From The Forever War (Nick Bryant, 2024) pp256-9
Unlike Congress and the presidency, the Supreme Court did not even have a proper building, a state of homelessness which reflected its lowly status. It was only in 1932, after 150 years of peripatetic wandering, that the cornerstone was finally laid on its present home. The originalist theory of jurisprudence, embraced by present-day conservative justices — centred on the idea that the 18th-century intentions of the framers should determine 21st-century law — therefore falls at the first hurdle. Staying faithful to the original intent of the framers would mean relinquishing much of their judicial power and accepting a diminished role. As scholars have frequently pointed out, the Supreme Court was not meant to be supreme.
It did not take long for the judiciary to become politicised, a process that began with John Adams, the country’s second president. In his final hours in office in 1801, as he prepared to relinquish power to Jefferson, his great rival, he worked with a Federalist ‘lame duck’ congress to create a swathe of new judgeships and reduce the number of Supreme Court justices from six to five. With this flagrant act of court packing, Adams sought to turn the judiciary into a Federalist Party stronghold: an ‘Adams court’ which could advocate for a strong central government.
Among these so-called ‘midnight’ appointments, none was more significant than John Marshall, a 45-year-old former soldier, congressman and diplomat, who went from serving as secretary of state to chief justice of the Supreme Court, a position he occupied for a record-setting 34 years. Determined that the judiciary should enjoy greater parity with the other branches of government, Marshall sought to vastly expand its influence. This he achieved in what became the Supreme Court’s most significant ruling. In Marbury v. Madison, s case which centred on Adams’ flurry of 11th-hour appointments, the court struck down as unconstitutional a section of the 1789 Judiciary Act, and thus established its power of judicial review. In a move that totally transformed US constitutional law, the Supreme Court asserted its authority to declare an act of Congress void if it was deemed to violate the constitution. As Marshall explained, ‘It is emphatically the province and duty of the judicial department to say what the law is.” The Supreme Court thus became the arbiter of the constitutionality of legislation passed by Congress and signed into law by the president. By making itself the constitutional referee, the Supreme Court now had the power to dramatically alter the course of history, a prerogative it showed no hesitation in using. Frequently in the following decades, rulings from the Supreme Court were of greater significance than bills passed by Congress. This was especially true of the notorious Dred Scott case in 1857, a ‘constitutional bombshell’ dropped on a deeply divided nation, which decreed that no-one of African descent could ever become a US citizen.” A court with a heavy bias toward slavery — five of the justices were from slaveholding families, and seven had been appointed by pro-slavery presidents — set the country on a path to civil war, by fuelling the outrage of northern abolitionists, invalidating the Missouri Compromise and essentially ruling out a political solution to the question of enslavement.
Throughout the 19th century, the Supreme Court became the most reactionary force in politics.
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