Becoming Supreme | America in Pursuit

Political rebellions, family feuds, and power grabs – the founding of the Supreme Court has about as much drama as a Hollywood movie. In this week’s episode, the story of how the Supreme Court went from the weakest branch in the government to the powerful arbiter it is today. To access bonus episodes and listen to Throughline sponsor-free, subscribe to Throughline+ via Apple Podcasts or at plus.npr.org/throughline. See pcm.adswizz.com https://pcm.adswizz.com for information about our collection and use of personal data for sponsorship and to manage your podcast sponsorship preferences. NPR Privacy Policy https://www.npr.org/about-npr/179878450/privacy-policy

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:00Speaker 00

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• 0:18Rund Abdelfatah?

  This is America in Pursuit, a limited run series from Throughline and NPR. I'm Rund Abdelfatah. Each Tuesday, we bring you stories about life, liberty, and the pursuit of happiness in America that began 250 years ago this year. So today, we're going back to the moment when the American Revolution ends and the revolutionaries become statesmen and build a brand new government. So I just want to take a second and sit with the magnitude of that task. Imagine having to build a brand new nation, a democratic government, and all its infrastructure from scratch. It was a Herculean task.

• 0:59Rund Abdelfatah?

  And like most things that entail a lot of people getting on the same page, it was full of fights and different visions for what the US government would be like. And while a lot of what the framers came up with back in 1787, when they drafted the Constitution, has stayed the same, like the concept of checks and balances between the different branches of the government, some of it looks vastly different. Take the judicial branch and the Supreme Court. Today, the Supreme Court has a lot of power dictating the laws of the land. But back at the turn of the 19th century, not so much. This is how Alexander Hamilton put it at the time.

• 1:39Speaker 02

  The judiciary, on the contrary, has no influence over either the sword or the purse, no direction either of the strength or of the wealth of the society, and can take no act of resolution, whatever.

• 1:54Rund Abdelfatah?

  In other words, without the sword or purse, the Supreme Court didn't have much power to enforce its decisions, making it the least dangerous and least powerful branch.

• 2:06Speaker 03

  There was just no notion that it would be powerful. It wasn't yet in really anybody's imagination that they had to worry about.

• 2:12Rund Abdelfatah?

  That's Larry Kramer, author of The People Themselves: Popular Constitutionalism and Judicial Review.

• 2:19Speaker 04

  The Supreme Court is going to be situated in the basement of the Capitol.

• 2:24Rund Abdelfatah?

  And that's Rachel Sheldon. She's a history professor at Penn State University.

• 2:29Speaker 04

  And that gives you a sense, actually, of the hierarchy of what people at the time thought about the Supreme Court.

• 2:36Rund Abdelfatah?

  So how did the Supreme Court go from being the weakest branch of the government to the powerful force it is today? Ramtin and I are bringing you that story of how an early political fight that pitted cousins and former allies against each other paid the way for the Supreme Court's supreme power. That's coming up after a quick break.

• 3:02Speaker 05

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• 3:07Speaker 00

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• 3:52Speaker 05

  Support for this podcast and the following message come from the Southern Environmental Law Center. No one voted for a dirty air. No one voted for polluted water. That's why S E L C is fighting back to defend the healthy environment everyone depends on, just as they've done for 40 years. Because clean air, clean water, and a healthy climate aren't political, they're fundamental. Learn more at selc.org.

• 4:24Rund Abdelfatah?

  We start our story with a contested presidential election, the election of 1800, one of the most partisan showdowns in our country's history.

• 4:34Speaker 03

  It's the most divisive period in American history, except for the Civil War and possibly today.

• 4:40Rund Abdelfatah?

  The country was still pretty new, and everybody was trying to figure out how this democracy thing was going to work. Things like trade, taxation, foreign relations, state versus federal power.

• 4:52Speaker 03

  It's a period of a lot of turmoil, and there's essentially one huge division around which the political parties form.

• 5:01Speaker 06

  The United States didn't start out with any political parties, no teams. But competing visions of government were pulling people apart, which led to the creation of these two parties.

• 5:12Rund Abdelfatah?

  The Federalists, the party of incumbent President John Adams, and the Democratic-Republicans.

• 5:18Speaker 04

  Always confusing because it has both Democrat and Republican in it.

• 5:22Rund Abdelfatah?

  The party of candidate Thomas Jefferson.

• 5:25Speaker 06

  These parties had radically different outlooks on government.

