tv Influence of Chief Justice John Marshall CSPAN April 2, 2016 6:50pm-8:01pm EDT
that goal and set of sacrificing get in the light of money or bipartisanship or whatever it is. >> we need to get back to constructive discourse. when you get back to all americans, no matter the backgrounds. and make this country in a more respectful place where people feel welcomed to give their opinions. this year marks the 250th anniversary of chief justice john marshall's appointed to the u.s. supreme court by president john adams. , jeffrey rosen lectures on the influence of john marshall, with opening remarks by chief justice john roberts. mr. rosen talks about the ideological differences between marshall and president thomas jefferson and his influence on later supreme court justices. the supreme court historical society and john marshall foundation cohosted the event and the supreme court chamber. this is about one hour. >> we are delighted to welcome
you here to join us in celebrating the 250th anniversary of the appointment of john marshall to the supreme court of united states. venturening is a joint between the supreme court historical society and the john marshall foundation. this is not the first time that those two organizations have partnered. they joined forces to celebrate the 200th anniversary of the appointment of john marshall to the supreme court. the capstone of that particular evening was a rousing lecture by justice scalia about the importance of john marshall to the history of the court and the history of the country. justice scalia with a grand friend of both the marshall foundation and the supreme court historical society. i hope you will join me in just a moment of silence to remember
justice scalia. thank you. eveningrateful this that the court, chief justice roberts and his colleagues i love the supreme court historical society to continue using this courtroom for its programs. it is a gift to us and we are grateful. that this juncture normally i would have a few remarks to introduce our distinguished host for the evening, but it seems to justice roberts is on a tight schedule this evening. we are lucky to get him here. he has asked his introduction be as brief as possible. to chief grateful justice roberts for his continuing support of the society, and since he is after all the chief justice let me just say right now it is my privilege and my honor to
introduce our host for the evening, chief justice john roberts. [applause] chief justice roberts: thank you very much. that is my preferred introduction even when i have lots of time. [laughter] i do want to note the memorial drapery we have on the chair behind me and the bench in front of it. it does commemorate justice scalia's pathing. -- passing. it will be taken down on monday, 30 days after his passing. at that time we will also rearrange the bench chairs to reflect the new composition of the court. and set of justice scalia to my right, it will be justice kennedy. to my lovely justice thomas.
there will not be a chair on the far left, which is where our new member will sit. the flags on our plausible once again fly at full staff. justice scalia's presence will always be felt here in this courtroom. i remember when i commemorated his 25th anniversary from the he had arriveded 25 years ago and the place is not been the same sense. -- since.that remains true . his contributions and the way he shaped this institution will be the subject of historical society lectures for many years to come. tonight it's about john marshall of him 215 anniversary becoming chief justice. i want to express my justice to the john marshall foundation and the supreme court historical society for joining together to
commemorate that occasion and such a fine way. i marshall were here today, think you would be surprised of the courtroom. even be surprised at this building and the city of washington itself. he toured the city in june of 1800 with president john adams on an inspection tour to see how work was going and establishing the new capital before the move from philadelphia. construction of government buildings was underway. , he apparently had a good sense of whether he left us in the summers in massachusetts, leaving marshall in charge to get things ready here in washington. scarce.ime housing was marshall stayed for some time in the unfinished upstairs quarters of the president future residents. while it was still under construction. he was the first person we know
to have slept in what is now the white house. when he became chief justice he stay in capitol hill boarding houses. the court made in borrowed space and the partially constructed capital or wherever he could find room. when he announced the decision in marbury versus madison in 1803 the court convened in the lobby of the steeles hotel, was then -- within a stone's throw of where i'm standing right now. the throw would be over that direction, although there is some confusion about where the hotel actually stood. justice samuel chase was suffering from doubt -- gout and it was moved to the nearby hotels that he would not have to walk to the capital. in 1810 the court first obtained a dedicated chamber in the capital building. that lasted only four years until the british burned the place down. the court went wandering again for five more years.
1819 the great chief justice in his colleagues returned to the old supreme court chamber in the capital building. they convened there until 1860 when it made the move finally upstairs to the old senate chamber. the court did not move into this building until 1935. today theoned, supreme court sits very near john marshall delivered his decision in marbury versus madison. the hotel in which he announced that decision is gone. the decision itself remains as the solid foundation of the role of this court in articulating the meeting of the constitution -- meaning of the constitution. when marshall announced his decision, most if not all governments consider the constitution to be a political document. marshall's decision made clear it was a legal document, it was law. that in turn shaped the fundamental role of this court
in our nation's government. that is why when you leave the building downstairs and you see the statue honoring john marshall you will also see asked in the marble the words from marbury and some other famous decisions. thanks to the, john marshall foundation and the supreme court historical society, you have a unique opportunity tonight to reflect on the great chief justice. guiding you in those reflections will be this evening's speaker, professor jeffrey rosen. professor rosen has taught at the george washington university law school since 1997. as a journalist he is a frequent interrater to publications such as the new york times magazine, the atlantic monthly and others. he is the author of many books and publications. outlatest biography is later this year. i have it from inside sources it will be out in early summer.
