1
Patrick
Context rules the Court. Politics ultimately prevail. The aura of sacredness that
surrounds the Supreme Court is mere myth and while the 19th century American public tended to
view the Court as a non-political institution, ruled by unbiased judges, its early history is one of
response to social, political, regional and economic context. The law is not blind, nor is it deaf,
as its vagueness has been given definition through decisions influenced by public opinion,
political ideology and historical social need. The Supreme Court’s concept of law changes with
the times, extending the scope of federal power during a perceived national crisis and upholding
slavery when regionalism trumped reason.1 Supreme Court Justices have been overwhelming
reactionary, overturning past decisions in landmark cases during both the Marshall and Taney
eras of the Court, where the overall jurisprudence swung from a focus on federal power to state
rights and then decisions were balanced between regional viewpoints. The very establishment of
the Court as a legitimate branch of government was in itself one of the most politically strategic
actions in American history. The Supreme Court responds to context because the institution
understands its own vulnerability. With no constitutionally granted power of judicial review and
a power that was only established as a result of the institution’s own political beginnings, the
Court’s legitimacy depended on the American people’s willingness to uphold its decisions and
opinions.2 Understanding its own vulnerability, the Court acknowledged that while it may not be
checked by another branch of government, its power is accompanied by a check through civic
opinion. For this reason, the Supreme Court is an institution that responds to political, social,
1
The Oyez Project, Dred Scott v. Sandford , 60 U.S. 393 (1857)
available at: (http://oyez.org/cases/1851-1900/1856/1856_0).
2
Milestone Documents in the National Archives [Washington, DC: National Archives and Records Administration,
1995] 23-24.
2
economic, and regional context. Responding to societal needs and public opinion and
interrupting law with regard to context has shaped the history of the Supreme Court, specifically
its beginnings in the 19th century.
This essay will demonstrate the political nature of the early Supreme Court by addressing
its responses to context during its establishment, contract law debates and issues of slavery
brought before it and during the Marshall and Taney Courts. The Supreme Court’s first response
to context and its vulnerability to political power will be noted through Chief Justice John
Marshall’s giving the institution its legitimacy in Marbury v. Madison (1803), a “case [which]
establishes the Supreme Court's power of judicial review.”3 This discussion will present the
Court’s path to legitimacy by highlighting its early years as a fluid and inferior branch of
government that may not have continued to exist where it not for the shrewd establishment of
judicial review.
The Taney Court will then be presented as a reaction to the Marshall era. Again, the
reactionary nature of the supposedly neutral justices will be highlighted. Comparing the
Marshall and Taney Courts will exemplify the political influence and notion of judicial
vulnerability that existed throughout the history of the Supreme Court having its roots in the
institution’s 19th century beginnings. Political influence’s shaping Court opinion will be noted in
highlighting the case Charles River Bridge v. Warren Bridge (1837) as a reaction to the Marshall
Court’s unyielding support of nationalism, as perpetuated by his own Federalist Party. The
Taney era will also demonstrate how the Supreme Court upholds and responds to public opinion
3
The Oyez Project, Marbury v. Madison , 5 U.S. 137 (1803)
available at: (http://oyez.org/cases/1792-1850/1803/1803_0).
3
through an examination of its Dred Scott v. Sanford (1857) opinion. A decision which will also
identity how the Court’s justices were not immune to the regional conflicts that lead up the Civil
War.
In modern times, “Americans' approval of the Supreme Court” has, on average, always
hovered a little higher than “60%.”4 A clear majority consider the Court neutral and, therefore,
the most powerful of the three branches of federal government. Many Americans, however, do
not understand that the Supreme Court began powerless: blind, deaf, and dumb. Led by its first
Chief Justice, John Jay, the institution was composed of only six judges, who would often ride to
lower circuits throughout their terms as justices.5 Membership on the Court was very fluid,
having three Chief Justices between the years 1789 and 1801 and the institution did not acquire
its own building until 1935.67 Put simply, the Supreme Court maintained the scope of power of
the current English Monarch, having majesty with no true influence on the magistrate. In fact,
the Court even lacked a building and “many scholars cite the absence of a separate Supreme
Court building as evidence that the early Court lacked prestige" let alone influence.8
In 1803, the Supreme Court became a legitimate institution during the case Marbury v.
