Discussion in 'Alternate History Discussion: Before 1900' started by Old1812, Mar 18, 2019.
This is a reboot of my previous thread on this POD:
Without Marshall serving as Chief Justice, I think I could see him receiving the Federalist nomination for President at some point. I'm not sure how much stronger a candidate he would have been compared to Charles Cotesworth Pinckney or DeWitt Clinton.
If Jefferson gets to appoint a chief justice, his choice is likely fellow Virginian Spencer Roane. Roane was a firm believer in states' rights, in contrast to the nationalist Marshall; there's a discussion about their different views here. The Marshall Court was responsible for a number of landmark decisions that established the court's supremacy over state supreme courts. Most of them were unanimous decisions in OTL, but I think it's generally accepted that Marshall was very influential on his fellow justices' decisions. In TTL, a Roane Court may well simply not hear the appeals of cases like McCulloch v. Maryland and Cohens v. Virginia, gradually resulting in the states being more powerful in law-making, without the Supreme Court being able to strike down state laws. Naturally, this comes with a weaker federal government in the Jeffersonian era.
There was considerable interest in Marshall as the 1812 nominee for the Federalists before the Clinton campaign caught on, and this could be a very interesting campaign as a result. A Federalist victory is still probably unlikely, but Marshall might be able to give Madison a challenge at least in Virginia. What else can we do with Marshall? Perhaps Madison makes him secretary of state when Monroe resigns in 1815 to shore up his administration with a loyal Federalist?
1812 was a really close campaign as it was, with Marshall the Federalists now have a fighting chance in Virginia and North Carolina. Maybe Madison will add Marshall to his cabinet depending on how close the election is.
Still, the impact 20+ years of the Roane Court will have on American jurisprudence and eventually America as a whole will be huge, as the article points out.
One area where the Roane Court could really change history is the Missouri Compromise - what could happen if the Court declares it unconstitutional? I suppose it's also possible that butterflies could cause Humphrey Marshall (John Marhsall's cousin) to kill Henry Clay in their 1809 duel.
As a side note, if Spencer Roane still dies on schedule in 1822 and Monroe is president, I think James Barbour could be a likely replacement.
Plays out largely the same because Congress, once again, abdicates responsibility.
Look, on my reading, the Constitution is clearly intended to establish a Congress-in-charge form of government (not so different from a parliamentary government) with the president as an effective chief executive, no more, no less.
There’s even a part in the Constitution’s judicial article (Article III) that Congress can make exceptions as to which appeal cases the Court can hear. Absolutely stunning, in part because Congress could have used it a bunch of times, but to the best of my knowledge, has never used it.
Agreed with Geography View, but on the more narrow question of the divergence, as usual it depends on what exactly the divergence is.
Marshall's predecessor as Chief Justice was Oliver Ellsworth. I had to look him up. Ellsworth resigned on December 15th, 1800, creating the vacancy. Adams nominated Marshall who was confirmed, Marshall was almost one of the "Midnight Judges" himself. Ellsworth died in 1807. Looking up Ellsworth on Wikipedia, it appears he was sent on a diplomatic mission to France, became ill, and resigned. The Supreme Court during his tenure heard only four cases, and it appears Ellsworth was both effective and had the same views as Marshall.
Thomas Jefferson IOTL appointed three Supreme Court justices, William Johnson of South Carolina in 1804, Henry Livingston of New York in 1807, and Thomas Todd of Kentucky in 1807. Tood was appointed because Congress increased the number of justices from six to seven. Congress has the power to increase or decrease the number of justices at any time so if the Federalist Supreme Court majority had really been a problem, Congress could have removed it at any time by increasing the number of justices. They also impeached a Federalist Associate Justice but did not remove him, again Congress has the power to remove recalcitrant justices by impeachment and removal. As GeographyDude noted, Congress can also limit the jurisdiction of the Supreme Court and also overturn rulings via constitutional amendment, as had just happened with the 11th Amendment and would happen later with the 16th.
Ellsworth established the principal that Supreme Court rulings would be issued as a single opinion from the Court, with no concurring opinions, and dissents were not done either. The main function of Supreme Court justices at the time was riding circuits. Wikipedia reports that Livingston and Todd issued no or just one opinion, either concurring or dissent, during their tenure. Johnson sometimes dissented. Even with the Todd appointment there was still a 4-3 federalist majority.
In 1811, James Madison, who had a big role in creating the Constitution in the first place, appointed two justices replacing Federalist Justices. One of the Madison appointments, Joseph Story, was both an active associate justice and a Marshall ally. The other, Gabriel Duval, was both inactive to the point where the Wikipedia article implies he was impaired and never opposed Marshall. There were no vacancies for a further twelve years.