i also assume it will be available in the supreme court historical society gift shop with the appropriate discount for members. [laughter] pursuits,other professor rosen has served as a "constitutional consultant" to the television show "law and order." if you see any misinterpretations of constitutional doctrine, you know they forgot to ask him. despite all of this he still finds time for a full-time job as the president and chief executive officer of the national constitutional center in philadelphia. tonight he will provide insights into the tenure and contributions of chief justice john marshall. sorry aentioned, i am family obligation that comes of two teenagers prevents me from staying for the presentation. i know you were in for a wonderful evening. please join me in welcoming professor rosen. [applause]
and the john marshall foundation have invited me to celebrate this august occasion, that you wanted 50th anniversary of the great chief justice's appointment to the supreme court. i bring you greetings from the national constitution center in philadelphia. this remarkable institution sits right on independent small, across from independence hall, and also across from the old city hall, where the supreme court set until 1800. the national constitution center has an inspiring charter from the u.s. congress, to disseminate information about the u.s. constitution on a nonpartisan basis. and that is a mission of which chief justice marshall, who brought together federalist and republicans would have been proud. i'm also delighted to report that we are working with the john marshall foundation on the following exciting projects. you know downstairs, there's this beautiful statue of the great chief justice roberts -- that the great chief justice roberts referred to. it was cast by sculptor whose -- the son of joseph story, marshall's great comrade in arms. two castings of the statue exist. john marshall plaza.
one is that the other is behind the philadelphia art museum. i'm delighted to report that the art museum is willing to work with us to move the statue to the front of the national constitution center. [applause] professor rosen: i cannot imagine a more fitting symbol for visitors across america and the globe as they visit america's only museum of the u.s. constitution, and also, our national center for bipartisan constitutional education and debate. with those introductory words, i now confess that i require my constitutional reading glasses. i can now begin with a piece called marshall, jefferson, taft, and brandeis. why did i use this unusual pair? let's set the stage by her memory that the great chief john -- by remembering that john marshall was nominated by
president adams on january 20, 1801. just gotten a letter from john jay, declining the appointment. the president offered him the vacant seats. marshall accepted that on the spot. this confirms that in life, timing is everything. [laughter] professor rosen: marshall was confirmed by the senate a week later on january 27, and took office february 4. he continued to serve as secretary of state's request until the president's term expired on march 4. we are celebrating the 215th anniversary of marshall's elevation almost to the day. adams famously said my gift of john marshal to the people of -- john marshall to the people of united states was the proudest act of my life. marshall has been widely praised for transforming the supreme court into what its biographer calls a dominant force in american life. as all of us know well, marshall established the independence of
the judiciary at a time when republicans were determined to attack the largely federalist bench by making judges entirely subservient to popular will. under marshall's leadership, there were few dissents, largely because of his exceptional influence over prickly and strong-minded colleagues on the court. it was his skill in establishing convivial personal relationship among his fellow justices that helped cement the court's authority and vulnerable moment -- at a foldablvulnerable moment in the early history of the court. by expertly wielding the powers of the chief justice, such as the ability to assign opinions, as well as by instituting administrative reforms such as abolishing the practice of separate opinions, he was able to persuade other justices of different ideological persuasions to join him in a series of unanimous opinions. when marshall inherited the court, it was a weak institution compared to congress and the president. by the time he left, the supreme court was a significant player in the american scheme of government. all of this is familiar and
well-known to us all. i thought for occasion as distinguished as this, i should at least try and say something new. a few years ago, in a book about the supreme court and judicial temperament, i argued that marshall's constitutional clashes with thomas jefferson about the scope of congressional executive and judicial power continue to set the terms for our constitutional debates today. as the chief mentioned, i just finished another, similarly riveting book. this is is called lewis b brandeis, american brandeis. -- louis d brandeis, american prophet. it will be published june 1, the hundredth anniversary of the supreme court nomination and i am so pleased to see his biographer in the audience, i understand frank gilbert, his grandson, is here with us as well. the book argues that brandeis was the greatest critic of bigness in business and government since his hero, thomas jefferson.
finally, i'm starting a new book on william howard taft, which argues that marshall was taft's hero, and that taft was one of the most successful chiefs since marshall himself. that is why i'm eager to compare the clashes and compromises of these two great teams of constitutional rivals. marshall and jefferson on the one hand, and taft and brandeis on the other. comparison of these two teams of rivals has led me to the following thesis. marshall and jefferson were personal and ideological opponents who privately derided each other in colorful terms and jefferson accused marshall of twisted occasions and marshall reciprocated by calling jefferson the great mama of the mountain. mountain.f the not sure what it means. something to do with being in charlottesville and looking down and people from the top of the mountain. nevertheless, marshall became the most successful chief
justice in american history because of his ability to win over jeffersonian justices who were his ideological opponents of compromise and leadership. by the same token, taft and brandeis were also personal and ideological opponents. brandeis exposed a cover-up by taft in a highly public hearing. he opposed his confirmation in vigorous terms, calling him a muckraker, and emotionless for his own purposes, a socialist, i have the creek, a man who has certain high ideals in his imagination but is utterly unscrupulous in reaching them. llama of the great mountain. oft assured the goal ultimately persuading brandeis and other dissenting justices enjoying him in a series of unanimous decisions.
