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Mitch Scacchi:
Hey, Nick and Hannah, can I tell you both a story?

Nick Capodice:
Of course! This is Mitch Scacchi by the way everyone, our summer intern and we hate to see him go.

Hannah McCarthy:
Yeah Mitch, let's have it.

Mitch Scacchi:
The year is 1801. John Adams is in the final days of his presidency. Thomas Jefferson is poised to take over on March 4th. Down and out about losing a second term, Adams decides he must act.

Susan Siggelakis:
Adams decided that he was very worried about the future of the country now that Jefferson and his administration were poised to take over, and he appointed what was called the "midnight judges."

Mitch Scacchi:
This is Susan Siggelakis, professor of political science at the University of New Hampshire.

Susan Siggelakis:
There had been a bunch of new judgeships created under the Federalists and he was filling them before he left. In fact, it was the night before the new inauguration. And he filled out a bunch of what they were called "commissions." And Marshall was the outgoing Secretary of State, and so his job was to essentially finalize the paperwork. But he actually didn't really fully complete the job because he didn't, he was very lax about certain things. And so some of them actually didn't get delivered.

Mitch Scacchi:
Secretary of State John Marshall got some of the appointments out, but he missed some others. And one of these undelivered commissions was for William Marbury, who had been appointed by Adams as Justice of the Peace in the District of Columbia. Marbury asks the new administration for his job, but he doesn't receive a response. So he and three others petitioned the U.S. Supreme Court under Section 13 of the Judiciary Act of 1789 to compel the new Secretary of State, James Madison, to deliver their commissions and give them their jobs. And the Chief Justice who decides to take the case two years later? Oh, yeah, it's John Marshall.

Hannah McCarthy:
I can already see a conflict for Marshall with this case. I mean, he was the guy who gave Marbury and these three other appointees their commissions in the first place when he was Secretary of State.

Mitch Scacchi:
But nobody thought it was wrong for Marshall to rule on the case. And it didn't make the headlines. But it's not necessarily the facts of the case that make it well-known, it's what Marshall decides to do with it.

Robert Strauss:
And he decides to take on a case that's going to establish what he wants to establish, and that is the right for the Supreme Court to review laws.

Mitch Scacchi:
This is Robert Strauss, author of "John Marshall: The Final Founder."

Susan Siggelakis:
He essentially holds that Section 13 of the Judiciary Act was actually an unconstitutional action of Congress because Congress gave it gave the Court jurisdiction that it wasn't allowed to have under Article Three of the U.S. Constitution.

Mitch Scacchi:
Marshall says that this law giving the Supreme Court jurisdiction over the case is unconstitutional. So he can't rule on the case. And just like that, in 1803, in what became the landmark case of Marbury v. Madison, Marshall established the principle of judicial review.

Nick Capodice:
You're listening to Civics 101. I'm Nick Capodice.

Hannah McCarthy:
And I'm Hannah McCarthy. And today we're talking about John Marshall, the longest-serving Chief Justice of the Supreme Court and his influence in shaping the Court we know today.

Nick Capodice:
Our guide for this episode is Mitch Scacchi. We at Civics 101 have been honored to have him as our intern this summer. Let's have it Mitch!

Mitch Scacchi:
Thanks, guys. Like many of the founders, John Marshall is an impressive but also complicated figure in our nation's history. But to really understand the Constitution, the judicial branch, the Supreme Court, and the scope of federal power that we see today, you have to know who John Marshall was. It was one thing for the Framers to write the Constitution, and it was one thing for it to be ratified, but it was another thing entirely for the Constitution to be applied. Nobody really knew just what the words on paper would look like in practice, and John Marshall was one of the first to give effect to those words. In doing so, he shaped the practical meaning of the young Constitution, established the judiciary as an equal branch of government, and made the Supreme Court into an institution of great power and influence.

Hannah McCarthy:
Ok, Mitch, let's start from the beginning.