• 5:28Speaker 03

  Almost all of the debates are around, what is it that we mean by, they would have said republicanism, we would say democracy, that is to say, how popular is it supposed to be?

• 5:41Speaker 06

  The Democratic-Republicans were fans of popular politics.

• 5:45Speaker 03

  This is our law.

• 5:46Speaker 04

  Allow more power to grow up from the people themselves.

• 5:49Speaker 03

  Final interpretation rests with us in the community.

• 5:53Speaker 06

  Jefferson famously said, "I hold it that a little rebellion now and then is a good thing and as necessary in the political world as storms in the physical."

• 6:06Speaker 03

  The much more conservative Federalists pushed back in all sorts of ways, interpreting the Constitution in ways that would limit the capacity for popular politics to grow.

• 6:16Rund Abdelfatah?

  The Federalists wanted more stability, and they thought in order to get that, the federal government ought to have more power. They believed their still very young country needed a strong centralized government with lasting institutions that would be around much longer than elected officials, institutions like the courts.

• 6:36Speaker 06

  The Federalists were the party of power throughout the 1790s. But in the election of 1800, they faced defeat. Adams lost the race, and Jefferson became president.

• 6:48Speaker 04

  So Congress becomes Democratic Republican and you have Jefferson in the White House.

• 6:54Speaker 06

  But as outgoing president, John Adams' term was coming to an end. He and his party made one final power grab.

• 7:03Rund Abdelfatah?

  Adams nominated a bunch of Federalist judges at the very end of his term, so-called midnight judges, as well as a new Chief Justice of the Supreme Court, John Marshall.

• 7:19Speaker 04

  He becomes sort of the foundational Chief Justice in terms of thinking about development of the court as an institution.

• 7:27Speaker 03

  Marshall's a straight-up Federalist. He was Secretary of State for John Adams, and then he made him the Chief Justice.

• 7:34Speaker 04

  He's now in control of only one branch with the Federalists in charge.

• 7:39Speaker 06

  As Chief Justice, John Marshall made a lot of symbolic changes to the Supreme Court.

• 7:45Speaker 04

  So the story goes that Marshall wore a black robe at his swearing-in, and that after that, this became common practice. There was a degree to which some people did not like to see Supreme Court justices in robes at all, thinking of it as a royal court as opposed to sort of a Democratic body.

• 8:08Speaker 04

  He wants all the justices to board together and to work together. He is a big proponent of having unanimous opinions. He thought that that had the tendency to make the court seem more important.

• 8:23Speaker 06

  Marshall dreamt of a Supreme Court with national authority, a Supreme Court that gets to interpret the Constitution, basically be the umpire for the entire country.

• 8:35Speaker 03

  He believes in judicial supremacy.

• 8:37Speaker 04

  Which is much more what we accept today, the idea that the Supreme Court is the final arbiter of constitutionality.

• 8:45Rund Abdelfatah?

  This idea, judicial supremacy, gives the Supreme Court final say over what's constitutional and what's not. And then, everybody has to do what they decide, the law of the land.

• 8:59Speaker 06

  But again... This was a dream.

• 9:02Rund Abdelfatah?

  It's just not how things worked then.

• 9:06Rund Abdelfatah?

  But there was this other thing, a much more restricted power that was on the table. Judicial review.

• 9:14Speaker 03

  So judicial review is the notion that in a case before it, the court can say whether a statute that is raised in the case is in fact constitutional and therefore enforceable.

• 9:24Rund Abdelfatah?

  The court gets to decide what's constitutional in a case, but the ruling doesn't extend beyond that specific case. So it's the law of the case, but not the law of the land.

• 9:36Speaker 03

  The whole idea of judicial review without judicial supremacy is that you have three co-equal branches, each with equal authority to interpret the Constitution.

• 9:44Speaker 06

  Remember, that was how the federal government was designed to work. No one branch was supreme over the others. So they could all keep each other in check.

• 9:54Speaker 04

  Marshall himself was interested in having more of that supreme power for the court, but he also understood it was not possible. He operates in this world in which he knows he's a minority, especially when the Democratic Republicans, led by Thomas Jefferson and James Madison, are in power.

• 10:13Speaker 06

  Plus, there was some personal beef.

• 10:15Speaker 04

  Marshall and Jefferson were cousins. They famously did not like each other.

• 10:21Rund Abdelfatah?

