Book Review

one day leave an indelible mark on American But it is here, just a quarter of the way history. But we quickly learn Marshall comes in, that the book changes course. Presum- from a line of Randolphs, on his mother’s ably aiming at the title’s second dimension, side, one of the fledgling nation’s most prom- Marshall as maker of the Court, Brookhiser inent families. Though raised in a humble makes a disorienting shift from telling his milieu, Marshall is hardly a nobody. subject’s life story to a full-on exposition Brookhiser then paints young adult Mar- of Supreme Court business. For starters, shall as a kind of Forrest Gump of his time, though he largely avoids doctrinal excess, right there in the thick of the country’s most Brookhiser bungles a handful of technical pivotal early moments. Revolution breaks out fine points that lawyers especially will find when he is 21 and he quickly finds himself distracting. In describing the case Fletcher on the front lines of major battles led by Gen. v. Peck, for example, Brookhiser tells us . When America triumphs, that Marshall’s decision refined the rules for Marshall returns home to serve in Virginia’s “striking down a federal law.” Yet his own state house, where he and fellow delegates exposition makes clear that the case dealt debate and ratify the newly drafted U.S. with whether state law or the U.S. Constitu- Constitution. He then takes up a law practice, tion allowed Georgia to rescind land sales it going toe to toe with prominent lawyers such had made to private parties. Striking down a as Patrick Henry, and representing, among federal law had nothing to do with it. other clients, Washington, James Madison, But the problem far exceeds a few flubs and George Mason. President of legal esoterica. Seemingly a well-inten- taps Marshall as a diplomat to France, then as tioned vehicle for depicting Marshall’s life : The Man secretary of state. on the Court, Brookhiser swings the whole Who Made the Supreme Through Marshall’s early career, perspective to the inner workings of the Court Brookhiser does a decent job of hitting Court itself and—far more distractingly—to the highlights of Marshall’s young life and the purely tangential backstories of the cas- By Richard Brookhiser making clear that his subject, unlike Forrest es to come before it. The book, for instance, Basic Books, Hachette Book Group, , NY, 2018 Gump, was more than just an extra on devotes a solid five pages to the factual 336 pages, $30 history’s stage. The gregarious and convivial background of Gibbons v. Ogden, a dispute Reviewed by Micah Bluming Marshall delights in the company of others over the right to operate shipping vessels Who was John Marshall? In theory, a and climbs the social ladder not by accident, on the Hudson River. Rather than receiving biography should answer this question or, but through a mix of charm, intellect, and insight into Marshall, the reader gets tedious if existing sources are too thin, should take political skill. While living in Richmond, he details about boat licensing and the business what we do know and offer theories to fill joins the Quoits Club, a selective society of disputes between litigants otherwise wholly in the gaps. A biography, like any character men who gathered to play quoits (a game unconnected to the chief justice. study, ought to lead us along a path of devel- similar to horseshoes), drink, and live the One could perhaps overlook these diver- opment, the growth and change essential to best life 18th century America had to offer. sions were they necessary, if poorly paced, every human story. Maybe author Richard He marries a woman who, after losing a child components of Marshall’s story. But Brookh- Brookhiser had such a story in mind, but in infancy and another in a miscarriage, suc- iser’s skylarking produces no real payoff, no John Marshall: The Man Who Made the cumbs to a sadness that will plague her for climactic insight into who his subject was. Supreme Court does not tell it. life, even as she and Marshall raise several True, Marshall did author the (mostly unan- From the title alone, the book promises healthy boys. Professionally, Marshall’s rise imous) opinions for the vast majority of the a portrait with two dimensions: Marshall culminates in 1801, when avowed Federalist cases over which he presided. Inevitably, we the man, and Marshall the judicial archi- and lame-duck President Adams scrambles do learn something about his jurisprudence tect. Brookhiser starts off fine, immediately to fill a Supreme Court seat before his suc- in seeing how he decided them. But that turning to the first. He spends the opening cessor, Republican (and Marshall’s own cous- hardly justifies the deep dives into the back- chapter on Marshall’s 18th century origins in) , can take office. Adams ground facts of each, facts that often bear in rural Virginia, at the time a royal colony appoints Marshall, only in his mid-40s, to little even on the key doctrinal takeaways with not a glimmer of revolution in sight. His become the country’s fourth chief justice. from his decisions. A reader who wants to story, at first glance, suggests a self-made Self-made or not, Marshall doesn’t merely study Marshall’s jurisprudence can read man: a simple farm boy who, we know, will observe history—he actively shapes it. his opinions. A biography, though, should

