Bailey King

POLS 4302 - Honors Component

Dr. Bartl

Fall 2020

The Keys to Justice

The current state of the Supreme Court has been shaped by many important figures.

Justice John Marshall and Justice Oliver Wendell Holmes Jr. have influenced current

interpretations of the Constitution in large ways. They are two of the most influential figures who

set precedence for cases and justices to follow for years to come. In this comparative analysis,

the lives, careers, jurisprudence, and impacts of each justice will be explored in depth. The

importance of the lives of these justices is extraordinary and long-lasting.

John Marshall was born on September 24, 1755, in a small cabin in Germantown,

Virginia. He was born to Mary Randolph Keith and Thomas Marshall, and he was the first of

their fifteen children. His mother, Mary, was the daughter of a clergyman and a member of two

of the most prominent families in Virginia at the time. John’s father, Thomas, was a justice of the

peace, a land surveyor, and a sheriff in Prince William County.1 His parents were both politically

driven and involved in his community. Growing up, his father was a key figure in Prince William

County and involved his son in his interests early on. His mother, although not formally

educated, could read and write. It is believed that “the Marshall home had a bible, almost for

certain Shakespeare and Dryden, and definitely the Pope.”2 Additionally, his mother, a distant

relative of Thomas Jefferson, aided in John’s involvement in politics during his early childhood.

1
Smentkowski, B. (2020, September 20). John Marshall. Retrieved November 05, 2020, from
https://www.britannica.com/biography/John-Marshall
2
John Marshall (1755 - 1835). (2012). Retrieved November 05, 2020, from
http://www.let.rug.nl/usa/biographies/john-marshall/

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Later in his childhood, John’s father assisted George Washington in land surveys and served as a

member of the Virginia House of Burgesses.3 These connections were vital in young Marshall’s

introduction to future presidents and laying the foundation for his political career. John’s early

education was heavily reliant on his father and local clergymen who occasionally assisted in

teaching the young boy. He then attended Westmorland County Academy, the same academy

future president James Monroe later attended. Before completing his schooling, however, war

broke out. Marshall took a break to serve as a lieutenant, under George Washington, in Virginia’s

Minute Men. Before the end of the war, Marshall was promoted to the rank of Captain for his

service in some of the most famous revolutionary battles, such as Valley Forge, Brandywine, and

Monmouth.4 Upon the completion of the war, Marshall returned to continue his education,

eventually getting his law degree from the College of William and Mary in Williamsburg,

Virginia.5 Shortly after acquiring his degree, Marshall opened his own firm and practiced law in

Richmond, Virginia. He began to argue key cases in the prominent Virginia Court of Appeals. 6

After much success, he was first introduced into the Supreme Court, serving as lead counsel in

the 1796 Supreme Court case Ware v. Hylton, where Marshall represented the farmers that

British administrators sued for pre-war debts.7 Marshall remained a key figure in Virginia politics

until President John Adams appointed Marshall to diplomat and, in 1797, sent him to France to

negotiate treaties with France. Although unsuccessful, Marshall built a strong reputation before

returning to the United States the following year. Upon his return, President Adams soon

appointed Marshall to United States Secretary of State, a position in which he held during the

beginning of his career as Chief Justice of the Supreme Court. On February 4, 1801, John

3
John Marshall. (n.d.). Oyez. Retrieved November 5, 2020, from https://www.oyez.org/justices/john_marshall
4
Oyez Ibid.
5
Oyez Ibid.
6
Oyez Ibid.
7
Ware v. Hylton. (n.d.). Oyez. Retrieved November 5, 2020, from https://www.oyez.org/cases/1789-1850/3us199

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Marshall was sworn into the Supreme Court as Chief Justice. He served his country on this court

for thirty-five years, wrote fifty-eight percent of the court’s opinions during this time; five

hundred and eight majority opinions, twenty-five concurrences and only six dissents.8 Marshall

left the Supreme Court in February of 1835 due to his declining health, and later died on July 6,

1835. He is looked upon as one of the most influential figures in American history and the

formation of our current understanding of the power of the Supreme Court.

Justice Marshall, during his time as Chief Justice, changed the Supreme Court. First,

before Marshall was appointed, Supreme Court justices would each submit an opinion when

deciding a case. Under Marshall, the court adopted the submission of one majority opinion to

provide clearer decisions, and justices that dissented with the majority would submit their own,

dissenting opinions. This is still a method used today in the court. In contrast, much of the

jurisprudence set by Marshall is not relevant today. Scholars in today's modern society view

Marshall as a workman who vouched for certain precedence on the basis of personal gain. For

example, Marshall was a slave owner. His court ruled on more than fifty cases involving slavery.

