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The Great Decision

Jefferson, Adams, Marshall, and the Battle for the Supreme Court

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By Cliff Sloan

By David McKean

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In 1800, the United States teetered on the brink of a second revolution. The presidential election between Adams and Jefferson was a bitterly contested tie, and the government neared collapse. The Supreme Court had no clear purpose or power — no one had even thought to build it a courtroom in the new capital city. When Adams sought to prolong his policies in defiance of the electorate by packing the courts, the fine words of the new Constitution could do nothing to stop him. It would take a man to make those words good, and America found him in John Marshall.

The Great Decision tells the riveting story of Marshall and of the landmark court case, Marbury v. Madison, through which he empowered the Supreme Court and transformed the idea of the separation of powers into a working blueprint for our modern state. Rich in atmospheric detail, political intrigue, and fascinating characters, The Great Decision is an illuminating tale of America’s formative years and of the evolution of our democracy.

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Praise for
The Great Decision
“Sloan and McKean have written a cheerfully accessible story that will be enjoyable for law professionals and lay readers alike . . . the exciting pace and scope of a story that is as relevant today as it was over 200 years ago.”
—JAMES SRODES, Washington Lawyer
 
“Sloan and McKean . . . paint a vivid picture of intense political conflicts between the Federalists and Jeffersonians. In so doing, they skillfully present the reader with a political thriller. . . . Their book provides a colorful description of the tumultuous times in which the Court rendered its landmark judgment. And the book’s implicit references and comparisons to our own politically divisive times will not be lost on the attentive reader.”
—DAVID FREDERICK, Washington Post
 
“Cliff Sloan and David McKean tell the story behind the story, with sharp and detailed emphasis on the times and the personalities.”
—Richmond Times
 
“Former Supreme Court clerk and Slate publisher Sloan and veteran political aide McKean bring to life one of the most important legal cases in American history. . . . Sloan and McKean supply Marbury’s historical context and unravel the complex fabric of personalities, politics and law that animated the case. . . . The authors’ enthusiasm and clear prose vivify the contention that, as Marshall said, ‘It is emphatically the province and duty of the judicial department to say what the law is.’ A crisp, colorful examination of the case that established the formidable power of the federal judiciary.”
—Kirkus
 
“The Supreme Court case of Marbury v. Madison is the most important key to understanding the separation of power in American government. The Great Decision makes the tale come alive. It’s filled with intrigue, colorful personalities, and political maneuvers that seem astonishingly relevant to our world today.”
—WALTER ISAACSON, author of Benjamin Franklin: An American Life
 
“As our nation emerges from a dark decade of disrespect for the Constitution, nothing could be more fitting than a new picture of the great decision that made the rule of law a living part of the American legacy. Forests have been felled writing about that decision as a legal landmark, but its place in the turbulent politics and psychology of the time has never been painted in colors more vivid than those with which Sloan and McKean created this historic portrait.”
—LAURENCE H. TRIBE, Carl M. Loeb University Professor, Harvard Law School
 
“In this highly accessible book, the authors skillfully build suspense and tension around an outcome readers may already know.”
—Booklist, starred review
 
“Whoever thought that Marbury v. Madison could be a page turner? Landmark constitutional law, yes, but a nail-biting drama crafted in dimly lit hotel rooms in Washington? Filled with memorable players such as ‘Old Bacon Face’ Justice Samuel Chase and a slovenly Thomas Jefferson? Cliff Sloan and David McKean’s new book, The Great Decision, tells a wonderful tale of how the decision—which established that the Supreme Court had the power to declare an act of Congress unconstitutional—came to be. To produce this impressive and gripping narrative, they culled newspaper accounts and diaries and conducted a wide-ranging array of interviews, including with Justice John Paul Stevens, who went back and analyzed his law school notes—which he apparently has kept all these years.”
—JAN CRAWFORD GREENBURG, Supreme Court correspondent, ABCNews.com
 
“A well-crafted and thoroughly engaging account of the social, political, and intellectual forces that helped shape this seminal decision.”
—New York Law Journal
 
“The Great Decision is a fascinating look at one of the pivotal moments in our history . . . [A] truly excellent piece of scholarship.”
—WHRW News


