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Supreme Court History in 'More Perfect': How the Court Became Supreme

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By Casey C. Sullivan, Esq. on September 02, 2016 3:57 PM

What makes the Supreme Court supreme? Why is it the final arbiter on the validity of laws and the meaning of the Constitution? The answer, of course, is Marbury v. Madison. But it wasn't always so. In the earliest days of the Court, the institution was hardly as august as it is today -- and getting to that point involved some strange dealings and significant power struggles.

So, in today's recap of "More Perfect," NPR's new podcast on Supreme Court history, we're looking at Marbury v. Madison -- and the history of scorned romances, bacon-faced judges, and dank potato holes that gave rise to one of the Supreme Court's most important decisions ever.

Our Sad Supreme Court

This episode of "More Perfect" is a fitting reminder of the humble origins of the Court -- or, as "More Perfect"'s Kelsey Padgett tells it, of how, in the early days of the republic, the Supreme Court had "sooooo little power."

The first Court, for example, had only six justices. In contrast to today's debates over Court vacancies, at the time no one seemed to mind that an even-numbered Court could result in evenly split decisions. Supposedly, that was because Congress just couldn't imagine the Court deciding anything of note, according to Akhil Reed Amar, a legal scholar at Yale.

The Court's importance was reflected in its makeup, and its meeting places. The Court handled "these little, tiny, rinky-dink cases," with justices physically traveling through the country to hear disputes. (The traveling judge is the basis for today's circuit courts, though the practice dates back to King Henry II and the origin of English common law.) Those carriage-riding jurists were a group of "misfits" and a "motley crew that isn't organized," according to WilmerHale's Ari Savitzsky. One, Justice Samuel Chase, was endearingly known as "Old Bacon Face."

And when they met in D.C., they held court in the basement of Congress, in a "dark, dank potato hole."

John Marshall Remakes the Court

  • That all changed with John Marshall -- or rather, with the election of 1800, which swept John Adams and his Federalists from office. Having lost Congress and the Presidency, Adams looks to the courts to retain Federalist power.
  • Before Jefferson's term began, Congress created scores of new judicial appointments, as a check on anti-Federalist influence. Adams reportedly worked to the very last moments of his presidency signing commissions for new judgeships, almost all of which went to Federalist supporters. But not all the commissions were delivered in time.
  • In addition to expanding the judicial branch, Adams filled a vacancy for Chief Justice with his Secretary of State, John Marshall.
  • The Jeffersonian Republicans, in response, cancelled the Court's 1802 term.
  • Seeing the future of the judiciary (and his own politics) at stake, Marshall set about to save the Court. That included professionalizing the judicial branch, through, for example, introducing the wearing of black robes. It apparently also included liquoring his colleagues up with cask after cask of Madeira wine.

Marshall vs. Jefferson, or as We Know It, Marbury v. Madison

  • Jefferson and Marshall were second cousins, but they hated each other. And their rivalry wasn't just all political. Marshall's wife's mother (that is, his mother-in-law) had rejected Jefferson romantically, supposedly contributing to the long-running feud between the two. Which is weird.
  • That feud came to a head in 1803. Those commissions Adams signed that didn't get delivered? One of them was for William Marbury.
  • Marbury brought suit against the Jefferson administration, demanding his commission. Under the Judiciary Act of 1789, he took his case straight to the Supreme Court. This was the opportunity for Marshall and Jefferson to go mano a mano over the federal government's separation of powers. The rest is history, sort of.
  • Of course, the outcome of Marbury wasn't entirely preordained. Marshall worried that if the Court ordered Jefferson to hand over the commission, Jefferson would just ignore him, setting a dangerous precedent whereby the executive branch simply refuses to go along with Supreme Court decisions it does not like.
  • So, Marshall kicked the case on jurisdictional grounds, ruling that the law that allowed Marbury to come straight to the Supreme Court was itself unconstitutional -- and in so ruling, firmly establishing the principal that it is the Court's duty to "say what the law is."
  • Thus, in forfeiting the fight over the judge, Marshall won the battle over the judiciary.

But, power is relative. A few decades later, President Andrew Jackson famously ignored the Marshall Court, years after Marbury, leading to the Trail of Tears. Many Southern governors ignored (or attempted to ignore) Brown v. Board of Ed. And many Americans can't name a single Supreme Court justice -- or even say how many people sit on the Court.

Podcasts can't change history, but they can impact the present, however slightly. So, in what is perhaps an effort to make the Supreme Court a little more supreme, this episode of "More Perfect" was titled "Kittens Kick the Giggly Blue Robot All Summer." That's a mnemonic device to help you remember all the names of the current Justices.

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