have to graciously buried the hatchet and invited brandeis to committee him on the and find ways to distribute the workload of the district judges, a topic that interested him. taft later reported that, "brandeis and i are on the best terms and have sympathetic views. easy."ors are wenteis agreed that all "happily." it is all very friendly. taft and marshall were successful because of their temperaments. laugh was heavily
praised. marshall and taft recognized the importance of the team dynamic. know, once and an unfortunate attempt at judicial restraint, the justices chose to only drink on the days that range. marshall observed that on sunny days, there judicial rain is large enough that it must be -- ther-- assured the group that would only be used for judicial purposes. taft cultivated a certain team dynamic and responsible for
palatial supreme , where theing justices can continue to discuss cases over a hogshead of madeira or at least over lunch. marshall and taft were successful because of their willingness to compromise. by putting a premium on unanimity and filing few dissent, listen to the statistics. marshall wrote only seven cents in 34 years on the bench, only -- seven dissents in 34 years on the bench, only one of which involved a constitutional issue. we will say word about that in a moment. taft wrote 20 dissents in total. both marshall and half were able to persuade -- and taft were able to persuade their colleagues. at the same time, marshall and taft were aided by the moderation and compromises of their ideological antagonists. jefferson acquiesced in marshall's modern conception of -- moderate conception of judicial review, because of his bipartisan believe that, "we are all republicans and federalists
." brandeis often acquiesced in taft's vision of unanimity because of their shared concern for the institutional legitimacy of the court. at its heart, the success of marshall and taft is a tribute to their moderation, collegiality, and willingness to compromise. it's also a tribute to the fact that these patriotic qualities were shared by their opponents, thomas jefferson and louis brandeis. that is the thesis. let me try to persuade you of it. marshall and jefferson of course were distant cousins who had circled each other warily during their tumultuous years leading to jefferson's election. the election of 1800 was a clash of political principles more than a clash of personalities. the federalists, led by adams, reported a strong role government to preserve the union. they feared unchecked majority rule and hope the independent
federal courts would check democratic excesses, which federalists interpreted to include criticisms of adams himself during republicans, led by jefferson, were suspicious of national power in the federal courts, believes strongly in states rights as a rule of local majorities and insisted that most constitutional disputes should be settled by elected legislatures rather than unelected judges. in november 1800, the election was thrown to the house of representatives after jefferson and his running mate, aaron burr, finished in a tie with 73 electoral votes each. rumors spread of a federalists plot to install marshall, who was then serving as adams secretary of state. adams, recognizing that the judiciary would be the last stronghold of his party, unexpectedly appointed marshall to the supreme court on january 27, 1801. in a lame-duck federalists than -- the lame-duck federalists senate confirmed him a few days later. the president and congress worked frantically to consolidate the power of the federalists and the judiciary before was too late.
congress created a series of new judicial offices to give adams the chance to make midnight appointments, and also reduced the size of the supreme court to deny jefferson the chance to make appointment of his own. -- appointments of his own. on february 17, the has led to -- house appointed jefferson on the 36th ballot. on march 1, three days before jefferson's inauguration, adams famously stayed up late signing new judicial commissions, notarized by john marshall, still performing double duty as a lame-duck secretary of state. nevertheless, after taking the oval office, jefferson behaved with relative moderation. not attempt a complete purge of federal officeholders, but only those guilty of misconduct appointed after adams knew he had been defeated. in a bipartisan gesture, he invited marshall to administer the oath of office. what were the constitutional clashes between the federalists and republicans? marshall, like washington and adams, was a skeptic of direct
democracy and preferred the checks and balances enclosed by the constitution. -- imposed by the constitution. federalists emphasize the sacred rights of property, feared mob rule, and framed the constitution as a bulwark against some view to be the rising tide of anarchy. because marshall greatly favored nationalism over partisanship, he was not a doctrinaire federalists. he was critical of the alien and causing others to criticize him for being too moderate. above all, marshall was an ardent nationalist. he revered george washington. his long-standing animosity with his kinsman thomas jefferson could be traced to jefferson's partisan criticism of atoms in the 1890's. 1890;s.ams in the
's. marshall cultivated his nationalist local views while fighting for the army in the revolutionary war. he developed when he famously called his "habit of considering america as my country and congress as my government." moreover, according to smith, marshall is not a reactionary. he believed strongly in rivers government, vigorously defended a free press, and recoiled from the aristocratic pretensions of some of his fellow federalists. after serving as cumbersome and -- after serving as secretary of state, he began the nation's most prominent federalist, but he led the party with more moderate wings. by contrast, jefferson, the stalwart virginia, was the head of the rivalry applicant party. republicans emphasized majority rule, deplore the checks and balances built into the federal system, and sought to employ their power of the ballot box on behalf of debtors rather than creditors, the producing many rather than the oligarchic few. louis brandeis, who was content to be called jeffersonian, had a favorite book about his hero which you read in 1927. it was albert j knox jefferson.
brandeis was so enthusiastic about it, he suggested it be distributed to every school child in kentucky. he called jefferson the "great libertarian" and praised jefferson for attacking the increasingly powerful federal judiciary as a haven for monopolists and the exploiting classes. he saw the supreme court under the leadership of chief justice marshall as an instrument of centralization and marshall wrote to william johnson in 1823 that he feared no danger more than the consolidation of our government by the noiseless, and therefore, an alarming history mentality of the supreme court. jefferson deplored marshall as a crafty chief judge who sophisticates the law to his mind, construing our constitution from a coordination of general and special government, to general and supreme one alone.