Madison, and through Chief Justice John Marshall’s opinion, the Court became a branch of
government that was neither blind, nor deaf, nor dumb. A branch of the federal government
Carrol, Joseph. “1/3 of Americans Say U.S. Supreme Court is ‘Too Conservative: Plurality Still says Court’s
Balance Between Liberal and Conservative is ‘about right’”. Gallup (2007) available at:
(http://www.gallup.com/poll/28861/onethird-americans-say-us-supreme-court-too-conservative.aspx).
5
The Supreme Court, Part I: The Least Dangerous Branch. Prod. by Rob Rapley, Julia Elliot, and Jamila Wignot.
HiddenHill Productions and Thirteen/wnet New York, 2006. 60 mins. (http://www.historyofsupremecourt.org/).
6
"A Brief Overview of the Supreme Court" (PDF). United States Supreme Court.
http://www.supremecourt.gov/about/briefoverview.pdf.
7
The Supreme Court, Part I: The Least Dangerous Branch. Prod. by Rob Rapley, Julia Elliot, and Jamila Wignot.
8
Scott Douglas Gerber (editor) (1998). "Seriatim: The Supreme Court Before John Marshall". New York University
Press. (83-85).
4
4
which gave itself the power to declare actions on behalf of the other branches unconstitutional
through use of its newly created concept of judicial review. It is important to understand that
Marbury v. Madison (1803) and its establishment of judicial review demonstrate that the Court’s
power rose out of context and that John Marshall’s majority opinion was largely a political tactic.
At its core, Marbury v. Madison (1803) centered on a political dispute between federalists or
nationalists, “who argued that a strong central government was essential to the unity of the new
nation” and dual-federalists, as represented by the Jeffersonians, who “viewed the United States
more as a confederation of sovereign entities woven together by a common interest.”9 These two
political parties vehemently battled over how a new nation should be constructed and this battle
permeated into the Supreme Court.
Upon the election of Jefferson to the presidency, his predecessor John Adams attempted
to stack the judiciary at various levels with loyal defenders of the Federalist Party. Due to
various circumstances, not all commissions or notes that inform a candidate of his or her
selection, were delivered to their respective judicial appointees before Jefferson was sworn in as
the 3rd president of the United States. A believer in dual-federalism, “which favored states' rights
and a strict interpretation of the Constitution,” Jefferson did not seek to seat any judicial
appointments made by his rival Federalist Party, who had not received their commissions.10 This
action left several men without a judgeship and one man, Marbury, asked the Secretary of State,
James Madison, whose job it was to instate potential justices, to deliver his commission, so that
he would be established as a justice of the peace for the District of Columbia. Madison, under
the influence of his state’s rights focused dual-federalist president, refused to give Marbury his
9
Cunningham, Noble E., 1963. The Jeffersonian Republicans in Power: Party Operations, 1801–1809. Chapel Hill,
N.C.: Univ. of North Carolina Press. (162-165).
10
Cunningham, Noble E., 1963. The Jeffersonian Republicans in Power: Party Operations, 1801–1809
5
commission. Marbury, in turn, brought suit against Madison and eventually this dispute reached
the Supreme Court, where Marbury insisted the Court issue a writ of mandamus, effectively
forcing Madison to instate him as a Justice of the Peace.11 Marbury justified the Court’s issuing
him a writ of mandamus under Section Thirteen of the Judiciary Act of 1789, which stated “The
Supreme Court shall . . . have power to issue writs of prohibition to the district courts ... and
writs of mandamus ... to any courts appointed, or persons holding office, under the authority of
the United States.”12
When the case reached the Supreme Court, John Marshall wrote the 6-0 majority opinion
and stated “the authority given to the Supreme Court by the act establishing the judicial system
of the United States to issue writs of mandamus to public officers appears not to be warranted by
the Constitution.”13 In other words, Marshall declared that it was not within the power of the
judiciary to issue writs of mandamus and in doing so effectively defined Section 13 of the
Judiciary Act of 1789 unconstitutional. Though Marbury did not become a justice of the peace,
the major importance of this case lies in the fact that the Supreme Court, for the first time, had
struck down an act of Congress. Marshall then furthered and cemented the Court’s newfound
power in stating, “those who apply the rule to particular cases must, of necessity, expound and
interpret the rule. If two laws conflict with each other, the Court must decide on the operation of
each” and thereby established the institution’s power of judicial review. 14 Gone were the days
of Chief Justices Jay, Rutledge, and Ellsworth when the Court’s biggest decision was seen in
11
The Oyez Project, Marbury v. Madison.