So the Federalists had a majority through 1811, with Jefferson's three appointments not making an impact. The Jeffersonian Congress had tools to remove the Federalist majority which they did not use, though three methods for curbing the Supreme Court, constitutional amendment, impeachment, and changing the number of justices, were all in fact employed between 1798 and 1807 but not in a way to affect the Marshall Court. Then Madison used his appointments pretty much to strengthen Marshall.
This suggests that the importance of the Marshall appointment has been exaggerated, even political opponents of the Federalists seem to have had a degree of acceptance for how they were running the judicial branch.
The likeliest POD has Ellsworth staying as Chief Justice until 1807. I don't see how you get a Jefferson appointment until 1804. Incidentally, Jefferson never appointed Spencer Roane to the Supreme Court despite making three Supreme Court appointments when Roane was in perfectly good health. One change then would be a different Chief Justice of the Supreme Court in 1807 to replace Ellsworth. My guess is that this would have been Livingston. A possible butterfly that that the seventh spot on the Court is not created in 1807. This may have been done though to ensure there were an odd number of justices, and checking the justices who held that seat until the Civil War (when the Court definitely would have been expanded), not creating that seat would not have had major effects.
Ellsworth is close enough to Marshall functionally and in philosophy that there are probably no effects down to 1807. In 1811 Story comes in and even if he remains just an Associate Justice, that is enough to keep the Supreme Court on its OTL path. Madison also might appoint Marshall, and given geographical considerations, this is probably in place of Duval and not Story.
There will be a butterfly effect on the Chief Justice role down at least to the Civil War. First, the position of Chief Justice becomes much less important. Second, with Ellsworth staying until 1807, likely replaced by Livingston, the tenures of Chief Justice do not line up like they do IOTL. One large butterfly is that Roger Taney is likely never made Chief Justice, since he was appointed when Marshall died and ITTL someone else is Chief Justice and the position may not become vacant during the Jackson administration. Taney could still be an associate justice. But now we have an effect on the Dredd Scott decision, since a different Chief Justice would have used his influence to steer the Court in a different direction. The way the tenures line up, though, there is a possibility of John Campbell of Alabama being appointed Chief Justices at the time, which would be a weird episode in the history of the Court since Campbell wound up as a high ranking official in the Confederate government.
But no, the Supreme Court does not not do judicial review, which actually predates Marshall's arrival and they don't go in a more states rights direction since that never seems to have been the intention, if states rights had really been that big a concern by either faction, Congress would never have created the Court in the first place.
I used a somewhat different POD in my own case: Ellsworth doesn't fall ill in 1800, instead falling ill in 1801, just in time for Jefferson to appoint Roane to the Court. It is certainly true that State and Federal courts challenged and even struck down legislative acts, but Marbury definitely had a lasting impact that shouldn't be dismissed too quickly. It's also worth nothing that butterflies could impact whether Story is appointed to the Court or not.
Perhaps a better POD would be John Rutledge being confirmed by the Senate?
Any of these three fellows of the personality that might drift into a pissing contest with Congress?
Because that’s about the only way I see Congress putting its foot down and asserting its power to exclude areas from judicial review.
And since we’re on the topic, given how Dred Scott (1857) was BOTH pro-slavery and increased the chances of war, and given how post-war decisions did not use the new Constitutional amendments to fully protect the rights of persons freed from slavery like the amendments clearly intended, but instead used them to further the legal view of corporations as persons,
I don’t really see the supreme Court as a bastion of anything,
We would have been better off as a nation with a down-shifted Court and less of a tradition of judicial review, as I understand parliamentary forms of democracy pretty much have to this day. So, on that count, no, I don’t think I’m advocating anything particularly radical.
That's true, but remember that there needed to be one justice for each of the six judicial circuits. The Marshall Court in 1801 already had three members from the fifth circuit (Marshall and Washington from VA and Moore from NC), so there wasn't really a space for Roane.
"There’s even a part in the Constitution’s judicial article (Article III) that Congress can make exceptions as to which appeal cases the Court can hear. Absolutely stunning, in part because Congress could have used it a bunch of times, but to the best of my knowledge, has never used it."
I believe they did take away the power of the court to review Habeus Corpus appeals during the Civil War.
That is a bad one.
Of course, we do know that the Court did not start ruling in favor in individual rights until the 1900s, right? And pretty tentatively at first.
Chief Justice Roger Taney said you couldn’t do that.
That even though the Constitution says, “ . . writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” — this is in Article 1 pertaining to Congress.
Lincoln at first ignored Taney’s decision (for example, soldiers at Fort McHenry refused a contempt of court notice). And then at a Fourth of July address to Congress, Lincoln basically asked, Are all laws and government itself to fall by the wayside, for the sake of this one law?
Of course, he puts it more elegantly than I. And he also adds, “This authority has purposely been exercised but very sparingly,” which is very important to add.
And after it was over. See
Istr that in the 1970s there was some discussion of whether Congress could use that power to stop the Court from mandating school busing, but it remained only talk.
Separate names with a comma.