The Use That the Future Makes of the Past: John Marshall's Greatness and Its Lessons for Today's Supreme Court Justices

John Marshall's greatness rests on a relatively small number of Supreme Court opinions, of which the most famous are Marbury v. Madison, (1) McCulloch v. Maryland, (2) and Gibbons v. Ogden. (3) Beyond these are a number of less famous but also important cases, including his opinions in the Native American cases, (4) Fletcher v. Peck, (5) and Dartmouth College v. Woodward. (6) What makes Marshall a great Justice? One feature is certainly his institutional role in making the U.S. Supreme Court much more important to American politics than it had been previously. That is a function, however, of the sorts of cases that were brought before the Court, and of the opinions he chose to write. Marshall was also important as an early intellectual leader of the Court, as opposed to being merely its Chief Justice. That, too, is a function of the opinions he wrote. FIRST IMPRESSIONS COUNT Thus, Marshall's greatness tends to revolve around his opinions. What exactly did those opinions do? They often involved the initial construction of a piece of constitutional text. The initial gloss on a portion of the Constitution offers a judge the opportunity for the creation of new doctrinal categories that will prove lasting. That is clearly the case with Marshall. Many doctrines or catch phrases, including "political question," "domestic dependent nations," and the doctrine of implied powers, either begin with or are made famous by Marshall. It is important to note, however, that almost any initial gloss on a piece of constitutional text is likely to have a disproportionate influence on the later development of interpretations of that piece of text. That is because subsequent interpretations normally rely on the initial interpretation. Even if they disagree with or distinguish it, they must take the initial gloss into account. Interpretative traditions are path-dependent, and the later direction of the path often depends heavily on the initial first steps. In particular, the initial gloss on a piece of constitutional text can either cause the text to become a wellspring of further interpretations, or, as in the case of Justice Miller's initial reading of the Privileges or Immunities Clause of the Fourteenth Amendment, (7) it can essentially make the constitutional text irrelevant and thus forestall virtually all litigation concerning it. All other things being equal, the first approach is likely to be the more influential and honored in the long run. That is because lawyers will tend to focus on those parts of the Constitution about which they can litigate. All things being equal, Justices tend to be more highly regarded if lawyers spend a lot of time thinking and arguing about their opinions. Thus, the opinions of a Justice who makes a portion of the Constitution litigable will inevitably draw more attention than the opinions of a Justice who makes a portion of the Constitution effectively a dead letter. I suspect that Justice Miller's importance stems largely from the fact that he was the first to interpret the Fourteenth Amendment, but that he would have been much more important and much more famous if he had not squashed the life out of the Privileges or Immunities Clause and, instead, had created a gloss that future lawyers could fight over. PICKING THE RIGHT TOPICS This brings me to a second feature of Marshall's opinions. Marshall wrote on subjects that were of immense importance to the America of his day: contractual liberties, the rights of settlers versus Native Americans, and the powers of the national government vis-a-vis the states. And, of course, Marbury v. Madison is a case about the struggle between the two major political parties of Marshall's day--the Federalists and the Republicans--as well as a case about the relative powers of the judiciary vis-a-vis the Congress. All other things being equal, a Justice who hurls the Court into major political controversies is more likely to be regarded as controversial, and hence, almost by definition, more talked about and discussed. …