Stop me if you’ve heard this one before. Having lost a major election, a waning, lame-duck president and his congressional allies packs the courts with new appointees, including a Supreme Court judge who will vote on whether the effort is constitutional. This frightening scenario is both amazingly current and, as today’s #stampoftheday illustrates, a piece of ancient history that goes back to the start of the 19th century, less than two decades after the U.S. Constitution was adopted.

The judge was John Marshall, who served as Chief Justice of the U.S. Supreme Court from 1801 until 1835, which makes him (still) the court’s longest serving chief justice and the person with the fourth-longest tenure on the court. (Only William O. Douglas (1939-1975), Stephen Johnson Field (1863-1897), and John Paul Stevens (1975-2010) served longer than Marshall.) As chief justice, Marshall authored more than 500 opinions, many of them seminal rulings that confirmed the supremacy of the federal government and the federal Constitution over the states and also increased the power of the Supreme Court within the federal government.

The stamp—a 40-cent stamp issued on September 24, 1955 (the 200th anniversary of Marshall’s birth) – was part of the Liberty Series of stamps, which were issued between 1954 and 1965. The series included several presidents; a few notable buildings, such as Independence Hall and the Bunker Hill Monument; a few notable fighters for freedom, such as Patrick Henry, Paul Revere and Alexander Hamilton; and – amazingly – Robert E. Lee, who, after all, led a rebellion against the United States which had, as its main purpose, preserving slavery, which, the last time I looked, was something very much at odds with the idea of freedom.
But I digress. So back to Marshall.

In November 1800, after a bitter presidential campaign, Thomas Jefferson defeated incumbent president John Adams and Jefferson’s Democratic-Republican Party wrested control of Congress from Adams’ Federalist Party. Before he left office, Adams nominated (and the Senate confirmed) John Marshall, a respected figure who was then serving as secretary of state, as chief justice of the Supreme Court. Moreover, five days before he was to leave office, Adams signed The Judiciary Act of 1801, which created 16 new federal judgeships and about two dozen justice of the peace positions–jobs he promptly filled with Federalists.
Those tapped by Adams included William Marbury who was appointed a justice of the peace in the District of Columbia. But Adams left office before the appointment papers could be delivered to Marbury. Jefferson ordered James Madison, his secretary of state, not to deliver the documents. And not long thereafter, the new Congress repealed the law. Marbury asked the Supreme Court to order the Jefferson administration to give him the formal letter of appointment and allow him to take up his new job.
Legally, the Court was asked to answer three questions. Did Marbury have a right to his commission? If he had such a right, and the right was violated, did the law provide a remedy? And was the proper remedy a direct order from the Supreme Court? Moreover, the case was politically challenging. If the Court ruled against Marbury it might be seen as caving to political pressure. If it ruled for Marbury, the Jefferson administration might ignore the order and further diminish the already low regard that many had for the court.

Marshall found an artful way to address the legal and political issues. First, he ruled that since Marbury’s commission had been signed by the President and sealed by the Secretary of State, his appointment that could not be revoked by a new executive. Second citing the great William Blackstone’s Commentaries, Marshall declared “a general and indisputable rule” that, where a legal right is established, a legal remedy exists for a violation of that right.

But third, Marshall ruled that the Supreme Court could force Jefferson to let the appointment go forward because the law establishing such a power was unconstitutional. That law, the Judiciary Act of 1789, said the Court had “original jurisdiction” in a case like Marbury-in other words, Marbury was able to bring his lawsuit directly to the Supreme Court instead of first going through lower courts. However, Marshall noted, the Constitution only gives the Supreme Court original jurisdiction in cases “affecting Ambassadors, other public Ministers and Consuls” or in cases “in which a State shall be Party.” He reasons that had the Founders intended to empower Congress to assign original jurisdiction, they would not have enumerated those types of cases. Therefore, Congress was exerting power it did not have. And since the Constitution is “the supreme Law of the Land” a law found to be inconsistent with the Constitution could not stand, Moreover, he added “it is emphatically the duty of the Judicial Department [i.e. the Supreme Court] to say what the law is.”

Thus in one action, he upheld Jefferson’s decision to withhold Marbury’s appointment while also asserting, for the first time, the court’s primacy in deciding whether a law was constitutional, an assertion that apparently greatly angered Jefferson and his allies. Even though it has been used sparingly, this power, known as judicial review, is the foundation of the court’s central role in American governance.

However, Marshall’s ruling also made it clear that the courts cannot stop a president and his political allies from packing the court with political appointees who might then rule in their party’s favor, situation we currently find ourselves confronting
This is a frightening prospect. As Karen Gramm noted in an op-ed posted after Ruth Bader Ginsburg’s death: “When you think of it, a Supreme Court ruling in favor of a minority party would keep the majority party from governing effectively and would be neither legitimate nor politically stable.” In fact, she noted, “the Supreme Court has been controlled by a minority party before in this nation’s history – including the early Jefferson administration, the Civil War and first years of the New Deal.” However, she asserted, there is a ray of hope in that history because “this type of political control of the Supreme Court in all cases led to constitutional crises that ended only when the court itself backed down.” Notably, the conservative court that threw out much of FDR’s New Deal legislation in the mid-1930s, began to reverse itself in the late 1930s.

While I hope we can avoid such confrontations today, it seems quite clear that’s where we are headed. If that’s the case, I hope that some of the justices will, as Marshall did, not only find artful ways to manage the conflicts but also, like Marshall, go on to have long and productive careers where they find judicious ways to apply the law and shape the course of events.

Be well, stay safe, fight for justice, and work for peace.