John Marshall

The Man Who Made the Supreme Court


By Richard Brookhiser

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The life of John Marshall, Founding Father and America’s premier chief justice.

In 1801, a genial and brilliant Revolutionary War veteran and politician became the fourth chief justice of the United States. He would hold the post for 34 years (still a record), expounding the Constitution he loved. Before he joined the Supreme Court, it was the weakling of the federal government, lacking in dignity and clout. After he died, it could never be ignored again. Through three decades of dramatic cases involving businessmen, scoundrels, Native Americans, and slaves, Marshall defended the federal government against unruly states, established the Supreme Court’s right to rebuke Congress or the president, and unleashed the power of American commerce. For better and for worse, he made the Supreme Court a pillar of American life.

In John Marshall, award-winning biographer Richard Brookhiser vividly chronicles America’s greatest judge and the world he made.



JOHN MARSHALL SPELLED BADLY, AS DID REPORTERS FOR the Supreme Court, who had a penchant for mangling surnames (Sturges for Sturgis, Sandford for Sanford). The reporters’ mistakes are enshrined in legal nomenclature. I have corrected Marshall’s. Cornelius Vanderbilt’s spelling is too good to lose.

Capitalization signals the federal government: Bank means Bank of the United States, Constitution means Constitution of the United States, and Court means Supreme Court of the United States. But Federalism always means the political party. (NB: The Republicans of Marshall’s lifetime are the ancestors of today’s Democrats; the GOP is a different, later organization.)

Justices of the Supreme Court were called judges in Marshall’s day. I have used modern etiquette. Inconsistently, I write of Native Americans as Indians.


John Marshall and George Washington

JOHN MARSHALL IS THE GREATEST JUDGE IN AMERICAN history. As chief justice of the Supreme Court for thirty-four years—a record that still stands—he impressed, charmed, and defied colleagues, skeptics, and enemies, transforming an institution to which the Founding Fathers had given relatively little thought into a pillar of the nation. In 1801 when Marshall became chief justice, the job lacked “dignity,” as one contemporary put it, while the judiciary was, in the words of another, the “weakest” branch of the federal government. When Marshall died in 1835, he and the Court he led had rebuked two presidents, Congress, and a dozen states and laid down principles of law and politics that still apply. Now, when the Supreme Court makes the news every day it sits, and every time a new justice must be appointed, there is no question of its prominence—a prominence it owes, in the first instance, to Marshall, the man who made it.

But the most formative experiences of Marshall’s life came not in court but in battle. That was where he met George Washington, the man he called simply “the greatest Man on earth,” whose example would inspire and guide him for the rest of his life.

In September 1777, the Continental Army, led by commander in chief George Washington, met a British army led by Lord Howe at Brandywine Creek in Pennsylvania, thirty miles southwest of Philadelphia, the new nation’s capital. Washington lost the battle of Brandywine, and the British took the city. In October, he counterattacked at Germantown, a hamlet north of Philadelphia, but once again he was defeated.

Before the year ended, Washington faced a third fight. His troops were dug in behind a line of redoubts at White Marsh, northwest of the city; in early December, Howe and his men marched out of Philadelphia toward them.

Washington was threatened by more than the enemy. Congress, dismayed by the loss of the capital, demanded that he strike the enemy and recover it.

John Marshall was in Washington’s army that winter, a lieutenant in a Virginia regiment. He was tall, strong, and slovenly, with black hair and bright black eyes. He had recently turned twenty-two and was already a two-year veteran who had fought in four engagements. Decades later, in a biography of George Washington—the only book he ever wrote—he recalled his commander’s predicament at White Marsh.

Washington knew his troops were in no shape to launch another attack. They had fought two battles in two months and lacked shoes, uniforms, and weapons. Washington, wrote Marshall, had “too much discernment” and “too much firmness of temper” to be distracted by “the torrent of public opinion… the clamors of faction or the discontents of ignorance.” Yet if the enemy attacked, he must be ready to meet them. So “the American chief rode through every brigade of his army, delivering, in person, his orders respecting the manner of receiving the enemy, exhorting his troops to rely principally on the bayonet, and encouraging them by the steady firmness of his countenance, as well as by his words, to a vigorous performance of their duty.… The author states this on his own observation,” Marshall added (proudly: I was there; self-effacingly: he put it in a footnote). After two days of skirmishing, the British withdrew; Washington would not be lured from his prepared positions, and Howe decided it would be too risky to assault them. Marshall explained the enemy’s retreat thus: Howe’s return “to Philadelphia without bringing on an action, after marching out with the avowed intention of fighting, is the best testimony of the respect which he felt for the talents of his adversary, and the courage of the troops he was to encounter.”

