(Editor's note: The US judicial system can be summarized in the incumbency of three Chief Justices as noted by the author.)

TO most lawyers, anywhere in the world, who are familiar with American constitutional and judicial system would probably vote for John Marshall (Chief Justice, 1801-1835) as one great magistrate who put the first flesh on the skeletal frame of the Constitution of 1787.

Changing history

Marshall’s appointment, according to author Bernard Schwartz, was one of the happy accidents that changed the course of history.

Had Justice Cushing not declined the appointment or had Chief Justice Ellsworth not made the arduous journey to France there would have been “no vacancy.”

After Ellsworth’s resignation President Adam offered his place to John Jay (first Chief Justice, 1789-1795, who resigned). The Senate confirmed the appointment. Jay refused the position because he preferred to retire to his farm in Bedford, New York.

John Marshall was Adam’s Secretary of State and he tells us what happened next: “When I waited on the President with Mr. Jay’s letter declining the appointment he said thoughtfully , ‘Who shall I nominate now?’ I replied that I could not tell as he objected to one name. He said in a decided tone after a moments hesitation, ‘I believe I must nominate you!”

Meager education but…

The Marshall appointment was both completely unexpected and resented by Adam’s own party, which believed that Judge Paterson should have been given the position.

Marshall seemed ill equipped for the task. His only formal schooling consisted of a year under a clergyman and another tutor who resided with his family. His letter to Justice Joseph Story is bound to amaze all at the meagerness of his education and training, both generally and in the law itself.

Court with no office

“Imagine a Court conducting its business not in a massive building but in a basement room of an unfurnished Capitol,” one author commented. When the new capitol was built no chamber had been built for the Supreme Court that held sessions in a House Committee room.

Desolation

After Marshall’s death Justice Story wrote: “I miss the Chief Justice at every turn… his room wears an aspect of desolation.” Story, as senior associate justice, had to “act as locum tenens” of the Chief Justiceship.

Marshall’s adherents had hoped against hope that Joseph Story would become the New Chief Justice.

He was appointed to the Court by President James Madison in 1811, age 32 (born 1779), and according to the president of Harvard the Supreme Court may be “raised one Story higher.”

Strictly guided by politics

But President Andrew Jackson was opposed to Story’s views and appointed Roger Brooke Taney as Chief Justice. In 1834 and 1835 the Senate refused his confirmation as Secretary of the Treasury and then as associate justice. He left a sketch of his life that is longer, rambling, abstruse and unfinished.

Taney wrote the decision in Dred Scott (1857) and according Senator Sumner, “The name of Taney is to be hooted down the page of history. He administered justice, at last, wickedly, and degraded the Judiciary of the country and degraded the age.” In one pamphlet Taney, dead less than a year, was excoriated with hatred “so malignant that it seems obscene.”

Warren’s leadership

One famous Macaulay line is worth remembering: “There were gentlemen and there were seamen in the navy of Charles II. But the seaman were not gentlemen and the gentlemen were not seaman.”

Scholars and great justices sat on the Supreme Court. But the scholars have not always been great justices and the great justices have not always been scholars.

Earl Warren, Governor of California, resigned his position and accepted an appointment from President Eisenhower as Chief Justice upon the sudden death of Fred M. Vinson on Sept. 8, 1953.

No. 1 prosecutor in the US

In 1938 Warren was elected Attorney General of California and became Governor in 1942. He was a most effective executive and secured major reforming legislation. A 1931 survey of US district attorneys “declared without hesitation that Warren placed No. 1 and the best in the US.”

An incredible 9-0

In Brown v. Board of Education, Warren presented the question before the Court in terms of racial inferiority, telling the justices that segregation could be justified only by belief in the inherent inferiority of blacks and, if Plessy v. Ferguson was followed it had to be upon that basis.

Warren wrote the Court opinion in Brown that voted an incredible 9-0 to abolish, once and for all, any from of segregation in America. (Comments are welcome at roming@pefianco.com)