Judiciary Act of 1789, § 13.
13
Marbury v. Madison, 5 U. S. 137 (1803).
14
Marbury v. Madison, 5 U. S. 137 (1803).
12
6
West v. Barnes (1791) “a case involving a procedural issue.”15 After Marshall’s opinion in
Marbury v. Madison (1803) the Supreme Court was not only a legitimate federal government,
the institution became the most powerful branch of government, its justices having the ability to
hold office for life “during good Behaviour” their only check being confirmed by the United
States Senate. 16
Marshall’s majority opinion responded to the context of a political batter between
nationalists and dual-federalists that made its way into the Court. Due to the politics behind
Marbury v. Madison (1803), the Supreme Court faced the possibility of becoming illegitimate on
two different fronts. A federalist, John Marshall faced a political battle with President Jefferson,
a dual-federalist. If the Court findings dismissed Marbury’s right to become a justice of the
peace and did not allow him to be commissioned, Marshall faced the almost certain political
ramification of Jefferson ignoring his request to have Madison issue Marbury a commission to be
established a justice of the peace.17 This potential political fall-out would have stripped the
Supreme Court of the little influence it had in 1803.
Additionally, Marshall and his Court faced a potential political upheaval from the
Federalist Party – Federalist John Adams appointed Marshall Chief Justice - if he it did not grant
Marbury’s right to become a justice of the peace.18 The pending decision presented a potential
no win situation for the Supreme Court: become illegitimate or endure a political civil war with
15
Scott Douglas Gerber (editor) (1998). "Seriatim: The Supreme Court Before John Marshall".
U.S. Constitution.
17
The Supreme Court, Part I: The Least Dangerous Branch. Prod. by Rob Rapley, Julia Elliot, and Jamila Wignot.
18
"A Brief Overview of the Supreme Court" (PDF). United States Supreme Court.
http://www.supremecourt.gov/about/briefoverview.pdf.
16
7
one’s own party. The supposedly blind justices had seen the light, a light which shone the true
character of the Court and its proceedings as both political and contextual.
A shrewd political who was not blinded by the law, Marshall was able to appease both
sides, while subtly asserting his Court’s power. In a 6-0 decision, the Court sided in Marbury’s
favor stating, “having this legal title to the office, he has a consequent right to the commission, a
refusal to deliver which is a plain violation of that right, for which the laws of his country afford
him a remedy.”19 Additionally, Marshall’s opinion appeased the Federalists, by means of
scolding Jefferson and Madison by stating, “to withhold the commission, therefore, is an act
deemed by the Court not warranted by law, but violative of a vested legal right,” essentially
declaring that the actions by the Jeffersonian administration were unlawful.20 In this sense,
Marshall towed his party’s line, publicly deeming the actions of Jefferson’s administration
wrong and acknowledging Marbury’s just right to have received his commission.
Through use of the same opinion, Marshall placed Jefferson in a situation where he had
to accept the Court’s findings that his party acted wrongfully and, at the same time, acknowledge
the institution’s newfound right to judicial review. Specifically, since Marbury, a Federalist, was
not made a justice of the peace, Jefferson, a dual-federalist, could not go against the Court, as he
had to uphold his political own views. Many Jeffersonians saw this decision as a major political
victory and to go against it would have been politically unwise.21 Ending his opinion with the
words, “that a law repugnant to the Constitution is void, and that courts, as well as other
departments, are bound by that instrument the rule must be discharged,” the Court denied
19
Marbury v. Madison, 5 U. S. 137 (1803).
Marbury v. Madison, 5 U. S. 137 (1803).
21
The Oyez Project, Marbury v. Madison.