Washington’s talents, soldiers’ courage: Marshall would never forget them. The revolutionary army drew patriotic young men from every state who risked privation, injury, and death for their common country. The man who commanded them struck where he could and stood firm when he had to; he was judicious, brave, and a leader of men.

For the rest of his life, John Marshall saw Washington as his commander and himself as one of his troops. In 1787, Washington left his postwar retirement to preside over the Constitutional Convention in Philadelphia. Marshall, still in his early thirties, was not yet eminent enough to be sent as a delegate to that meeting, but in 1788, he served in the Virginia Ratifying Convention in Richmond, defending the Constitution that Washington had signed. In 1798, Washington summoned his former junior officer to Mount Vernon and told him to run for Congress; Marshall obeyed. In 1799, after the great man died, it was Marshall who eulogized him, on the floor of the House, as “first in war, first in peace, and first in the hearts of his countrymen.”

But Washington was more than a hero to Marshall. He was a man with principles and an agenda, who had learned from the privations of his army the need for a capable national government, and who then worked as a Constitution-maker and president to design and lead one. How could Marshall support Washington while he lived and defend his handiwork after he was gone?

The most obvious way was politics, and Marshall had an abiding interest in it. In the first national two-party system that emerged in the 1790s, the party Marshall joined was the Federalists. Their policies were Washington’s: a strong federal government that could pay its debts, foster commerce, and sustain a unified nation in a turbulent world. Marshall was friendly with every prominent Federalist—Washington, John Adams, Alexander Hamilton, Timothy Pickering—even when, as their party began to sink at the turn of the century, they turned on each other. The only man Marshall ever hated was Federalism’s enemy and destroyer (and his own cousin)—Thomas Jefferson.

Federalism withered and died, new parties emerged; Marshall kept tabs on them all. He was touted as a presidential candidate himself in one election season, and in another he attended America’s first national political convention, organized by America’s first third party (the Marshall campaign went nowhere, as did the third party).

Yet although politics was a lifelong interest of Marshall’s, it was not his main one. He had a vocation, which was the law. His father, Thomas, had decided that his eldest child should be a lawyer; William Blackstone’s Commentaries on the Laws of England, then the most popular legal text in the English-speaking world, was part of John’s homeschooling. In 1780, while on a furlough from the army, he attended a course of lectures in the law at William and Mary—the only formal legal instruction he would ever receive, but since the course was given by George Wythe, one of the top legal minds in the country, it was first-rate. After the war, Marshall established a practice in Richmond, Virginia’s new capital, quickly joining the state’s legal elite. His practice was so engrossing that he refused several offers of national public office. In 1801, however, after serving in Congress and as secretary of state, he agreed to become the nation’s chief justice.

The Supreme Court that Marshall led was the federal government’s fledgling, almost its orphan. In twelve years, it had traveled, with the nation’s capital, through three cities—New York, Philadelphia, and the brand-new site on the Potomac; between terms, justices were required to ride circuit over hundreds of miles of woeful roads. Partly because of these hardships, three men had already cycled through the post of chief justice before Marshall took the job.

The law that the Court administered was in no better shape. Americans were already famously litigious, but the legal arena in which they struggled was poorly marked. Colonial precedents had been upset by the Revolution; many Americans, from pioneers on the margins of settlement to wealthy grandees, simply broke whatever laws there were, old or new. Americans went to court to scramble for land and to exploit new technology; to defend their religious and political beliefs and to attack the beliefs of their neighbors. Black men and red men went to court—mostly, though not always, unsuccessfully—for relief from injustices committed by white men; white men went to court to gouge each other.

