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Marshall, Jefferson, and Marbury
The Chase Impeachment
Reporting the Decisions
The Burr Trial
Contracts and Conflicts

In 1801 the United States began a new century with a new president, Thomas Jefferson, and a new chief justice, John Marshall. That same year, the government moved to a permanent home, Washington, D.C. The Capitol was under construction as the seat of Congress, and a residence was planned for the president, but no one had thought to provide a place for the Supreme Court to meet. At the last minute, it was allotted a small room in the unfinished Capitol. There it convened for its February 1801 term, the first of Marshall′s thirty-four-year tenure.

Thomas Jefferson (Source: Library of Congress.)

When Oliver Ellsworth, still in France on diplomatic assignment, resigned as chief justice in 1800, President Adams first named former chief justice Jay to the seat. His confirmation was immediate, as was Jay′s letter declining the honor. Jay noted his failing health and the continuing responsibilities of the justices for holding circuit court. He wrote:

[T]he efforts repeatedly made to place the Judicial Department on a proper footing have proved fruitless. I left the bench perfectly convinced that under a system so defective, it would not obtain the energy, weight and dignity which are essential to its affording due support to the National Government, nor acquire the public confidence and respect which, as the last resort of the justice of the nation, it should possess. [38]

Adams was a lame duck, defeated for reelection in 1800, but he was not about to pass on this opportunity. On January 20, 1801, he named his secretary of state, John Marshall, chief justice. Marshall had also served for a time on diplomatic assignment and in the House of Representatives. After a brief delay by Federalist advocates of Justice Paterson′s elevation to the chief justiceship, the Senate confirmed Marshall January 27 by voice vote.

Marshall, Jefferson, and Marbury

Chief Justice Marshall, age forty-five, was sworn in on February 4, 1801, the second day of the Court′s first term in Washington. Cushing, Chase, and Washington were also sitting, but no cases were reported as decided during the term. Events outside the Court′s makeshift chamber, however, were moving quickly and with broad implications for the Court and its new chief justice. In February the House broke the electoral deadlock between Aaron Burr and Thomas Jefferson, choosing Jefferson as the new president. The third president took office on March 4, 1801. Although Jefferson and Marshall shared a home state and were related, they were life-long adversaries. Marshall, a Federalist, believed in the virtues of a vigorous federal government. Jefferson, who was in France during the writing of the Constitution, was wary of government power and preferred to leave most authority with the states. Although Jefferson is revered as the author of the Declaration of Independence, Marshall played an even greater role in shaping the new national government, thanks to his thirty-four-year career as chief justice.

A few days before Jefferson′s selection, Congress had passed the Circuit Court Act of 1801, which eliminated circuit duty for the justices by providing for a separate staff of circuit judges. It also shifted the Court′s schedule, designating June and December terms (instead of February and August terms), and it reduced to five the number of seats on the Court. The law was widely viewed as a Federalist plan to allow Adams to appoint a group of Federalist judges and to deny Jefferson an immediate appointment to the Court at the next vacancy. Adams filled the new judgeships with Federalist loyalists, which to Jefferson confirmed his view that the federal judiciary would indeed remain a “strong fortress in the possession of the enemy.” [39]

Another law late in the session produced the situation that brought Marbury v. Madison to the Court. The act, concerning the District of Columbia, created a number of positions for justices of the peace for the nation′s capital, and on March 2 outgoing president Adams made appointments to fill these posts; they were confirmed the following day. The commissions were drafted and signed, but Secretary of State John Marshall—by now also the sitting chief justice—failed to deliver all the commissions to all the nominees before the end of the Adams administration on the night of March 3. President Jefferson appointed a number of these men to their posts, but not William Marbury, who therefore asked the Supreme Court in 1801 to order the new secretary of state, James Madison, to deliver his commission. Marbury filed an original suit with the Court, asking that the justices use the authority granted them by the Judiciary Act of 1789 and issue a writ of mandamus to Madison.

In December the Court agreed to hear Marbury′s case, setting arguments for the June 1802 term. By the time the Court accepted the case, it had shown signs that it intended to pursue an independent path. In August the justices had demurred when Jefferson offered to give them his views on how to apply a law at issue in a pending case. A president′s position, the Court indicated, was not relevant. Jefferson was convinced that the Court would use Marbury as a vehicle for interfering in executive branch business. That view—and the Jeffersonians′ distaste for the 1801 Circuit Court Act—sparked the law′s repeal early in 1802. Congress reinstated circuit court duty, and a single annual term was set for the Court, beginning each year in February. Because the change in schedule was enacted after February 1802, this last provision delayed for fourteen months the term at which Marbury v. Madison was argued. The Court did not meet from December 1801 until February 1803.

