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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor.
N. Rodgers: Hey, Aughie.
J. Aughenbaugh: Good morning, Nia. How are you?
N. Rodgers: I'm really good. We're to my favorite court. I mean, I shouldn't pick favorites because they're all good.
J. Aughenbaugh: [LAUGHTER] No, they're not.
N. Rodgers: Well, that's true. But this is my favorite court because this is my favorite court case. I'm not trying to slam the last three guys. I'm sure they were lovely.
J. Aughenbaugh: Listeners, today's podcast episode, we are continuing our series on the eras of the Supreme Court. Our first episode, we explained the basic contour of the series. We also went through the first three chief justices.
N. Rodgers: Pretty zippy.
J. Aughenbaugh: Pretty zippy because in part, in the first 11 years of the history of the Supreme Court, we had three chief justices.
N. Rodgers: I was asked to ask you a question.
J. Aughenbaugh: Okay.
N. Rodgers: About, so were they riding circuit?
J. Aughenbaugh: Yes.
N. Rodgers: What can you remind listeners what riding circuit means?
J. Aughenbaugh: When the United States Congress created the federal court system with the Judiciary Act of 1789, one of the things, one of the obligations, one of the job tasks for each Supreme Court justice, was that they were assigned a lower circuit court that they would have to sit in with those judges in here cases. Now, Congress did this for a couple of reasons. One, Congress recognized that the United States Supreme Court did not have very much work, at least initially.
N. Rodgers: Idle hands make the devils work. Want to give those guys something to do?
J. Aughenbaugh: Earn your paycheck. Damn it. But the second reason was, members of Congress thought that Supreme Court justices would do a better job if they understood the cases at the lower level.
N. Rodgers: That's probably true.
J. Aughenbaugh: If they understood what were the disputes, what were the concerns that were manifesting themselves in the lower federal courts. Now, let's be very clear. Nia, did the Supreme Court Justices like riding circuit? By the way.
N. Rodgers: I imagine they did. I assume riding means getting on your horse and going to the place where the things hence riding.
J. Aughenbaugh: Yes.
N. Rodgers: To your circuit.
J. Aughenbaugh: Yes. You would have to.
N. Rodgers: I imagine they did not care for that because I imagine what it meant was you leave home, and you have to go, and you have to stay in some tavern, and you're or boarding house, and you're hearing these cases. I imagine you also did that in the winter and the summer. You're dealing with conditions.
J. Aughenbaugh: Listeners, before you're thinking, wow, these Supreme Court justices were a bunch of whiny, soft creatures, travel in the late 1700s, early 1800s was difficult. Particularly if you were a justice who was assigned a circuit, in what was known as the western part of the United States. You're talking about rural Pennsylvania, rural Virginia, Kentucky, South Carolina.
N. Rodgers: Tennessee.
J. Aughenbaugh: Tennessee.
N. Rodgers: Out there and basically the wilderness.
J. Aughenbaugh: You're out there in the wilderness. Yes, it was then East of the Mississippi. But we're not talking about paved roads in comfortable automobiles.
N. Rodgers: Carriages or whatever. We're talking about literal horseback.
J. Aughenbaugh: Yes. I mean, and if you were lucky, you were able to ride in a carriage. But again, carriage riding by today's standards was quite uncomfortable. You're talking about some of the oldest government officials, at the time.
N. Rodgers: Let's send Geezer Bob out to Tennessee. We'll see if he survives the trip, I mean.
J. Aughenbaugh: At the time.
N. Rodgers: The reason they were asking me about this, is because they were asking, is that why the quick rotation because nobody wanted to ride circuit.
J. Aughenbaugh: Well, some of the associate justices made it very clear that the arduous travel associated with riding circuit was not something that they liked. But we pretty much know that John Jay resigned as the first chief justice because he didn't really think serving on the Supreme Court was an important government position.
N. Rodgers: He was doing nothing for his career or lifestyle.
J. Aughenbaugh: I mean, recall listeners in that podcast episode, he resigned specifically so he could go back to his home state of New York and run for governor, which he thought was a more important position. Rutledge, ends up, well, he basically just went ahead and screwed himself. Because when he was nominated to be Chief Justice, then he had the audacity to criticize the administration that was picking him for the treaty that they negotiated with the Brits.