For Mary Lou, Sarah, Annie, and Nick
and
For Kathleen, Shaw, Christian, and Kaye


PROLOGUE
ON CONSTITUTION AVENUE in the nation’s capital, midway between the White House and the Capitol, sits the National Archives, a gleaming, white, marble, temple-like structure with massive Doric columns on all four sides. The Archives features a “Charters of Freedom” hall, a cavernous rotunda on the building’s second floor where on any given day a long line of visitors from around the world waits patiently behind hooked rope barriers to view the sacraments of our national identity.
Before entering the rotunda, the expectant visitors file past a thirteenth-century copy of the Magna Carta, the British decree from 1215 announcing the protection of certain “liberties,” “rights,” and concessions. Upon entering the dimly lit great hall, they see two large paintings depicting the signing of the Declaration of Independence. As the line proceeds, they view America’s national treasures arranged in a semicircle and carefully preserved in individual, climate-controlled cases. The very first document on display is an original copy of the Declaration of Independence, with its unyielding commitment to “life, liberty, and the pursuit of happiness.”
Then, it’s on to an original copy of the Constitution, with its audacious statement that “We the People” create the union, and its historic division of the government into three branches of separated powers and checks and balances.
From there, the visitors witness an original of the Bill of Rights, adopted soon after the Constitution, with its guarantee of basic liberties such as freedom of speech, freedom of the press, and freedom of religion.
The next national treasure on display, after the Declaration of Independence, the Constitution, and the Bill of Rights, is a single Supreme Court decision from 1803: Marbury v. Madison. Unlike the other documents, Marbury is unknown to many people. The exhibit explains that it is “one of the cornerstones of the American constitutional system,” the first case in which the Supreme Court struck down an Act of Congress as unconstitutional.
Why is Marbury considered the greatest decision in American law? What is it about, and where did it come from? What impact has the decision had on the nation? Few people know or fully appreciate the story of Marbury v. Madison. And it is a rich, complex, sometimes surprising saga—arising in the midst of bitter enmity between a new president, Thomas Jefferson, and a new chief justice, Jefferson’s cousin John Marshall; emerging from the cauldron of political warfare between the defeated Federalists and Jefferson’s triumphant Republicans; culminating in a triple bank shot by Marshall that enhanced the Court’s power and prestige, avoided a futile confrontation between a weak Court and a strong president, and blasted Jefferson for lawless actions without giving him an opportunity for defiance. The case would emerge as the leading totem of American judicial review, inspiring some of the Supreme Court’s greatest later decisions.
Marbury v. Madison is perhaps underappreciated because it lacked the drama of a classic courtroom argument: Neither man showed up before the court at all, and, while Madison is heralded as one of the founding fathers, no one now knows who Marbury was. Neither man appeared ever to be personally affected by the consequences of the case. Marbury seemingly never mentioned it again. But what is indisputable is that, framed as it was, the case was a classic struggle between two factions, representing one of the first tests of American civic architecture and determining whether the country could in fact successfully cope with strongly expressed yet divergent views.
The Supreme Court was created by the founding fathers at the Constitutional Convention of 1787. It was conceived as a co-equal branch of the government, on the same level as the president and the Congress. But it wasn’t—at least until the decision in Marbury v. Madison. This is not just the story of one legal case; it is the story of America at the dawn of the nineteenth century and of how personalities, politics, and law all contributed to completing the dream the creators of the American Constitution began.
Marbury is rightly considered a national treasure, for it is a uniquely American icon that vividly stands for the rule of law. But it is much more. It can also be viewed as John Marshall versus Thomas Jefferson, the chief justice versus the president, the courts versus the Executive, the Federalists versus the Republicans, the advocates of a strong central government versus the proponent of states’ rights. As such, Marbury v. Madison became a profound public test of the viability of America’s new Constitution, embodying political attitudes that still divide Americans to the present.
It’s no accident that the case was heard following the country’s first truly contested election in which real enmity and acrimony split the Senate and the House of Representatives and reverberated throughout the press. Schism was in the air; the young republic could have fractured. The election of 1800 was the first in which power was transferred from one party to a rival. Marbury v. Madison would not have happened but for the extraordinary circumstances that saw the outgoing president, John Adams, still making political appointments late into the final night of his term of office at the White House.
The case, then, is about America’s identity. The political and judicial history of the republic was shaped by the outcome of Marbury v. Madison, and, even more important, the way that outcome was reached. It is a moment in the life of the nation when the enduring character of the country rested on the narrowest of margins, in the hands of six unelected judges, appointed by patronage, one of whom was too ill to walk from his lodging to the Court. It didn’t seem to be a propitious way to determine the future of a country still wrestling with its independent identity, but it worked.


