John Marshall and the Heroic Age of the Supreme Court (review)

Newmyer, having written a superb biography of Justice Joseph Story, now adds a well-crafted biography of Chief Justice John Marshall to the list of important works on the Marshall Court. Emphasizing the intellectual and, particularly, political context within which Marshall worked, Newmyer's book provides a convenient overview of the Court's work during the period in which Marshall established the Court as a major institution of constitutional governance.

Not surprisingly, Newmyer presents Marshall as a champion of constitutional nationalism. Throughout his career, Marshall sought to ensure that the Constitution be interpreted to give Congress sufficient power to support the expansion of the commercial republic and to deny states power to impede that expansion. Newmyer's treatment of Marshall's conflict with Thomas Jefferson offers the standard interpretation of Marshall's strategic approach to the problem posed by Marbury v. Madison, the impeachment of Samuel Chase, and the trial of Aaron Burr. In each episode, Marshall challenged Jefferson by asserting a role for law "as distinct from, and superior to, politics" (229). Newmyer's chapter about the way in which Marshall's nationalism was defeated politically in the Jacksonian era captures the trajectory of nationalism and states' rights in the early republic. Newmyer ends with an insightful essay on the process by which Marshall came to symbolize judicial review.

Eschewing any substantial effort to penetrate Marshall's psyche, Newmyer instead emphasizes Marshall's personal modesty and the reverence with which he was held in his hometown even when he articulated constitutional theories deeply at odds with those prevailing in Richmond. He aptly sums up the difference between Marshall and Jefferson: "Marshall was aristocratic in his politics and democratic in his behavior; Jefferson reversed the order" (149). The book contains useful mini-essays on a several topics, including Marshall's treatment of the relation between international law and U.S. constitutionalism and Marshall's views on slavery, as reflected both in the Court's decisions and in his personal life. In these essays, Newmyer clearly offers perspectives new to the large literature on Marshall and his Supreme Court.

Aside from occasional lapses into a modern informality—as when he writes that Story "was there for" Marshall (407)—and equally occasional slow patches—as in his description of the cases that Marshall handled while practicing law—Newmyer writes gracefully. He may impose too much political theory on his subject when he recurrently describes Marshall as a conservative cast in Edmund Burke's mold. As Newmyer acknowledges, this judgment rests more on an assessment of Marshall's "actions rather than words" (387). Labeling Marshall's actions as Burkean is more distracting than helpful; Newmyer's analysis of the actions alone needs no supplementation. Similarly, Newmyer correctly treats Marshall as using common-law techniques in interpreting the Constitution, but probably overestimates the likelihood that Marshall understood the interpretive task in that way. Despite these quibbles, Newmyer's biography should now be a starting point for serious students of the Marshall Supreme Court.