“Two centuries after his death, Chief Justice John Marshall still presides over the Supreme Court,” Josh Blackman wrote on the SCOTUSblog last summer. “His larger-than-life statue greets visitors. During investiture ceremonies, new members sit in his chair. And the justices cite him whenever possible.”
His presence has been especially large for the13 men who have been Chief Justice since Marshall died. That’s right, in the 220 years since Marshall, who is pictured on today’s #stampoftheday, was sworn in on February 4, 1801, only 14 men have served as Chief Justice.
John Roberts, the current chief justice, for example, once said “You wonder if you’re going to be John Marshall or you’re going to be Roger Taney,” the chief justice who wrote the infamous Dred Scott decision. “The answer is, of course, you are certainly not going to be John Marshall. But you want to avoid the danger of being Roger Taney.” Moreover, as Roberts noted in a 2017 interview, “it’s sobering to think of the 17 chief justices; certainly a solid majority of them have to be characterized as failures.”
Marshall, who served for 34 years, longer than any other chief justice, is pictured on a $5.00 stamp issued in 1917. For what it’s worth, the stamp has an odd history. In early 1917, the U.S. Post Office, which hadn’t issued a $5 stamp since 1903, was faced with a sudden and unexpectedly demand for high-denomination postage stamps because a large quantity of heavy machine parts were being shipped to Russia. Since it didn’t have time to prepare new designs the Post Office used more than decade-old master dies from 1902 to print the new $5 stamp (which says 1902 series on the top). Note, by the way, that $5 in 1917 would be a little more than $100 today.
Marshall is one of only six chief justices to appear on a postage stamp and, arguably, along with Charles Evan Hughes, Harlan Stone, and Earl Warren was one of only four who primarily were honored for their work as chief justice. The other two were Chief Justice William Howard Taft also happened to have been president of the United States, and John Jay, the first Chief Justice, who primarily was honored for being a Founding Father, statesman and diplomat.
Marshall reportedly has been a model for Roberts, not only because of his seminal decision in Marbury v. Madison which established the Court’s authority over the other branches but also because of his focus on trying to achieve consensus, usually by making legally narrow, bipartisan decisions.
Illustratively, writing in The Atlantic last summer after a series of important Supreme Court decisions, Jeffrey Rosen, CEO of the National Constitution Center, recalled that in a 2007 interview Roberts had discussed the strategic choice made by Marshall. He noted that Marshall had been appointed by lame-duck president John Adams, a Federalist, and confirmed by a Federalist-controlled Senate. Given this, Roberts said, Marshall could “have got on the Court and said, ‘I’m the last hope of the Federalists; we’re out of Congress; we’re out of the White House; and I’m going to pursue that agenda here.’ And he would have not only damaged the Court but could have smothered it in the cradle. But instead he said, ‘No, this is my home now, this is the Court, and we’re going to operate as a Court, and that’s important to me,’ and as a result he made the Court the institution that it has become.”
For a time, particularly after Justice Anthony Kennedy stepped down, Roberts’ ability to pursue consensus was particularly great because he had become the ideological center of the court. Indeed, at the end of the 2020 term, Noah Feldman, a professor of constitutional law at Harvard, told the Washington Post that “Roberts is the most powerful chief justice since John Marshall. We haven’t had a chief who was genuinely the swing vote since Charles Evans Hughes, and even Hughes wasn’t always the swing vote.”
As we all know, Roberts’ position appears to have been greatly weakened by the death of Ruth Bader Ginsburg and her replacement by Amy Coney Barrett. The court is now in conservative hands at a moment when more liberal Democrats have the presidency, the House, and the Senate (albeit by the most narrow of margins).
The question is whether the more conservative wing will follow the line of thinking Roberts laid out in his 2007 interview with Rosen. ” When we spoke years ago,” Rosen wrote, “Roberts emphasized that he was more interested in institutional legitimacy than methodological purity. He observed that the less successful chief justices-such as Harlan Fiske Stone, the former dean of Columbia Law Schoolâ who was chief from 1941 to 1946-had approached the job more like law professors than as leaders of collegial courts.”
Roberts added: “A justice is not like a law professor, who might say, ‘This is my theory…and this is what I’m going to be faithful to and consistent with,’ and in twenty years will look back and say, ‘I had a consistent theory of the First Amendment as applied to a particular area,'” He went on to note that instead of nine justices moving in nine separate directions, “it would be good to have a commitment on the part of the Court to acting as a Court, rather than being more concerned about the consistency and coherency of an individual judicial record.”
That’s one of the big looming questions as the court begins to make important decisions. Like many who weren’t big fans of Roberts when he was nominated, I’m definitely rooting for him now. And if he’s able to find ways to keep the court from going too far, perhaps he’ll be the seventh chief justice to appear on a stamp.
Be well, stay safe, fight for justice, try not to be like Roger Taney, and work for peace.