Of the fourteen cases involving black freedom, Marshall wrote seven majority opinions, all of

which the slaves lost.9 Dissents at this time, from 1829 to 1835, were almost unheard of, so

Marshall did not write many during his time on the court. However, it is accounted by other

justices on the court at the same time, that Marshall was not one to support slave freedom. He

never wrote an opinion in support of black freedom. Additionally, “Marshall’s nationalist

jurisprudence emerged from his experiences as a Revolutionary War officer, diplomat, and

Federalist politician. His commercial and economic jurisprudence reflected his vast landholdings

8
Finkelman, P. (2020, September 01). Master John Marshall and the Problem of Slavery. Retrieved November 05,
2020, from https://lawreviewblog.uchicago.edu/2020/08/31/marshall-slavery-pt1/
9
Finkelman, P. Ibid.

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and investments in banks, canals, and railroads.”10 The jurisprudence of Marshall was based on

personal gain rather than the wellbeing of the nation as a whole, which is why many of the

precedents he set when it comes to nationalism and landholding are not relevant today. Although

Justice Marshall is perhaps the most popular and well-known justice of all time, his past opinions

involving personal gain are surprising to many.

Marshall has been attributed for some of the largest, and most influential court cases

heard since the creation of the United States. One often described as this, Marbury v. Madison

was heard in 1803. In this case, it was concluded that there was a contradiction of law between

the Judiciary Act of 1789 and Article III, Section 2 of the Constitution. 11 This case established

the principle of judicial review, where the Supreme Court could declare a law unconstitutional.

This ruling set an important precedent for the courts to be able to function, especially in the way

we know them today. Marshall continued to make influential court rulings throughout his career

as Chief Justice. In 1819, the court ruled, in McCulloch v. Maryland, that Congress has the

power to integrate a bank and the state was prohibited from taxing national entities that are

incorporated under the government’s constitutional power.12 This unanimous decision outlined

the powers of the government under the Necessary and Proper Clause written in Article I,

Section 8 of the Constitution. This decision is noted as “probably the most controversial

decision” made by Marshall’s court.13 Additionally, the 1821 case of Cohens v. Virginia,

continued to set an important precedent for the functioning of the Supreme Court. In this case,

Congress had established a lottery in the District of Columbia several years prior. The two

10
Finkelman, P. Ibid.
11
Marbury v. Madison. (n.d.). Oyez. Retrieved November 16, 2020, from
https://www.oyez.org/cases/1789-1850/5us137
12
McCulloch v. Maryland. (n.d.). Oyez. Retrieved November 16, 2020, from
https://www.oyez.org/cases/1789-1850/17us316
13
Paul, Joel Richard (2018). Without Precedent: Chief Justice John Marshall and His Times. Riverhead Books.

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defendants appealed Virginia’s conviction to the Supreme Court.14 The court ruled that the

federal court had the jurisdiction to review criminal proceedings from the state courts. Chief

Marshall wrote that, regardless of the actors in a case, questions of constitutionality were within

the jurisdiction of the Supreme Court.15

Oliver Wendell Holmes Jr. was born on March 8, 1941, in Boston, Massachusetts. He was

one of three children born to prominent writer and physician Oliver Wendell Holmes Sr. and

abolitionist Amelia Lee Jackson. Dr. Holmes was well known amongst literary and intellectual

circles in Boston. Amelia, daughter of Charles Jackson, a justice on the Supreme Court of

Massachusetts, was also well connected to figures of government and politics. Surrounded by

figures of high intelligence, Holmes took an interest in education and government from an early

age. In his youth, he attended a private school before attending Harvard College in Cambridge,

Massachusetts, where he graduated in 1861. However, the Civil War began before he could

complete his degree, Holmes enlisted and began training at Boston’s Fort Independence. He was

still able to attain his degree because his battalion was never called to battle. After the

completion of his degree, Holmes received the title of First Lieutenant in the twentieth

Massachusetts Regiment of Volunteers. During his brief three years in the army, Holmes was

seriously wounded three different times. Post-degree, and much to his father’s dismay, Holmes

furthered his education and pursued a law degree from Harvard Law School. While pursuing this

degree, he became fixated on the science, history, and philosophy of law. Finally, in 1866,

