An even more immediate enemy of the triumphant Jeffersonians was the Federal judiciary. In the waning months of the old order, the Federalists had passed the Judiciary Act of 1801, which created twenty-three new judicial offices and substantially altered the judicial system. It reduced the Supreme Court to five members, and relieved the justices from the onerous task of circuit-riding. In the future the Court would render its decisions from the confines of a small chamber in the basement of the Capitol. Circuit Courts had their jurisdiction extended to cover debts of $400 or more and, in all but one of the six circuits, three judges were appointed to hear cases. The Act left the retiring John Adams with the delightful task of appointing numerous judicial officials through whom the Federalists could secure supremacy in the national judiciary. Of the many appointments which Adams made, none proved more important than that of John Marshall as Chief Justice of the United States. Under the guidance of this formidable Virginian, the Supreme Court became the bulwark of property rights. The preponderance of Federalist judges among Adams' appointments caused Jefferson to protest being left with a choice "either to execute the government by my enemies, whose study it would be to thwart and defeat all my measures, or to incur the odium of such numerous removals from office, as might bear me down." Even before his inauguration he had decided to undo his predecessor's handiwork. He had not, however, reckoned with the shrewdness of his leading antagonist - John Marshall.

John Marshall. A rough-hewn, yet cool and logical rustic who did not hesitate to promulgate laws where none existed, Marshall harbored an intense dislike for Jefferson. He feared that his fellow Virginian intended to "embody himself with the House of Representatives." He suspected that "By weakening the office of President, he will increase his personal power." He described Jefferson as a man seeking to "diminish his responsibility," working to undermine "the foundation principles of the government," and one whose "morals . . cannot be pure." Jefferson reciprocated in kind. He described Marshall and other Federalist leaders as "men who were Salmons in the field and Solomons in the council, but who have had their heads shorn by the harlot England." The antagonism between the two men was not sweetened when Marshall proposed, a bare two weeks before he was appointed Chief Justice, that the House of Representatives leave the Jefferson-Burr election unsettled until March 4, 1801. This would have left both the presidency and the vice-presidency vacant until Congress determined by law how to fill the offices. It would have completed Jefferson's discomfiture at the election of 1800.

The Impeachment of Chase. Jefferson approached court removals indirectly. Justice Samuel Chase, who had made flagrantly partisan attacks upon Republicans from the bench, was his first target. No man seemed more vulnerable, and the House of Representatives impeached him without ado. In the trial before the Senate, Marshall was called as a witness. Aware that Jefferson, with John Randolph, an eccentric Virginia Congressman, as his agent, intended to use the conviction of Chase as precedent for a move against himself, Marshall was a model of decorum. He deferred respectfully to the Congress and staged a performance which left Randolph eulogizing him. When Congress failed to convict Chase, Marshall knew he had won the struggle to free the Court from political reprisals. Jefferson acknowledged as much when he terminated his attacks upon the Court.

Marbury v. Madison. In the closing hours of his administration, John Adams signed a commission appointing one William Marbury as Justice of the Peace in the District of Columbia. When Jefferson took over the office of President he found that a number of commissions, among them that of Marbury, had not actually been delivered. Jefferson decided to withhold them. Simultaneously, he revealed publicly his purpose: he meant to appoint as many respectable Republicans as he could to judicial office, since these would be "the only shield for our republican citizens against the federalism of the courts." Marbury, who was one appointee whom Jefferson did not intend to honor with office, then sued under the Judiciary Act of 1789 to obtain a writ of mandamus which would require James Madison, Jefferson's Secretary of State, to deliver the appointment. Jefferson anticipated that the Court would issue the writ, but he was prepared to ignore it. Such behavior would almost certainly undermine the prestige of the Supreme Court, which lacked the power to enforce its decision. And Jefferson was not prepared to have Marshall decline the test.

The Chief Justice settled the issue by declaring that Congress, when it vested the Supreme Court with the power to issue a writ of mandamus (in the Judiciary Act of 1789), had granted an unconstitutional power. This meant that Marbury could not sue before the Supreme Court, and that he was thereby denied relief. But Marshall then added the gratuitous information that Marbury was legally entitled to his appointment. With devastating precision he drove his point into the heart of Jefferson's attack, and simultaneously asserted, for the first time, the Court's power to subject legislative actions to review and to pass upon their constitutionality. Jefferson could hardly protest, since he had notified Madison at the time of the ratification of the Constitution that "I like the negative given to the Executive, conjointly with a third of either House; though I should have liked it better, had the judiciary been associated for that purpose, or invested separately with a similar power." Nevertheless, the Supreme Court used its immense new power gingerly. (It was not until 1857, in the Dred Scott Case, that the Court again chose to invalidate federal legislation.) But the power was there, to be exploited whenever the Court saw fit.

The Composition of the Marshall Court. During the thirty-four years that Marshall presided over the Court, he seemed to dominate its existence. Some contemporaries even referred to it as the "Marshall Court." Jefferson added to the legend by describing him as a "crafty chief judge" who dominated his "lazy or timid associates." But such a description of the Court implies that the five associate justices who served before 1807 and the six who served after that year were nonentities. To dismiss them as such is to ignore the extensive political and judicial experience that the fifteen associates had before they reached the Court. Nine had served in their state legislatures and six in Congress; five had held federal administrative posts and five had filled similar state posts; eleven had had previous judicial experience. Several were self-willed men, hardly likely to submit tamely to management. The explanation for Marshall's seeming dominance of the Court lies in his determination to establish a harmonious Court in which judicial dignity would be maintained.