jefferson like louis brandeis was a foe not of capitalism, but of monopoly. in his hatred of monopoly, jefferson was not alone among the american founders. the boston tea party, which sparked the american revolution, was a rebellion against the government granted monopoly held by the east india company. after the constitutional convention, jefferson expressed grave concern about government granted monopolies of trade. he complained to james madison of the constitution contained no bill of rights protecting among other basic liberties, restrictions against monopolies. jefferson supported the following constitutional amendment. monopolies may be allowed to persist for their own productions and literature in their own inventions in the art for a term not exceeding a certain amount of years, but for no longer term and for another purposes. madison responded that the federal government should have the power to grant charters and appropriations, and his proposal was voted down on the ground it might lead to monopolies of every sort as george mason put it.
madison resisted the constitutional amendments proposed by six date and supported by jefferson that would have provided that congress cannot rent monopolies or grant any company with exclusive advantages. alexander hamilton evoked the -- invoked the argument that congress had inherent power to create trade companies or corporations, but believe the power shouldn't be used to grant exclusive privileges. nevertheless, jefferson insisted that hamilton's bank of the united states violated the constitution because of the notion that congress had implied powers to charter corporations clashed with the 10th amendment. the nationalist marshall rejected this argument in the mcculloch case. marshall's biographer, was brandeis's favorite teacher in law school.
and also the great advocate of judicial abstinence. it is wonderful short biography of marshall, which brandeis must've read, he describes jefferson's excitement in 1810 when he concluded at length then, we have a chance of getting a republican majority in them supreme judiciary. he expressed his confidence in the appointment of a decided republican with nothing equivocal about him. jefferson suggested judge tyler of virginia, reminding president madison of marshall's rancorous hostility to the country. madison appointed joseph story, and jefferson called a him a pseudo-republican. how did marshall win over not only story, but other jeffersonian justices? marshall's appealing personality had obvious benefits. he had a knack for remaining friends with his political opponents. and because of marshall's pleasant temperament, he remained on good terms with justices whose politics were less moderate than his.
as a result of his ability to reach political compromises on the court, marshall's chief justiceship was marked by a remarkably high degree of unanimity, a by little dissent. during his first 10 years as chief, marshall wrote to 90% of the court opinions. cases issueds were when writing circuit. he didn't dominate the courts 's thinking by force, but instead established and maintained an atmosphere that was conducive to compromise. just as he had won over his political adversaries, marshall also won over his fellow justices, who were mostly jeffersonian, through his judicial temperament, devotion
to judicial restraint, and commitment to compromise. even justice wayne johnson, the -- william johnson, the first a dissenter, known as that's because he wrote the first recorded dissent, more often than not agreed with marshall. in 1804, jefferson appointed johnson to the court with a specific purpose of countering marshall's growing influence on the court. in a series of increasingly urgent letters in 1822, jefferson kept urging him to dissent in every case. justice johnson disappointed jefferson by supporting marshall's position 96% of the time. even when you sent it, johnson was apologetic. in response to jefferson's prompting in 1922 to reinstitute separate opinions, which he thought were a means of transparency and would prevent the justices from cowering behind the cloak of anonymity and concealing their true views, johnson agreed to try and increases instance of separate opinions, but he also defended the decision, asking the
-- try to increase his issuance of separate opinions, but he also defended his decision, asking the president to tell him in which cases he had erred. when justice patterson passed away, jefferson appointed a moderate republican to the bench. in 1807, when congress created an additional seat to handle cases from new states like ohio and kentucky, jefferson appointed thomas todd, the chief justice of the kentucky supreme court and a staunch republican. though all three appointees, each of them becomes a valued contributor to the jurisprudence of the marshall court. they all fall under marshall's spell. under marshall's leadership, they all come to view the court as an institution and to have their contributions reflected silently. despite jefferson's best
efforts, the court became a band of brothers under marshall's collegial leadership. as hobson summarizes the goal and years of the marshall court from 1811 to 1824, in a series of unanimous or near unanimous decisions, the supreme court affirmed congress is implied power, broadly interpreted congress's power to regular commerce, struck down state laws the conflict with the federal supremacy, with a violated -- asserted broad jurisdictions to decide cases arising under the constitutions and laws of the united states, and sustained its appellate power over the state judiciary. marshall won over the jeffersonian justices. as larry kramer, the previous lecture to this distinguished series, explained in his article
understanding marbury versus madison, marshall and marbury embraced jefferson's own conception of judicial review, the departmental's conception, rather than the high federalist conception of judicial supremacy. as kramer describes it, the original and quite modest conception of judicial review argued that the courts had a role to play in resolving constitutional disputes. the people had the ultimate authority to enforce the constitution and interpret it. the court says that people agents acted to supplement and assist the people who retained primary responsibility for constitutional interpretations and enforcement. an opposing view associated with more radical republicans questioned the power of judicial review entirely, arguing that the people appointed legislators as their agents to pass laws, and that therefore, the constitutionality of those laws was a question between the people and their representatives. by contrast, the theory of departmental is him, articulated by madison and ultimately embraced by marshall was a common nation of these two republican theories. each department or branch of
government was entitled to offer its views on the constitution. if disputes arose, they could be resolved by negotiation and accommodation. if resolution proved impossible, the people could decide through the democratic process. in other words, the judiciary's intervention was not the final word, but served as a reference point for further deliberation in public debate. by contrast, the modern understanding of judicial review, in which the courts have the final and exclusive authority to decide constitutional questions, emerged in the 1790's, and was advocated by conservative, hamiltonian federalists, who were anti-populist and looking for ways to strengthen national government and encourage ordinary citizens between election days to defer passively to constitutional authorities. the election of 1800 kramer argues was among other things, a referendum on constitutional authority. it was the role of the court and the question of judicial pharmacy among its central issues. the republicans landslide victory suggested that people had rejected judicial supremacy in favor of popular constitutionalism.
