Journal of Supreme Court History

T h e L a s t D a y s o f th e M a rs h a ll C o u rtJIHGFEDCB W I L L I A M D A V E N P O R T M E R C E R In tro d u c tio n zyxwvutsrqponmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGFEDCBA Co ns ide rthis p o liticalis s u efro m the firs t de cadeo fthe Am e rican republic: while the new Constitution required the President to update Congress on a periodic basis, it did not specify the etiquette required of Congress by way of a response. In the 1790s, when the capital resided in New York City and then Philadelphia, congressmen began traveling together as a procession to the President’s residence to wait on the President and give their response. After the capital moved to the new District of Columbia in 1800, this custom was discon­ tinued within one year, replaced by a courier.1 Criticized as overly aristocratic and not befitting the representatives of a republic, the congres­ sional procession came to an end because of the changing notions of deference exemplified politically by the transition from federalist to republican control of the government. Marching across marshy and unfinished Washington, D.C., however, also raised objections rooted more in practicality, annoyance, and the reality that the government had moved to a city that barely existed. Similarly, when we examine the early history of the Supreme Court, we should likewise understand it not only as driven by legal doctrine or grand political ideology, but as an institution perpetuated by people living in a particular place in time. The Justices reacted to the death of loved ones, illness, and changing work conditions as much as they responded to political events or novel legal questions. We cannot neatly segment activities deemed political from those considered social, cultural, or even environmental. While the Marshall Court was successful as a result of a membership filled with qualified jurists who had the good fortune to work together as a unit for over a decade, the convergence of three factors—personality, place, and timing—played as important a role. By the last five years of the Marshall Court, the circumstances surrounding all three had changed significantly. Chief Justice John Mar­ shall was entering the final years of his life, beset by personal illness, preoccupied by the death of family and friends, and unable to maintain the accord seen in the Court’s early years. Relatedly, Washington was no longer a city in its infancy; the enforced seclusion that initially aided in creating a unified court dissipated as the city and the government matured and its new members scattered. Finally, the country had moved away from 1 3 6 RQPONMLKJIHGFEDCBA J O U R N A L O F S U P R E M E C O U R T H IS T O R Y zyxwvutsrqponmlkjihgfedcbaZY the Co u rt ’s e xp ans ivevis io no f the co ns titu­ tional order. A focus on the very difficult last five years of the Marshall Court make it apparent that Marshall and his longtime judicial allies looked to their handiwork not with a sense of accomplishment but largely with a sense of resignation and an understanding that their body of work could soon be undone. In this way, much of the Marshall Court canon that we lionize today has a bit of a modem gloss to it. Of course, politics contributed to this denoue­ ment. If, however, we consider Aristotle’s famous observation that man is a political animal, we can begin to collapse the artificial distinction between the personal and political that deems the former to reside in the unofficial domain of sentimentality and the latter to be official, and thus relevant. If we view politics as did Aristotle, as an essential attribute of man’s existence and necessary to the development of his highest purpose, and the city as the place through which people can exercise these abilities in order to truly exist to the fullest degree, where the lustices lived, how they socialized, and who they loved and lost are important concerns...