Michael G. Collins

Judicial Federalism under Marshall and Taney

The Supreme Court during the Chief Justiceship of John Marshall is associated with endorsement of broad regulatory powers in Congress and broad federal question jurisdiction in the federal courts under Article III. By contrast, the successor Court under Chief Justice Roger Taney remains tied to its determination in Dred Scott that Congress lacked powers to enact the Missouri Compromise prohibiting slavery in certain of the territories, and to Taney’s opinion that descendants of African slaves could never be citizens who could invoke the federal courts’ diversity of citizenship jurisdiction. This article addresses the ways in which the Taney Court nevertheless outdid the Marshall Court in terms of a nationalist approach to judicial federalism. The Marshall Court faced a political environment hostile to the Federalist-dominated federal courts, and in reaction repeatedly expressed respect for congressional power over its jurisdiction, and tied its expansions of federal judicial power closely to expansive views of congressional power. The Taney Court, by contrast, did not face similar political-branch threats. Its jurisdictional opinions were less deferential to Congress than Marshall Court opinions. And while the Marshall Court tied its expansions of judicial power to broad views of congressional power, the Taney Court’s expansions of judicial power operated to limit any concomitant expansion of congressional power. The Taney Court accomplished this by expanding diversity of citizenship jurisdiction beyond what the Marshall Court had done and by explicitly adopting the use of a uniform judge-made general common law in diversity cases. It also expanded admiralty jurisdiction by an interpretation of Article III’s admiralty provision that was contrary to Marshall Court precedent, and rejected a proffered Commerce Clause justification that would have entailed broader congressional powers. And when it channeled certain matters away from the state courts to the federal courts based on exclusive federal powers, the Taney Court relied on implied federal powers whose enforcement could be limited by notions of necessity, as distinguished from the Marshall Court’s looser version of “necessary and proper.”

The Article III Jury

Current dissatisfaction with the civil jury is often coupled with fatalism as to the judicial systems ability to do anything about it. Yet the whimsical nature of jury verdicts is to a large extent a wound that the judiciary has inflicted upon itself and litigants. Viewing the jury in terms of traditional federal courts scholarship-as an alternative decisionmaker to the Article III judge-shows both the long and consistent history of extensive judicial involvement in jury decisionmaking from the early Republic up through the Lochner era, and the later movement of the New Deal Court effectively to abandon it. Contrary to the belief of scholars and jurists, the Seventh Amendment should not present an obstacle to enhanced judicial control of juries, such as those in which the Court once engaged. While the Amendment will obviously present limitations on certain kinds of reform, the greater obstacle may prove to be a judicial unwillingness to engage in the difficult task of immersion into and elaboration of the facts and law of quotidian cases. To be sure, deference to other decisional institutions may enhance legitimacy, as when the courts defer to legislative judgments as to the rationality of economic legislation. But excessive deference to juries may undermine legitimacy by delegating the primary judicial responsibility of assuring the quality of justice.