Becoming Supreme | America in Pursuit

0:00This is America in Pursuit, a limited run series from ThruLine and NPR. I'm Randa Abdel Fattah. Each Tuesday, we bring you stories about life, liberty, and the pursuit of happiness in America that began 250 years ago this year. So today, we're going back to the moment when the American Revolution ends and the revolutionaries become statesmen and build a brand new government. So I just want to take a second and sit with the magnitude of that task. Imagine having to build a brand new nation, a democratic government, and all its infrastructure from scratch. It was a Herculean task. And like most things that entail a lot of people getting on the same page, it was full of fights and different visions for what the U.S.

0:50government would be like. And while a lot of what the framers came up with back in 1787 when they drafted the Constitution has stayed the same, like the concept of checks and balances between the different branches of the government. Some of it looks vastly different. Take the judicial branch and the Supreme Court. Today, the Supreme Court has a lot of power dictating the laws of the land. But back at the turn of the 19th century, not so much. This is how Alexander Hamilton put it at the time. The judiciary, on the contrary, has no influence over either the sword or the purse, no direction either of the strength or of the wealth of the society, and can take no active resolution whatever.

1:36In other words, without the sword or purse, the Supreme Court didn't have much power to enforce its decisions, making it the least dangerous and least powerful branch. It was just no notion that it would be powerful. It wasn't yet in really anybody's imagination that they had to worry about. That's Larry Kramer, author of The People Themselves, Popular Constitutionalism and Judicial Review. The Supreme Court is going to be situated in the basement of the Capitol. And that's Rachel Sheldon. She's a history professor at Penn State University. And that gives you a sense, actually, of the hierarchy of what people at the time thought about the Supreme Court.

2:18So how did the Supreme Court go from being the weakest branch of the government to the powerful force it is today? Ramtin and I are bringing you that story of how an early political fight that pitted cousins and former allies against each other paved the way for the Supreme Court's supreme power. That's coming up after a quick break.

2:51We start our story with a contested presidential election. The election of 1800. One of the most partisan showdowns in our country's history. It's the most divisive period in American history, except for the Civil War, and possibly today. The country was still pretty new. And everybody was trying to figure out how this democracy thing was going to work. Things like trade, taxation, foreign relations, state versus federal power. It's a period of a lot of turmoil. And there's essentially one huge division, you know, around which the political parties formed. The United States didn't start out with any political parties, no teams.

3:33But competing visions of government were pulling people apart, which led to the creation of these two parties. The Federalists, the party of incumbent President John Adams, and the Democratic Republicans. Always confusing because it has both Democrat and Republican in it. The party of candidate Thomas Jefferson. These parties had radically different outlooks on government. Almost all of the debates are around, what is it that we mean by, you know, they would have said Republicanism, we would say democracy. That is to say, how popular is it supposed to be?

4:08The Democratic Republicans were fans of popular politics. This is our law. Allow more power to grow up from the people themselves. Final interpretation rests with us in the community. Jefferson famously said, I hold it that a little rebellion now and then is a good thing, and is necessary in the political world as storms in the physical. The much more conservative Federalists push back in all sorts of ways, interpreting the Constitution in ways that would limit the capacity for popular politics to grow. The Federalists wanted more stability. And they thought in order to get that, the federal government ought to have more power.

4:50They believed their still very young country needed a strong centralized government with lasting institutions that would be around much longer than elected officials. Institutions like the courts. The Federalists were the party of power throughout the 1790s. But in the election of 1800, they faced defeat. Adams lost the race and Jefferson became president. So Congress becomes a Democratic Republican and you have Jefferson in the White House. But as outgoing president, John Adams' term was coming to an end, he and his party made one final power grab. Adams nominated a bunch of Federalist judges at the very end of his term, so-called midnight judges, as well as a new chief justice of the Supreme Court, John Marshall.

5:46He becomes sort of the foundational chief justice in terms of thinking about development of the court as an institution. Marshall's a straight-up Federalist. He was Secretary of State for John Adams, and then he made him the Chief Justice. He's now in control of only one branch with the Federalists in charge. As Chief Justice, John Marshall made a lot of symbolic changes to the Supreme Court. So the story goes that Marshall wore a black robe at his swearing-in, and that after that, this became common practice. There was a degree to which some people did not like to see Supreme Court justices in robes at all, thinking of it as a royal court as opposed to sort of a democratic body.

6:35He wants all the justices to board together and to work together. He is a big proponent of having unanimous opinions. He thought that that had the tendency to make the court seem more important. Marshall dreamt of a Supreme Court with national authority. A Supreme Court that gets to interpret the Constitution, basically be the umpire for the entire country. He believes in judicial supremacy. Which is much more what we accept today. The idea that the Supreme Court is the final arbiter of constitutionality. This idea, judicial supremacy, gives the Supreme Court final say over what's constitutional and what's not.