Holmes completed his law degree and began practicing at a variety of law firms for fifteen years,

even appearing to lecture at his alma mater. Six years later, in 1872, Holmes married the love of

his life, Fanny Bowditch Dixwell. They would go on to have no children together. Perhaps the

14
Cohens v. Virginia. (n.d.). Oyez. Retrieved November 16, 2020, from
https://www.oyez.org/cases/1789-1850/19us264
15
Paul. Ibid. pp. 345–346

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largest contribution to jurisprudence Holmes provided was his writing of the book Common Law

in 1881. This book, which is still being printed today, remains controversial for his views of

popular philosophies of law. In January of 1882, Holmes was appointed to a seat at Harvard Law

School made specifically for him, Weld Professor of Law. In December of that same year,

Holmes was appointed to the Supreme Court of Massachusetts, the same court his grandfather

served on, and where he would sit for twenty years and serve as Chief Justice. In 1902, President

Theodore Roosevelt appointed Holmes to the United States Supreme Court.16 He sat on this court

for thirty years, until he was ninety-one years old. Holmes retired from the Supreme Court on

January 12, 1932.17 Three short years later, on March 6, 1935, just two days short of his

ninety-fourth birthday, Holmes died of Pneumonia in Washington D.C. Commonly referred to as

“The Great Dissenter,” he is renowned for his court opinions.

Justice Holmes was a strong believer in the legislature’s ability to make laws. He was

extremely interested in the philosophy of law and was a known critique of constantly sought

universalism.18 He disagreed with justices who saw themselves as philosophers and pursued the

interpretation of laws that are particular in the application rather than suited for general

application.19 Holmes believed the focus of the court should be less on the actual law and more

on the science of law and the impact decisions of the court would have in the future. Holmes

regarded laws as predictions to how courts would react to differing situations. Additionally, he

believed the only way to truly grow to understand and appreciate law was to have a deep

appreciation for the science behind the law. His view of jurisprudence was that it was the most

16
Fuller, E. (2020, April 20). Oliver Wendell Holmes, Jr. Retrieved November 17, 2020, from
https://www.britannica.com/biography/Oliver-Wendell-Holmes-Jr
17
Fuller, E. Ibid.
18
Patterson, C.Perry, "Jurisprudence of Oliver Wendell Holmes" (1947). Minnesota Law Review. 933.
https://scholarship.law.umn.edu/mlr/933
19
Harold J. Laski, The Political Philosophy of Mr. Justice Holmes, (1931) 40 Yale Law Journal, 683-695.

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simple and generalized form of law.20 Holmes tried to relate laws, whether common and civil or

constitutional, to the general truths and understandings of life. He was deeply skeptical of human

nature but balanced this with the stabilizing rule of law. It is written in Holmes’ book The

Common Law that, “The life of the law has not been logic; it has been experience.”21 He explains

that the only law is that which is upheld by the courts, where decisions were based on fact and

evidence, had a rationale for their decisions, and were based on a major premise. Common law is

set to evolve as society evolves, instead of remaining the same regardless of time and societal

changes.22 From these beliefs, Holmes was a founder of law and economics jurisprudence legal

positivism, impacting the way judges interpret cases to this day.

Justice Holmes delivered his first of seventy-two separate opinions when he delivered the

Court’s majority opinion in Otis v. Parker in 1903.23 In this case, Holmes wrote that the due

process of law was a fundamental protection for people against unreasonable legislation.

However, this protection was only limited to fundamental principles described in the common

law and did not protect many economic interests. This case marked the beginning of Holmes’

career in the Supreme Court. Justice Holmes also delivered the Court’s majority opinion in

Schenck v. United States in 1919.24 In this case, the court declared that the protection of speech

and expression are not absolute rights. He writes, “The question in every case is whether the

words used are used in such circumstances and are of such a nature as to create a clear and

present danger that they will bring about the substantive evils that Congress has a right to

prevent. It is a question of proximity and degree. When a nation is at war many things that might

20
Patterson, C.Perry Ibid.
21
Holmes, Oliver Wendell Jr. (1881). The Common Law. I. Boston: Little, Brown and Company.
22
Mark DeWolfe Howe, Justice Oliver Wendell Holmes: The Proving Years, 1870-1882 (1963).
23
Otis v. Parker (January 5, 1903), 2020 United States Findlaw.com 41.
24
TARR, G. A., & MUNOZ, V. P. (2019). Freedom of Speech, Press and Association. In 1058900931
807453765 R. A. ROSSUM (Author), AMERICAN CONSTITUTIONAL LAW, VOLUME II: The bill of rights and
subsequent amendments (pp. 202-203). New York, NY: ROUTLEDGE.