Two major decisions were announced during the 1803 term. Chief Justice Marshall′s skilled leadership was evident in the coupling and resolution of these cases. Marshall′s legal training was meager; he had little experience in the practice of law and none as a judge. Before his appointment as chief justice, he had been a politician and a diplomat. The skills gained from those posts characterized his tenure on the Court. For three decades his personality dominated the Court and the men who served with him. At no other time in the Court′s history have the personal characteristics of the chief justice been considerably more important than his legal talents.

The Court operated as a family firm, not as a federal institution. The justices, most of whom came to Washington for only a few months each year, leaving their wives and families at home, lived together in a boardinghouse. After their dinners, which they ate together, they often lingered over wine and discussed and resolved the cases brought before them. [40] Under Marshall′s leadership, these men shaped the Court and the federal judiciary, act by act and decision by decision. As Alexander M. Bickel states:

Congress was created very nearly full blown by the Constitution itself. The vast possibilities of the presidency were relatively easy to perceive and soon, inevitably, materialized. But the institution of the judiciary needed to be summoned up out of the constitutional vapors, shaped and maintained; and the Great Chief Justice, John Marshall—not singlehanded, but first and foremost—was there to do it and did. [41]

Marbury v. Madison—the most famous example of Marshall′s shaping of the Court′s role—was decided two years after Marshall became chief justice. With that ruling, on February 24, 1803, the Court at once claimed, exercised, and justified its power to review and nullify acts of Congress that it found to conflict with the Constitution. In so doing, it rebuked Jefferson for not delivering Marbury′s commission, which the Court ruled was due him, but at the same time, the Court avoided a collision with Jefferson by ruling that the Court was powerless to order the commission′s delivery, because the section of the Judiciary Act authorizing it to issue such orders was unconstitutional and void, an impermissible expansion of its original jurisdiction. According to Charles Grove Haines, this decision

became authority … for the proposition—which had already been adopted in a majority of the states and which was destined to form a distinct feature of the whole political system of the United States—that a constitution is a fundamental law, that legislative and executive powers are limited by the terms of this fundamental law, and that the courts as interpreters of the law are expected to preserve and defend constitutions as inviolable acts, to be changed only by the people through the amending process. [42]

During congressional debate over repeal of the 1801 Circuit Court Act, the possibility was raised that the Court might declare the repeal unconstitutional, as an improper effort by Congress to encroach on the independence of the Court. One week after Marbury, the Court made clear that it would exercise its newly affirmed power with care. The Court upheld the Repeal Act of 1802 in Stuart v. Laird (1803). [43] The Court did not declare an act of Congress unconstitutional for another fifty years. [44]

The Chase Impeachment

Business before the Court steadily increased during the first decade of the nineteenth century, but few of its decisions were as significant as some of the extrajudicial matters affecting the Court. Most notable of these was the impeachment, trial, and acquittal of Justice Samuel Chase. Chase, a maverick at the time of his selection, continued to make enemies. He actively campaigned for President Adams in 1800, strongly supported the hated Sedition Act of 1798, and presided as judge in the trials of a number of persons charged with violating it. After a particularly partisan speech to a grand jury in Baltimore in May 1803, Chase became the object of an impeachment drive. The charges against him involved his conduct during the Sedition Act trials and the charge to the grand jury. On March 12, 1804, the House of Representatives impeached Justice Chase by a vote of 73 to 32.

Chase′s trial in the Senate began early in 1805. Chase, who continued to participate in the Court′s functions, appeared in the Senate with his attorneys. Presentation of the evidence and arguments took a month, and on March 1 the Senate acquitted him. A majority of the senators found him guilty on three of the charges, but their votes fell short of the two-thirds required for conviction. Chase′s acquittal ended rumored Republican plans to impeach the four other Federalist justices—Marshall, Cushing, Paterson, and Washington. Furthermore, according to Charles Warren, the acquittal represented a rejection of the Republican argument that impeachment could be used as “a means of keeping the courts in reasonable harmony with the will of the nation, as expressed through Congress and the executive, and that a judicial decision declaring an Act of Congress unconstitutional would support an impeachment and the removal of a judge.” [45]

Reporting the Decisions

Alexander J. Dallas, a noted attorney in Pennsylvania, reported some Supreme Court decisions during the Court terms in Philadelphia. After the Court moved to Washington, Dallas discontinued this service, at which time William Cranch, chief justice of the circuit court in the District of Columbia, began documenting the Court′s decisions. The first volume of Cranch′s Reports, published after the end of the 1804 term, included decisions from 1801 through 1803. Until that time, the Court′s opinions were little known by the bar and less so by the public. The exception was Marbury, which had been widely reported and discussed in the newspapers.