N. Rodgers: Those losers. Well, you don't want this job?
J. Aughenbaugh: The majority party in the Senate was just like, we're not picking you dude. Ellsworth ends up stepping down for health reasons. Now, I could see him not necessarily wanting to ride circuit if you're concerned about your health.
N. Rodgers: That's an arduous thing to do. But anyway, all of that leads us to.
J. Aughenbaugh: If not the, one of the most prominent Chief Justices in the history of the United States Supreme Court. We're talking about John Marshall in the Marshall Court. John Marshall was born where? In what state?
N. Rodgers: In the colony of Virginia. It's not a state yet. Colony of Virginia.
J. Aughenbaugh: Virginia.
N. Rodgers: Cause was born in 1755 prior to the Revolutionary War.
J. Aughenbaugh: Yes. Nia, did he fight in the Revolutionary War?
N. Rodgers: He did. He fought in several battles. But towards the end of the war, he decided he would sit for the state bar, 'cause I guess he could see that it was coming to an end and that there was going to be something after. He decided to sit for the state bar and become a lawyer.
J. Aughenbaugh: Yes. After the Revolutionary War, he served as a representative.
N. Rodgers: Served in this. He was in Congress.
J. Aughenbaugh: He was in Congress. He was a House of Representative member. He was so trusted by President Washington. Washington sent him to France.
N. Rodgers: Washington or Adams.
J. Aughenbaugh: 1798.
N. Rodgers: 1798, would that be Adams?
J. Aughenbaugh: That would be Adams. That's right. That would be Adams. He was sent to France to negotiate a treaty, which ended up becoming.
N. Rodgers: Cause there was crabbiness in the air with France. It wasn't an actual war, but it was getting to be that. It was that stage where you're starting to call people's mamas names. Then you're starting to talk bad about other people, and it was getting to be frustrating. They said, why don't you go to France? You and two other guys. Make nice with France.
J. Aughenbaugh: Yes.
N. Rodgers: The problem was, they ran into Monsieur Talleyrand, as we would say in the United States, use that would peeve him greatly. Who said, "I won't even begin to talk to you until you bribe me."
J. Aughenbaugh: Yes.
N. Rodgers: "Until you give me some nice stuff." While it was a known thing with France, that you had to go there with nice stuff and give it to them. Franklin had done that. Jefferson had done it. People had done that before.
J. Aughenbaugh: Before, yes.
N. Rodgers: Our guys were like, I am mortally offended by being shaken down by these Frenchy frogs. They said, no.
J. Aughenbaugh: Yes.
N. Rodgers: They came home. It wasn't until, so the other two people I can't remember, it's Elbridge or Gary.
J. Aughenbaugh: Elbridge Gerry. He ended up become governor of Massachusetts, and he ends up becoming the name for Gerrymandering.
N. Rodgers: Gerry we go from Gary to Gerry. The other person was Charles Cotesworth Pinckney.
J. Aughenbaugh: Yes.
N. Rodgers: Who you've also heard of because he was the signatory on the Declaration of.
J. Aughenbaugh: Declaration of Independence.
N. Rodgers: All these guys all it's called the XYZ affair because there were three people in France who wanted to be bribed, Tally Rand and two other people who wanted to bribed. They were like, no bribing for you. But Gerry stayed and actually ended up working out a form of a treaty that ended up with us not going to war with France and all turned out to be fine. But John Marshall was offended at the very concept of, I have to bribe you in order for you to talk to me. He was like, I don't want to talk to you enough for this to happen. This is not cool.
J. Aughenbaugh: The other thing to take note of about John Marshall before we get to his leadership of the Supreme Court is he was a distant cousin of what other well known founding era member.
N. Rodgers: I don't know.
J. Aughenbaugh: Thomas Jefferson. Yes.
N. Rodgers: Was he a cousin of TJ?
J. Aughenbaugh: He was a cousin, but they were members of opposing political parties. John Marshall was a federalist, and Thomas Jefferson ends up becoming the leader of the Democratic Republican Party, which eventually morphed into the Democratic Party. Yes. John Marshall was a federal.
