The Marshall Court and the Creation of Institutional Identity

When Oliver Ellsworth resigned as Chief Justice in September 1800, John Adams was embroiled in the presidential campaign against Thomas Jefferson.  Adams would appoint the next Chief Justice even if he lost the Presidency, because the next president would not take office until March 4, 1801, and the lame-duck Congress was sure to confirm Adams’ nominee.    Adams hoped to convince John Jay to return to the Supreme Court as Chief Justice.  But Jay declined to be re-nominated.  

Adams then hinted that he would tap the next senior associate justice, William Paterson, to be the Fourth Chief Justice.  To everyone’s astonishment, on January 20, 1801, he instead nominated Secretary of State John Marshall with something short of a ringing endorsement:

Gentlemen of the Senate:  I nominate John Marshall Secretary of State to be a Chief Justice of the United States in the place of John Jay who has declined his appointment.

Marshall was a surprising choice, but hardly an illogical one.  He was a Virginia lawyer who had served with distinction in the Revolutionary War, and he had been then General Washington’s chief legal advisor at Valley Forge.  Marshall also had been a Virginia legislator and delegate to the Virginia Ratifying Convention, where he spoke persuasively in favor of ratification. His experience in the Revolutionary War had persuaded him of the need for a strong national government.  Marshall declined offers to serve in the Washington Administration and, in 1798, he also declined Adams’ offer to nominate him to the Supreme Court to fill the vacancy created by James Wilson’s death.  However, Marshall did agree to serve as a minister to France in 1797.  Then he ran successfully for the House of Representatives in 1799.   In June 1800 he reluctantly agreed to become Adams’ Secretary of State.  In that capacity, he was in charge of negotiations between the United States’ and France that culminated in the Convention of 1800, ending the undeclared war between the two countries that had threatened to erupt into full-fledged war.  

The Federalists Dictate the Composition of the Judiciary

Speculation continues to this day about why John Adams chose Marshall, not Paterson, to be the nation’s fourth Chief Justice.  Perhaps Adams already was convinced that Jefferson would win the election of 1800, and he had begun to think of ways to limit Jefferson’s powers.  Jefferson never hid his disdain for the Federalist judges who had been put on the bench by Washington and Adams.  Jefferson was eager to reshape the judiciary with judges who shared his political views.  One way the outgoing Federalists could at least temporarily handcuff Jefferson would be through legislation reducing the size of the Supreme Court from 6 to 5 when the next vacancy arose.    

If Congress were to reduce the size of the court, then it would have made little political sense for Adams to elevate a sitting justice into the chief justice’s seat.  If Adams appointed Paterson, he would create a vacancy that he probably would not be able to fill before leaving office in March 1801.  However, if Adams appointed an outsider, then the Supreme Court would have its full complement of six justices.  Jefferson would have to wait through two vacancies before having the opportunity to have an impact on the make-up of the Supreme Court.

The lame-duck Senate confirmed Marshall within a week of his nomination.  He took office February 4, 1801, thirteen days before his cousin and political nemesis, Thomas Jefferson, was elected President by the House of Representatives.  If Jefferson, not Adams, had picked  the nation’s fourth chief justice, some scholars believe he probably would have tapped Spencer Roane.  Roane was a Virginia judge who was a staunch advocate of states’ rights and a longtime political foe of John Marshall.