Two Supreme Court Justices for Their Times
Byline: Willliam F. Gavin
Now that the Supreme Court has become the recipient of the second highest honor the TV industry can bestow - a prime-time drama about the court (only sitcoms rank higher in dignity) - it seems only fitting to examine two recent books, one about the legendary John Marshall and the other by Justice Sandra Day O'Connor concerning her childhood on an Arizona ranch.
John Marshall and The Heroic Age of The Supreme Court by R. Kent Newmyer (Louisiana State University Press, $39.95, 511 pages, illus.) is based on solid scholarship, graced by common sense, and written in a lucid, penetrating style. But be warned: This book is not easy reading. It is dense with legal, historical and social analyses, and all of them require close scrutiny.
The author, professor of law and history at the University of Connecticut School ofLaw, devotes most of the book to detailed examinations of the major opinions of Chief Justice John Marshall (1755-1835). This isn't one of those oh-look-how-human-he-was Great Man biographies, chock full of "humanizing" anecdotes. There are accounts of Marshall's good-humored friendliness, and the esteem with which he was held by those who knew him best, but the book focuses on how he reached judicial conclusions about profound constitutional issues.
Despite Mr. Newmyer's skill at painstakingly guiding the reader, point by point, through legal thickets, the material he deals with - nothing less than the interrelated legal, political, and economic trends of Marshall's long life - is of its very nature dauntingly complex and not suited to breezy, popular presentation.
Marshall was, among his many accomplishments, a Revolutionary War veteran, a successful Virginia lawyer, a state legislator, an admired diplomat (remember the XYZ Affair?), a congressman and cabinet officer (briefly) and a chief justice of historic importance. But, as the author points out, he was above all "a Burkean conservative," a Virginia aristocrat of strong Federalist views, and a "constitutional nationalist," placing him in direct confrontation with most of his Virginia friends and neighbors who held strong states rights views. Perhaps nowhere in American history can we find such a long and bitter political and philosophical enmity than that between the two great Virginians, Thomas Jefferson and Marshall, each of whom thought the other was a scheming, lying politician.
In 1801, Marshall was appointed Supreme Court justice by President John Adams, although, in one those ironies of history, he was sworn in by the next president, Jefferson, who even at that early date disliked and distrusted him. During the next two decades, Marshall was at the center of a debate concerning two of the most important political questions in American history: What do the words of the Constitution mean and what role should the Supreme Court play in determining the answer to that question? We are still asking those questions, as witness the presidential election of 2000.
To Marshall, the answers were clear. The American people themselves, not the sovereign states, created the Constitution. The national government they created does not depend upon the states to exercise its powers, and the Supreme Court has the constitutional right and duty to exercise judicial review, not only of laws by the states but by the Congress as well. The next question - What powers does the national government have and how do these powers relate to the equally constitutional, but different, rights and powers of the states? - was one Marshall would take more than two decades trying to answer. His decisions (based on the idea of "divided sovereignty" between the states and the national government), written in a forceful, reasoned, Olympian style, made him one of the most revered - and reviled - men of his time. …