Mitch Scacchi:
Marshall was born in 1755 in Virginia, a colony with a huge enslaved population, the most of any colony at the time. Marshall would later own hundreds of enslaved people himself. This is an important thing about Marshall, particularly in the way it shaped some of his judgments from the bench. But for this episode, we're going to focus on how Marshall shaped the role of the Chief Justice, the Supreme Court, and the federal government. When the Revolutionary War broke out, Marshall volunteered with his father.

Robert Strauss:
But he started out as a young soldier in Valley Forge. His father was a friend of George Washington's, they were fellow surveyors. So when the war started, of course, his father wanted to go off with his friend and fight the British, and he brought his son along with him, his oldest son.

Mitch Scacchi:
This is Robert Strauss again. So after the Revolutionary War, John Marshall studied law at the College of William and Mary, and he became a successful lawyer in Richmond, Virginia. But the law wasn't Marshall's only ambition. Here's Professor Susan Siggelakis.

Susan Siggelakis:
He was a legislator, state legislator in the Virginia General Assembly. He actually was a delegate to the Virginia ratifying convention, which ratified the United States Constitution. And later he actually worked with Madison in crafting the First Amendment.

Nick Capodice:
He served in the Revolutionary War, he helped ratify the Constitution, and he drafted the First Amendment with James Madison. This guy's everywhere!

Hannah McCarthy:
And this is all before he gets his first high-profile job?

Mitch Scacchi:
Exactly. In 1799, he's elected to the U.S. House of Representatives from Virginia, but he didn't serve long because President John Adams nominated Marshall to be Secretary of State in June of 1800.

Nick Capodice:
All right, so as if what he's already done isn't enough, he joins Congress and then moves into the executive branch as the Secretary of State?

Mitch Scacchi:
Yeah, and there were some foreign relations involved with the position, but he's basically Adams's chief of staff. But he's only Secretary of State for less than a year. The third Chief Justice of the Supreme Court, Oliver Ellsworth, was sent on a diplomatic mission to France, which was actually common at the time. But he gets stuck overseas and the Court needs a Chief Justice.

Robert Strauss:
So now he's stuck there. He gets sick and he sends a note back, "I'm not coming back. You're going to have to find somebody else." So the Secretary of State, Marshall, goes to Adams and he suggests people, including bringing John Jay back, and Adams says, "No, I think it's you. I like you." So now he is both Supreme Court Chief Justice and Secretary of State.

Hannah McCarthy:
It is wild to think that Marshall was nominated with less than two months left in Adams's presidency. He was so close to never becoming Chief Justice.

Mitch Scacchi:
And he wasn't even Adams's first choice. Adams nominated former Chief Justice John Jay to serve again, but Jay turned him down. So Adams went with Marshall instead. Once Marshall was nominated, the Senate actually delayed his confirmation because they hoped that Adams would pick someone else. But he didn't. And eventually the Senate voted to confirm Marshall to the Court.

Hannah McCarthy:
Yeah, Adams later said that, quote, "My gift of John Marshall to the people of the United States was the proudest act of my life." But why did Adams eventually settle for Marshall?

Susan Siggelakis:
You know, I think Adams saw in him a real, he was a real Federalist. I mean, he was somebody who could be trusted. He, he believed in a lot of the things that Adams believed in.

Mitch Scacchi:
At this time, there were two major political parties: the Federalists, led by John Adams and Alexander Hamilton, and the Democratic-Republicans, led by Thomas Jefferson and James Madison. In short, Federalists believed in strong central government and a loose interpretation of the Constitution, while Democratic-Republicans believed in greater respect for states' rights and a strict interpretation of the Constitution. John Marshall was a loyal Federalist.

Nick Capodice:
And now he's also Chief Justice of the Supreme Court and Secretary of State.

Mitch Scacchi:
Yeah, I was surprised by this. But then again, Marshall became Chief Justice on February 4th, 1801, exactly one month before the end of the Adams presidency. So Marshall served as Secretary of State and Chief Justice at the same time for only one month. And it's important to also mention that the Supreme Court was not the esteemed institution it is today. In fact, the first Chief Justice, John Jay, really didn't take the job seriously. He took on very few cases. No one was really sure what role the Court should play, so nobody really cared about Marshall serving in both roles.

