one of the advocates of the proposed Constitution
in the 1788 Virginia ratifying convention. In 1798,
he was one of three American diplomats sent to France
by President John Adams to negotiate differences between
the new nation and the revolutionary republic. Embroiled
in the XYZ Affair, Marshall brought the news of the
scandal home to America, where he was lionized as a
hero. When Adams fired Secretary of State Timothy Pickering
in 1800, he named Marshall to the post, and in 1801,
as one of the last acts of his presidency, Adams named
Marshall to succeed Oliver Ellsworth as Chief Justice,
after John Jay declined reappointment. Marshall, at
45, was the youngest man named to the post.
During his thirty-four years as Chief Justice (still
a record in the Court’s history), John Marshall
transformed the Court’s position within the constitutional
system and fought a vigorous and skilled battle to uphold
federal authority over interstate commerce and in relations
between the federal government and the states. Marshall’s
record of achievement began with Marbury v. Madison
(1803), in which he vindicated the Court’s power
of judicial review (the power to review the constitutionality
of federal or state laws or other governmental actions)
and laid the foundations of federal constitutional jurisprudence.
In Fletcher v. Peck (1810), Marshall held that
a land grant was a contract that a state could not revoke
without violating the Constitution’s clause protecting
contracts; in Dartmouth College v. Woodward
(1819), Marshall reaffirmed Fletcher and extended it
to protect state laws of incorporation – in this
case, incorporating a college – from later state
government attempts to revoke them. In McCullough
v. Maryland (1819), Marshall led the Court in vindicating
federal authority by striking down as unconstitutional
a Maryland law seeking to tax the Bank of the United
States, an agency of the federal government.
And, in a series of major cases interpreting the Constitution’s
clause granting Congress the power to regulate interstate
commerce, Marshall and his colleagues vindicated federal
regulatory power. Gibbons v. Ogden (1824),
for example, struck down a New York law giving a steamship
company an exclusive monopoly over traffic across the
Hudson River between New York and New Jersey. Brown
v. Maryland (1827) addressed the issue when federal
authority over interstate commerce ended and state authority
began, focusing on the question whether the goods at
issue were still in their original package – if
so, then federal authority did not end, but if not,
then state authority took over when the original package
was opened. In Marshall’s last major constitutional
case, Barron v. Baltimore (1833), the Chief
Justice rejected an argument by a Marylander that the
city of Baltimore had violated the Fifth Amendment by
a harbor-reconstruction program that destroyed the value
of his wharf; Marshall held that the framers and ratifiers
of the federal Constitution’s Bill of Rights had
intended it only to limit the powers of the federal
government, not the states.
Besides the great precedents, Marshall changed key elements
of the way that the Court did business. Before Marshall,
for example, each Justice delivered his opinion on each
case heard by the Court, in a practice known as seriatim
opinions (from the Latin meaning “in a series”),
and it required much labor and legal knowledge to work
out how the Justices had decided a given case. Marshall
introduced the “opinion for the Court,”
in which one member of the Court (in most cases Marshall
himself) delivered a statement of the Court’s
decision and the reasoning undergirding its decision.
Any justice who disagreed could write and deliver a
dissenting opinion, though – as Justice William
Johnson reported to an enraged former president Thomas
Jefferson, who had named him to the Court to counter
Marshall’s influence —the would-be dissenter
usually quailed in the face of the visible disappointment
and hurt feelings of his colleagues.
After Marshall died, on 6 July 1835, speculation was
rife as to who his successor would be. President Andrew
Jackson had had reason to resent Marshall for his decisions
in 1831 and 1832 of cases in which the Cherokee nation
sought to prevent the state of Georgia from taking its
ancestral lands; Jackson had refused to enforce Worcester
v. Georgia, and the state evicted the Cherokee
people, forcing them to beat a heartbreaking and agonizing
retreat westward, known thereafter as “the trail
of tears.”
On December 28, 1835, Jackson named his longtime ally,
Roger Brooke Taney (pronounced "tawny") of
Maryland as the nation’s fifth Chief Justice.
Taney had served Jackson as Attorney General and as
Secretary of the Treasury (as a recess appointment),
winning a reputation as a loyal Jacksonian who would
craft legal arguments to his chief’s political
advantage. As Treasury Secretary, Taney enforced Jackson’s
decision to remove federal deposits from the Bank of
the United States after two previous Treasury Secretaries
had refused to do so. An outraged Senate refused to
confirm Taney’s appointment, and Taney resigned.
Jackson later attempted to name Taney an Associate Justice
but the Senate again refused. Only in the spring of
1836 did the Senate relent and confirm Jackson’s
nomination of the Marylander to succeed John Marshall.
Admirers of Marshall, from his junior colleague on the
Court Joseph Story to such notable attorneys and politicians
as Daniel Webster, were aghast. Taney, in their view,
was nothing but a conscienceless political operative
who would follow the dictates of his chief, President
Jackson, and gut the idea of the rule of law. Story
viewed as a sign of impending trouble the Court’s
1837 decision of Charles River Bridge v. Warren
Bridge. In that case, two companies building bridges
over the Charles River in eastern Massachusetts came
to legal blows because the Charles River Bridge Company
claimed that it held an exclusive right, based on a
grant from the state legislature, to operate a bridge
over the river. Taney and the majority held that the
grant should be read narrowly to permit both the Charles
River Bridge Company and the company building the Warren
Bridge to operate bridges; Taney also insisted that
the rights and interests of the public were as relevant
to the Court’s decision of the case as the terms
of the original grant, and the public interest cut against
the granting of such monopolies.