in debating the repeal of the 1801 judiciary act, if you -- a few republicans even question the existence of judicial review in any form. president jefferson, however, was not among them. he accepted this more moderate department was theory and did -- departmentalist theory and did not reject judicial review all right. after the election, realizing they were about to lose control of the only two branches of government with any power, the federalists tried to login ck in control of the third branch as a possible bulwark for national power. part of their strategy was marshall's appointment as chief justice, and marshaling at knowledge and accept this responsibility. therefore, when faced with marbury madison, marshall decide d to make a statement with the goal of getting judicial review into the record. the marshall, federalist, the legion judicial's privacy, in the opinions, he conspicuously and self-consciously shied away from saying anything that could be read to enforce such an idea.
instead, as kramer puts a, he carefully and deliberately used only comfortable and familial -- familiar public and arguments. and justify judicial review in terms that republican moderates could accept and agree with. marshall confounded his belittle enemies. -- political enemies. marshall never claimed that the authority to interpret the constitution rested exclusively with the court. he never claimed that congress was bound by the court's interpretation and avoided the question of enforcement if congress chose to ignore the court's decision. jefferson was asked by the vexed. kramer said he had nothing bad to say but the court discussion of judicial review. it was here that marshall's copywriting strategy prevailed. jefferson was not stupid, as kramer concludes. he was capable of preaching that other uses can be made of judicial review, but he also was not opposed to it. not in the modest form presented by marshall in marbury.
so, having laid down this moderate marker for judicial review, marshall advanced his nationalist constitutional vision, true judicial restraint. from cola to gibbons and often marshall managed to assert , nationalistic ideals throughout his tenure on the court. he delicately expanded both federal and the same time judicial power by declining to exercise judicial power in a heavy-handed manner. when he unanimously upheld congress's power charter banks displayed marshall's believe the -- bank, he also displayed marshall's believe that judicial authority could best be embraced by deference to the democratizing forces of national sovereignty and conversely, the cause of national democracy is best served by a strong but restrained judiciary. throughout his tenure, marshall not only expansively interpreted the commerce clause, he also use the contract clause of government to restrain states from interfering with public and private contracts among both to protect vested property interests, and to strengthen the
union by harnessing the energy's of creative entrepreneurs. marshall established the doctrinal starting point for a series of contract clause decisions, one of fletcher's progeny, and the dartmouth college case, held that the colleges colonial charter qualified as a contract between private parties, with which the new hampshire literature cannot interfere by jim to change the privately funded institution into a state university. as gene edward smith notes, aside from its economic impact, few cases better illustrate marshall's ability to bring his colleagues together than the cases initially argued, only washington siding with the chief justice, todd and you've all support the new hampshire legislature all the jeffersonians, johnston, livingston, and story, ron decided, rather than expose a divided court, marshall held off on announcing a decision after the recess with three undecided
justices came to his position in the chief justice of exerted no pressure on them directly or indirectly. they ultimately flocked to his cause. i mentioned the marshall had -- that marshall had only one constitutional dissent during his long tenure. den and saunders in 1827. it was also a contract clause opinion, one of the rare instances where he was unable to convince his colleagues to join him. ogden examined the constitutionality of the new york bankruptcy statute which completely absolved insolvent debtors from all future obligations once they surrender their assets to creditors to pay the price. the basic question was whether state bank laws could modify the substance of private contracts. 4 justices agreed that a new age. argued that a key feature of the constitution was to guarantee the integrity of contracts made between rational,
moral individuals. for marshall, the duty of the court was to preserve the best of the rights of contract, whether against a governments as -- against a government as in fletcher or individuals who reneged on their conferences -- their promises. in the later years of the marshall court, with the addition of new justices, jeffersonian and jacksonian appointees began to disrupt the practice of unanimity by increasing their dissents. overall, there was only about one dissent out of nearly 25 cases during the marshall court. the lowest percentage in the court's history. johnson a livingston wrote johnson and livingston wrote -- johnson and livingston wrote almost 60% of the 52 total dissents. marshall's emphasis on the importance of unanimity endured long after he left the coordinates of 35. -- court in 1835. in fact, it is his most enduring
legacy. though the rate of non-unanimity doubled, until 1941, the rate remained fairly constant at less than 10%. this was partly due to the leadership of chief justices who were inspired by chief marshall. chief justice edward white, a former senate majority leader blessed with a genial temperament that permitted him to mend fences and reinforce consensus norms of the court. perhaps the most successful chief in promoting consensus after marshall was william howard taft. like marshall, taft was a skilled leader and a skilled in ministry of her former. -- administrative reformer. he acquiesced with opinions he did not fully agree.