N. Rodgers: What I think it's interesting, they all know each other. When we talk about a group of people who did all the moving and shaking at the beginning of the country, you're really talking about a pretty small group of people. Their names come up over and over and over. Like you said with Elbridge Gerry becoming Gerrymandering.
J. Aughenbaugh: Gerrymandering. Yes.
N. Rodgers: I will create districts that work for me.
J. Aughenbaugh: Because on one hand, Gerry, had enough clout, to be an embassary of the United States to what was once our primary revolutionary war partner, France. On the other hand, he returns back to the United States and ends up becoming governor of Massachusetts. By the way, he was a Democrat. He ended up becoming a member of the Democratic Party. But again, we're talking about a very small set of elected leaders, government officials, et cetera, you see their names over and over again.
N. Rodgers: Governor of this. Then he's blah, blah, that. We talk about John Jay leaving to go be governor of New York.
J. Aughenbaugh: New York.
N. Rodgers: That was not unusual at this time for this one group of people that's probably less than 100 men to be.
J. Aughenbaugh: If you think about John Marshall.
N. Rodgers: Powerful and living around in different positions in the government.
J. Aughenbaugh: When you think about John Marshall, Marshall comes back after the XYZ affair and becomes Adam's Secretary of State. Now, at the time, Secretary of State.
N. Rodgers: He serves as Secretary of State for a whole year.
J. Aughenbaugh: Secretary of State back then had a different conception, and we talked about this when we did our series about cabinet level departments. Initially, Secretary of State was the Secretary of the United States. The foreign policy portfolio of the state department eventually evolves or grows out of that, if you will, institution. But Secretary of State there are numerous state governments today that have a Secretary of State. The Commonwealth of Virginia has a Secretary of State.
N. Rodgers: Who is, it's about the affairs of Virginia. The Secretary of State back then would have been almost the interior.
J. Aughenbaugh: Yes.
N. Rodgers: You know what they call it in Britain, they call it the Home Office.
J. Aughenbaugh: Yes. The Home Office.[LAUGHTER] One of John Marshall's responsibilities as Secretary of State was to make sure that when Congress created a federal government position, either in the executive or the judicial branch, and the president picked somebody, and the Senate confirmed them. As Secretary of State, it was Marshall's responsibility to make sure that those job commissions, those job offers got delivered to the recipient.
N. Rodgers: Remember, this is in print, and they have to be hand-delivered by a courier.
J. Aughenbaugh: That's right.
N. Rodgers: I don't go through the post office because I mean, there's a post office, but it's not like we know it now. They are taking this handwritten thing that says, dear Dr. Aughenbaugh, we would like to be a Supreme Court justice. Please let us know your thoughts on the matter. You are truly the Senate of the United States or whatever they voted on you. Then it gets delivered to John Aughenbaugh in Mid Virginia living now. That takes however long that's going to take.
J. Aughenbaugh: That's right, two or three days because again, it's got to go by horseback.
N. Rodgers: It takes two or three days to get it written out and signed and appropriately notified, notarized and all that other stuff.
J. Aughenbaugh: Yes. This leads to.
N. Rodgers: Process people. [LAUGHTER]
J. Aughenbaugh: Yes. Again, for some of you, like what you just heard was blah, blah, blah. But process is important.
N. Rodgers: Especially here.
J. Aughenbaugh: Especially here because we are not going to segue to how John Marshall became Chief Justice. Marshall serves as Secretary of State in the Adam's administration. Adams loses the presidential election of 1800. Not only did the federalists lose that election, they lost majority control of both Houses of Congress to the Democratic Republicans. But at that time, the next president did not take office until March of the following year. That would be March of 1801. Nia, what did the federalists do in the time period of November of 1800 to March of 1801?
N. Rodgers: Stop delivering.
J. Aughenbaugh: No, they passed the Judiciary Act. I'm sorry. The Judiciary Act of 1801.
J. Aughenbaugh: Now, in addition, in the Judiciary Act of 1801, they created a whole bunch of new federal judgeships. They packed the court because their thinking was, we've lost control of the two political branches. We will at least have control of the Federal judiciary. Ellsworth also steps down as Chief Justice. John Adams decides to appoint John Marshall as the next chief justice. Marshall, because he's getting ready for his Senate confirmation as Chief Justice, doesn't deliver all of the outstanding judicial commissions, right?