74 • THE FEDERAL LAWYER • September/October 2019 indulge us in his inner monologues. What did anguish as creeping populism overtakes the Marshall learn from standing at the fledgling government he helped build. When Andrew Court’s helm, from deciding landmark cases Jackson wins the presidency in 1832, Mar- like Marbury v. Madison and McCulloch v. shall writes to his colleague, Justice Joseph Maryland, through which he sought to an- Story, “I yield slowly and reluctantly to the chor the Constitution and, with it, the Court conviction that our Constitution cannot last.” itself? Sitting as chief justice for more than Defining and defending the U.S. Constitu- three decades necessarily shaped the Court. tion was the project of his life. How did he But how did the experience shape him? The react when Jackson infamously spurned the life of Marshall and the life of the Supreme Court’s authority in Worcester v. Georgia? Court don’t have to—and shouldn’t—exist in The impact on Marshall begs for at least separate narrative spheres. some musings. Yet Brookhiser offers none. Brookhiser’s Marshall, to put it bluntly, And then there is slavery. Whatever one’s simply lacks the richness of someone most reverence for Marshall’s ideas, one cannot readers would want to spend time getting ignore that he owned nearly 150 slaves. He to know. For a statesman so devoted to the never freed them a la George Washington, Supreme Court’s efficacy, one has a hard and he never even acknowledged, like James time believing Marshall didn’t spend more Madison, the grievous moral wrong he was time grappling—privately and not just in his too weak-willed to undo. Yet not until 200 Court opinions—with how to make the insti- pages into the book does Brookhiser even tution durable. As Federalism dissolved un- acknowledge Marshall’s professional con- der the weight of Jeffersonian Republicans flict—saying nothing of the moral conflict— What Happened (and, later, Jacksonian Democrats), Brookh- in owning slaves while deciding cases about iser points out that Marshall remained the slavery. And only in one meek paragraph 50 By Hillary Rodham Clinton lone Federalist holdout still in power, left by pages from the end, does Brookhiser finally Simon & Schuster, New York, NY, 2017 himself to carry on the legacies of Washing- acknowledge that “the morality of slavery 512 pages, $30 ton, Hamilton, and Adams. Surely he felt this did not concern [Marshall] in any practical Reviewed by Christopher C. Faille burden and struggled with it. Yet instead of way,” observing that Marshall “let the insti- On Election Day 2016, the Democratic Par- probing Marshall’s mind for these insights, tution live and thrive.” That’s it. For the life ty’s nominee, Hillary Clinton, a former first Brookhiser takes us on a four-page digres- story of someone devoted to intellectual con- lady, former New York senator, and former sion into a forgettable bankruptcy case, sistency and the rule of law, that revelation secretary of state, lost key battleground Sturges v. Crowninshield, only to tell us calls for a whole chapter of its own. Instead, states crucial to the unforgiving arithmetic exactly nothing about how the case sheds this fascinating topic gets less space than of the Electoral College. Significantly, the light on Marshall’s life. the life story of the bankruptcy debtor in politically seasoned Clinton lost the election Brookhiser nevertheless teases us with Sturges. to a political novice, Donald Trump, who is periodic glimpses of things any curious The book, in the end, is not a total loss. now President Trump. reader might want to know. For one thing, The basics of Marshall’s life emerge well Trump’s electoral victory resulted in Marshall and his wife lose several children enough, and those interested in learning another round of scrutiny for the institution to early deaths. We see how deeply it affects how the early Supreme Court functioned will of the Electoral College, both of its