Both Jefferson and Marshall thus viewed Marshall’s ascent to the Supreme Court as part of a battle for the soul of America, however much it might also appear as part of a family feud. But whatever his motivations, Marshall’s timing in accepting the position was impeccable, for during his tenure the size and scope of the Court’s work expanded greatly, with a concomitant rise in its power and importance. For example, as the nation’s economy began to grow and become more interconnected, great questions arose about whether control over interstate commerce was to be relegated to the states, to the federal government, or to some combination of the two—questions the Marshall Court definitively answered in favor of federal control in cases such as Gibbons v. Ogden (1824).
Similarly, as the federal treasury, under Alexander Hamilton’s leadership, played an ever-larger part in banking, questions arose as to whether the federal power to tax and to issue currency indirectly conferred a power to create a federal bank, a question the Court again definitively answered in favor of a broad application of federal power in McCulloch v. Maryland (1819). In these and many other ways, the Marshall Court greatly enhanced the power of the federal government over the states, but in the process also enhanced the power of the executive.
Over the thirty-four years that Marshall was chief justice, the Supreme Court issued no fewer than 1,129 decisions. Remarkably, all but 87 of them (and all but 36 of the 547 opinions authored by Marshall) were unanimous, even though the Court was deeply divided throughout most of these years between Federalists and Republicans (who later evolved into Whigs and Democrats, respectively).
Paul attributes this unanimity not only to Marshall’s force of personality and character but also to his zeal for achieving consensus. And as a practical matter, the seven justices having to bunk together in the same boardinghouse must have put a premium on getting along with one another. But perhaps achieving unanimity was made easier by the fact that in so many of these early cases, they were writing on a relatively blank slate, largely unhampered by binding precedents (though they would look to English law for guidance)—hence the title of Paul’s book, Without Precedent. Conscious that they were literally creating the precedents that would bind future generations, the justices as a group may have been predisposed toward compromise and consensus.