the past court was remarkably cohesive. only 7% of the dissents. taft idolize marshall, who he called the greatest judge that america will the world has produced. taft costs judicious -- taft's judicial policy was based on his faithfulness of the -- as a disciple. like marshall, he was a conservative nationalist who championed the government and saw the judiciary as a bulwark protecting the vested rights of the framers sought to protect. in cases like stafford and wallace from 1922, taft endorsed marshall's naturalistic -- nationalistic jurisprudence. you pulled broad federal power. federalhold broad power. as chief, he held with homes of the commerce clause must be
applied to the real and practical essence of modern business wrote. -- growth. that included the motor vehicle theft act. i wonder how will that one worked. like marshall, taft differed in important cases to congress's power to regulate the economy. although taft announced in early -- in an early conference of the justices that he had been appointed to reverse if you decisions, he said i looked right at old man homes when i said that, he soon joined homes in the case at converse at -- in the dissent of the case at the national children's hospital whether courts famously struck down a federal minimum wage law for women. in the active case, from which brandeis was recused because he had argued the molar case sustaining maximum hour laws for women that was an issue in atkins, justice sutherland held the freedom of contract can only be a bridge in exceptional -- abridged in exceptional circumstances. taft, like marshall, was devoted to freedom of contract. he had served of chair of the national war labor board in world war i and expressed doubt on how people can live on the wages of the munitions and textile workers. it's not the function of this
court to hold congressional act invalid sibling because they are passed to carry out economic views which the court considers unsound. it was chief justice taft dissenting in atkins. taft believe that lautner had been overruled, and he insisted on the sanctity. by contrast, in a case in 1922, taft a struck down a federal child labor tax law, which taxed businesses employing children under the age of 14 years old. for taft, child labor tax was not a tax. should congress and the institution of its cut -- it will become the painful duty of this tribunal should a decision, for us say that the act was not the law of the land. taft failed to include the entire quote from marshall's opinion was that explains that when the law is not prohibited, it's really calculated to affect any of the objects of trust in the government, it goes too far and treads on to legislate ground. they rate of the child labor case where the opinion would have made the great nationalists john marshall turn over in his grave. brandeis joined in. taft's ambition to mask the
court was so successfully persuaded not only brandeis, but also homes and stone, the usual dissenters and defenders of federal power to join a unanimous court in the child labor decision. suppressing their likely disagreements. brandeis's decision not to dissent was especially significant, since he had voted to uphold the federal child labor law in 1918 before taft joined the court. during taft's early years, it was typical for justices to write on opinions, i do not agree, but shall submit.
taft's leadership style, in other words, consistently and directly emulated out of marshall. he was respected and well-liked, and effective chief who won the respect, admiration, and friendship of his fellow justices. taft believed important task was to promote teamwork as to give weight in solidarity to its opinions. taft explained i don't approve of dissent, generally. i think in many cases, where i differ from the majority, it's more important to stand by the court and give its judgment weight than merely to record my individual dissent, with better -- it is better to have the law certain then settled either way. cap also criticized dissent as mayor expression of the egotism and held it was much more important to say what the court thinks that to say what anyone thinks. taft with the breast's own ego -- would suppress his own ego and modify his own opinions in order to reach the same
conclusions as his colleagues. taft worked for an entire summer on a very broad federal power one opinion, inventing but to maintain unanimity, he agreed to suppress his own views. as marshall was able to bring the jeffersonian justices to join the opinions of the accord, so too was taft able to win over justice lewis we brandeis, a jeffersonian democrat, to join unanimous opinions and to withhold dissents. taft, as a mention, vigorously opposed. -- opposed to brandeis's nomination. he was focusing on his own ambitions to be chief justice, and the grudging nursed about the pinchot ballenger affair, a -- and the grudge he nursed about the pinchot ballenger affair, a hugely significant dispute about the firing of one of roosevelt's partisan conservation officials in the interior department, who brandeis investigated and basically accused taft of lying in a congressional hearing. and the philosophical
differences were just as stark as those between marshall and jefferson. brandeis idealized thomas jefferson. in my new book, i mentioned coming out on june 1, i argue the brandeis, and was content to -- that brandeis was the greatest critic of size since jefferson himself. i can't resist giving you a little excerpt, because it will give you a sense of the passion with which jefferson identified as a jeffersonian, and therefore the magnitude of taft's achievement in winning him over to the cause of unanimity. brandeis served on the supreme court from 1960 to 1932. -- 1916 to 1932. he was the leader of a jeffersonian tradition which was distinctive in the 21st century as it was during the new deal era. the progressive champion of federalism and the autonomy of the states. at the same time, brandeis embodies a bipartisan constitutional tradition that is once again gaining broad
adherence among both sides of the political spectrum. from tea party and libertarian conservatives to occupy liberals. namely, he was a defender of personal and economic liberty and a foe of civilization. businesslization in and government. he believed small-scale commanders were most likely to -- communities were most likely to satisfy human needs and to allow citizens to develop their faculties to use as beautiful phrase in the whitney case, through the rigorous self-education brandeis that was -- thought was necessary for full participation in american democracy. at a time of intense polarization between conservatives and libertarians, who prefer small government and free enterprise, and liberals and progressives, who advocate a more energetic social welfare state, brandeis is the historical figure who represents and blends the ideals of both sides of this crucial debate. he endorses the jeffersonian ideal of small government and local democracy, but he applied those ideals to uphold regulations that pained the accesses of big business and monopoly.
