Remembering the Great Chief Justice

Abstract

Remembering the Great Chief Justice CHARLES F. HOBSON From the moment he departed mortal life in July 1835, John Marshall secured a place of first rank in the American pantheon. Joseph Story, his close friend and brother judge, pro­ nounced him “a great man”—notjust a great man ofhis time but “a great man in any age, and of all ages...one of those, to whom centuries alone give birth.” Although uttered in the fulsome language of eulogy, Story’s verdict, coming from one who knew Marshall intimately over many years, rings true. Indeed, added Story, Marshall was not one of those celebrated men who “appeared greatest at a distance” and whose “superiority vanished on a close survey”; rather, “it required some degree of intimacy fully to appreciate his powers; and those who knew him best, and saw him most, had daily reason to wonder at the vast extent and variety of his intellectual resources.”1 Today, two hundred years after his ap­ pointment as Chief Justice of the Supreme Court of the United States, Marshall’s reputa­ tion remains as high as ever, resting on a solid foundation that is virtually resistant to icono­ clastic attack. Both the public at large and es­ pecially the fraternity of lawyers and judges hold Marshall in reverent regard. Even aca­ demics—law professors, political scientists, and historians, whose business it is to study American constitutional law and history—ac­ knowledge his greatness. In any ranking of American jurists, Marshall is always listed among the “greats” and usually heads the list.2 It is true, of course, that Marshall’s reputation benefited from the perception that he was on the “right” side of history. The Constitution is still the framework of our government and our fundamental law; the federal union and gov­ ernment brought into existence by the Consti­ tution have endured, stronger and more pow­ erful than Marshall could possibly have imagined; and the Supreme Court continues to sit here in Washington, enjoying unques­ tioned authority to expound and pronounce the law of the Constitution. The enduring sue- 294 JOURNAL OF SUPREME COURT HISTORY cess of our Constitution and government— and particularly the flourishing state of the ju­ dicial branch—are attributed in no small mea­ sure to Marshall. He was there at the begin­ ning—when the federal government was in its infancy, when the details of the Constitution began to be filled in, when the Constitution first entered the court system as a law to be expounded and applied in the ordinary course of adjudicating cases, and when the Supreme Court first began to acquire its identity as the interpreter and guardian of the Constitution and arbiter of the federal system. Marshall, then, is a “father” or “founder”—the father of the Supreme Court, the founder of American constitutional law— or, as Story dubbed him, “the Expounder ofthe Constitution of the United States.”3 Indeed, so large does Marshall’s shadow loom over the early years of the Supreme Court that many Americans mistakenly assume he was the first Chief Justice, rather than the fourth. The U.S. Postal Service literally gave its stamp of ap­ proval to this assumption back in February 1990, when it issued a commemorative of the bicentennial of the first meeting of the Su­ preme Court. Do you recall whose image was on that twenty-five-cent stamp? Not that of John Jay, the first ChiefJustice. This audience, to be sure, does not need to be reminded that there was a Supreme Court, there was a consti­ tutional law, before Marshall, and that the His­ torical Society sponsors a documentary edition devoted to the Court’s first decade. Long ago, Marshall left the realm of his­ tory and entered the realm ofmyth and symbol. Perhaps Story began the myth-making pro­ cess, but it was carried to completeness by the outpouring of hagiography that occurred dur­ ing the 1901 centennial and especially by the publication of Albert J. Beveridge’s four-volume biography in 1919.4 More than anyone else, Beveridge established the heroic image of Marshall as a colossus who bestrode history and shaped it according to his prescient vision and will. As depicted...