arithme- her, but we get no insight into Marshall be pleasantly surprised at how much time tic and of the office of the elector. In fact, himself, how it made him feel, or whether the subject gets. For that, though, the reader Ron Faucheux wrote a perceptive article for and to what extent it changed him. Also, pays a high price: a biographical subject The Hill in August 2016, with the headline, during one stint in France, Marshall writes who ceases to grow and develop, right at “Trump’s Electoral College path is difficult, to his wife that he is being hosted by “a very the most interesting junction of his life. but not impossible.” accomplished, a very sensible, and I believe Brookhiser attempted to write a book with a very amiable lady” (Voltaire’s widow). two dimensions. Unfortunately, he wrote a The Electoral College This passage perhaps, as Brookhiser notes curiously one-dimensional book instead.  Clinton briefly mentions this important issue in passing, suggests a hint at something in the book and suggests that she does not untoward. What else do we know about their Micah Bluming is an attorney in Washing- want to put forward the answer of “freakish relationship in Paris? What feelings toward ton, D.C. He received his J.D. from Stanford arithmetic,” in response to her book’s titular his wife might have led Marshall to hide Law School and a master’s degree in philos- question: What happened (a question mark is infidelity in plain sight? ophy from Tufts University. He previously not displayed in the title, but it seems implicit). clerked on the U.S. District Court for the Dis- Bits and pieces show us that Marshall The populations of large states equate trict of Arizona and the U.S. Court of Appeals evolved to some extent, even amid his to less electoral power in the Electoral for the Eleventh Circuit. From 2018-2019 tenure on the Court. Toward the end of the he was a litigation fellow at Public Citizen College than perhaps they “should” in a pure book, Brookhiser observes almost offhanded- Litigation Group. popular-vote system. But, of course Clinton ly that Marshall, once the gregarious, can-do knew that going in to the campaign. This was politician, spends his last years watching in not Clinton’s first experience with national

September/October 2019 • THE FEDERAL LAWYER • 75 politics as she almost won the Democratic Kissinger only receives one mention, and Schlesinger actually could do very little to fix nomination in 2008, and she either planned in a very different context. Kissinger goes the situation in Cyprus, which played its way her campaign with that thought in mind or unmentioned, until a chapter titled “Those toward an eventual bifurcation of the island. she was woefully negligent about planning for Damn Emails.” In this passage, Clinton Further, Kissinger and Schlesinger both the Electoral College’s voting system. laments the fact that documents can be appeared to have been chiefly concerned The closest Clinton comes to considering retroactively classified, and discusses how about the security of U.S. military bases in such a question in her book is a comment arbitrary such classification methods can be. the affected countries. Kissinger in particu- near the end. She writes, “In a cruel twist lar, took a pro-Turkey view of the crisis, not of Fate, the Founders had also created Greece, Cyprus, Turkey due to any attachment to the rule of law as [the Electoral College] as a bulwark against Clinton argues that “something similar embodied in the Treaty of Guarantee, but foreign interference in our democracy … happened to Henry Kissinger around the because Turkey was the frontline state, vis- and now it was handing victory to Vladimir same time [in 2016]. The State Department à-vis the Soviet Union. Putin’s preferred candidate.” released the transcript of a 1974 conversa- It is worth mentioning that there was tion about Cyprus between then Secretary The Uses of Sweat some discussion, after election day, about of State Kissinger and the director of the Clinton appears oddly abstracted from such the office of the electors. What if the Elector- CIA, but much of the text was blacked out matters, even though as a former secretary al College wasn’t just an arithmetical trick, because it was now considered classified. of state, the times during which she played but a real deliberative body? Could it play a This puzzled historians because State [De- that role were as tumultuous in their own positive role, if the electors felt entitled to be partment] had published the full, unredacted way (and tumultuous in the eastern Medi- “faithless” to their original commission? transcript eight years before in an official