INTRODUCTION
JOHN JAY RECLINED AT HIS DESK in his rented home at 60 State Street in Albany and stared at a letter he had just received from President John Adams.
It was early January 1801. The United States of America, not yet twelve years old, was in chaos. In the election of 1800, Adams had been defeated but it was not yet clear by whom: Vice President Thomas Jefferson or Jefferson’s running mate, Aaron Burr. Running as a ticket, Jefferson and Burr had received the same number of votes in the electoral college.
Burr, the running mate, then had shocked the nation by not withdrawing his name, and so signaled that he was prepared to challenge Jefferson for the presidency. Under the Constitution, with no majority in the electoral college, the matter would be settled by the House of Representatives, and the new House, largely filled by victorious Republicans, would not assemble until later in the year, after the new president, whoever he turned out to be, would take office.
As Jay began his day as governor of New York, he pondered Adams’s letter. Chief Justice Oliver Ellsworth had resigned from the Supreme Court and the president wanted Jay to replace him. For the first time, the Supreme Court would be required to meet at least a few weeks each year in Washington, DC, a mud-soaked, sparsely settled city that had become the nation’s capital only months earlier. Jay was a distinguished American in the nation-building generation, a peer of George Washington, Thomas Jefferson, James Madison, and Alexander Hamilton. Along with Benjamin Franklin and John Adams, he had negotiated the Treaty of Paris, which ended the Revolutionary War. He had served as president of the Continental Congress during the Revolution, and as the nation’s first secretary of foreign affairs under the Articles of Confederacy before the adoption of the Constitution in 1789. Together with Madison and Hamilton, he had been one of the authors of The Federalist Papers, a highly influential series of newspaper articles urging support for the Constitution.
He had served as the nation’s first chief justice, from 1789 to 1795. Appointed by George Washington in September 1789 on the same day that Congress passed the Judiciary Act creating the Supreme Court, he was confirmed unanimously two days later. But Jay hated the job.
Jay especially loathed the work schedule. The Justices sat together only twice a year for two or three weeks. Otherwise, they were out “riding circuit,” covering the country in vast geographic districts where they traveled to towns and villages to hear cases during the day and to sleep in crowded inns or rented rooms above taverns at night. John Adams described the taverns as “full of people drinking drams, toddys, carousing. . . . Here the time, the money, the health, and the modesty of most that are young and many old, are wasted: here diseases, vicious habits, bastards, and legislators are frequently begotten.” Travel conditions were primitive and difficult, with coarse roads, poor food, and uncertain accommodations. One justice complained of having to share a bed with “a man of the wrong sort.” This was all too much for Jay, who was to the manor born, descended from wealthy French Huguenots, and someone who richly enjoyed life’s comforts.
 