N. Rodgers: Right.
J. Aughenbaugh: But the Senate, and again, this is the outgoing Senate controlled by the federalists. Confirm him. Hey, he's one of us. Not a big deal. And he doesn't do what Rutledge did and, pooh pooh treaty or something that the Adams administration did. The Senate confirms John Marshall. Marshall is now the next Chief Justice. Problem is, he went ahead and left a whole bunch of work for the next Secretary of State. I want you listeners to remember this because that's the background to a court case we're going to talk about probably in just a few moments, Marbury versus Madison in 1803. Now, in very broad terms, Nia, John Marshall led the Supreme Court for how many years?
N. Rodgers: Like 150,000. Not quite, 35. Isn't he the longest serving Chief Justice.
J. Aughenbaugh: Yes.
N. Rodgers: One of the longest serving justices in general.
J. Aughenbaugh: General. Yes.
N. Rodgers: Because he sat on the court for a very long time. Now, what's cool to me is they confirmed him zippy quick.
J. Aughenbaugh: Seven days.
N. Rodgers: He goes up. They say, yes, and then he literally within the week, is sworn into office.
J. Aughenbaugh: Yes.
N. Rodgers: Partly, they're trying to stack the court, but also partly, keep in mind that open positions meant turmoil in that branch. People who may not have liked him may have voted for him in part because they wanted to make sure that the judiciary kept going and kept doing what it needed to be doing.
J. Aughenbaugh: John Marshall was nominated by John Adams on January 20th. The Senate one week later confirmed him. Then within the week, he was sworn into office. Basically, in two weeks, he was nominated, confirmed, and sworn in.
N. Rodgers: I would argue that the process for confirming him wasn't particularly vigorous.
J. Aughenbaugh: Think about, for instance, listeners in the modern era, like this millennium, it usually takes months.
N. Rodgers: From somebody's nomination till even their Senate hearing.
J. Aughenbaugh: Yes.
N. Rodgers: But also, too, keep in mind that these guys all knew each other.
J. Aughenbaugh: Yes.
N. Rodgers: You're not talking about strangers. You're talking about people who served in the Senate who also served in the war with these guys. They all knew each other. It's a relatively small group of people. Anyway, he serves 35 years, and the three previous guys serve 11 years.
J. Aughenbaugh: Eleven years. He basically outlasted every associate justice who was appointed after him.
N. Rodgers: Oh, really?
J. Aughenbaugh: Yes.
N. Rodgers: He was there at the beginning, and he was there at the end. But a 34 year tenure is a long time. That is a long time to influence the court.
J. Aughenbaugh: Now, interestingly enough, Nia.
N. Rodgers: It's a good thing he wasn't a monster.
J. Aughenbaugh: Marshall was not the first choice of John Adams to be chief Justice. John Adams actually reached out to John Jay. There's a lot of John's here. Well, it was a very common name back there. But Jay, who again, was the first Chief Justice, declined to return. In his letter to Adams, Jay noted that, "The efforts repeatedly made to place the Judicial Department on a proper footing have proved fruitless.
N. Rodgers: I'm not sure that I would say that considering I was one of the people who proved fruitless.
J. Aughenbaugh: Again, even after Jay resigned as the first Chief Justice, there is historical evidence that Washington reached out to him, after Rutledge's nomination was rejected by the Senate.
N. Rodgers: Didn't he say that the job lacked weight and dignity?
J. Aughenbaugh: Yes, he did.
N. Rodgers: For him, John Jay was like, piece out. I'm not interested.
J. Aughenbaugh: Now, when John Marshall took office at that [OVERLAPPING]
N. Rodgers: Sheff Marshall was offended at being the second choice.
J. Aughenbaugh: I've read numerous biographies about John Marshall. He was not initially offended. He was at a crossroads because with Adam's defeat, he did not have a federal government job. On one hand, he contemplated going back to Virginia. By the way, folks, like many elected officials at that time, his government service was a part-time job, as far as John Marshall was concerned.