Cranch performed this public service as Court reporter for a dozen years. In his preface to the first volume, he expresses the hope that publication of the Court′s decisions would eliminate “much of that uncertainty of the law, which is so frequently, and perhaps so justly, the subject of complaint in this country.” Furthermore, he thought that making public a permanent record of the Court′s decisions might also limit judicial discretion: “Every case decided is a check upon the judge. He cannot decide a similar case differently, without strong reasons, which, for his own justification, he will wish to make public. The avenues to corruption are thus obstructed, and the sources of litigation closed.” [46] Early in Marshall′s tenure—undoubtedly with the encouragement of Cranch—the Court began to write down its decisions and opinions.

In another transition, Chief Justice Marshall exerted all his considerable personal influence to convince his fellow justices to speak with one voice in their decisions. They dropped the practice of issuing seriatim opinions—that is, each justice writing and reading his own views—and adopted the “opinion of the Court” approach, usually allowing Marshall to write the opinion. William Johnson, the first Republican justice, who served for most of Marshall′s tenure, appropriately enough provided a counterbalance to the chief justice′s push for judicial unanimity. Johnson, appointed by Jefferson in 1804 and known as the “father of dissent,” was only thirty-two at the time of his appointment to the Supreme Court, but he did not hesitate to voice his disagreement with the chief justice or the Court.

William Johnson (Source: Collection of the Supreme Court of the United States.)

Jefferson filled two other seats on the Court during his two terms in office. In 1806 Justice Paterson died, and Jefferson named John Jay′s brother-in-law, Henry Brockholst Livingston of New York, as Paterson′s successor. In 1807 increases in territorial and judicial business spurred Congress to create a new circuit covering Kentucky, Tennessee, and Ohio, which necessitated a circuit judge and raised to seven the number of seats on the Supreme Court. Jefferson, after polling the members of Congress from those three states, named Thomas Todd, Kentucky′s chief justice, to the new seat. Todd was nominated and confirmed in 1807, seated at the 1808 term, missed the 1809 term, and issued his first opinion—a dissent—in 1810. Like Livingston, his judicial career was notable mainly for his steady support of Chief Justice Marshall.

The Burr Trial

In 1807 the Jefferson administration charged former vice president Aaron Burr with treason. The charge was related to Burr′s alleged efforts to encourage an uprising in the western states of the United States and a movement for their independence. The actions of the Supreme Court and its chief justice in this affair further heightened the animosity felt by Jefferson for the Court.

Early in 1807 the Court, affirming its power to issue a writ of habeas corpus to challenge the detention of an individual by federal officials, held that there was insufficient evidence for the government to prosecute two of Burr′s accomplices for treason. [47] Jefferson, wrote Charles Warren, regarded this ruling as “another deliberate attack by the Court upon his executive authority,” while the Federalists viewed it as “a noble example of the judicial safeguards to individual liberty.” [48] After the Court′s term ended, Marshall traveled to Richmond to preside as circuit judge over Burr′s trial. His rulings that the government′s evidence was insufficient to support a charge of treason were seen as directly contributing to Burr′s acquittal. Jefferson, irate at the rulings and the outcome, suggested that the Constitution be amended to provide means other than impeachment for removing justices from the bench. The amendment was not approved. Jefferson′s feelings about the Court were exacerbated during the national resistance to his administration′s Embargo Act, imposed during the disputes with Britain preceding the War of 1812. Justice Johnson, a Jefferson appointee, declared illegal and void the president′s effort to instruct customs officials to detain all vessels thought to be intending to evade the embargo. [49]

Contracts and Conflicts

In 1810 the Supreme Court for the first time used its power to enforce contracts as a basis for striking down a state law. In Fletcher v. Peck the Court invalidated a law passed by Georgia′s legislature in 1796 to repeal a 1795 land grant law that was approved through bribery. The repeal was challenged by the innocent third parties, who had acquired land under the 1795 grant and who now found their titles null and void. They argued that the legislative nullification was a clear violation of the Constitution′s language, which forbids states to impair the obligation of contracts. The case was argued twice, in 1809 and 1810. One of the attorneys for the property owners bringing the challenge was thirty-two-year-old Joseph Story of Massachusetts. On April 16, 1810, the Court—for whom Chief Justice Marshall spoke—held unconstitutional the legislative repeal of the land grant law and the nullification of the titles granted under it. [50] The following year Story was appointed to the Supreme Court to fill one of two simultaneous vacancies.

