Remarks on the 200th Anniversary of the Accession of John Marshall as Chief Justice

Abstract

Remarks on the 200th Anniversary of the Accession of John Marshall as Chief Justice LOUIS H. POLLAK and SHELDON HACKNEY May it please the Court: It was a day in mid-January 1801. John Adams, the President ofthe United States, was con­ ferring with the Secretary of State, John Marshall. President Adams, a Federalist who had been defeated for re-election, had much to do before turning over executive authority to his succes­ sor, Thomas Jefferson, a Republican, in early March. The President’s most important remaining chore was to select and install a new Chief Justice to succeed Oliver Ellsworth, the third Chief Justice, who had resigned a few weeks before. On receipt of Ellsworth’s resignation, the Presi­ dent had at once written, tendering the post, to his old friend John Jay, the first Chief Justice, who had left the bench five years before to become Governor ofNew York and who was now at the close ofhis second term. Concurrent with his letter to Jay, the President had sent Jay’s name to the Senate, which had quickly confirmed the nomination. But Jay did not respond to the Pres­ ident’s letter for some time. And when the letter came, it was in the negative. When Jay was Chief Justice, he had felt strongly that the Judiciary Act of 1789 had imposed on the Justices of the Supreme Court burdensome responsibilities of circuit-riding that were not compatible with the Supreme Court’s appellate responsibilities. In the years since leaving the Court, Jay had not changed his mind: Expectations were . . . entertained that [the Judiciary Act] would be amended as the public mind became more composed and better informed; but those expectations have not been realized nor have we hitherto seen convincing indications of a disposi­ tion in Congress to realize them. On the contrary, the efforts repeatedly made to place the Judicial Depart­ ment on a proper footing have proved fruitless. I left the Bench per- THE ACCESSION OF JOHN MARSHALL AS CHIEF JUSTICE 217 fectly convinced that under a system so defective, it would not obtain the energy, weight, and dignity which are essential to its affording due sup­ port to the National Government, nor acquire the public confidence and re­ spect which, as the last resort of the justice of the nation, it should pos­ sess. Hence, I am induced to doubt both the propriety and the expedi­ ency ofreturning to the Bench, under the present system; especially as it would give some countenance to the neglect and indifference with which the opinions and remonstrances of the Judges on this important subject have been treated.1 Years later, John Marshall recalled his con­ versation with John Adams: When I waited on the President with Mr. Jay[’]s letter declining appoint­ ment he said thoughtfully, “Who shall I nominate now”? I replied that I could not tell,. . . After a few mo­ ments hesitation he said, “I believe I must nominate you”. I had never be­ fore heard myself named for the of­ fice and had not even thought of it. I was pleased as well as surprised, and bowed in silence.2 Notwithstanding some initial resistance from senators of the “High Federalist” faction of the President’s own party, Secretary of State Marshall’s nomination as Chief Justice was confirmed a week after he was nomi­ nated, on January 27, 1801. And on February 4, at the Court’s first sitting in Washington, in Committee Room 2—the room in the notyet -finished Capitol assigned to the Supreme Court and also to the circuit and district courts of the District of Columbia—John Marshall was sworn in as the fourth Chief Justice of the United States. Marshall was an unpretentious man. Perhaps he did not mind that the courtroom was, in the words of Benjamin Latrobe, the architect of the Capitol, “a half-finished committee room meanly furnished and very inconvenient.”3 Eschewing the elaborate robes—whether aca­ demic regalia or the scarlet and ermine deriv­ ative from the King’s Bench—of his col­ leagues, Marshall adopted the plain black worn by judges of the Virginia Court of Appeals4 and which your honors wear today. Change...