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be said in a time of peace are such a hindrance to its effort that their utterance will not be

endured so long as men fight, and that no court could regard them as protected by any

constitutional right.”25 This case distinguished the difference between the clear and present

danger test and the bad tendency test. The clear and present danger test explains that free speech

is not protected if there is evidence of imminent danger brought upon by the speech.26 This case

set a precedent for the interpretation of the First Amendment and is one of the most influential

cases heard during Holmes’ time on the court. It also created the notion that the clear and present

danger test was the only basis of constraint for the freedom of speech. Later that same year,

Holmes wrote in dissent in Abrams v. United States.27 In this case, Holmes wrote that the

freedom of thought in a democracy was critical to a democracy’s success and that this right was

protected by the Constitution. Many scholars accuse Holmes of inconsistencies with the opinions

in Schenck and Abrams, but Holmes explains and defends his opinions by holding true to what

he wrote in Schenck and explaining that the propaganda distributed in Abrams held no imminent

danger to democracy or the public.28 Next, in the 1920 case Silverthorne Lumber Co. v. United

States, Holmes wrote that evidence gained directly or indirectly from an illegal search was

admissible in court under the protection of the Fourth Amendment. 29 This ruling preserved the

Fourth Amendment and prohibited law enforcement from illegally searching for evidence.

Justice Marshall and Justice Holmes were very similar in style and belief. Justice Holmes

is known as a “titan of the early twentieth century,” had tremendous respect for the Chief Justice

who came before him. These two justices were more similar than any other highly influential

25
AMERICAN CONSTITUTIONAL LAW Ibid. pp. 203.
26
Sheldon M. Novick, The Unrevised Holmes and Freedom of Expression, 1991 Supreme Court Review p. 303
(1992)
27
AMERICAN CONSTITUTIONAL LAW. Ibid. pp. 183.
28
Thomas Healy, The Great Dissent: How Oliver Wendell Holmes Changed His Mind – and Changed the History of
Free Speech in America (2013)
29
AMERICAN CONSTITUTIONAL LAW. Ibid.

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judges. However, there are key differences between the two. For example, Marshall, an early

pioneer for the young nation, wrote his opinions more like commandments rather than

interpretations of the law.30 Marshall took gambles when writing his opinions and is often

accused of pursuing a hierarchical status for the Supreme Court. Holmes, who took much

influence from Marshall’s style of opinion and his interpretation of the function of the court,

believed that a continuation of the past is not what the Constitution stood for.31 Holmes used

more of a living constitution approach to interpretation that allowed for the vague definitions to

be expanded with the changing society. Holmes, while acknowledging the importance of

precedent, upheld the idea that the provisions of the Constitution are not absolute in their

interpretation and should be applied reasonably.32 Additionally, Marshall and Holmes disagreed

on several key issues. Marshall viewed individual rights as both unalienable and natural rights.

Holmes viewed individual rights as the “product of positive laws enacted by the state.”33 Holmes

did not believe that unalienable or natural rights existed because they were not practically

applicable to the interpretation of the law. Moreover, Marshall viewed the states as actors

responsible for both securing and upholding these natural and unalienable rights while Holmes

viewed the states as bodies that dictate rights based on majority interest.34 These are only some

of the several differences in fundamental beliefs that Justice Holmes and Justice Marshall shared

through their interpretation of the Constitution. Additionally, there were significant differences in

the jurisprudence between the two justices. Marshall is regarded as putting forth opinions that

were used for personal gains, such as his rulings in slave cases and land ownerships. Holmes

30
Turley, J. (2009, July). The Nine Greatest Supreme Court Justices. Retrieved November 16, 2020, from
https://www.historynet.com/the-nine-greatest-supreme-court-justices.htm
31
Harvard Law Review, Apr., 1916, Vol. 29, No. 6 (Apr., 1916), pp. 683-702
Published by: The Harvard Law Review Association
32
Harvard Law Review. Ibid.
33
G. Edward White, Chief Justice Marshall, Justice Holmes, and the Discourse of Constitutional Adjudication, 30
Wm. & Mary L. Rev. 135 (1988), https://scholarship.law.wm.edu/wmlr/vol30/iss1/4
34
G. Edward White. Ibid. pp. 135.