N. Rodgers: He was a farmer.
J. Aughenbaugh: Oh, he was a prominent real estate attorney. He made a whole bunch of money, as a land speculator. On one hand, he knew he could go back to Virginia and resume a full-time law practice. On the other hand, he was concerned about how states were responding to the new Constitution. John Marshall was a federalist. He believed that the Articles of Confederation, were extremely dangerous. In the Articles of Confederation, State governments basically dominated. The Federal government had no power, and if states didn't want to participate or go along, they didn't have to. He was extremely invested in seeing the new Constitution work, but in particular, seeing that the Federal government, the national government would work. He was torn. He was not necessarily offended. What's really remarkable is in a very short period of time, not only did he bolster the federal government, which is what we will discuss probably in more detail in Part 2 of this episode, but he also and this is probably what we're going to flesh out in the remaining part of this episode. He really bolstered the reputation and weight and legitimacy of the federal courts.
N. Rodgers: He gave it the thing that Jay wanted it to have but was unable to give it himself.
J. Aughenbaugh: That's right.
N. Rodgers: Not slamming Jay, by the way. It was a disorganized and motley crew to begin with.
J. Aughenbaugh: Yes.
N. Rodgers: The first few presidents were trying to figure things out as they went. Part of this was also timing.
J. Aughenbaugh: Well, this really reflected, for instance, George Washington's view about the Supreme Court. Washington really didn't know what to do with it, as you just mentioned. Washington's selection of justices was not based on any vision of the US Constitution or any theory of federal government versus state government supremacy. George Washington picked people because of geographical diversity. Washington actually picked Democrats to serve on the Supreme Court, even, though, Washington was more or less a federalist.
N. Rodgers: But he had to think about people from all over because he's trying to keep the nation unite the little baby nation. He's trying to help keep it all together. If he picks all guys from Pennsylvania, that's just going to piss everybody else off. Oh, really People from South Carolina don't count which I think it one of them was Rutledge from South Carolina. Like, he needed to get that diversity in there to say to the states, you need to invest in the federal concept.
J. Aughenbaugh: Now, before we get to Marbury, I want to go ahead and mention something that is very noteworthy about the Marshall Court. Marshall was the last Supreme Court justice picked to serve on that body by a federalist president during his complete tenure on the court. By the time Marshall retires from the Supreme Court, almost all of the justices he worked with were picked by Democrat presidents.
N. Rodgers: Opposition party Presidents.
J. Aughenbaugh: Because again, after Adams lost, we had a string of Democratic presidents. We did until 1824, when Andrew Jackson was defeated for the office in the House of Representatives. But what is really noteworthy here, Nia, is in this just absolutely flumix annoyed upset a long string of Democratic presidents. They would put people on the Supreme Court to counter Marshall, and Marshall in a very short period of time, would persuade them to vote the way he wanted them to.
N. Rodgers: He was either charming or forceful or both?
J. Aughenbaugh: Yes. He even convinced them to stop the practice of each justice writing an opinion in each case. He convinced them that unless they really had a good reason, they should join the majority opinion.
N. Rodgers: Oh, so under him, we get a lot of unified opinion unions.
J. Aughenbaugh: That's right. Because he said that the courts legitimacy and reputation would be improved if the people saw that the court was speaking with one voice.
N. Rodgers: A block.
J. Aughenbaugh: Yes.
N. Rodgers: It causes that opinion to be more measured because it has to take into account four voices instead of one voice. You have to really think about how you can include and exclude ideas carefully. Marshall's just brilliant. Marshall's brilliant.
J. Aughenbaugh: According to scholars, Marshall used the fact that the Supreme Court did not have its own building to his advantage because every new associate justice had to find housing in Washington, DC. Marshall would work with the owner of his boarding house to find orders for his new colleagues. They would go to the capitol to hear cases. I think it was either it was in a hearing room in the Senate, but they would do all of the writing, and they took almost all of their meals at the boarding house. Marshall would work on his colleagues away from the office.