Robert Strauss:
The Supreme Court is relatively undefined in the Constitution. It's the highest court, there's no question. But Jay doesn't take it upon himself to do much about it. He eventually quits to become Governor of New York, which he figures is a better deal than being the Supreme Court Chief Justice.

Susan Siggelakis:
Unlike today, the Supreme Court really wasn't a very important institution in American government.

Nick Capodice:
And so the Supreme Court was largely insignificant compared to the other two branches.

Mitch Scacchi:
You could say that. The Supreme Court met in the basement of the Capitol Building, if that's any indication of what the other branches thought of it. But John Marshall...he changed that. As Chief Justice, Marshall was determined not to sink into the annals of history as an insignificant justice on an insignificant court. No, he was going to do something with this job.

Susan Siggelakis:
If you look at Marshall's career, I would say between 1801 when he got on the Court and 1835, the Court actually rendered about a thousand opinions, a thousand cases were decided. He wrote about 500 of those individually. So you can see the guy was a workhorse. You know, he sort of was a captain of a ship that, a captain of an institution that gradually grew in importance during his time on the Court.

Robert Strauss:
And their decisions were all, I hesitate to call them unanimous, but they spoke as one voice. In other words, they might have been 4 to 2 in this case, but when the when the case is written it sounds like all of them are in agreement. And Marshall thought this would give the Supreme Court a little bit more sway.

Mitch Scacchi:
This idea that the Court would speak as one voice when it issues a majority opinion seems so obvious to us now. But this wasn't always the case.

Randolph Moss:
Before he was Chief Justice, each justice would state their own views. And he was the one who instituted the notion of actually having an opinion for the Court, which, by and large, during the early days of the Marshall Court, he was the one who announced.

Mitch Scacchi:
This is Judge Randolph Moss. He serves as a judge on the United States District Court for the District of Columbia.

Hannah McCarthy:
So Marshall steps in and says that instead of issuing separate opinions, the Court will issue one majority opinion that will serve as the voice of the Court.

Nick Capodice:
Yeah, and I see this as being a way for Marshall to give the Court more legitimacy, to establish the Court as one entity, one force, with one opinion to be followed.

Mitch Scacchi:
Right. But more than the single voice Marshall gave the Court, his tenure was also characterized by that idea of unanimity. All the justices agreeing with the decision of the Court. Marshall believed that, if every justice agreed with the Court's ruling, the Court's decisions would have more weight and authority.

Susan Siggelakis:
I think it's a tribute to his organizational skills. I think it's a tribute to the fact that he had a court most of the time, actually, who were part of that same founding generation, and they had similar views. So it wasn't that difficult, I think, to get unanimity.

Hannah McCarthy:
I mean, this is remarkable. Marshall redefined the role of Chief Justice and of the Supreme Court itself.

Nick Capodice:
Yeah, and the judiciary as a whole.

Susan Siggelakis:
You know, he was important for building up judicial power, but also for recognizing the limits of judicial power. And I think that's the key thing about Marshall.

Mitch Scacchi:
Going back to that 1803 case Marbury v. Madison, Marshall built up judicial power by establishing the principle of judicial review.

Hannah McCarthy:
Ok, yes, judicial review. Let's define this. What is judicial review?

Susan Siggelakis:
Judicial review is the authority of a court to render void and inoperable any act of a legislature or any other act of any other part of the government based on the fact that it's conflicting with some, something in the United States Constitution.

Mitch Scacchi:
Marshall wrote in his opinion that "It is emphatically the province and duty of the judicial department to say what the law is."

Nick Capodice:
And that's pretty much what we think of as the whole point of the Supreme Court these days, isn't it? To rule something unconstitutional or uphold its constitutionality. But the Court did not actually have that power until John Marshall said that it did.

