The Last Days of the Marshall Court

Abstract

When we examine the early history of the Supreme Court, we should understand it as not only driven by legal doctrine or grand political ideology, but as an institution perpetuated by people living in a particular place in time. The justices reacted to the death of loved ones, illness, and changing work conditions as much as they responded to political events or novel legal questions. We cannot neatly segment activities deemed political from those considered social, cultural, or even environmental. While the Marshall Court was successful as a result of a membership filled with qualified jurists who had the good fortune to work together as a unit for over a decade, the convergence of three factors – personality, place, and timing – played as important a role. By the last five years of the Marshall Court, the circumstances surrounding all three had changed significantly. Chief Justice John Marshall was entering the final years of his life, beset by personal illness, preoccupied by the death of family and friends, and unable to maintain the accord seen in the Court’s early years. Relatedly, Washington was no longer a city in its infancy; the enforced seclusion that initially aided in creating a unified court dissipated as the city and the government matured and its new members scattered. Finally, the country had moved away from the Court’s expansive vision of the constitutional order. A focus on the very difficult last five years of the Marshall Court make it apparent that Marshall and his longtime judicial allies looked to their handiwork not with a sense of accomplishment but largely with a sense of resignation and an understanding that their body of work could soon be undone. In this way, much of the Marshall Court canon that we lionize today has a bit of a modern gloss to it. Of course, politics contributed to this denouement. If, however, we consider Aristotle’s famous observation that man is a political animal, we can begin to collapse the artificial distinction between the personal and political that deems the former to reside in the unofficial domain of sentimentality and the latter to be official and thus relevant. If we view politics as did Aristotle, as an essential attribute of man’s existence and necessary to the development of his highest purpose, and the city as the place through which people can exercise these abilities in order to truly exist to the fullest degree, where the justices lived, how they socialized, and who they loved and lost are important concerns. In this respect, the new city of Washington was as important an actor in the Supreme Court narrative as the justices themselves. Simply defining politics as the domain of legislatures and presidents, and of edicts and laws will only tell part of the story.