20
8
Marbury his request.22 Moreover, “in denying his request, the Court held that it lacked
jurisdiction because Section 13 of the Judiciary Act passed by Congress in 1789, which
authorized the Court to issue such a writ, was unconstitutional and thus invalid" and through this
declaration, judicial review was established.23 Jefferson had no choice but to accept the opinion.
He had been politically outwitted by a supposedly neutral Court. Marbury v. Madison (1803)
demonstrates that context, particularly political context, created Court concreteness.
Perhaps more demonstrative of the early Supreme Court’s being political and reacting to
social context than the Marshall Court’s establishment of judicial review, is the fact the Supreme
Court did not use judicial review against the federal government for the remainder of Marshall’s
term. This is because the Court understood that its power was dependant on the other two
branches of government’s and the people’s upholding its decisions. During a time a national
polarization it would have been unwise to continuously use the self-appointed power of review
because, while judicial review had been established, the decisions of the Supreme Court could
still be ignored, as no constitutional right grantees the Court’s ability to enforce its decisions.24
(An example of a branch of government’s ignoring a Supreme Court decision was President
Andrew Jackson’s choice not to enforce the Supreme Court’s decision in Worcester v. Georgia
(1832)).25 The Court acknowledged its own vulnerability during the context of 19th century
America.
22
Marbury v. Madison, 5 U. S. 137 (1803).
Marbury v. Madison. In Encyclopaedia Britannica.
24
U.S. Constitution.
25
The Oyez Project, Worcester v. Georgia , 31 U.S. 515 (1832)
available at: (http://oyez.org/cases/1792-1850/1832/1832_2).
23
9
Understanding context and acting out of its own political preferences, the Marshall
Court’s refusal to use judicial review on a number of cases, actually advanced the nationalist
agenda by expanding the power of the federal government. An example of the Court’s
upholding questionable acts of Congress to expand national power is its decision in McCulloch v.
Maryland (1819). The case centered on two main questions “did Congress have the authority to
establish a national bank within a state and did the Maryland law [which enforced a tax on the
national bank] unconstitutionally interfere with congressional powers.”26 At its core, McCulloch
v. Maryland (1819) was representative of an ongoing struggle in 19th century America between
dual-federalists or those who favored state’s rights and federalists who sought to expand national
power.
In a unanimous decision, “the Court held that Congress had the power to incorporate the
bank and that Maryland could not tax instruments of the national government employed in the
execution of constitutional powers.”27 Already a blow to supporters of state’s rights over
national power, the opinion of the court written by Marshall furthered the powers of the national
government in stating, “this Government is acknowledged by all to be one of enumerated
powers.”28 By enumerated powers, Marshall meant powers that “were not explicitly outlined in
the Constitution,” essentially creating federal government rights through a court decision.29
Additionally, Marshall’s opinion stated that while the states retained the power of taxation, "the
constitution and the laws made in pursuance thereof are supreme. . .they control the constitution
26
The Oyez Project, McCulloch v. Maryland , 17 U.S. 316 (1819)
available at: (http://oyez.org/cases/1792-1850/1819/1819_0).
27
The Oyez Project, McCulloch v. Maryland , 17 U.S. 316 (1819).
28
McCulloch v. Maryland, 17 U. S. 316 (1819).
29
The Oyez Project, McCulloch v. Maryland , 17 U.S. 316 (1819).
10
and laws of the respective states, and cannot be controlled by them."30 In this statement, the
Court affirmed that national power trumped state power. A political debate was now settled.
Federal power’s being supreme was made the law of the land.
While the Marshall Court did not use the power of judicial review against the federal
government after Marbury v. Madison (1803), it did not hesitate to use its power against the
states. Perhaps, influenced by personal nationalist preference, developed during his service in
the Revolutionary War, Marshall expanded national government power by using judicial review
against the states in the cases Fletcher v. Peck (1810) and Cohens v. Virginia (1821).31 In
Fletcher v. Peck (1810), the Court unanimously declared that Georgia’s new “laws annulling
contracts or grants made by previous legislative acts were constitutionally impermissible” and
Marshall did not even attempt to hide his distaste for the Georgia state legislature labeling
Fletcher v. Peck (1810) “a mere feigned case.”32 In another unanimous decision, the Marshall
Court found that the Supreme Court had the power to review any state’s criminal proceedings in
Cohens v. Virginia. Marshall’s opinion furthered federal power and the Supreme Court’s own
influence over the states, declaring that when state laws and constitutions, where repugnant to the
Constitution and federal laws, they were "absolutely void."33 For the third time, the Marshall
Court declared federal power to be triumphant over state’s rights.