Susan Siggelakis:
He was saying, you know, somebody has to be the last word on what the Constitution says, what it allows government to do and what it doesn't allow government to do. And the Court is the best equipped to do that, particularly since it's not vested in the political struggles of the time. It's supposed to be a more neutral, a more detached body from the the opinions of the day, shall we say.

Robert Strauss:
What we had when Marshall decided on judicial review was we finally had three coequal branches of government. So I think that's why I'd say Marbury v. Madison sort of ends the founding of the country. From there on, it's an elaboration on what we already have.

Mitch Scacchi:
Marshall gave the judicial branch some real power to hold the other two branches and the states accountable to the Constitution. But Marbury v. Madison is also a case in which Marshall recognizes the limits on judicial power. Here's Judge Moss again.

Randolph Moss:
That's another tradition set by John Marshall, is that in every case we say to ourselves, do I actually have the power to decide this case? That's a question of whether there's a statute that gives you the power to decide the case and whether the Constitution gives you the power to decide the case. And if it doesn't, then we're done at that point, and there's nothing left for the Court to say.

Mitch Scacchi:
Now, this wasn't Marshall's only significant case. He was also instrumental in establishing the idea that federal power should overrule state power when they come into conflict,

Hannah McCarthy:
Wait, are we talking about McCulloch v. Maryland here, 1819?

Mitch Scacchi:
Absolutely. McCulloch v. Maryland is a case where a state government challenged the existence of the National Bank. Alexander Hamilton, as Secretary of the Treasury, wanted to establish a national bank to help stabilize and improve the nation's credit. And this dream of his came true. But many states hated the National Bank, including Maryland, which imposed a tax on the Bank. James McCulloch was the cashier of the Bank's Baltimore branch, and he refused to pay this tax. This case eventually made its way to the Supreme Court, and the big question facing Marshall was, Is the National Bank constitutional?

Susan Siggelakis:
The state of Maryland and other states would say, there's nothing in the U.S. Constitution that says Congress can charter a bank, nowhere does it say that. And if you look in Article One, section eight, which is where the enumerated powers of Congress are, you don't see it. You know, you don't see a place where it says Congress shall have the power to charter a bank. But when argument was taken before the U.S. Supreme Court, Marshall, again thinking about his idea of being a Federalist, the idea of a strong nation as opposed to partiality of various states all pursuing different policies, he sided with the National Bank and the nation.

Mitch Scacchi:
Marshall look to the Necessary and Proper Clause of the U.S. Constitution, which gives Congress the power to do whatever is "necessary and proper" for carrying out its other stated powers. So was the establishment of the National Bank a necessary and proper action taken by Congress?

Susan Siggelakis:
The states were saying, well, it's not absolutely necessary for the nation to have a bank. You know, it might be helpful, but the language of the Constitution says "necessary and proper." And they read the Necessary and Proper Clause as essentially allows for things that are absolutely necessary rather than simply helpful or convenient. Marshall, on the other hand, reads it essentially as convenient. So essentially, he allows Congress to be the judge of its own powers.

Hannah McCarthy:
So Marshall interprets, quote, "necessary and proper," to really mean "appropriate and legitimate." As long as Congress is acting toward a constitutional end, then the means to get there are constitutional, too, like creating the National Bank.

Mitch Scacchi:
Right, as long as those means aren't explicitly outlawed in the Constitution.

Randolph Moss:
So that's the first question, he said, yes, Congress has this power, and that was a question of enormous importance. But the second question was also enormously important, and he said, and Maryland can't tax the Bank because if Maryland can tax the bank Maryland can destroy the bank. And in doing that, Marshall, early on in the Court's history, established the supremacy of federal law and supremacy of the federal government over the state governments, at least within the realm in which there is federal power. So those were both enormously important propositions.

Nick Capodice:
Marshall's decision here must've had a major impact on the scope of federal power.

Randolph Moss:
Well, I mean, with respect to the country as it ultimately developed, it could not be more important. It's what allows us to actually have a strong national government. I agree that McCulloch, in terms of defining the nation, may be a more important decision than Marbury v. Madison.

Mitch Scacchi:
In fact, this decision opened the door to what are called implied powers.