N. Rodgers: Over meals.
J. Aughenbaugh: Yes.
N. Rodgers: Discussing aspects of a case and gently nudging people's thoughts in one direction or another. Is [inaudible] and brilliant.
J. Aughenbaugh: He would go out of his way to find lodging and to help his colleagues, partners and kids get acclimated to Washington, DC. They felt somewhat behold to Marshall. Not only do I respect his intellect, but I don't want to disappoint this person who has assimilated me into the work of the court, right?
N. Rodgers: Right.
N. Rodgers: He takes on the mentorship or the mentor part of the relationship. How many Justices did he have? Because I know the Court's not always been nine.
J. Aughenbaugh: That's great. When Marshall was picked as Chief Justice, there were six. Congress then added a seat, so that we have an odd number.
N. Rodgers: I was going to say six seems like a nightmare, three and three.
J. Aughenbaugh: Now, remember, Adams picks Marshall. We get a brand new president. Jefferson appointed three Associate Justices. Madison appointed two. Very quickly, everybody that Marshall was working with had been appointed by the president of the opposition party. Okay?
N. Rodgers: Right.
J. Aughenbaugh: Again, this is rather remarkable. I got a couple paragraphs in our research notes. Marshall's ability to lead the court that was comprised nearly all of associate justices appointed by the presidents of the opposition party. But I saw a statistic. Nearly 85% of all the rulings in the Marshall Court were unanimous.
N. Rodgers: Holy cow. That's a lot.
J. Aughenbaugh: That would be astounding if Marshall was working with a whole bunch of federalists. Because he was a federalist. That would have been remarkable.
[OVERLAPPING]
N. Rodgers: He was working with the opposition. Can you imagine? Can you imagine Scalia working with eight left leaning justices and getting 85% agreement.
J. Aughenbaugh: Yes. It was just phenomenal.
N. Rodgers: Well, it says something about his leadership or his ability to force people to do what he wanted them to do, he doesn't have the reputation for being a bully.
J. Aughenbaugh: No.
N. Rodgers: He has the reputation for being a persuader. That's different. He doesn't have the reputation for bullying his colleagues. You've never mentioned to me even once that you thought that Marshall was a bully.
J. Aughenbaugh: No, the word that frequently comes up in biographies about Marshall is an adjective that is we don't hear a lot anymore. But the adjective is wily. Forward thinking, 2-3 steps ahead of almost everybody else in the room willing to go ahead and take a short term loss for a much broader long term victory. We'll see this, and I think we'll probably cover it in the next podcast episode. I think, a good way for us to break this up is to spend a couple more minutes talking about some of the other institutional changes Marshall made to the Court. But then we'll talk about, the Marshall Court's rulings and why they are so significant.
N. Rodgers: What you're doing is making me wait. I see who you are. Because Barbara is my favorite case. I've not even pretended it's not my favorite case. Once I understood it, I was like, dude, that guy is brilliant.
J. Aughenbaugh: Well, the other thing I'm doing here, listeners I'm teasing.
N. Rodgers: You're giving a trailer to a fabulous movie.
J. Aughenbaugh: Yeah. I'm acting Marshall-esque. But the other institutional change I want to go ahead and note here is that in 1934, one year before he retires, Marshall had the justices file all their opinions in writing. Prior to 1834, the Justices would orally give their opinion on the Court.
N. Rodgers: They probably wrote it down, but they didn't submit it for publication.
J. Aughenbaugh: What this forced was that there were reporters who would record the oral presentation of the opinions. Then these reporters would have a pitched battle as to selling the Supreme Court.
N. Rodgers: Who owned the copyright to that. If you're sitting there scrambling to write down every word-
J. Aughenbaugh: Yes.
N. Rodgers: -then you do want to get listeners, the reason, you're asking yourself who the heck would buy the text of a Court case before the Supreme Court. I can tell you who. Every lawyer who's ever going to have a case like that.
J. Aughenbaugh: Yes.
N. Rodgers: Precedent is what matters in American courts.
J. Aughenbaugh: Yes.
N. Rodgers: If you don't know what the Court cases decided and how they decided it, you can't use that as precedent. Even today, LexisNexis, Westlaw, those databases that compile all of the Court opinions. Those are expensive databases because they know that lawyers buy them in order to ground their cases. It's called shepardizing.