terranean in particular) as were the times history book—and on the department’s when Kissinger did so, and the fact that she Sen. Sanders website!” served as such in the Obama administration While the Electoral College is the subject of Clinton clearly does not wish to author a was, in the eyes of many of her supporters in a sidelong shot, the role of Bernie Sanders foray into the history of Cyprus, but I am less the fall, one of her chief qualifications for the is a major theme of this book. A better short focused than she, so I propose to do exactly presidency. approximation of Clinton’s answer to the that. The Republic of Cyprus came into be- If Clinton had honestly said what she title’s posited question is “Bernie Sanders ing in 1960 through an uneasy truce between thinks it is about Kissinger and his long happened.” Clinton plainly believes that the Greek and Turkish communities on that involvement with U.S. foreign policy that the Sanders primary campaign against her island. Turkey and Greece signed a “Treaty makes him a worthy adviser to Democratic weakened her with what ought to have been of Guarantee” recognizing the independence administrations, it might have helped us her base. This is the essence of Sanders sec- and territorial integrity of the new republic. better understand her campaign. Further, tion of her book, which she titles “Idealism In effect, each of the larger countries gave the content of a conversation about Cyprus and Realism.” Clinton clearly views herself up it its own claims to Cyprus. might have inspired such reflections. All we as the realist in the primary campaign and In 1967 (with at least tacit approval from receive from Clinton is a picture of Kissing- the candidate concerned (as she puts it) Lyndon Johnson’s administration), a military er and Clinton as fellow sufferers from the with “sweating the details.” Whereas, in her junta took over in Greece, and this junta had oddities of retroactive classification. Her view, an unfortunate chunk of her party was no commitment to the Treaty of Guarantee. It mention of Cyprus, like her brief allusions to attracted to that idealism-without-sweat guy, aimed at annexation of Cyprus from the start the Electoral College, are a lost opportunity Sen. Sanders. of its existence. Flash forward seven years, for deeper reflection. Clinton sweats the Clinton does not mention Henry Kissinger, and in July 1974, Greece installed a figure- details but she doesn’t sweat the depth. She in the context of her primary election struggle head as the new president of Cyprus. Presi- doesn’t sweat the history. against Sanders. Obviously, it is Clinton’s pre- dent Nikos Sampson had one job, in the view This book is, on some points, less edi- rogative to stress whatever issues she thinks of his puppet masters in Athens: to approve fying than it could be. However, it is surely are important in her book; however, Kissinger of the union of that island with Greece. worth a read for Clinton’s admirers, who still played a memorable part in her efforts to It was amid the chaos after Turkey’s inva- seem to be quite numerous. They will want defeat Sanders. In her role as secretary of sion—as the junta in Athens was collapsing her perspective of the campaign, at a gut state, Clinton had been publicly chummy with and as the Sampson government disinte- level, and this book delivers on that.  Kissinger, and that fact enraged Sanders. In grated– that Kissinger spoke to CIA Director one of the Clinton-Sanders debates, Sanders James Schlesinger. Sampson held power for Christopher C. Faille is a member of the asserted that, “I am proud to say that Henry only eight days—just long enough to pro- Connecticut Bar and the author of Gambling Kissinger is not my friend. I will not take voke Turkey’s invasion of the island, which with Borrowed Chips, a heretical account of advice from Henry Kissinger.” When Clinton in turn provoked Sampson’s resignation. He the Global Financial Crisis of 2007-2008. He regularly writes for AllAboutAlpha.com, a asked Sanders to name foreign policy experts, would eventually serve time in a prison cell. website devoted to the analysis of alternative from whom he would take advice, Sanders These events occurred during the finale investment vehicles, and for InsidetheNation. stayed on course: “Well it ain’t Henry Kissing- of the lengthy Watergate scandal in the com, part of the OneQube network. er, that’s for sure.” Nixon administration. Nixon was near the I expected some detail regarding that term of his presidency, and most of his debate exchange in this book; however, hangers-on understood this. Kissinger and

76 • THE FEDERAL LAWYER • September/October 2019