Hannah McCarthy:
Right, those are the powers the federal government has even though they are not explicitly stated in the Constitution.

Susan Siggelakis:
Smarter people than I have traced the explosion of national power and the diminishment of state power to two decisions by the Marshall Court. One, obviously, McCulloch, the other one was called Gibbons v. Ogden.

Mitch Scacchi:
It's enough to know that Gibbons v. Ogden was a case about navigation rights on the Hudson River between New York and New Jersey. The question facing Marshall was whether the Commerce Clause of the Constitution gave Congress power to regulate interstate navigation. And in 1824, he ruled that Congress has that power over the states, that interstate commerce included all types of commercial intercourse between the states, including navigation.

Randolph Moss:
It is, I think, still the seminal case on the commerce power. The power to regulate commerce between states, so for example between New York and New Jersey, is a federal power, and not a state power. And if each state can regulate commerce in a way that limits the flow of commerce between states, it's very hard to have a national economy. That's something that Hamilton saw, it's something that's in the Constitution itself, in the Commerce Clause, and it's something that Marshall again gave life to in Gibbons v. Ogden.

Hannah McCarthy:
So in both McCulloch and Gibbons, Marshall interprets the Constitution in such a way that results in the expansion of federal power over time, right?

Susan Siggelakis:
Those two cases are often twinned together. There's very few limits on what Congress can do to the economy because the Court is just not going to step in to second-guess what Congress wants to do, right? In other words, Marshall would say, we're not experts on the economy, we're not the experts on taxation, those kinds of things. So we'll just let the people and their elected representatives figure out whether they think this is good or not good.

Randolph Moss:
To the extent that Gibbons stands for the proposition that it's up to the federal government to regulate commerce between the states and that states cannot limit commerce between the states, that is a proposition that is not, today, subject to any reasonable doubt.

Nick Capodice:
From all this, you can easily see just how much of an impact Marshall had not just on the Court and the judiciary but on all aspects of federal power in the centuries that followed. Congress's power over the economy, FDR's New Deal programs, the Affordable Care Act, the stimulus bills passed because of COVID-19 - all of these examples of federal power can be traced back to Marshall's interpretation of the Necessary and Proper Clause and the Commerce Clause of the Constitution.

Randolph Moss:
I think that's exactly right. He gave meaning to those words. I think that one of the things that is essential about John Marshall is that he had vision in the same way that I think Alexander Hamilton had vision for the country and a country that would eventually grow into what it is today. And obviously, neither of them understood exactly what the country was going to look like today, but they did have a vision of providing the tools to a national government that would allow it to become what it's become today.

Mitch Scacchi:
And that's why Jean Edward Smith calls him the "Definer of a Nation" in his biography of Marshall. Marshall gave real practical meaning to those words in the Constitution and set this country down a path that leads us to where we are today. But despite his tremendous influence on the Supreme Court, his legacy is complicated. For one, Marshall bought and sold hundreds of enslaved people throughout his life, and he never wrote an opinion supporting freedom for Black Americans.

Susan Siggelakis:
He actually sponsored a bill in the Virginia legislature, he was a member of the legislature at one point, to encourage what was called manumission. In other words, for people to individually free their slaves. He actually founded a society for colonization of freed slaves, which obviously today people are against, and many people were against it at that time, too, but it was the idea of sending them back to Liberia or colonization. And that was seen as actually a rather progressive view at the time compared to keeping them enslaved, you know, for the rest of their lives in the United States.

Mitch Scacchi:
Supporters of colonization efforts did so for many reasons. Some were opposed to slavery and hoped that helping people move to Africa would encourage enslavers to voluntarily free their enslaved populations. Others saw Liberia as a way to rid the new nation of Black people. Opponents of colonization saw the efforts as racist and pro-slavery. Although Marshall supported the colonization of free Black people throughout his life, he never considered freeing his own enslaved people and resettling them in Liberia.

Hannah McCarthy:
And I know that the rights of Native Americans are another complicated area for Marshall. In the case of Worcester v. Georgia in 1832, he upheld the rights of the Cherokee Nation and declared all Georgia laws about their land unconstitutional.