In each of the almost six years that Jay was chief under President Washington, the Supreme Court issued only a handful of opinions. Many thought that Congress or the states, rather than the courts, should be the final judge of the constitutionality of a law. Jay was convinced that the concept of a federal judiciary would not amount to much in the American system, and he had jumped at the chance to leave the Supreme Court.
As early as 1793, while still chief justice, he ran for governor of New York and barely lost. At the request of President Washington, he spent the next year in London, negotiating the controversial Jay Treaty for increased trade relations with England. As news of the treaty spread throughout the country, angry anti-English mobs burned him in effigy. While still serving as a chief justice and envoy simultaneously, Jay ran again for governor of New York in 1795, winning this time and happily resigning as chief justice to take the reins in Albany.
Jay considered himself lucky. Many of his fellow original appointees to the Supreme Court had met sorrier fates. One died soon after being released from debtor’s prison. Another left the Court after he was maddened by a mysterious ringing in his ears. The man nominated to be Jay’s successor as chief justice, John Rutledge of South Carolina, saw his nomination rejected by the Senate, largely because of his vehement opposition to the Jay Treaty. Upon hearing the news of his defeat, Rutledge attempted to commit suicide by jumping into a river in his home state. Passing slaves pulled him out of the water.
By 1801, nearing the end of his second term as governor of New York, Jay looked forward to retirement. He intended to live the life of a gentleman farmer, enjoy his country estate, and stay close to his family and particularly his ailing wife Sarah. But that peaceful future had been interrupted by Adams’s sudden summons to return to head the hapless Third Branch of government.
“I have nominated you to your old station,” Adams began hopefully. Ruing his defeat by what he saw as a fickle public, Adams emphasized that the chief justice is “independent of the inconstancy of the people” and independent of “the will of a President,” an obvious reference to the looming administration of Jefferson or Burr. Adams hoped the judiciary might provide a crucial bulwark against the imminent Republican takeover of the presidency and Congress. “In the future administration of our country,” Adams concluded, “the firmest security we can have against the effects of visionary schemes or fluctuating theories will be in a solid judiciary; and nothing will cheer the hopes of the best men so much as your acceptance of this appointment.”
Jay smiled and shook his head. He wanted nothing to do with it.
Jay knew that, in the new capital of Washington, the President’s House and the Capitol, both grand edifices, were under construction. But nobody had bothered to include a place for the Supreme Court. By January 1801, the best the Court could hope for was that Congress would allocate a spare room in the unfinished Capitol where it could occasionally meet.
Jay seized his pen and quickly replied to Adams. “I left the Bench perfectly convinced that under a system so defective it would not obtain the energy, weight, and dignity which are essential,” he reminded the president, “. . . nor acquire the public confidence and respect which, as the last resort of the justice of the nation, it should possess. Hence I am induced to doubt both the propriety and the expediency of my returning to the Bench under the present system.” Jay sealed the letter and sent it in care of Adams’s secretary of state, John Marshall, who, at 45, was a decade younger than Jay and had served in the Adams administration for less than a year.
Rebuffed by Jay, Adams was determined to install a Federalist chief justice on the Court who would serve in the new Republican administration. But he was equally determined not to appoint a candidate favored by the extremists in his own party with whom he and his embattled band of moderates had been feuding. He decided not to shoot the messenger but to promote him: He asked his young secretary of state to be the new chief justice.
Within barely more than two years, John Marshall would transform the branch that John Jay had ridiculed, and lead his colleagues in issuing the most important Supreme Court decision in legal history. With one judgment—deciding Marbury v. Madison—Marshall would chisel judicial review into the American system. Whatever else would be said of the Supreme Court in the two centuries after Marbury, it never again would be viewed as John Jay had seen it in January 1801—as lacking all “energy, weight, and dignity” within American government. Marshall’s decision settled that question—asserting clearly and unequivocally that the Supreme Court did indeed possess the power to strike down an Act of Congress as unconstitutional—and laid the foundation for the American rule of law. The country would never be the same.


THE COMBATANTS
John Adams
Thomas Jefferson
John Marshall
William Marbury
James Madison
THE JUSTICES:
 
JOHN MARSHALL’S SUPREME COURT COLLEAGUES IN 1803
Alfred Moore
William Cushing
Samuel Chase
Bushrod Washington
William Paterson