he offers a unifying vision of liberty and democracy for our divided age. like jefferson, brandeis believed that the greatest threat to our constitutional liberties was an uneducated citizenry, and that democracy could not survive both ignorant and free. because of brandeis is pragmatic -- brandeis's pragmatic sense of human limitations, he believed that only an small-scale businesses and communities could individuals master the facts that were necessary for personal and political self-government. this reason, as a supreme court justice, he generally championed judicial deference to state legislation, except when i clashed with protections -- when it clashed with protections expressively enumerated in the constitution, such as the first amendment in and fourth amendment. in those cases, he became the most precious defender of civil liberties of the 20th century. brandeis was so pathetic
sympathetic to jefferson's views on political economy. he developed a jefferson's distinction between merchant bankers, who left their own capital to productive enterprises, and monopolists, who underwrote risky instruments with what brandeis unforgettably called "other people's money." brandeis especially admired jefferson's notion of limited government. his vision and for seeing the conservation problem, which would come up after the disappearance of free land, his far-reaching mine which brand is considered more cultivated than the comparatively alerted lincoln.rned" he was a tough grader. he had this conviction that with time and education, citizens would have as little need of government as possible. brandeis is often painted as a progressive, a defender of government regulation. i'm trying to resurrect the deeply jeffersonian roots of his thoughts, which make him, i think, the greatest heir of
jefferson in the 20th century. taft was a defender of state power. in the election of 1912, their policy views dramatically diverts. taft wanted to prosecute the trusts in the megabanks for antitrust violations. brandeis and wilson want to break them up so they can be taxed by the states. theodore roosevelt wanted to create strong regular tory bodies to oversee them. -- regulatory bodies to oversee them. if taft and brandeis differed fundamentally, in their views about federal power, they shared a devotion to interpret the constitution in light of changed circumstances. brandeis was the most important attitude of interpreting the constitution, which recs in the -- advocate of interpreting the constitution in the 20th century, which makes him the of free prophet speech and privacy in the 20 th century. it is surprising, right was surprised to learn as i began my work, that taft, like brandeis, was not an original list. he believed to that his highest
and most useful function involves the translation of legal principles to meet new conditions. the idea that judges should interpret the exact intentions of those who established the constitution was the theory of one who does not understand the proper and administration of justice. frequently, new conditions arise which those who are responsible for the written law could not have had in view. and to which existing common-law principles have never before been applied. it becomes asserted for the court to make new and traditions of both. as a result, there will be response to sober popular opinion as it may change. he declared that post 1912 decisions deferring to maximum our laws for women reflected what he called the judicial beginning to the fact of life, realization that no law, written or unwritten, can be understood without full knowledge of the facts of which arises and to
which it is to be applied. the struggle for the living law has not been fully one, evidence lautner fact that the law had not been overruled. for brandeis, the remedy came as always in self-education. lawyers and judges at a be trained in the fact of modern life of the study of economics and sociology in politics. this embodies the facts and present the problems of today. escaping from the specialization of corporate lawyers, brandeis held up instead the model of what he called the all-around lawyer, trained in small communities representing rich and poor, employers and employees. brandeis concluded that our greatest judges secured this training, as had alexander hamilton, who brandeis called an apostle of the living law. he may have been describing himself. by praising marshall is one of the greatest of judges, the jeffersonian brandeis was endorsing marshall's pragmatic
notion that legislature should have wide discretion to experiment with economic innovations without being second-guessed by courts. as mason writes, both brandeis and taft advocated knowledge by lawyers of economics and sociology. brandeis believed that the awareness of the factual basis of social actions would stimulate judicial self-restraint, taft advocated knowledge of the sociology of economics of the lawyers and judges could more effectively carry on their secret mission of preserving those institutions without which america could not long survive based on taft's notion that the constitution rests on personal liberty and the right of property. because of their mutual respect, because of the recognition of the importance of unanimity for the courts institutional legitimacy, taft and brandeis were able to join together on many opinions, despite their very competing judicial philosophies. like marshall and ogden, taft rejected a positive law to concur with the notions of homes and brandeis is the importance of considering the lessons learned from sociology and economics.
taft enthusiastically praised his opinions about the railway company's challenges to dismiss claims and land valuations, and in turn, brandeis embraced the consensus of the taft court, which established among the justices executions of rubber -- -- of reciprocity. there's a limit to the frequency in which you can dissent without exasperating man. you may have a very important case of your own as to which you do not want to antagonize on a less important case, etc., etc. for these reasons, some scholars have argued that taft wrote a prodigious tuner 49 opinions for opinions for the court. his unique, most lasting achievement was not jewish jurisprudential, but his success as administrator of conclave -- complicated activities and functions of the court.