7:20And then everybody has to do what they decide. The law of the land. But again, this was a dream. It's just not how things worked then. But there was this other thing, a much more restricted power, that was on the table. Judicial review. So judicial review is the notion that in a case before it, the court can say whether a statute that is raised in the case is in fact constitutional and therefore enforceable. The court gets to decide what's constitutional in a case, but the ruling doesn't extend beyond that specific case. So it's the law of the case, but not the law of the land. The whole idea of judicial review without judicial supremacy is that you have three co-equal branches, each with equal authority to interpret the Constitution.

8:12Remember, that was how the federal government was designed to work. No one branch was supreme over the others, so they could all keep each other in check. Marshall himself was interested in having more of that supreme power for the court, but he also understood it was not possible. He operates in this world in which he knows he's a minority, especially when the Democratic Republicans led by Thomas Jefferson and James Madison are in power. Plus, there was some personal beef. Marshall and Jefferson were cousins. They famously did not like each other. In 1803, the Cousins, Chief Justice John Marshall, and President Thomas Jefferson met in court, going head-to-head in a case called Marbury v.

9:00Madison. Probably the most famous decision and sort of the beginning of most constitutional law experiences is Marbury v. Madison. We won't get into all the details of the case. But in short, the Jefferson administration was being sued for refusing to acknowledge some of those midnight judges that John Adams had appointed right before leaving office. William Marbury was one of them. He and the other appointees were able to take the case directly to the Supreme Court, thanks to a provision in a federal law that Congress had passed more than a decade earlier. And Marshall saw this as an opportunity.

9:41He sees this as a situation in which he needs to preserve the power of the court that had existed and try to grow it in opposition to the other branches of government. Marshall wanted to flex his authority as the head of the judicial branch, but... He knows if he actually tries to order Jefferson, Jefferson's going to ignore him. So that will make the court look weak. Remember, the court didn't have the power to enforce its decisions. No money, no army. It all depended on how much the other branches chose to respect its decisions. But there was one tool that Marshall could use. The power of judicial review.

10:23Up to this point, judicial review had only been applied sporadically. But in Marbury v. Madison, John Marshall formally established it. It was a calculated tradeoff. Marshall was like, fine, we know we can't force these appointments through. But you know that provision in the federal law Congress passed, the one that allowed Marbury to bring the case directly to the Supreme Court? Well, we've decided that provision is unconstitutional. We, the Supreme Court, have the power to interpret the Constitution in any case, state or federal, even if that means overriding an act of Congress. We have the power of judicial review.

11:05It is emphatically the duty of the judicial department to say what the law is. It's one of those instances of playing politics. So he finds a way to say, you know, we don't have jurisdiction. I can't tell Jefferson what to do. But I'm going to tell you, he violated the Constitution. This was wrong. The government of the United States has been emphatically termed a government of laws and not of men. It becomes the first case in which the Supreme Court strikes down a federal law for violating the Constitution. In other words, this is the first time the Supreme Court flexed its power to say that what another branch of the federal government wanted to do was not constitutional.

11:46It was the moment when judicial review, which had been around but heavily debated, solidified as part of the court's power. This case would reverberate for centuries to come. For somebody reading it at the time, it's screamingly clear that he is not pushing the judicial supremacy position and is backing away from it, which of course he had to do because it would not have been acceptable at the time. So while this was an important win for the court, it was a long way from Marshall's ultimate goal, judicial supremacy, the court with final say. He was a visionary, though, and he knew he had to play the long game.

12:29During his three decades on the bench, he helped plant the seed of what the court could be and the amount of power the Supreme Court could have in the future.

12:43That's it for this week's episode of America in Pursuit, a special series from ThruLine and NPR. If you want to learn more about the Supreme Court's ascension to power, make sure to check out ThruLine's full-length episode called The Supreme Court. Or listen to The Shadow Docket, which goes more in-depth about the ability for the court to issue quick decisions. And make sure to join us next week for the first edit, or correction, if you will, to the Constitution. The bottom line is free speech affects everyone. It's obviously an incredibly important value for Americans. The story of the First Amendment and the beginning of the Bill of Rights.

13:23That's next time. Don't miss it. This episode was produced by Kiana Mughaddam and edited by Christina Kim with help from the ThruLine production team. Music, as always, by Ramtin Arablui and his band, Drop Electric. Special thanks to Julie Kane, Irene Noguchi, Beth Donovan, Casey Miner, and Lindsay McKenna. We're your hosts, Randa Abdel Fattah and Ramtin Arablui. Thank you for listening.