J. Aughenbaugh: Yes.
N. Rodgers: Because it used to be Shepards, was one of the companies. They produced these reports. Shepards was a publisher, and you would go and try to find cases that supported your case. That's the whole way that you fight a Court battle is, you say, but Your Honor, in these five cases, the juries found this, we'd like you to find similar way for us.
J. Aughenbaugh: Shepardizing a case also meant that the reporter would not only report the opinions, but they would have the important words in annotations and references to other cases-
N. Rodgers: We call that keynotes.
J. Aughenbaugh: -keynotes. Yes. This would aid lawyers' ability to-
N. Rodgers: To find other cases.
J. Aughenbaugh: -to bring in other cases.
N. Rodgers: It's a whole thing. But I didn't realize that he's the one that codified that. That means that right after that, would have been some decision about who owned those reports. Because now I can tell you modernly who owns those reports is the Supreme Court.
J. Aughenbaugh: That's right.
N. Rodgers: They own their own work. You cannot copyright the actual cases. You can copyright your interpretations, or if you make up additional keynotes or you make up additional whatever, you can copyright that part. But you can't copyright the actual decision from the Supreme Court. The Supreme Court owns that.
J. Aughenbaugh: Yeah.
N. Rodgers: It's freely given to anybody who wants access to it. I didn't realize Marshall did that.
J. Aughenbaugh: Yeah.
N. Rodgers: That was really early on that he decided that.
J. Aughenbaugh: Well, and it came from a case that went the whole way to the Supreme Court. Wheaton versus Peters in 1834, Wheaton was the name of one of the reporting publishing companies. Wheaton took Peters to court because Peters was using Wheaton's reports without payment.
N. Rodgers: Oh, no go.
J. Aughenbaugh: The Supreme Court went ahead and said, no reporter has or can have copyright of the written opinions delivered by the Supreme Court. Why? Because as we've discussed on the previous podcast episode, those are government documents.
N. Rodgers: Government documents are owned by the people.
J. Aughenbaugh: By the people.
N. Rodgers: You have access to any government document that is not classified.
J. Aughenbaugh: Yes.
N. Rodgers: Go ahead.
J. Aughenbaugh: The other part of that ruling was the justices cannot confer on any reporter, any such copyright.
N. Rodgers: Kavanaugh cannot write an opinion and say, I'm giving it to you, Aughie-
J. Aughenbaugh: Yes.
N. Rodgers: -and you can sell it.
J. Aughenbaugh: No.
N. Rodgers: That's because it's his work done during his job as a government employee.
J. Aughenbaugh: That's right.
N. Rodgers: Any work that I do as a government employee is foiable. Anybody can look at it anybody can see it. Can we end this episode briefly by saying the names of the Associate Justices on the Marshall Court? Because you know we love names. We love names on this podcast.
J. Aughenbaugh: We got some good ones here. In order in which, they were put on the Court, William Cushing, William Patterson, the first Justice Chase Samuel, and you folks should know Samuel Chase, because he's the only Supreme Court Justice who has been impeached. He was found not guilty, but he's been the only Supreme Court Justice who was impeached. Nia, you may not recall this, but he was impeached because when he was riding circuit, he made some rather intemperate remarks about the United States Congress and the US president.
[LAUGHTER]
N. Rodgers: He was out being publicly crabby?
J. Aughenbaugh: Yes. But the next one is one of my favorite names of all times.
N. Rodgers: Me, too.
J. Aughenbaugh: Bushrod Washington.
N. Rodgers: Bushrod. Somebody named their kid Bushrod. He made it all the way to be an Associate Justice on the Supreme Court.
J. Aughenbaugh: He served for over 30 years.
N. Rodgers: Love that name.
J. Aughenbaugh: Yes.
N. Rodgers: I like all their names, but I like that one a lot.
J. Aughenbaugh: We got a couple more good ones. We got Alfred Moore, William Johnson. Here's my next favorite. Henry Brockholst Livingston.