Overall, the Marshall Court was heavily influenced by political context. Each of its four
most political decisions, all having a question of federal versus state power at its core, were
decided in favor of federal power in unanimous decisions. This should be an unsurprising fact as
30
McCulloch v. Maryland, 17 U. S. 316 (1819).
The Supreme Court, Part I: The Least Dangerous Branch. Prod. by Rob Rapley, Julia Elliot, and Jamila Wignot.
32
Fletcher v. Peck, 10 U. S. 87 (1810).
33
Cohens v. Virginia, 19 U.S. 264 (1821).
31
11
the justices were appointed by federalist presidents. Additionally, the Marshall Court understood
the vulnerability of its power of judicial review and took careful measures to expand federal
power, while not threatening its own legitimacy. It decisions exemplify that the beginnings of
the supposedly neutral Supreme Court, had a foundation in response to political context.
John Marshall recognized the Constitution did not grant the Supreme Court the power of
judicial review. Therefore, he only used judicial review against the national government once;
realizing his and the Court’s legitimacy relied on the Executive Branch’s carrying out its
decisions. The notion of the Court’s being vulnerable was not lost on Marshall’s successor,
Chief Justice Roger Taney. Neither was the notion of the Supreme Court’s being an institution
permeated by politics which made decisions based on a changing cultural context. The Marshall
Court was one that promoted nationalism. The Taney Era was a response to nationalism and,
later, public opinion.
Less than eight years before Taney became Chief Justice, Andrew Jackson was elected
president of the United States. Unlike the president’s who appointed most of the justices to the
Marshall Court, Jackson was a supporter of state’s rights and as president he sought to make the
Court his own.34 During his presidency, Jackson appointed six justices to the Court, all
supporters of state power.35 Jackson did not consider the Supreme Court the final arbiter of law
and intended to illuminate the institution’s vulnerability for his own political gain. This was
apparent in the aftermath of Worcester v. Georgia (1832), a case which considered whether
states could regulate the areas Native Americans could live in. The Supreme Court, still under
the leadership of Marshall, stated, "the Cherokee nation, then, is a distinct community occupying
34
35
Scott Gerber, The Journal of American History 93, no. 3: 5.
The Supreme Court, Part I: The Least Dangerous Branch. Prod. by Rob Rapley, Julia Elliot, and Jamila Wignot.
12
its own territory in which the laws of Georgia can have no force. The whole intercourse between
the United States and this nation, is, by our constitution and laws, vested in the government of
the United States."36 This essentially declared the state of Georgia was acting unconstitutionally,
and charged President Jackson with intervening. Jackson, however, refused to carry out the
ruling of the Supreme Court, declining to intervene when Georgia defied a Court ruling which
gave protection to Native Americans.37 The line between federalists, now known as Whigs, and
state’s rights supporters, know belonging to the Democratic Party, became bolder and Jackson
became determined to enforce the state’s rights agenda by means of the very institution that
lessened it, the Supreme Court.
The Jackson Presidency greatly shaped the Taney Court. Specifically, Jackson’s
influence upon the Court created a context of a need for state powers that were not recognized
during the Marshall era and Jackson’s power over the Court was largely realized through his
ability to appoint six justices to it.38 The Taney Court’s responding to Marshall era nationalism
is best noted in the case Charles River Bridge v. Warren Bridge (1837). The case centered on a
state legislature, Massachusetts, breaking a contract with the Charles River Bridge Company to
allow for the building of the Warren Bridge by another state contracted company: recall that in
Fletcher v. Peck (1810), the Supreme Court stated that state legislatures could not void
established contracts through means of new legislation. 39 40 The new state contract with the
Warren Bridge Company stated that after six years, traffic across the bridge would be free of
36
Worcestor v. Georgia, 31 U.S. 515 (1832).