marshall was a greater ministry under, and taft would have been pleased when after his death, the federal district judge in new york described taft as the greatest figure as chief justice since john marshall. after taft left the court in 1930, the number of unanimous decisions started to decline, and the number of dissents increased. but it wasn't until the 1940's that the consensus norm utterly collapsed. partly because chief justice stone, former dean of columbia law school, was jeffersonian is encouragement of separate opinions and dissents. one of the other causes for the increasing number of dissents, ironically, was the change in the docket from mandatory to discretionary review, initiated by the judiciary act of 1925, which was a reform that taft himself had championed. as dean robert post of yale argued, the act of 1925 presented a fundamental transformation of the role of the supreme court. before the act, the court was primarily tribunal, it was the
highest and last source of appellate review, whose chief function was prickly to discern -- correctly to discern and protect the rights of litigants. constriction rp completely overrode this obstinate conception of the court was to be the vindicator of all federal rights, and acts extrude enlargement of the courts discretionary appellate jurisdiction express the profound recharacterization of the court's function. marshall died in 1835, having outlived jefferson by nine years. according to justice story, his final words were a prayer for the union. his strength in death, his cover , story wrote in marshals eulogy, it would be difficult to name his superior. even the gimlet-eyed justice holmes remarked of american law -- remarked that if american law
were to be represented by a -- by a single alone, it could be one john marshall. as michael gerhardt, national constitution center's supreme scholar in residence has written, marshall seems to have keenly understood the importance of treating one's enemies as well as one could. it's no accident that marshall, in spite of his strong constitutional opinions, commanded the respect of almost everyone for whom he served, in spite of the fact that most of not share his ideology. i can't resist noting as i close that the national constitution center has inaugurated another project of which i'm convinced marshall would have enthusiastically approved. we have brought together the federalist society. this is the leading conservative and libertarian lawyers association in america. it will create the best interactive constitution on the world wide web. scholars nominated by both
up as begin by drafting common statement and then to separate statements describing areas of disagreement. these are like marshall's in unanimous majority opinions. by contrast, the separate statements are jeffersonian. this will be the centerpiece of the new u.s. history and ap government exams, and i encourage all of you to check it at the to learn from it constitution center. marshall'st to be to onlying influence is not that he won over his colleagues
in the court, but that he also inspired future chief justices, such as taft, to go on to win over their ideological opponents , including brandeis. there are so many famous tributes to marshall. quotes daniel webster for praising marshall as "holding the union together." the attribute this to a large "sweet nature, capable of harmonizing differences." succint sustained -- tribute to marshall comes from
thank you for the reminder that our court remains a tool for bringing harmony out of dissonance. we think professor rosen for his extort very, careful scholarship -- extraordinary, careful scholarship this evening. descendentsmber of of the great chief justice here. could i ask all of the descendents to stand? [applause] >> the society appreciates the contribution and participation of the john marshall foundation, and particularly its president, caroline smith
parkinson. parkinson: we are so grateful to chief justice roberts and the historical society of the supreme court for your generous and gracious hospitality as we celebrate this anniversary of chief justice john marshall. it has been an honor to partner with you in cosponsoring this event, tonight, to hear jeff rosen's challenging and provocative words in the midst of the political campaigns that are going on right now. i will not see any more about that. the mission of the john marshall foundation is to raise awareness of the great chief justice legacy. what he believed in, his contributions to our country,
and his passion for the rule of law and separation of power. we believe that education is the key to preserving the legacy of the great chief justice. andfocus on supporting men women who teach civics, american history, government, and political science, are organizations we harbor. memberslike to ask the of the john marshall foundation board and the junior board to stand, please. [applause] parkinson: i would like to ask the members of the supreme court historical society to
stand so that we may say thank you to you. thank you very much. lause] parkinson: marshall enjoyed his madeira. i don't know that it is downstairs, but there are other things to enjoy. thank you. [applause] >> a couple of closing items. signed copies of professor rosen's recent writings are available in the supreme court historical society gift shop downstairs, on the ground floor. re are also signed copies of book andreyer's shop will remain open throughout the reception.
there are all sorts of treasures. activities of the supreme court historical of thers i l society should -- you can find reception in the east and west conference rooms. when clergy to join us for additional good times. -- we encourage you to join us for additional good times. we ask that we adjourned this time -- adjourn at this time. thank you so much. [applause]
[crowd chatter] >> tonight on c-span, the supreme court cases that shaped our country come to life in "landmark cases." we explore significant decisions in american history. questar marshall in marbury v. madison -- >> marshall in marbury versus madison said that the constitution is a political document. >> what sets dread scott a part is that it is anti-precedential. >> in lochner versus new york, the supreme court said it gets to make the decisions in these debates. >> tonight, we look into the forceful removal of 20,000
japanese citizens on the west coast to internment camps. korematsu versus the united states. a class abouts the migration in the 19th century. he argues among the factors that contributed to the european exit is war and increase in population and decreasing the cost of transportation. he talks about how many migrants also moved for higher wagers or -- wages or to escape political pressure. his classes about 45 minutes. ofyou're looking at footage a vessel landing at ellis island in 1903. this film was taken by edison window and it gives us a into a moment of mass