The Supreme Court – The First 100 Years

Jefferson’s reaction to McCulloch was especially peevish and extreme. He endorsed attacks on the decision published by the radical states’ rights partisans Spencer Roane and John Taylor, agreeing that the Supreme Court had no power to review the constitutionality of state laws or to second-guess the decisions of state courts. Later, he seemed to deny entirely the Supreme Court’s power to hand down binding interpretations of the Constitution. This proved too radical for Jefferson’s prot�g�, James Madison, who wrote to his patron that he had no doubt that the framers of the Constitution intended the federal courts to be a final arbiter of conflicts between federal and state law. On his deathbed, just before he expired on July 4, 1826, Jefferson criticized Madison for being too accommodating.

Marshall lived another nine years, during which time he won over Jefferson’s political successor, the states’ rights partisan Andrew Jackson. Marshall had initially opposed Jackson’s election to the presidency, and in the Cherokee Indians case, Worcester v. Georgia (1832), Marshall infuriated Jackson by insisting that Georgia laws that purported to seize Cherokee lands on which gold had been found violated federal treaties. Jackson is famous for having responded: “John Marshall has made his decision, now let him enforce it.” Although the comment is probably apocryphal, both Georgia and Jackson simply ignored the decision. But in 1832, when South Carolina declared that it had the power to nullify federal laws with which it disagreed, Jackson at least temporarily embraced Marshall’s vision of judicial authority, issuing a proclamation of the Supreme Court’s ultimate power to decide constitutional questions and emphasizing that its decisions had to be obeyed. When Marshall died three years later, Jackson hailed him as a national hero — but he also appointed men to the Court who would move Marshall’s nationalism in the direction of states’ rights.

Marshall’s vision of national unity could not survive the political fractures that led to the Civil War. Under Chief Justice Roger Taney’s leadership, the Court in the Dred Scott case (1857) made the mistake of imagining that it could short-circuit the political debate about the power of Congress to ban slavery. Endorsing the position of the most radical states’ rights Democrats, the Court in Dred Scott held that Congress had a constitutional obligation to protect slavery in the federal territories and no power to ban it. The decision made a mockery of the Jeffersonians’ claim that they were devoted to a limited role for judges in American politics, and it was reversed after the Civil War by the Thirteenth, Fourteenth, and Fifteenth Amendments to the U.S. Constitution.

Unfortunately, the Supreme Court after the Civil War proved indifferent to the vision of racial equality and strong national power embodied in the new amendments. When Congress, in 1875, passed a Civil Rights Act that forbade racial discrimination in places of public accommodation, the Supreme Court struck down the law (the Civil Rights Cases [1883]), on the grounds that Congress had no power to regulate private discrimination. The only dissent was written by Justice John Marshall Harlan, a former slaveholder turned champion of African-American civil rights. Marshall charged his colleagues with ignoring former Chief Justice John Marshall’s broad vision of national power. Like Marshall, for whom he was named, Harlan understood that the Court has best served itself and the nation by defending national power against the assaults of local majorities. This vision was finally vindicated by the Supreme Court and Congress during the Warren Court era of the 1950s and ’60s, when Harlan’s dissenting opinions became the law of the land and equal rights for African Americans finally became a national priority.


About the Author
Jeffrey Rosen is a Professor of Law at George Washington University and legal affairs editor of the NEW REPUBLIC. He is the author of the companion book to the PBS Series, THE SUPREME COURT: THE PERSONALITIES AND RIVALRIES THAT DEFINED AMERICA (Times Books).