At the helm of the Supreme Court, Marshall brought order to this chaos. He did it by expressing and implementing the principles he had imbibed from Washington and from other Federalists such as Alexander Hamilton. In a series of landmark decisions, he defended contracts and corporations from meddlesome state laws and struck down state-sponsored monopolies, unblocking what Hamilton called “the veins of commerce”; he affirmed the constitutionality of a national bank, one of the keystones of Washington’s economic policy; he compelled state courts to acknowledge the supremacy of the federal judiciary (Hamilton had likened unchecked state courts to “a hydra in government”); and he tried, in vain, to sustain Washington’s Indian policy, whereby native peoples who signed and honored treaties with the United States could keep their tribal lands. In 1801, Jefferson, who had been inaugurated president only five weeks after Marshall was confirmed as chief justice, complained that Federalism had “retired into the judiciary as a stronghold.” Marshall held his position as resolutely as Washington at White Marsh.

More important than the substance of Marshall’s rulings was what they said about the power of the Supreme Court and the nature of the Constitution. He disclaimed any intention to judge matters that were strictly political, but he insisted that in defense of the Constitution’s text or of constitutionally protected rights, the Supreme Court could overturn a law passed by Congress or compel a president to testify in a courtroom. In so ruling, he made the Supreme Court a definer of its own powers and a peer—sometimes, the superior—of Congress and the president.

Marshall was, at the deepest level of his thought, a populist; he believed that the people had expressed their incontrovertible will when they debated and ratified the Constitution. But until they willed something new, they and their representatives—citizens, legislators, and chief executives alike—were bound by their first foundational act. And the Supreme Court was a guardian—a protector and an expounder—of that act.

In his conduct as chief justice, Marshall imitated his former commander in chief as much as a judge can imitate a president or a general. Marshall’s description of Washington in action outside Philadelphia described what he himself wished to be. Some of the phrases he used—“firmness of temper,” “steady firmness”—applied equally to himself. If his courtroom exhortations were not always as stern as Washington’s battlefield appeals—Marshall listened and persuaded as often as he commanded—they were as persistent and as successful.

In one respect, Marshall exceeded his idol. Washington’s combined service as commander in chief during the Revolution (1775–83) and first president (1789–97) made him the nation’s chief executive for sixteen and a half years. But Marshall’s tenure as chief justice was more than twice as long.

When he died, he was eulogized as “a Federalist of the good old school of which Washington was the acknowledged head.”

THERE HAVE BEEN several excellent biographies of Marshall over the years, though not as many as record the lives of his great peers. Marshall’s career in the law keeps the number down: writers and readers fear that the subject is too technical. As someone who had even less legal training than Marshall had, I am forced in this biography to see and describe legalisms afresh. As a political journalist, I keep my eye, as Marshall always did, on the politics that surrounded him. As a storyteller, I try to show that the cases that generated his decisions were anything but technical. Blackstone wrote, early in his Commentaries, that society arose from “the wants and the fears of individuals.” The parties that came before Marshall’s Court wanted money, jobs, power; they feared chicanery, oppression, extinction, the noose. People do not go to court over nothing; every legal case is a short story.

Marshall’s career is a long story. Over four decades, he dealt with a shifting cast of judges and lawyers, many brilliant and willful, others odd, a few alcoholic or insane. He established his preeminence among them by the force of his mind, which one attorney general compared to “an Atlantic Ocean,” the minds of his peers being “mere ponds.” He established it also by his never-failing courtesy, good humor, and high spirits, lubricated by frequent applications of Madeira; during his tenure, the wine merchants of Washington, DC, called their best stuff “the Supreme Court,” in honor of his many purchases and his generous distribution of their wares.

There are gaps in the record of Marshall’s life. He left less to work with than other founders; he kept no diary or journal and was careless with his papers. (The modern collected edition of Marshall’s papers is twelve volumes long; the comparable edition of the papers of Hamilton, who lived thirty-two fewer years than Marshall, fills twenty-seven volumes.) Because I am interested in Marshall’s public career and its effects, I am less interested in some aspects of his life than others: less interested in his children than his colleagues, or in his wife than his enemies. Because they did affect his public career, however, I am interested in the games he played, the land deals he made, and what he learned from Alexander Pope.

There are also blots on Marshall’s record. In some of his greatest decisions, he contradicts himself, or nearly so; one of his characteristic techniques is to advance a sweeping principle, then draw back to hang his decision on a lesser point. He boldly defended Cherokee Indians; he did nothing for blacks. There were moments when even he lost heart; toward the end of his life, he feared that the great constitutional holding operation and defense of Federalism that was his career had failed.

