Aug
03

John Marshall: Would He Make The Grade Today?

The nomination and now near-certain confirmation of Sonia Sotomayor as a justice of the United States Supreme Court stunned me. I am disconnected from the great personages and events of history. I'm a backwater kind of guy, representing folks who rarely make life's larger radar. But I have appeared many times before Sotomayor, and I like her. How did she cross the line from workaday stiff to assume a place in the larger world?

I've been reading through the thumb-nail biographies of the 100-plus people who have thus far served on the Court. These are gathered in The Oxford Companion to the Supreme Court of the United States, edited by Kermit Hall. Each biography has a brief bibliography. As I read, I keep wondering what it will take to get an ordinary trial lawyer onto the high court this century. Can we force an ordinary schooner through the blockades set by the various legal interest groups and status factories?

Marhsall's 34-year tenure as the third chief justice of the United States Supreme Court is ably and well portrayed in Jean Edward Smith's, John Marhsall: Definer of a Nation (1996). The book is the size of a small telephone directory, but is nonetheless a wonderful and quick read. On balance, Smith's presentation of the legal doctrines the Marshall court crafted is jargon free and accurate. Smith appears not to have legal training; the fly leaf of his work lists his profession as "political scientist." I giggled when I read that, imagining the man conjuring ideal states in a lab somewhere. In fact, Smith is a decent historian.

Marhsall was a practitioner for a time, handling as many as 300 clients per year and struggling to make ends meet in a small practice. He routinely co-mingled client funds with his own, effectively giving himself interest-free loans when times were tight. (Smith notes it was not until 1971 that Virginia's bar was prohibited from co-mingling client funds with their own monies.) To a degree that is comforting, Marhsall struggled throughout his career to make ends meet.

When appointed to the bench in 1801 by John Adams, Marshall had already served the nation in the XYZ Affair, steadfastly refusing to pay Talleyrand any sort of bribe for advancing negotiations with France. As a justice, he forged legal doctrines that assured not just the independence of the judiciary, but also the ability of the judiciary to settle for all branches what the law is, and is not. His decisions also set the metes and bounds of federalism in an era in which the boundaries between state and federal power were unclear and hotly contested. Indeed, reading about Marshall with the benefit of hindsight is sobering. When Marshall wrote to friends about the fragile and even miraculous character of the struggling union between the states, I hear the rebel yell and smell the gunpowder of a Civil War. I suspect Marshall did, too.

Smith reviews Marshall's tenure on the Court term by term, discussing significant constitutional decisions and placing them in their political context. Yet toward the book's end, Smith loses focus. For hundreds of pages, the struggle between Federalists and Republicans is vividly and well portrayed. The parties then fracture: there are high federalists, moderate federalists, and irreconcilable Republicans. Then, seemingly out of the blue, a new struggle dawns, pitting Democrats against Whigs. Smith simply fails to give any account of this partisan realignment: Whigs and Democrats enter stage left without so much as a dramatic chorus to announce the new personae.

What fascinates about Marshall's era was how quickly and easily lawyers moved from the ordinary practice of law to the bench or into public office. There weren't giant law schools insulating legal academics from the street. Nor did large law firms cultivate a power elite removed from the pulse of ordinary life. Force of character and intellect governed prospects and were more rawly on display. A lawyer could stumble, fall and recover and still remain in the game. Smith recounts how during argument in one case, Marshall took a brief recess so that the lawyer, Luther Martin, a notorious drunkard, could recover his wits, and perhaps some sobriety, before continuing.

One charming curiosity: Smith reports the case of a prominent gentleman seeking legal counsel. The man hires a well-coiffed lawyer from Richmond. While waiting in court for his case to be called, the man watches Marshall, a young lawyer of uncertain sartorial standards, argue against the very lawyer the man had hired. The client was so impressed by Marshall, he asked Marshall to take his case. But he explained that he had already given the other lawyer $95 of the $100 he brought with him that day. Marshall agreed to take the case for $5. It is a great story. Unfortunately, the identical yarn is reported of Abraham Lincoln in Julie Fenster's The Case of Abraham Lincoln: A Story of Adultery, Murder, and the Making of a Great President (Palgrave MacMillan, New York, 2007). Both stories can't be true; perhaps neither one is.

It was a rough and tumble world in Marshall's time. One has the sense that young men and women did not conceive career trajectories for themselves in high school or earlier and then set about connecting every conceivable dot such that they could present, well past mid-life, as people worthy of trust. Have we created a new class of courtiers, men and women who prance and preen not at an imperial court, but in the plush halls of large firms or within the Ivy-draped walls of just the right schools, learning manners, protocol and just how to kiss the right ring and the right time? Oh, for a whiff of genius every now and then.

Marshall's brilliance is evident in Smith's biography, and so is the struggle of the judiciary to establish for itself an identity and role within an emerging nation. Throughout it all, Marshall appears to have remained a good and simple man, notable for his plain appearance, simple tastes and devotion to his wife. Would Marshall make it onto the high court today? One can't say. There weren't a set of "right" schools to attend in his time, no large firms cultivate prospects and the government was too new to have fostered an elite cadre of professional bureaucrats. One needed only talent in those days; today one needs talent plus. Ours is the loss.
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

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Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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