Kevin Walsh

February 4, 2025 marks the 124th anniversary of “John Marshall Day.” This was a nationwide celebration on February 4, 1901 of the 100th anniversary of the February 4, 1801 accession of John Marshall to the bench as Chief Justice of the United States. 

February 4 is an auspicious day to launch Ordinatus, as John Marshall is one of the chief exemplars of the judicial virtues. The judiciary does not typically get the same attention as the political branches, which is all to the good for American self-government. As Chief Justice Roberts once pointed out, “[n]obody ever went to a ball game to see the umpire.” 

Lawyers, law students, law professors, judges, and other juristically inclined individuals are not the general public. We have particular roles to play, and in doing so, we ought to pay close attention to the lawyerly and judicial virtues. 

There is rich material to mine in the life, character, and services of John Marshall. Consider, for instance, how the time of those who served in the Continental Army at Valley Forge (e.g. Washington, Hamilton, and Marshall) shaped their views of the Union, in contrast with those who were not there (e.g. Jefferson and Madison). In any event, here’s a little character sketch of John Marshall from his bunkmate at Valley Forge: 

“Nothing discouraged, nothing disturbed [Marshall].… If he only had bread to eat, it was just as well; if only meat, it made no difference. . . . John Marshall was the best tempered man I ever knew. . . . He was an excellent companion and idolized by the soldiers and his brother officers, whose gloomy hours were enlivened by his inexhaustible fund of anecdote.” 

(For sources, see Kevin C. Walsh, Glimpses of Marshall in the Military, 50 U. Rich. L. Rev. 69, 73 n.12 (2016), available at Columbus Law School Scholarship Repository.)

Happy John Marshall Day to all who celebrate! 

One of the best resources for studying various Founders and their times through primary sources is Founders Online. One unfortunate choice made in deciding which Founder to feature for his connection with the federal judiciary was to include the Papers of John Jay, rather than the Papers of John Marshall (which remain behind a paywall at present, though we are hopeful that will change soon). 

Jay was the first Chief Justice, serving from 1789 until he resigned in 1795 to take a more prestigious job as Governor of New York. Jay’s replacement was John Rutledge, whom George Washington appointed with a recess appointment but failed to receive Senate confirmation. A leading reason for opposition to Rutledge was his support for an unpopular treaty negotiated by John Jay. Rutledge’s successor was Oliver Ellsworth, who served until 1801. Ellsworth’s resignation left the lame-duck President John Adams with few options, so he turned back to John Jay, mailing him a commission to be the Chief Justice. In a famous letter refusing and returning the commission, Jay wrote to Adams that he had left the Bench in 1795

“perfectly convinced that under a System so defective, it would not obtain the Energy Weight and Dignity which are essential to its affording due support to the national Government.; nor acquire the public Confidence and Respect, which, as the last Resort of the Justice of the nation, it should possess.”

The same day Jay sent a less-well-known letter to the man who would be his successor, John Marshall, who was then serving as Secretary of State. It was under Marshall’s long leadership as Chief Justice (1801-1835) that the Supreme Court took on the “Energy, Weight, and Dignity” that Jay despaired of the Court achieving. Perhaps this is why people often mistakenly think Marshall was the first Chief Justice. Though he wasn’t the first, he was the best, and it would have been more fitting for the judicial branch to have been represented by John Marshall rather than John Jay at Founders Online.