The Oyez Project, Worcester v. Georgia , 31 U.S. 515 (1832)
38
McCloskey and Levinson, The American Supreme Court( Chicago, Illinois: University of Chicago Press, 2009),
294.
37
39
40
Epstein and Walker. Constitutional Law for a Changing America: A Short Course, 4th Ed, 166-174.
Epstein and Walker. Constitutional Law for a Changing America: A Short Course, 4th Ed, 166-174.
13
tolls.41 The Warren Bridge was in close proximity to the Charles Bridge and since the Warren
Bridge did not have to rely on tolls to sustain itself, the Charles Bridge was in grave danger of
being put out of business.42 The Charles River Bridge Company sued the state on the grounds it
had unconstitutionally broke a contract and when the case reached the Supreme Court, Taney
and the justices broke the precedent set in Fletcher v. Peck (1810) that a state legislature could
not void established contracts by means of new legislation.43
Through his majority opinion, Chief Justice Taney gave the state’s more power than the
Supreme Court had previously granted in stating, "while the rights of private property are
sacredly guarded, we must not forget that the community also have rights, and that the happiness
and well-being of every citizen depends on their faithful preservation."44 Through the Court’s
opinion, Charles River Bridge established states as having the right to police powers, under the
10th Amendment, to advance the health, safety, and well-being of its citizens.45 While this case
did not officially overturn Fletcher v. Peck (1810) the Jackson influence on the Court created a
new standard for state power that was protected under the 10th Amendment.46 Moreover,
Jackson’s political influence upon the Court in this decision cannot be denied, as he appointed all
five of the justices who voted with the majority, in favor of expanded state’s rights, Baldwin,
41
Epstein and Walker. Constitutional Law for a Changing America: A Short Course, 4th Ed, 166-174.
Epstein and Walker. Constitutional Law for a Changing America: A Short Course, 4th Ed, 166-174.
43
Epstein and Walker. Constitutional Law for a Changing America: A Short Course, 4th Ed, 166-174.
44
Charles River Bridge v. Warren Bridge, 36 U.S. 420 (1837).
45
McCloskey and Levinson, The American Supreme Court, 302, 304
46
McCloskey and Levinson, The American Supreme Court, 302, 304.
42
14
Barbor, McLean, Taney, and Wayne.47 This was the first instance of a change in jurisprudence
due to political context causing a reversal in ruling for the Supreme Court.
The Taney Court also represented the Court’s first response to public opinion concerning
social issues. This is bested noted in Dred Scott v. Sanford (1857). In Dred Scott, the Supreme
Court used the power of judicial review to strike down an act of the federal government for only
the second time in its history. In its decision, the Taney Court upheld state’s rights to slavery,
stating the Missouri Compromise was unconstitutional, as “no State can, by any act or law of its
own, passed since the adoption of the Constitution, introduce a new member into the political
community created by the Constitution of the United States.”48 In a 7-2 decision, the Court also
upheld the notion that a slave was considered “property.”49 Considered to be one of the worst
Court rulings in history, the Dred Scott decision demonstrates the Court’s having been aligned
with public opinion. Specifically, slavery was still considered to be both acceptable and relevant
at the time Dred Scott was decided, especially in the south.50 It was an institution that benefited
the country economically and if the Taney Court had struck down slavery as unconstitutional,
public outcry and refusal to enforce its ruling, especially in the south, would have threatened the
Court’s legitimacy.
The Dred Scott decision also demonstrates the affect regional and party loyalties had
upon the Supreme Court in the era leading up to the Civil War. Both Justice Curtis and Justice
47
48
McCloskey and Levinson, The American Supreme Court, 302, 304.
Dred Scott v. Sandford, 60 U. S. 393 (1856).
Dred Scott v. Sandford, 60 U. S. 393 (1856).
50
McCloskey and Levinson, The American Supreme Court, 375-378.