Considering the Supreme Court’s role in American life today, we must also ask: Was John Marshall right? Is his vision of the Constitution as the supreme statement of popular will and the Supreme Court as its defender in fact workable? Do judicial guardians inevitably decay into unelected legislators? Are we too far away from the Constitution to think about it as intelligently, or care about it as passionately, as he did?

Marshall was a man of the founding who lived through the first third of the nineteenth century. His rulings touched on corporations and steam power, the Napoleonic Wars and the campaign against the slave trade. Washington’s devotee saw the age of Jackson. Although he did not foresee the precise cause of the Civil War, he feared his country would split apart, and he tried to prevent it. He was a backward-looking man who lived and ruled forward. The implications of his career reach even further forward, into our century.

Section I


Chapter 1


JOHN MARSHALL, ELDEST CHILD OF THOMAS AND MARY Marshall, was born in September 1755, in a cabin near Germantown, twenty miles west of the Potomac River in northern Virginia, in what is now Fauquier County (pronounced faw-keer). Over the next twenty years, the family would move twice, to Leeds Manor in the Blue Ridge Mountains, then to North Cobbler Mountain, but never leaving John’s home county.

The Marshalls were not pioneers—their second house was a frame house, and their third had glass in the windows, marks of prosperity and civilization. But they lived, as most Virginians did, in the country.

Two marks of Marshall’s upbringing stayed with him all his life. Fauquier County lay within a 5.2 million–acre tract of land between the Rappahannock and the Potomac Rivers, larger than the entire colony of New Jersey, which had been granted in the seventeenth century by the Crown to a noble family, the Culpepers. This domain passed via a married daughter to another noble family, the Fairfaxes. To make money off their property by renting or selling parcels of it, the new owners had to know its exact dimensions. Over the years, the Fairfaxes hired surveyors, one of them a young in-law, George Washington. Another was Thomas Marshall. Mapping and ultimately buying a portion of the Fairfax Grant would engage the attention of the Marshall family for decades. When a tenacious lawsuit concerning the property made its way to the Supreme Court in 1816, John Marshall would have to recuse himself (though he maintained a keen offstage interest in the case).

Marshall bore a second mark of rural Virginia on his personality. He would spend his adult life in cities—Richmond, Philadelphia, Washington, half a year in Paris—but he never lost his country tastes and habits. Old friends and new acquaintances alike noted his simplicity. The first time he served as a circuit court judge (an assignment that justices of the Supreme Court were required to perform until after the Civil War), he lodged in a rude inn in Raleigh, North Carolina, one of the seats of his circuit. Over the years, Raleigh grew while the inn went downhill. Marshall nevertheless continued to patronize it, even after the innkeeper was no longer able to afford servants; Marshall carried logs from the woodpile into his room himself.

When Marshall was seventy years old, a scholar researching a biography of George Washington called on him at what was then his country house (the house with the glass windows, which he had lived in growing up). The visitor described entering the yard “through a broken wooden gate, fastened by a leather strap and opened with some difficulty.” He found Marshall in his “office”—a little brick building in a corner of the yard. The two men had a brief talk, Marshall passing on some advice. “All things about him,” the scholar concluded, “his house, grounds, office, himself, bear marks of a primitive simplicity and plainness rarely to be seen.”

His simple manners attracted stories as a magnet attracts filings. One story that became famous in Richmond, his primary residence, showed that he was not above using his manners to tease. A newcomer to town bought a turkey in the market and asked a countryman to carry it home for him. The rustic slung it over his shoulder and did as he was bid, refusing any tip. Only later did the newcomer learn that his deliveryman was the chief justice of the United States. No doubt Marshall enjoyed the joke at the newcomer’s expense as much as the Richmonders who regaled themselves with it.

Virginia gentlemen loved, or pretended to love, the simple life. Marshall took it to an extreme, without a hint of pretense. He must have kept his earliest habits because he had enjoyed his youth and felt no reason—neither the pull of fashion, nor the sting of family conflicts—to repudiate it.

