After the draining fight over Brett M. Kavanaugh’s nomination to the U.S. Supreme Court, it’s easy to forget that the court was once a career and a constitutional backwater.
Paul said Marshall “helped make the Supreme Court we know today.”
When Marshall joined the court in 1801, “it was considered a constitutional afterthought,” Paul said. In its first decade, Paul notes, the court decided just 63, mostly admiralty, cases. As Paul notes in his book, “there were so few federal laws that interesting questions rarely arose.”
A bigger deterrent to taking a Supreme Court job, however, was the prospect of having to ride circuit.
“Justices were expected to ride around the country on horseback and to listen to arguments from poorly trained lawyers,” Paul writes.
“Nobody wanted a job on the court then,” Paul told me. “It was hell. In Marshall’s day, people were relieved just to have somebody who would take the job.”
Marshall didn’t want the job, either. He wanted to return to Richmond, his family and his private law practice. Paul said he accepted the appointment out of “loyalty to the Federalist Party and John Adams.”
And, unlike the bruising Kavanaugh confirmation fight, Marshall was confirmed in a single day.
But once on the court, Marshall went to work making the constitutional afterthought into a fully functioning third branch of government.
One way he did that, Paul said, was “insisting the court speak with one voice,” ending the practice of each justice writing a separate opinion on every case.
“Marshall wrote opinions most of the time,” Paul said, employing his “gregarious, charming personality and sweet-talking people to his side.”
Of the roughly 1,100 cases decided during his more than three decades of service, only 35 or so were not unanimous.
“This helped give the court more authority and elevate its standing,” Paul said. It also had the perhaps unintended consequence of “increasing the stakes every time someone was nominated” for a vacancy.
The court’s prominence also rose significantly after Marshall’s first big case: Marbury v. Madison.
“After Marbury,” Paul said, “the court could strike down legislation and check the executive branch. This made the court much more important than it had been before.”
So important, Paul said, that each succeeding Republican president “made it a point to nominate justices who would try to repeal Marshall’s precedents.”
Marshall, then, had created a court with real power, making it a political prize worth fighting for. Even so, it was still a collegial body that almost always spoke with a united voice – not exactly the court we have today. What happened?
Part of the problem, Paul said, is the Senate, which Paul believes lacks its own collegiality and where members “no longer behave like gentlemen.”
Paul also said a “judicial confirmation complex” that became entrenched with Roe v. Wade now dominates court nominations and decisions.
“Republicans and Democrats have found the court useful as a wedge issue to motivate voters and raise lots of money,” Paul said.
The process “makes people think of the court as a team sport,” which has “made it hard for justices to function as members of the same body with the same collegiality.”
Paul believes we won’t be able to restore Marshall’s brand of collegiality to the court “without a change to the body politic.”
Chief Justice John G. Roberts Jr. needs to work in a way he has not yet done “to command unanimity and pragmatism,” Paul said. “It’s not good for country or court or political parties to have cases decided 5-4.”
It is unhealthy that the court is seen as highly politicized, Paul said. “Hopefully, it will return to laying down principles for future generations — not expedite decisions for the political moment.”