How Smart was John Marshall? Reflections on the "Great" Chief Justice

Someday I would like to read an account of what I call the "Marshall myth" or in more common speech, how and when John Marshall received the appellation of the "Great" Chief Justice. Just as Abraham Lincoln sits atop the list of "great" Presidents when annual surveys of political science professors are taken, so Marshall certainly would top the list of judges if such a survey were taken among lawyers. For example, in Judge (now Chief Justice) John Roberts' confirmation hearings before the Senate in Sept. 2005, he made no secret of the fact that Marshall was among his most admired jurists.

Marshall wasn't always so viewed. Thomas Jefferson, easily the most powerful person in the land from 1801-1810, detested him and ignored his rulings. The Supreme Court, over which Marshall presided for 34 years, was a weak and quite secondary branch of government when he became Chief Justice in 1801. He couldn't even convince more than one other member of the Court in 1802 to "fight" the Judiciary Act of 1802 by refusing to go out on circuit riding again. We often tend to think of a hallowed person as sort of "holy" or a "genius" from the cradle, but often things are quite different. Sometimes those whom we most revere now, like the Dutch Artist Vermeer, were not much regarded in their lifetimes at all.

But as I was reading on a number of other themes, I came across two beautiful quotations or summaries of Marshall's legal abilities that made him legendary even in his own day. One comes from Thomas Jefferson himself and one from a contemporary lawyer.

Thomas Jefferson on John Marshall

Jefferson wrote about Marshall:

"When conversing with Marshall, I never admit anything. So sure as you admit any position to be good, no matter how remote from the conclusion he seeks to establish, you are gone. So great is his sophistry you must never give him an affirmative answer or you will be forced to grant his conclusion. Why, if he were to ask me if it were daylight or not, I'd reply, 'Sir, I don't know, I can't tell," quoted in Melton, Aaron Burr, 63.*

[*The footnote cited by Melton is strange, and I haven't had a chance to "check it out." It is from a 1928 biography of Rutherford B. Hayes by Charles R. Williamson, p. 33. Don't we have a better reference??]

Thomas Jefferson wasn't a man comfortable with or accustomed to "losing." Thus we can detect in his words a sort of anger that his fellow Virginian, and distant cousin to boot, could "trump" him in intellectual thrust and parry.

Boy Genius

Some of the stories of Marshall emphasize both his analytical abilities and his ability to be very helpful in a tight situation. That is, Marshall seemed to be able to combine a rapier-sharp mind with a personality that was somewhat reserved or even self-effacing. Professor Louise Weinberg says that he was already singled out during the Revolutionary War (Marshall was born in 1755) by none other than George Washington:

"In their close and inadequate quarters, often embroiled in disputes among themselves or with other officers, men would go to see what young Marshall might have to say. They turned to him to hear and settle disputes. The boy, for all his frontier manners, came to General Washington's attention, and Washington appointed him Deputy Judge Advocate in the Army of the United States. Army lawyers deferred to Marshall, and he came to preside at formal courts-martial," Weinberg, "Our Marbury," 89 U Va L Rev. 1235, 1257-58.

What was it that people saw in Marshall that gave him this ability? Weinberg goes on.

"A conviction arose among army men that Marshall could see deeper and further and faster into a problem than anybody else. Later in his life, those who observed Marshall came away with remarkably similar impressions. Toward the end of Marshall's life, an English traveller noted particularly that Marshall's 'quickness in apprehending either the fallacy or truth of an argument is surprising,'" Id. at 1258.

Then, there is the testimony of William Wirt, the long-serving Attorney General (1817-29) of the United States, who had frequent dealings with Marshall. As Weinberg says:

"What Wirt particularly noted in Marshall was the one trait that seems to have distinguished Marshall in every setting, notwithstanding a certain want of presence. This was the gift of an understanding so penetrating, and above all so quick, as to seem uncanny. “This extraordinary man, without . . . advantages of person . . . possesses one original and almost supernatural faculty; the faculty of developing a subject by a single glance of his mind, and detecting at once, the very point on which every controversy depends . . . ." Id.

Conclusion

Many these things may have been said by people who were inclined to be "Marshall-supporters," but the frustration in Thomas Jefferson's quotation seems to belie a simple partisan explanation. What Marshall demonstrated, seemingly effortlessly, is what every lawyer (and probably people in most other professions) want to be able to do--to assess immediately the basis on which claims are made and to be able to develop a ready analysis and response to the issue in a fairly comprehensive way.

But don't get the impression that Marshall was "all mind." Indeed, one of his endearing characteristics, apparently, was his laugh. As his companion on the Supreme Court for 24 years, Joseph Story, once said:

"I love his laugh. It's too hearty for an intriguer."

Maybe that was one thing Jefferson couldn't stand about Marshall. For even though the sage of Monticello, whom Marshall derisively referred to as the "lama of the mountain" was a man of startling genius and consummate political skills, he may have resented the fact that Marshall wasn't an "intriguer." Jefferson, in my mind, was. Often those who live by intrigue don't really appreciate or like those who try to live in a "non-intriguing" manner.

But this issue is too complicated for further exposition here. Suffice it for this essay if you get the "flavor" of the man whom most now call, without equivocation, the "Great" Chief Justice.

3028