In September 1810 Justice Cushing died. He was the last of the original six justices named to the Court in 1790, having outlived all his original colleagues by a decade or more. The interest that attended the search for Cushing′s successor on the bench provided some indication of the status that the Court had built for itself after a slow start. The Court in 1810 was evenly divided between Federalists (Marshall, Washington, Chase) and Republicans (Johnson, Todd, and Livingston), so President James Madison received a good deal of input on the selection of a nominee, including some words from Jefferson. Despite all this advice—or perhaps because of it—Madison required four tries to fill Cushing′s seat. His first selection was Levi Lincoln, who had served as attorney general to Jefferson. Lincoln declined, but Madison nominated him anyway. The Senate confirmed the nomination, and Lincoln again declined, early in 1811. In February Madison nominated Alexander Wolcott, a Republican leader in Connecticut. Criticized as unqualified, Wolcott was rejected by the Senate, with only nine votes cast in favor of his confirmation and twenty-four against it. Madison subsequently nominated John Quincy Adams, then ambassador to Russia. Adams was confirmed but declined the appointment.

Madison then waited for most of 1811 before making another choice. The 1811 term—for which there was neither a quorum of justices present nor any business—passed virtually unnoticed. In June Justice Chase died, creating a second vacancy. In November Madison nominated Gabriel Duvall of Maryland, who had been comptroller of the Treasury for almost a decade, to fill the Chase seat, and Story to replace Cushing. The Senate confirmed both nominees by a voice vote on the same day.

For the next several years, the War of 1812 was a primary factor in the work of the Court. After the British burned the Capitol in August 1814, the Court met in temporary quarters for the next four terms, even holding some sessions in a tavern. The cases before the Court largely involved wartime issues—neutrality rights, ship seizures, and foreign affairs. The justices made clear in these rulings that violations of neutrality rights were to be resolved diplomatically, not judicially. It also affirmed broad powers for the federal government over the person and property of enemies during wartime.

A lingering result of Fletcher v. Peck was considerable state resistance to the Court′s exercise of its power to invalidate state actions. States began to question whether in fact Congress could authorize the Court to curtail state power in such a final manner. In 1816 the Court considered that question in Martin v. Hunter′s Lessee (1816), a long-running dispute between a British subject and a Virginian over the ownership of a large parcel of land in Virginia. Marshall did not participate in the Court′s consideration of the case because he had invested in the disputed land.

In 1813 the Court had ruled on the substance of the case, deciding in favor of the British claim to the land and rejecting the Virginia claim. The Virginia courts, however, refused to obey the decision, ruling that the Supreme Court could not constitutionally tell a state court what to do. This direct challenge to the Court′s authority was returned to the Court in 1816 and firmly rebuffed on March 20. Justice Story wrote the Court′s opinion, upholding the power of Congress to grant the Supreme Court appellate jurisdiction over all matters involving federal laws, treaties, and the U.S. Constitution—regardless of the court in which such cases had first been heard. [51] This opinion, declared Charles Warren, “has ever since been the keystone of the whole arch of federal judicial power.” [52] In another ruling, however, the Court left the large and controversial area of criminal law almost entirely to state courts. In United States v. Hudson and Goodwin (1812) the justices declared that federal courts had no jurisdiction over criminal activity—except for matters that Congress had specifically declared to be federal crimes.

Warren describes the close of the 1816 term as the end of an era. With the the War of 1812 over, the attention of the people turned toward industrial and manufacturing endeavors, transportation, communication, and economic change. Questions of war, prize vessels, and embargo acts—which had taken so much of the Court′s attention during the first years of the century—faded from the docket and were replaced by questions of contract obligations, commerce regulation, and state powers. [53] Also, at the end of this term, Cranch concluded his work as the unofficial reporter of the Court, and an official reporter, Henry Wheaton, was appointed. Congress authorized him a salary of $1,000 a year.

Court historians George L. Haskins and Herbert A. Johnson characterize the period from 1801 to 1815 as one in which the Court, in its dealings with the executive and Congress and in its internal development, established the foundations of the judicial power that it exercised with increasing visibility in the remaining decades of the Marshall era. With Martin v. Hunter′s Lessee, Haskins and Johnson explain, the Court reinforced its power and the supremacy of the still-new federal government, and it did so even though the only Federalist on the Court—Marshall—took no part in the ruling. That decision, they conclude, was “a victory for his [Marshall′s] efforts to extricate the Court from partisan politics, and to establish a rule of law in the United States. The foundations of judicial power had been fixed firmly in place.” [54]


Document Citation
1 David G. Savage, Establishment of Power, 1801–1835, in Guide to the U.S. Supreme Court 9-14 (5th ed., 2011),
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