Susan Siggelakis:
The important thing about that case is what Marshall wrote about the Cherokee Nation, and if I could just read it, he says, "The Cherokee Nation then is a distinct community occupying its own territory with boundaries accurately described in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the ascent of the Cherokees themselves or in conformity with treaties and with the acts of Congress. The whole intercourse between the United States and this Nation by our Constitution and laws is vested in the government of the United States."

Nick Capodice:
In other words, tribal sovereignty.

Mitch Scacchi:
Yup. The United States and its citizens must respect Native American tribes, their lands, and their sovereignty. This is one of several cases Marshall's Court decided on the rights of Native peoples, decisions that have been seen by some as the foundation of federal Native American law and others as laying the groundwork for the control and decimation of Native Americans. This is all part of Marshall's complex legacy.

Hannah McCarthy:
Now, I know that Robert wrote a book called "John Marshall: The Final Founder." And what do we make of this idea that John Marshall even was a founding father, perhaps the final founder?

Robert Strauss:
He definitely was. I mean, in a certain sense, he kept the nation together because it really was splitting up in 1800. I mean, if there were not this "definer" as the other book calls him, we could've split up as a country very easily.

Randolph Moss:
And I think that, I think he is, I think he did play as significant a role as the founders in defining what sort of country we have today.

Nick Capodice:
And is it fair to say that he is one of the most influential Supreme Court justices in history?

Mitch Scacchi:
Well, the Supreme Court gets the last word on the meaning of the Constitution. You could argue that's all thanks to John Marshall. It's no exaggeration to say that the Supreme Court would be far less supreme today if not for him.

Susan Siggelakis:
I mean, obviously, I guess, that goes without saying. I mean, obviously, Marbury v. Madison is the most quoted decision. The phrase that you said, that it is emphatically the province and the duty of the judiciary to say what the law is, that line is the most commonly cited in every case, almost in every Supreme Court case or lower court case that there is. So I think he was, you know, enormously influential in raising the prestige of the Court, in tackling the key issues of the day.

Randolph Moss:
Well, you start with cases as great as Marbury v. Madison, which casts the judiciary as the deciding voice in what the Constitution means and what the law is. We don't step back to think about it, but the judiciary today is what it is in large part because of John Marshall.

C-SPAN:
"Off the main justice's dining room is a smaller dining room for smaller functions known as the John Marshall Dining Room, and that's due to a sculpture that was placed there in the mid-1970s of John Marshall. Chief Justice Warren Burger decided that he wanted to make that the theme of the room, and so...."

Mitch Scacchi:
If you're walking through the lower level of the Supreme Court Building, you'll see a huge statue of John Marshall. He's sitting in a massive chair right in the center of the downstairs of the Supreme Court. And there's a reason he's there, in the middle of the building. It's because, in a way, John Marshall made the Supreme Court.

Randolph Moss:
And so I think, and the point I'm trying to make is, in part by just the way Marshall carried himself through his career as a justice and otherwise in his career, I think he did help further establish both the independence and the integrity of the judiciary.

Nick Capodice:
Today's episode was written and produced by Mitch Scacchi, with help from Jacqui Fulton, Christina Phillips, Hannah McCarthy and me, Nick Capodice.

Hannah McCarthy:
Erika Janik is our Executive Producer. Music in this episode by cymbalBird, Sir Cubworth, Blue Dot Sessions, and Chris Zabriskie.

Nick Capodice:
Special thanks to Rebecca Fanning from the U.S. Courts, and a fun quick fact about Professor Susan Siggelakis: She was Mitch's thesis advisor at UNH, and he wishes to thank her for her contributions to the episode.

Hannah McCarthy:
You can hear all of our episodes of Civics 101 at Civics101podcast.org. You can also listen to us on Apple podcasts or wherever you get your podcasts. And if you're so inclined, leave us a review, we want to know what you think. Civics 101 is a production of NHPR, New Hampshire Public Radio.

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