  In 1803, the Cousins, Chief Justice John Marshall and President Thomas Jefferson, met in court, going head to head in a case called Marbury versus Madison.

• 10:36Speaker 04

  Probably the most famous decision and sort of the beginning of most constitutional law experiences is Marbury versus Madison.

• 10:45Rund Abdelfatah?

  We won't get into all the details of the case, but in short, the Jefferson administration was being sued for refusing to acknowledge some of those midnight judges that John Adams had appointed right before leaving office. William Marbury was one of them. He and the other appointees were able to take the case directly to the Supreme Court, thanks to a provision in a federal law that Congress had passed more than a decade earlier. And Marshall saw this as an opportunity.

• 11:14Speaker 04

  He sees this as a situation in which he needs to preserve the power of the court that had existed and try to grow it in opposition to the other branches of government.

• 11:25Rund Abdelfatah?

  Marshall wanted to flex his authority as the head of the judicial branch, but...

• 11:30Speaker 03

  He knows if he actually tries to order Jefferson, Jefferson's going to ignore him. So that will make the court look weak.

• 11:37Speaker 06

  Remember, the court didn't have the power to enforce its decisions. No money, no army. It all depended on how much the other branches chose to respect its decisions.

• 11:48Rund Abdelfatah?

  But there was one tool that Marshall could use: the power of judicial review.

• 11:56Rund Abdelfatah?

  Up to this point, judicial review had only been applied sporadically. But in Marbury v. Madison, John Marshall formally established it.

• 12:06Speaker 06

  It was a calculated trade-off. Marshall was like, "Fine, we know we can't force these appointments through, but you know that provision in the federal law Congress passed? The one that allowed Marbury to bring the case directly to the Supreme Court? Well, we've decided that provision is unconstitutional. We, the Supreme Court, have the power to interpret the Constitution in any case, state or federal, even if that means overriding an act of Congress. We have the power of judicial review."

• 12:38Speaker 07

  It is emphatically the duty of the Judicial Department to say what the law is.

• 12:44Speaker 03

  It's one of those instances of playing politics. So he finds a way to say, "You know, we don't have jurisdiction. I can't tell Jefferson what to do, but I'm going to tell you he violated the Constitution. This was wrong."

• 12:56Speaker 07

  The government of the United States has been emphatically termed a government of laws and not of men.

• 13:02Speaker 03

  It becomes the first case in which the Supreme Court strikes down a federal law for violating the Constitution.

• 13:08Rund Abdelfatah?

  In other words, this is the first time the Supreme Court flexed its power to say that what another branch of the federal government wanted to do was not constitutional.

• 13:19Speaker 06

  It was the moment when judicial review, which had been around but heavily debated, solidified as part of the court's power. This case would reverberate for centuries to come.

• 13:34Speaker 03

  For somebody reading it at the time, it's screamingly clear that he is not pushing the judicial supremacy position and is backing away from it, which, of course, he had to do because it would not have been acceptable at the time.

• 13:47Speaker 06

  So while this was an important win for the court, it was a long way from Marshall's ultimate goal, judicial supremacy, the court with final say. He was a visionary, though, and he knew he had to play the long game. During his three decades on the bench, he helped plant the seed of what the court could be and the amount of power the Supreme Court could have in the future.

• 14:16Rund Abdelfatah?

  That's it for this week's episode of America in Pursuit, a special series from Throughline and NPR. If you want to learn more about the Supreme Court's ascension to power, make sure to check out Throughline's full-length episode called The Supreme Court or listen to The Shadow Docket, which goes more in-depth about the ability for the court to issue quick decisions. And make sure to join us next week for the first edit, or correction, if you will, to the Constitution.

• 14:45Speaker 04

  The bottom line is free speech affects everyone. It's obviously an incredibly important value for Americans.

• 14:52Rund Abdelfatah?

  The story of the First Amendment and the beginning of the Bill of Rights. That's next time. Don't miss it.

• 15:01Rund Abdelfatah?

  This episode was produced by Kiana Mogadam and edited by Christina Kim with help from the Throughline production team. Music, as always, by Ramtin Arablouei and his band, Drop Electric. Special thanks to Julie Kane, Irene Noguchi, Beth Donovan, Casey Miner, and Lindsay McKenna. We're your hosts, Rande Abdelfattah

• 15:21Speaker 06

  and Ramtin Arablouei. Thank you for listening.

• 15:28Speaker 05

  Stay tuned for the following announcements and messages from our sponsors.