In his first decades on the Court, despite some fevered
denunciations of Charles River Bridge, Taney
surprised and gratified his opponents by following a
careful, nuanced path in interpreting the Constitution.
Taney preferred to stick more closely to the letter
of the Constitution and to balance competing claims
of federal and state authority over commerce.
In a series of commerce clause cases, Taney and his
colleagues recognized that states as well as the federal
government had vital interests in regulating interstate
commerce, and worked to find mutually satisfactory formulas
to preserve federal supremacy while making room for
state regulation. Thus, for example, in Mayor of
New York v. Miln (1837), the Taney Court upheld,
over a bitter dissent by Justice Story, a New York statute
requiring all ships’ captains to give local authorities
a manifest listing all passengers being brought into
the state, citing the state’s interests in ensuring
that paupers or other undesirable persons not enter
the state. In Cooley v. Board of Port Wardens
(1851), the Taney Court held that Philadelphia could
require ships either to retain a local pilot to steer
the ship into port or to pay a fee. The Justices agreed
that Congress had not legislated in this area to exclude
state authority. In particular, Taney was noted for
his articulation and development of the doctrine of
the state's "police power"—the power
to regulate in the interests of the health, safety,
welfare, and morals of the state's citizens.
Taney and his colleagues also were careful to conserve
the authority of the Court. In a notable case emerging
from Rhode Island, Luther v. Borden (1849),
the Taney Court took pains not to get involved in a
bitter constitutional dispute that had come perilously
close to plunging the state into civil war. Instead,
Taney and the other members of the Court defined a class
of issues called "political questions" better
left for resolution to the political branches of the
government than to the judiciary. Thus, the Court refused
to enforce the Constitution’s clause guaranteeing
to each state a republican form of government, holding
that that clause was best enforced by the President
and Congress.
Taney and his colleagues did, however, depart from this
nuanced and thoughtful approach to constitutional jurisprudence
in cases involving state laws restricting the rights
of slaveholders. In those cases, they were willing to
deploy the full weight of the Supreme Court to vindicate
national supremacy, which thus as a practical matter
meant favoring the rights of slaveholders over the attempts
of antislavery state governments to strike at slavery
or hobble its enforcement within their borders. The
common element in these cases was the crossing of state
boundaries by slaves—whether as runaways or apprehended
runaways, or as property brought across state lines
by their masters into either new territories or existing
states.
The most notorious case decided by Taney, and the one
that destroyed his reputation, was Dred Scott v.
Sandford (1857). In this case, a slave, Dred Scott,
sued John F. A. Sanford (the court reporter misspelled
his name as Sandford), the executor of his owner’s
estate for his freedom on the ground that his owner
had taken him into a free state and a free territory,
making him legally free. The case rose slowly through
the court system of Missouri and then reached the US
Supreme Court. Six Justices, led by Samuel Nelson of
New York, saw a narrow technical way out of the case
– holding, under Missouri law, that Scott as a
slave could not sue or be sued in state or federal court.
Chief Justice Taney, however, was bent on using the
case as a vehicle to do something much broader.
On March 6, 1857, Taney issued his opinion in Dred
Scott v. Sandford, which generally was regarded
as the opinion of the Court, despite the presence of
six concurring and two dissenting opinions. Taney’s
sweeping opinion held that, under the original intent
of the framers of the Constitution, those of African
descent had no rights that members of the white race
“were bound to respect;” that the right
to own slaves was a property right like any other property
right protected by the Fifth Amendment to the Constitution;
that the Constitution granted no power to the federal
government to limit the spread of slavery; and that
such earlier federal attempts to limit slavery’s
spread into the territories as the 1820 Missouri Compromise
were unconstitutional. Scott, Taney held, was a slave
and must remain so.
Taney seemingly intended his opinion to be an authoritative
judicial resolution of the slavery issue in national
politics, and in particular a rebuke to abolitionists
and those who would demand the use of federal power
to restrict slavery’s spread. If so, his hopes
were dashed, for his opinion for the Court backfired,
inflaming slavery agitation throughout the nation, spurring
abolitionists and anti-expansionists to redouble their
efforts, and damaging his reputation and the Court’s
authority in equal measure. Indeed, the Republican Party’s
1860 Presidential candidate, Abraham Lincoln of Illinois,
made his national reputation in the years preceding
his nomination by delivering eloquent and stinging attacks
on the legitimacy of the Dred Scott decision and even,
in a powerful 1860 lecture at New York’s Cooper
Union, refuting Taney’s original intent argument.
With Lincoln’s election as President in 1860,
and his vigorous use of executive authority to counter
Southern states’ attempts to leave the Union,
Taney engaged in a futile judicial rear-guard action,
using decisions he handed down in the US Circuit Court
for the District of Columbia in repeated attempts to
frustrate Lincoln’s measures. Ironically, Lincoln
paid as little heed to Taney’s actions as Jackson
had paid to John Marshall’s opinion for the Court
in Worcester v. Georgia. Taney died in 1864,
embittered and despairing of the Court’s authority.
Whereas John Marshall continues to be venerated as the
great Chief Jutice, Roger B. Taney’s historical
reputation continues under the cloud cast by Dred
Scott v. Sandford. Though scholars have sought
to restore some measure of his reputation based on his
contributions to constitutional jurisprudence in the
fields of the commerce clause, the states’ police
power, and the political-question doctrine, he always
will be the man who rejected the idea that blacks had
any rights that whites were bound to respect.
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