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jurisprudence was a strict criticism of universalism and hyper-specific wording of laws that

deteriorated general applicability. These fundamental differences are not advertised like the

successes and influential cases these justices were responsible for.

The United States Supreme Court has always been an influential figure that is shaped by

the opinions written by influential justices throughout history. Two of the most influential and

popular justices to ever sit on the Supreme Court, while not sitting at the same time,

complimented each other’s court decisions while also being vastly different in their

jurisprudence. Justice Marshall wrote the majority opinions for some of the most famous cases

that continue to influence the interpretation of the Constitution, such as Marbury v. Madison.

Holmes, who defined the difference between the clear and present danger test and the bad

tendency test, set an important precedent for the current understanding of the protections

included in the First Amendment. Both justices played and continue to play, a huge role in how

the Supreme Court functions today. The importance of the lives of these justices is extraordinary

and long-lasting and an understanding of the background and influence is critical when

understanding Constitutional law.

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 Citations

Cohens v. Virginia. (n.d.). Oyez. Retrieved November 16, 2020, from

https://www.oyez.org/cases/1789-1850/19us264

Finkelman, P. (2020, September 01). Master John Marshall and the Problem of Slavery.

Retrieved November 05, 2020, from

https://lawreviewblog.uchicago.edu/2020/08/31/marshall-slavery-pt1/

Fuller, E. (2020, April 20). Oliver Wendell Holmes, Jr. Retrieved November 17, 2020, from

https://www.britannica.com/biography/Oliver-Wendell-Holmes-Jr

G. Edward White, Chief Justice Marshall, Justice Holmes, and the Discourse of Constitutional

Adjudication, 30 Wm. & Mary L. Rev. 135 (1988),

https://scholarship.law.wm.edu/wmlr/vol30/iss1/4

Harold J. Laski, The Political Philosophy of Mr. Justice Holmes, (1931) 40 Yale Law Journal,

683-695.

Harvard Law Review, Apr., 1916, Vol. 29, No. 6 (Apr., 1916), pp. 683-702. Published by: The

Harvard Law Review Association

Holmes, Oliver Wendell Jr. (1881). The Common Law. I. Boston: Little, Brown and Company.

John Marshall. (n.d.). Oyez. Retrieved November 5, 2020, from

https://www.oyez.org/justices/john_marshall

John Marshall (1755 - 1835). (2012). Retrieved November 05, 2020, from

http://www.let.rug.nl/usa/biographies/john-marshall/

Marbury v. Madison. (n.d.). Oyez. Retrieved November 16, 2020, from

https://www.oyez.org/cases/1789-1850/5us137

Mark DeWolfe Howe, Justice Oliver Wendell Holmes: The Proving Years, 1870-1882 (1963).

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McCulloch v. Maryland. (n.d.). Oyez. Retrieved November 16, 2020, from

https://www.oyez.org/cases/1789-1850/17us316

Otis v. Parker (January 5, 1903), 2020 United States Findlaw.com 41.

Patterson, C.Perry, "Jurisprudence of Oliver Wendell Holmes" (1947). Minnesota Law Review.

933. https://scholarship.law.umn.edu/mlr/933

Paul, Joel Richard (2018). Without Precedent: Chief Justice John Marshall and His Times.

Riverhead Books.

Sheldon M. Novick, The Unrevised Holmes and Freedom of Expression, 1991 Supreme Court

Review p. 303 (1992)

Smentkowski, B. (2020, September 20). John Marshall. Retrieved November 05, 2020, from

https://www.britannica.com/biography/John-Marshall

TARR, G. A., & MUNOZ, V. P. (2019). Freedom of Speech, Press and Association. In

1058900931 807453765 R. A. ROSSUM (Author), AMERICAN CONSTITUTIONAL

LAW, VOLUME II: The bill of rights and subsequent amendments (pp. 202-203). New

York, NY: ROUTLEDGE.

Thomas Healy, The Great Dissent: How Oliver Wendell Holmes Changed His Mind – and

Changed the History of Free Speech in America (2013)

Turley, J. (2009, July). The Nine Greatest Supreme Court Justices. Retrieved November 16,

2020, from https://www.historynet.com/the-nine-greatest-supreme-court-justices.htm

Ware v. Hylton. (n.d.). Oyez. Retrieved November 5, 2020, from

https://www.oyez.org/cases/1789-1850/3us199

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