Mary Marshall’s father was an Anglican clergyman, the Reverend James Keith. More important, in the class- and clan-conscious world of Virginia, her mother was a Randolph, one of the colony’s first families, thus giving John Marshall a cousin’s link to several men he would encounter in later life—Edmund Randolph, John Randolph of Roanoke, Thomas Jefferson.

Mary Marshall was eighteen when John was born; she had fourteen more children. We know little more about her than that. When he was an old man, Marshall was asked to write a recommendation for a book of lectures on the education of women. “Precepts from the lips of a beloved mother,” he wrote, “inculcated in the amiable, graceful, and affectionate manner which belongs to the parent and the sex, sink deep in the heart.” This was conventional language of the time for describing mothers and their importance in raising children, especially sons. Of Mary Marshall, perhaps it was true.

Thomas Marshall left a larger public record. A grandson of Welsh immigrants, he became a big man in a small world: a vestryman of his Anglican parish; the sheriff of Fauquier County; a member of the House of Burgesses, the elected house of the colonial legislature. Working for the Fairfaxes as a surveyor helped boost him into all these positions. It also enabled him, as it did a young George Washington, to cultivate an eye for land and to begin buying promising tracts with his earnings.

Thomas Marshall oversaw his children’s education. There were no schools in their county, so when John was fourteen, Thomas sent him away from the Blue Ridge to board for a year in the Tidewater at a school run by an Anglican minister (one of his classmates was James Monroe). After John returned home, Thomas hired another clergyman to live with the Marshalls for a year, serving the parish and doubling as the family tutor. The rest of John’s early education came at home, from his father. Thomas Marshall steered his sons toward the law. Thomas was a subscriber to the first American edition of William Blackstone’s Commentaries on the Laws of England. “From my infancy,” John later wrote, “I was destined to the bar.” Four of John’s six brothers also became lawyers.

Thomas gave him Alexander Pope’s long, didactic poem, “An Essay on Man,” which John memorized by copying it out. No one today would nominate “An Essay on Man” for Pope’s best work. It is a string of platitudes; even in Pope’s own day, Samuel Johnson complained that “he tells us much that every man knows.” But the platitudes are exceedingly well put; everything Pope tells us, he tells so well that we believe every man has always known it. John Marshall never became a poet beyond a few simple verses for himself and friends. But the technique of authoritative pronouncement, which he encountered in Pope, would serve him well in later years.

John Marshall adored his father, calling him “a watchful parent and affectionate friend,” and “my only intelligent companion” growing up. That last, rather stern comment (my only intelligent companion) sets a limit to his remarks on the guiding role of mothers.

When John was nineteen years old, he and his father became companions in revolution.

FOR ALL THAT intelligent Americans read English law books and English poets, the policies of the British Empire clamped hard on the thirteen colonies. Americans evaded commercial regulations and harassed imperial tax collectors; more important, they thought and wrote about their situation, analyzing and proclaiming their violated rights. Colonists hundreds of miles apart joined in angry idealism. When Britain closed the port of unruly Boston in the spring of 1774, the Virginia House of Burgesses, meeting in Williamsburg that June, called for a day of “Fasting, Humiliation and Prayer.” Virginia’s royal governor dismissed the burgesses and sent them home. Instead of leaving, they reconstituted themselves in August as a convention, an illegal independent institution, which called for an embargo of British goods and a continental congress.

Britain was unmoved by these protests. A second meeting of the Virginia Convention, in a Richmond church in March 1775, heard Patrick Henry: “Our chains are forged. Their clanking may be heard on the plains of Boston.… I know not what course others may take, but as for me, give me liberty, or give me death!” Thomas Marshall was in the church, a member of the convention, when the speech was delivered, and reported it to his family.

A month later came news of the battles of Lexington and Concord. The Marshalls plunged into the patriotic current, John showing, as he wrote years later, “all the zeal and enthusiasm which belonged to my age.” He volunteered for the county militia and was elected by his comrades as their lieutenant. Thomas, equally zealous, became a major. The volunteers of Fauquier and two other counties mustered at the Culpeper County courthouse in September 1775. One of them described their dress: “brown linen hunting shirts… the words ‘Liberty or Death’ worked in large white letters on the breast, bucktails [deer tails] in each hat, and a leather belt about the shoulders with tomahawk and scalping knife.”

