John Marshall — a career birthed from mistakes

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So as I was talking to my government kids about Marbury v. Madison today, and I really started thinking about John Marshall.

Marshall has long been considered to be the “Greatest Chief Justice” of the U.S. Supreme Court, but he was almost an afterthought to be on the court to begin with. While his tenure on the highest court in the land was the most profound in our history, it almost didn’t happen.

Marshall had been involved in politics in the years leading up to 1801, serving, in fact, as John Adams’ Secretary of State in 1800-1801, all the way up until Adams left office on March 4. That’s when perhaps the most dramatic shift in U.S. politics took place, the handing over of power from one political party to another for the first time ever – from the Federalist Adams to the Democrat-Republican Thomas Jefferson.

With that changeover looming, Adams and the lameduck Congress saw one opportunity to retain any power – judges. Since judges are appointed, not elected, the Federalists viewed the judicial branch as a safe spot to place a whole bunch of Federalists as the Democrat-Republicans lead the government for the next few years. Hence, the Judiciary Act of 1801 – otherwise known as the Midnight Judges Act, which added 39 new federal judgeships – all of which would be Federalist appointments.

Incumbent Chief Justice Oliver Ellsworth was in poor health and leaving the bench. Adams initially tried to offer the spot to former Chief Justice John Jay, but Jay refused, leaving Adams little choice but to go with his most trusted advisor – John Marshall.

Back really quick to Marshall’s old job as Secretary of State. Marshall was responsible for getting those judicial appointments to Congress for approval, but three were left undelivered by the time Jefferson and his Secretary of State, James Madison took charge of the administration.

Do you really think Madison was going to deliver those appointments, allowing Federalist judges to exert their authority while the Democrat-Republicans started a new regime in Washington? No way.

One of those prospective judges was William Marbury, who sued Madison, insisting the appointment should have been made official. Eventually the case makes its way to the Supreme Court, where John Marshall comes back into play.

Looking at Marshall’s failure to submit the judgeships in the first place, it would be natural to assume he could just say, “Oops – you’re right, Marbury. Let me fix that for you.”

But, while he was the one who screwed up, Marshall establishes the most important legal precedent in our nation’s history.

Judicial Review.

Marshall points out that the ability the court supposedly has to force someone (Madison in this case) to perform a certain act (push through the appointment), was Unconstitutional. Congress had given the court this power to issue what were called Writs of Mandamus in the Judiciary Act of 1787, and Marbury notes that that power was not listed in our nation’s Constitution, and was therefore not valid.

And so Marshall sets up perhaps the greatest judicial career of anyone who sat on the bench, all on a whim of a President, based on a mistake that he himself had made.

As we live our lives and make mistakes, do we make the best out of those situations? John Marshall did.  

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