Chapter ONE
“THIS GIGANTIC ABORTION”
The fact that Washington had become the nation’s capital at all was a surprise. The first Congress, meeting in New York in 1789 and 1790, had disagreed for months about the location of the seat of government. The Constitution, which had been ratified only a year before, provided for a permanent capital as a symbol of the new government’s durability. But it did not specify its location. Under the Articles of Confederation adopted in 1781, the Continental Congress had been a vagrant, moving from city to city, begging and borrowing space in state and local buildings, once even having to flee its home in Philadelphia when local authorities refused to protect it from street mobs. In the newly constituted nation, legislators wanted their own state or region to host the capital and shape its character. Cities jostled to be the new permanent capital. New York and Philadelphia sought the honor, as did Baltimore, Annapolis, Trenton, Carlisle, Frederick, Germantown, and a host of others. President George Washington had advocated a capital on the Potomac, near his home in Mt. Vernon, but many in the new Congress had ridiculed the idea.
As the stalemate continued, on June 20, 1790, Thomas Jefferson hosted a dinner with Alexander Hamilton and James Madison at Jefferson’s new residence on 57 Maiden Lane in New York City, several blocks north of Wall Street. Jefferson was the nation’s secretary of state, Hamilton the secretary of the Treasury, and Madison an influential Virginia congressman, architect of the Constitution, and Jefferson’s close political ally.
Over a meal that undoubtedly consisted of several rounds of Madeira (the favored wine of the era), the diners agreed to an elaborate political bargain. Jefferson and Madison would persuade their fellow southerners to drop opposition to Hamilton’s plan for the national government to assume state debts if Hamilton would approve the choice of the Potomac for the future capital.
Congress assigned the job of selecting the exact site for the capital along the Potomac to the president, much to George Washington’s delight. A surveyor by trade, Washington stitched together the new capital on the Potomac from land within Maryland and Virginia. It included the established towns of Georgetown in Maryland and Alexandria in Virginia, and a rambling, murky, muck-filled wilderness that now would be called “Washington City.” The fact that others saw the site as a desolate swamp did not deter Washington. Some whispered that his judgment was colored by his personal land holdings within the designated area.
THE BUILDING OF THE NEW CAPITAL was star-crossed from the start. Efforts to launch and build it repeatedly faltered and sputtered. Soon after the selection of the site, Washington and his three appointed capital commissioners grandly announced a public auction of lots of land in the new city. At the rain-drenched auction, with Washington, Jefferson, and Madison in attendance, individual bidders, most of whom had been extended generous credit terms, purchased only thirty-five lots. There was clearly interest; it was, after all, the nation’s capital, but few were willing to actually put money down.
A triumvirate of wealthy investors formed a syndicate to construct buildings in the new city. By 1797, the syndicate had declared bankruptcy. The partners went to jail and left half-finished buildings as monuments to their losses. Jefferson, who had overseen the capital building project for Washington in his role as secretary of state, worried that there were so few habitable structures in Washington that the congressmen and senators would have to “lodge, like cattle, in the fields.”
Washington appointed Pierre Charles L’Enfant, a noted French architect, to design the city. Although L’Enfant produced a masterful plan that became the blueprint for the capital, he also feuded bitterly with the capital commissioners over everything from financing the enterprise to design issues. Ultimately, L’Enfant refused to report to the commissioners and in 1792, Washington ordered Jefferson to fire his city planner.
By 1800, Washington City, home to the still unfinished President’s House and the Capitol, contained only 3,210 people—approximately 500 families, with only 109 brick houses and 263 wooden houses. The entire capital area, including Georgetown, Alexandria, and Washington City, totaled 14,093 people—of whom approximately 10,000 were white, 3,200 were slaves, and 800 were free blacks.
Workers on the Capitol included slaves, Irish immigrants, and other laborers of many nationalities. Their temporary shanties and dormitories sat prominently in the midst of the city. Mud was everywhere, especially on the new Pennsylvania Avenue linking the Capitol and the President’s House—the major thoroughfare named after Pennsylvania as part of an ongoing effort to mollify the state for its loss of the national capital. Residents described the street as “a sea of mud.” Citizens carried walking sticks, both to provide a foothold in the morass and to ward off wandering animals such as hogs and cattle.
The President’s House was little more than a construction site in the middle of a field. The new home for Congress was in no better shape. The Capitol was unfinished, with only the Senate wing ready for use. Construction had stopped in the fall of 1800, once again because of a lapse in funding. A grand ceremonial procession to open the Capitol, planned for November 21, 1800, had to be cancelled, both because of an unusually heavy snowfall and because of squabbles among the planners.

Genre:

On Sale
Mar 2, 2010
Page Count
288 pages
Publisher
PublicAffairs
ISBN-13
9780786744961

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Cliff Sloan

About the Author

Cliff Sloan is a professor of constitutional law and criminal justice at Georgetown University Law Center. He has argued before the Supreme Court seven times. He has served in all three branches of the federal government, including as Special Envoy for Guantanamo Closure, and is the author of The Great Decision: Jefferson, Adams, Marshall, and the Battle for the Supreme Court. His commentary on the Supreme Court and legal issues has appeared in the New York Times, Washington Post, Slate, and other publications, and on television and radio networks.

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David McKean

About the Author

David McKean is director of Policy Planning for the US Department of State. He is the author of three previous books on American political history: Friends in High Places with Douglas Frantz (Little, Brown and Co.), a New York Times Notable Book; Tommy the Cork (Steerforth Press), a Washington Post Book World cover and Best Book; and The Great Decision with Cliff Sloan (PublicAffairs), a History Book of the Month Club selection.

McKean is a board member of the Foundation for the National Archives. In 2011, he was a Public Policy Scholar at the Woodrow Wilson International Center for Scholars. He previously served as CEO of the John F. Kennedy Library Foundation in Boston. Prior to that, McKean was the staff director for the US Senate Foreign Relations Committee. He was chief of staff in Senator John Kerry’s personal office from 1999 to 2008.

Mr. McKean was a key player in laying the groundwork for the Senator’s presidential campaign in 2004 and was a cochairman of the senator’s presidential transition team. In 1997 and 1998, he served as the minority staff director for the US Senate Permanent Subcommittee on Investigations. David McKean taught at the Waterford Kamhlaba School in Swaziland from 1981-1982.

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