Marshall deplored more than once the "indecency of judges cutting at each other" lest the Court suffer a "loss of reputation." He realized that by maintaining the image of a united Court he added to its authority. His most remarkable achievement was to preserve this judicial stance in a Court which, after 1805, was infiltrated by Republican appointments. Although, by 1808, only three of the seven justices were Republican, the poor health of Chase and Cushing frequently compelled their absence, thus giving the Republicans an effective Court majority. When Madison appointed Joseph Story of Massachusetts and Gabriel Duvall of Maryland to the Court in 1811, the Republicans gained a majority of five to two. Still, for all practical purposes, Marshall and the Republicans remained in rapport; the Chief Justice was rarely obliged to dissent.

Marshall worked to mediate differences between Justices Joseph Story and Bushrod Washington, who supported the exclusive assertion of national power, and Justice William Johnson, who argued the concurrent assertion of power by the states. The Chief Justice approached problems pragmatically as he sought to keep the Court united, wishing to avoid extremes and to achieve decisions which would command comprehensive rather than exclusive assent. This was particularly true of decisions which limited the power of the states to pass laws "impairing the obligation of contracts." Carefully guided by Marshall, the Court denied in New Jersey v. Wilson (1812) the right of a state to alter a tax-exemption clause in a land grant; in Dartmouth College v. Woodward (1819) the power of a state to interfere with a privately endowed college charter; in Sturges v. Crowinshield (1819) a similar effort of a state to alter a private contract; and in Green v. Biddle (1823) state efforts to impinge upon land-titles obtained through an interstate grant. By the time the Court had completed its labors on this subject "the obligation of contract" had achieved an almost sacrosanct position. Though divergences existed - primarily expressed by Justice Johnson, with varying support from Justices Brockholst Livingston, Thomas Todd, and Gabriel Duvall - a coherent opposition never formed. Marshall's dominance of the Court was, therefore, less a matter of his overwhelming control than an expression of his shrewd management. He never allowed a snap decision to endanger the majesty of the Court.

The Economic Decisions. The third paragraph of Article I, Section 8 of the Constitution provides: "The Congress shall have power . . . to regulate commerce with foreign nations and among the several States, and with the Indian tribes." Marshall's Court interpreted this clause in such a way as to provide the basis for a constant extension of the federal power. The direction of the Court's decisions had been foreshadowed by its determination to bar easy impingement on private contracts. Since these threats came from the states, the major result of the contract decisions had been to limit state power. In the McCulloch v. Maryland, Cohens v. Virginia, and Gibbons v. Ogden decisions, the Supreme Court added severe further limits to state power while expanding the scope of federal government.

In the McCulloch v. Maryland decision (1819), which grew out of the efforts of the state of Maryland to tax the federally chartered Bank of the United States, the Court flatly decided that the federal government had the right to charter a bank, and that implementation of such power overrode previous state action. As Marshall put it: The question is, in truth, a question of supremacy; and if the right of the States to tax the means employed by the general government be conceded, the declaration that the constitution, and the laws made in pursuance thereof, shall be the supreme law of the land, is empty and unmeaning declamation. . . .

The Cohens v. Virginia decision (1821) was given when the Cohen brothers appealed a conviction in a Norfolk court for illegally selling lottery tickets in Virginia. They argued that an act of Congress in 1802 had authorized such sales. This raised a question as to whether the federal judiciary was superior to state courts. The Supreme Court's response was an emphatic Yes. Chancellor James Kent, then Chief Justice of the New York Supreme Court, summarized the impact of the decision when he wrote: It is a very clear & masterly Piece of Logic with irresistible conclusions. It shows that the judicial is coextensive with the Legislative power of the Union, & that the Government is Supreme as far as the Constitution goes, & as far as the Government is empowered to act, & that the Judicial is bound to decide on all cases arising under the Constitution & laws of the Union, whoever may be the Parties to that case - That Construction of the Constitution is to be adopted which will consist with the words & promote its general Intention - The U.S. are a Nation & one People as to all cases & Powers given by the Constitution - Every principal Power carries with it all those incidental Powers which are necessary to its complete & effectual Execution.

But the Court's ultimate declaration of the superiority of federal to state power was given in Gibbons v. Ogden (1824). The original litigation grew out of the exclusive right granted by the New York legislature to Robert Livingston and Robert Fulton to navigate by steamboat the waters of New York State. Subsequent to the original grant, the power passed to Aaron Ogden, who sued to prevent Gibbons from operating a

The issues raised by the case were twofold. It posed a question as to whether the commerce clause invalidated the power of a state to grant an exclusive right to navigate its waters. It also renewed the conflict between defenders of state rights and the proponents of a strong federal authority. The Court asserted that, under the commerce clause, an act of Congress dealing with such matters takes precedence over any state statute on a similar subject. As Marshall expressed the issue, the power of Congress to regulate commerce "is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution." The decision established that the purpose of the commerce clause was to protect commerce "from the embarrassing and destructive consequences resulting from the legislation of so many different States, and to place it under the protection of a uniform law." Though the implications of this decision were not realized until after the Civil War, Marshall and his Court established a power the dimensions of which are still being explored by the federal government.