WI: No Chief Justice John Marshall

There can be little doubt that when it comes to influential Supreme Court Chief Justices, John Marshall sits at the top. The rulings of his court were crucial to the expansion of the Supreme Court's power, and the supremacy of federal law.

Having said that, what if Marshall was never appointed Chief Justice? His predecessor, Oliver Ellsworth, resigned due to illness he had contracted after returning from France as Envoy Extraordinary. The POD is pretty simple - Ellsworth avoids his illness, and stays on CJ until his OTL death in 1807. Ellsworth was a Federalist, and it seems likely he wouldn't rule any differently than Marshall on the cases he heard (crucially Marbury v. Madison). But after his death, this changes, as Jefferson will certainly appoint someone from his own faction. Just to get the ball rolling, here are a few choices:

Charles Pinckney (SC): In 1807, Pinckney was serving as governor of South Carolina. He had previously been a prominent member of the state legislature, delegate under the Articles, framer of the Constitution, US senator, minister to Spain, and governor of SC on two other occasions. He had been Jefferson's campaign manager in 1800, which suggests the two had a good reliationship. His views on state religion could have an interesting effect on any rulings regarding it and the law, as well as support for expansion of slavery.

Nathaniel Macon (NC): In 1807, Macon had already been an experienced congressman, having just finished serving as Speaker for the past six years. He was a stauch opponent of Federalism, and an enthusiastic supporter of Jefferson, especially their foreign policy. Jefferson offered him the position of postmaster general on two occasions, but Macon declined, suggesting he might have preferred dedicating himself to Congress and foreign policy. Macon's strong belief in state sovereignty could be quite interesting. If anything like Worcester v. Georgia happens during his tenure, the Indians might have an even worse deal.
 
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An interesting question Old1812! Off the top
of my head, let me reply by asking: do you have any idea who else JA would(could)have
appointed in Marshall's place?
 
To avoid confusion, there were two prominent politicians during this period named "Charles Pinckney", both of them from South Carolina.

IOTL, Jefferson made three Supreme Court appointments. In fact, by 1811, Marshall was the only federalist left on the Court.

Here is the list of Supreme Court appointments between 1804 and 1811:

William Johnson 1804
Henry Livingston 1807
Thomas Todd 1807
Gabriel Duval 1811
Joseph Story 1811

William Johnson was from South Carolina, so his appointment I think rules out a later appointment of another South Carolina pol, since some effort was made for geographic balance in early Supreme Court appointments. Note that Bushrod Washington, an Adams holdover who was on the Court until 1823, sided with Marshall.

Going through their bios on Wikipedia, one striking thing is how much Jefferson and Madison screwed up these appointments, assuming they really wanted to move the Court in a less federalist direction. Of these five justices, only Johnson proved to be any hindrance to Marshall. The two northerners in the group, Livingston and Story, agreed with Marshall on pretty much everything, and Todd and Duval did nothing, writing 33 opinions between them, and compete for the title of the most insignificant justice.

One explanation of the inactivity of Todd and Duval is that there was an expectation that the Supreme Court be unanimous in its opinions. Once it was clear that the Marshall-Livingston-Story-Washington block would prevail, Todd and Duval just went along with it, with only Johnson sometimes willing to write a dissent.

There are two possible interpretations of what was going on here, and they are diametrically opposed. The first is that Marshall was not that important. There were strong institutional reasons for the federal judiciary to uphold a federalist interpretation of the Constitution, and no matter how hard they tried, most justices Jefferson and Madison appointed would wind up eventually on the federalist side. The second is that Marshall was hugely important. His personality dominated the Court, and a more Jeffersonian Chief Justice would get Duvall and Todd on board, along with Johnson. However, the fact is that with five appointments between them, Jefferson and Madison failed to find a single justice able to be a counterweight to Marshall.
 
An interesting question Old1812! Off the top
of my head, let me reply by asking: do you have any idea who else JA would(could)have
appointed in Marshall's place?
Thanks, if you mean John Adams, I'm thinking Ellsworth would just continue serving until his death, which in OTL happened in Jefferson's presidency. As for alternatives, I've already suggested Pinckney (due to there already being a South Carolinian on the court as @Galba Otho Vitelius helpfully pointed out, this most likely wouldn't happen), and Nathaniel Macon. It's my Georgia bias, but I wouldn't mind having Abraham Baldwin not die in 1807 and be appointed. Jefferson's AG, Caesar A. Rodney (related to the famous Rodney) was interested in a SCOTUS position but TJ never appointed him.
William Johnson was from South Carolina, so his appointment I think rules out a later appointment of another South Carolina pol, since some effort was made for geographic balance in early Supreme Court appointments. Note that Bushrod Washington, an Adams holdover who was on the Court until 1823, sided with Marshall.
Thanks for the response! I only remembered Johnson being from SC until I'd already made the post. About Marshall probably not being THAT important, I admit, I went a little "Great Man" for a bit.
 
If I may, I am not sure if this is a correct type of response, (maybe this is what you all call a wank) but if the gist is to find a counter to Marshall, why not appoint Madison? (the 1804 appointment)

John Jay had already shown that the 'life time' appointment was optional and Madison could return to replace Jefferson at anytime; under the political dynamics of the day, to move from the Court to the Presidency would have been no more difficult than moving from Secretary of State, maybe easier.

Madison could have wrangled with Marshall for four years and then walked away. (no precedent not to) And when Madison leaves the court Marshall finds that his nemesis is now President for eight years. I believe Marshall would eventually have taken over the Court politically anyway, but would have had to move more slowly and would have held less clout over his colleagues.

As much as Jefferson disdained Marshall I am kind of surprised they didn't consider this.

I guess the underlying reality is, they probably didn't see Marshall (or the Court) as enough of a threat to warrant such effort.

P.S. Even when it is time for Madison to step down and begin his presidential run, it's Jefferson who replaces him anyway. It could have created a whole new dynamic on how Court tenure is used politically.
 
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