[LAUGHTER]
N. Rodgers: Brockholst. What a great middle name.
J. Aughenbaugh: Then we got Thomas Todd.
N. Rodgers: They call him Tommy?
J. Aughenbaugh: No, I just made that up.
N. Rodgers: Because that's funny.
J. Aughenbaugh: Then we have Gabriel Duvall. We don't see a lot of Gabriel's for first names anymore.
N. Rodgers: The next one, is he a person I would have heard of Joseph Story?
J. Aughenbaugh: Yes, he was pretty much the second most important intellectual on the Marshall Court.
N. Rodgers: You've mentioned his name before I guess.
J. Aughenbaugh: Yeah.
N. Rodgers: I love this.
J. Aughenbaugh: Smith Thompson. We got two last names.
N. Rodgers: Two last names.
J. Aughenbaugh: Robert Trimble, John McLean, Henry Baldwin, and then we got James Moore Wayne.
N. Rodgers: I have to admit I'm partial to three names. But I shouldn't be because in the South, when my three names get used, it's because I'm in trouble. I should not, but I do appreciate when people have three names. There's something about that.
J. Aughenbaugh: Likewise, Nia, I always knew when I was in trouble with my mom and my grandmother because they would use all three of my names. John Mark Aughenbaugh. Then it would be followed by what I did wrong.
.[LAUGHTER]
N. Rodgers: You're in trouble. Next episode, we're going to brief a few of the cases for you. Then we're going to talk about the contributions of the Marshall Court. What it did to change the larger scope of the federal government.
J. Aughenbaugh: Yeah, and in particular, the fundamental contributions John Marshall in that court made to the development of constitutional law in the United States. Things that we are still discussing today originated with the Marshall Court. It is phenomenal.
N. Rodgers: We're still arguing about certain parts of this. Even as we do it, we're arguing about it. I know that others have been fabulous, and I know you're going to argue for several others being fabulous, but there's something about Marshall. Marshall dug in and said, if we're going to do this, we need to do this right. The judiciary needs to be taken seriously, and it needs to be treated as a co-equal branch. He tried to establish that beachhead. I think that's worth remembering.
J. Aughenbaugh: Nia, let's be fair. While I think other Supreme Courts also had a huge impact, you know how fond I am of the Marshall Court because the way I entitled listeners or research notes was John Marshall the nation's constitutional schoolmaster. He taught us how to run the US Constitution. He may not have always been right, but he taught us how to run the Constitution. The part of me that is a teacher, will forever be in the debt of John Marshall. Because so much of what his court did, I still use today.
N. Rodgers: Well, and set the tone for every other court that came after.
J. Aughenbaugh: Yes.
N. Rodgers: He was out there building the groundwork for 200 years of-
[OVERLAPPING]
J. Aughenbaugh: Yeah, because without Marshall, I don't become a Supreme Court aficionado. No, seriously, right?
N. Rodgers: Right.
J. Aughenbaugh: Because institutionally, what would I get to talk about? He's the one who went ahead and said, this is an important institution of the federal government, and here's why.
N. Rodgers: Here's why.
J. Aughenbaugh: Thanks, Nia.
N. Rodgers: Thank you, Aughie.
J. Aughenbaugh: Listeners, we will do Part 2 in our next episode.
N. Rodgers: We'll just warn you that not all courts will get two parts. Some courts are shorter. Some courts are also less effective. They won't have as much to talk about, but Marshall really did make the court what it is today in many ways. We cannot overemphasize his importance and the importance of his court in getting us to the modern court.
J. Aughenbaugh: For our listeners who are Seinfeld fans, you'll appreciate this reference. The Marshall Court is worthy of two episodes.
[LAUGHTER]
N. Rodgers: Very nice.
J. Aughenbaugh: Anyways, Nia, have a good day.
N. Rodgers: Thanks, Aughie.
You've been listening to Civil Discourse brought to you by VCU Libraries. Opinions expressed are solely the speaker's own and do not reflect the views or opinions of VCU or VCU Libraries. Special thanks to the Workshop for technical assistance. Music by Isaak Hopson. Find more information at guides.library.vcu.edu/discourse. As always, no documents were harmed in the making of this podcast.