In December, Marshall and his comrades put their bold words and bold gear to the test. British troops had occupied Norfolk, Virginia’s largest port, and erected a small fort at the head of a causeway, known as the Great Bridge, that led away from the town. Patriots, including Marshall’s unit, threw up a barricade at the causeway’s far end. One morning, British grenadiers charged the patriot position, expecting to sweep all before them, but American musketry and rifle fire inflicted heavy losses—a hundred killed or wounded, the Americans claimed; sixty, the British admitted. The enemy retired to a warship that bombarded Norfolk, burning it to the ground on New Year’s Day.

In 1776, Thomas and John Marshall enlisted in a more regular force: the newly formed Continental Army, made up of regiments raised in the individual states but directed by the Continental Congress and commanded by George Washington. After the burning of Norfolk, Virginia was clear of British troops. The main action of the war shifted to the south and to the north: Charleston, South Carolina; Long Island and White Plains, in New York; Trenton and Princeton, in New Jersey. John Marshall’s regiment fought in none of these engagements but did what many units spend much of their time doing in war: marching to battles that never happened; hurrying up and waiting. In 1777, his regiment was sent to Philadelphia, then to New Jersey; in one two-and-a-half-week stretch, he and his comrades marched to the Hudson Highlands in New York and back, a round trip of three hundred miles.


  • "As Brookhiser shows in this brisk biography, Marshall's success was partly due to the power of his legal reasoning and partly to his brilliant management of the men who served with him on the Supreme Court...Marshall would doubtless be pleased that it is his ideas that dominate this biography, not his quarrels, debts, ambitions, or amours."—Foreign Affairs
  • "In Brookhiser's short and captivating biography, Marshall emerges as the institution's first great partisan operative.... The career of the great chief justice continues to this day to calibrate our expectations for the court."—New Republic
  • "Mr. Brookhiser explains [Marshall's] decisions, and the disputes that gave rise to them, with the clarity and verve that we have come to expect from his lapidary historical portraits...[A] fine book."—Wall Street Journal
  • "As Richard Brookhiser's fine new biography makes clear, the polarization of the age of Marshall matched (or even surpassed) our current battles over the composition of the Supreme Court...[A] balanced account."—New York Times Book Review
  • "Marshall's...sphinx-like quality has proved tempting to biographers, and Brookhiser's volume is the third to appear since the beginning of 2016. It is also the first that is genuinely satisfying.... Elegant and readable."— National Review
  • "Entertaining and instructive...Brookhiser brings to vivid life the gaudy facts and seamy characters behind such great cases as Dartmouth College and McCulloch."—Washington Post
  • "Informative without being dull, thesis-driven without being argumentative...Another good entry in the good series of works on the Founders that Brookhiser has been giving us all these years."—Washington Free Beacon
  • "Full of wisdom."—Florida Bar Journal
  • "A concise, informative, and at times entertaining biography of our nation's fourth chief justice."—Kirkus Reviews
  • "Richard Brookhiser brings his deep knowledge of the American founding, his appreciation for history's crisscrossing patterns, and his signature minimalist style to America's greatest chief justice. His book is also timely. For John Marshall's seminal conviction was that we were a single people, and that government was not 'them' but 'us.'"—Joseph J. Ellis, author of American Dialogue: The Founders and Us
  • "Richard Brookhiser is a master of the interpretive biography, and his incisive portrait of John Marshall couldn't be more timely. The Supreme Court stands at the middle of the American political arena, and Marshall is the man who put it there."—H.W. Brands, author of Heirs of the Founders
  • "Brookhiser's John Marshall is an erudite and elegant tour through not only the great chief justice's life, but the beginnings of the United States and the nation's Supreme Court. With colorful portraits of members of the founding generation, and clear and insightful descriptions of the legal cases that that shaped the American legal system, this book is a welcome contribution to the scholarship on the Early American Republic."—Annette Gordon-Reed, coauthor of "Most Blessed of the Patriarchs"

On Sale
Nov 13, 2018
Page Count
336 pages
Basic Books

Richard Brookhiser

About the Author

Richard Brookhiser is a senior editor of National Review and the author of thirteen books, including John Marshall: The Man Who Made the Supreme Court, Founders’ Son: A Life of Abraham Lincoln, and James Madison. He lives in New York City.

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