Thomas Jefferson and the Court

Abstract

Thomas Jefferson and the Court Warren E. Burger Editor'sNote: ChiefJustice Burgerdeliveredthis address as the Society’sAnnual Lecture on June 3, 1991. Mystorybegins on a brisk spring morningin 1801, March 4. A group ofmen were waitingin the Capitol for the President-Elect of the United States to take the oath ofoffice. One ofthe two men waiting was John Marshall. Marshall had just taken office as Chief Justice of the United States by President Adams’s appointment but, at Jefferson’s request, he was still holding the office ofSecretary ofState. Waitingwith Marshall was a short, slim fellow about the same age, 45 or 46, named Aaron Burr, who had just taken the oath as Vice-PresidentoftheUnited States. (Remember at that time we had no formalized political parties as such. Men filed as candi­ dates for President and the candidate who re­ ceivedthe mostvotesbecame President and the runner-up became Vice-President.) John Adams, the incumbent President, came in third. Nei­ ther Jefferson nor Burr had secured the re­ quiredmajorityin theElectoralCollege and the election went into the House of Representa­ tives where, on the 36th ballot, Jefferson was elected by a margin of one vote. Another carriage drew up with Mr. Jeffer­ son and some of his friends. Jefferson was a widower, hiswife havingdied a number ofyears before. The men greeted each other formally and John Marshall administered the oath of officetoJefferson. Jefferson’sinauguralspeech was brief and conciliatory: “We are all Repub­ licans and all Federalists.” That meeting of Marshall and Jefferson alone deserves a footnote in history. Although they were cousins, Thomas Jefferson did not like John Marshall-to put it mildly-and John Marshall did not have all that much respect for Thomas Jefferson. Here another footnote tells something of the politics of 1800: Alexander Hamilton had written to John Marshall during the campaign that, as much as he distrusted and disliked Thomas Jefferson, the choice between Thomas Jefferson and Aaron Burr was clear, and he hoped Marshall would do what he could to develop support for Jeffer­ son, the lesser of two evils. Now Hamilton’s “lesser” was President. It was probably a sur­ prise to Marshall that Jefferson asked him to administer the oath. The odds are that Jefferson never cared much for Aaron Burr and, on that day, it must have rankled him that the manwho almost took the Presidency away from him was going to be his Vice President. What was Burr thinking about while he was waiting for Jefferson’s arri­ val? Whatwasgoing through Burr’s mind about their relationship? That if he had not killed Hamilton in a duel he might be President? Did he rue his failure to solicit votes in the House? And John Marshall, did he think back to the timewhenThomasJefferson, then Governor of the State of Virginia, handed Marshall his cer­ tificate to practice law? Our story now moves on to one ofthe great cases in Supreme Court history, Marbury v. Madison. And it is a great case, just as John Marshall was the Great Chief Justice even though the immediate cases were small. Mar­ bury, a local political figure, was appointed a justice of the peace by Adams, a position that has long since been abolished. Adams had sent Marbury’s nomination to the Senate, the Sen­ ate had unanimously approved it, and the nomination went back to the White House, where the President signed and Secretary of State John Marshall attested Marbury’s com­ mission. Jefferson recites in one of his letters that, when he took office, he found that Mar­ bury’s commission had not yet been delivered, and he destroyed it. 98 JOURNAL 1991 Thomas Jefferson (above) had an antagonistic relation­ ship with the Supreme Court in general and with Chief Justice John Marshall in particular. He had nonetheless asked Marshall, a cousin, to administer the oath of office when he became President. At that time there was a statute of the United States, Section 13 ofthe JudiciaryAct of 1789, which had been largely drafted by Oliver Ellsworth, who was later to become the third ChiefJustice. Section 13 provided in part that, ifa member ofthe Executive Branch did not do what the law required, any person...