49
15
McLean, the two dissenters, were from Union States, Massachusetts and New Jersey
respectively.51 It is likely their regional loyalties influenced their decision. Additionally, five of
the justices who voted in favor of Dred Scott, hailed from Confederate States which vastly
supported slavery, while the two from Union States who voted with the majority are described as
“loyal Jacksonian Democrats.”5253 As with every major Supreme Court decision of the 19th
century, Dred Scott was made out of context. Political loyalties and regional upbringings both
played a major role in the final decision. A decision that ultimately upheld public opinion.
The law is not blind, nor is it deaf, or dumb. The Supreme Court sees, hears, and feels
the political, economic, and social context that surrounds it. Context ruled the 19th century
Supreme Court, as opinions were shaped by forces existing beyond the sacred veil of its justices.
The Supreme Court responded to public opinion and societal need because it understood its own
vulnerability. With no constitutionally granted right of judicial review, the Court must rely on
the other two branches of government, the states and the people to enforce its opinions.
Understanding this, the Supreme Court has never strayed too far from the mainstream opinion of
the day and its justices have remained loyal to those who put them in the highest court in the
land. The 19th century Court set this precedent, a precedent that has not been overturned.
51
The Oyez Project, Dred Scott v. Sandford , 60 U.S. 393 (1857)
available at: (http://oyez.org/cases/1851-1900/1856/1856_0).
52
The Oyez Project, Dred Scott v. Sandford , 60 U.S. 393 (1857).
53
The Oyez Project, Dred Scott v. Sandford , 60 U.S. 393 (1857).
16
BIBLIOGRAPHY
"A Brief Overview of the Supreme Court" (PDF). United States Supreme Court.
http://www.supremecourt.gov/about/briefoverview.pdf.
Carrol, Joseph. “1/3 of Americans Say U.S. Supreme Court is ‘Too Conservative: Plurality Still
says Court’s Balance Between Liberal and Conservative is ‘about right’”. Gallup (2007)
available at: (http://www.gallup.com/poll/28861/onethird-americans-say-us-supremecourt-too-conservative.aspx).
Charles River Bridge v. Warren Bridge, 36 U.S. 420 (1837).
Cohens v. Virginia, 19 U.S. 264 (1821).
Cunningham, Noble E., 1963. The Jeffersonian Republicans in Power: Party Operations, 1801–
1809. Chapel Hill, N.C.: Univ. of North Carolina Press, 162-165.
Dred Scott v. Sandford, 60 U. S. 393 (1856).
Epstein and Walker. Constitutional Law for a Changing America: A Short Course, 4th Ed, 166174.
Fletcher v. Peck, 10 U. S. 87 (1810).
Judiciary Act of 1789, § 13.
Marbury v. Madison, 5 U. S. 137 (1803).
Marbury v. Madison. In Encyclopaedia Britannica.
Milestone Documents in the National Archives [Washington, DC: National Archives and
Records Administration, 1995] pp. 23-24.
McCloskey and Levinson, The American Supreme Court( Chicago, Illinois: University of
17
Chicago Press, 2009), 294, 302,304, 375-378.
McCulloch v. Maryland, 17 U. S. 316 (1819).
Scott Gerber, The Journal of American History 93, no. 3: 5.
Scott Douglas Gerber (editor) (1998). "Seriatim: The Supreme Court Before John Marshall".
New York University Press, 83-85.
The Oyez Project, Dred Scott v. Sandford , 60 U.S. 393 (1857) available at:
(http://oyez.org/cases/1851-1900/1856/1856_0).
The Oyez Project, Marbury v. Madison , 5 U.S. 137 (1803)
available at: (http://oyez.org/cases/1792-1850/1803/1803_0).
The Oyez Project, McCulloch v. Maryland , 17 U.S. 316 (1819)
available at: (http://oyez.org/cases/1792-1850/1819/1819_0).
The Oyez Project, Worcester v. Georgia, 31 U.S. 515 (1832)
available at: (http://oyez.org/cases/1792-1850/1832/1832_2).
The Supreme Court, Part I: The Least Dangerous Branch. Prod. by Rob Rapley, Julia Elliot, and
Jamila Wignot. HiddenHill Productions and Thirteen/wnet New York, 2006. 60 mins.
(http://www.historyofsupremecourt.org/).
U.S. Constitution.
Worcestor v. Georgia, 31 U.S. 515 (1832).
18