John Marshall is invoked across multiple episodes of the Bob Zadek Show as a central figure in debates over the power of the Supreme Court. He appears not through dedicated biographical treatment but as a recurring reference in discussions of judicial review, court packing, and judicial tenure. The excerpts place him at the center of Marbury v. Madison, the 1803 case that established the Supreme Court’s power to determine the constitutionality of the other branches’ conduct Debunking Inequality Myths with Ed Conard (2017).
Marbury v. Madison and the origins of judicial review
Bob Zadek introduced Marbury v. Madison as a case involving a battle among Thomas Jefferson, John Adams, James Madison, and John Marshall, and described it as establishing the right of the Supreme Court to determine whether the conduct of the other two branches was constitutional Debunking Inequality Myths with Ed Conard (2017). He noted that the case was decided on February 24, 1803, and recommended the National Constitution Center’s online account of it.
The question of whether Marshall invented judicial review or merely articulated a pre-existing principle became a point of contention in a later episode. Bob Zadek asked Keith Whittington whether it was fair to say the court created the power for itself. Whittington responded that the narrative that judges made the power up out of thin air emerged from the populist and progressive era of the late 19th and early 20th century, and that while the Constitution does not explicitly grant the power, it was widely anticipated by those drafting the Constitution in 1787 and by state constitutions before that. He stated that he did not think it was the case that judges, including Chief Justice John Marshall, just made it up, but that they needed to make clear where the power came from and what the practice would look like Reviewing Judicial Review (2020).
Randy Barnett made a similar argument in a later episode, stating that the Supreme Court’s power of judgment—the power to say whether something the legislature or executive is doing is constitutional or unconstitutional—is the same as it has always been, and that it is the original meaning of the judicial power and not something invented by John Marshall in Marbury v. Madison Amy Coney Barrett on Trial (2020). Barnett argued that what has changed is the criteria the court uses to decide constitutional questions, not the power itself.
Court packing and the election of 1800
Marshall’s appointment as Chief Justice figured in a discussion of court packing between Bob Zadek and Josh Blackman. Zadek raised the election of 1800 and John Adams’s lame-duck appointments, asking whether Adams’s packing of the federal judiciary qualified as court packing. Blackman agreed, describing the election of 1800 as one of the first major contested presidential elections, in which Jefferson won the Electoral College and Adams lost reelection. On his way out, Adams made a number of what were called lame duck appointments, filling the courts, both the lower courts and the US Supreme Court, with justices. Blackman identified Adams’s most famous appointment as John Marshall, who was confirmed shortly before Jefferson took office and who would serve more than 30 years on the court Eight-Dimensional Chess (2020).
Zadek used the episode to argue that court packing has a long history, noting that Adams had no difficulty packing the Supreme Court and that the founders saw nothing especially unconstitutional about the technique. He described it as built into the constitutional structure, at least by omission, because nothing changed that Eight-Dimensional Chess (2020).
Judicial tenure and the case for term limits
Marshall’s long tenure on the court became a point of reference in a discussion of Supreme Court reform with Caroline Fredrickson. Fredrickson, discussing her work on President Biden’s commission to review the Supreme Court, advocated for 18-year term limits to replace life tenure for federal judges. She noted that Steven Calabresi, a founder of the Federalist Society, supports 18-year terms, as does she, and argued that it is only in the late 20th century that Supreme Court justices started serving excessively long periods. She stated that the idea that somebody can sit on the court for forty years is inconsistent with constitutional governance and democracy Caroline Fredrickson on the Progressive Constitution (2021).
Bob Zadek responded by noting that John Marshall was pretty productive after his eighteenth year on the Supreme Court, that he was very influential, and that most people would think in a positive way, and that we would be deprived of that. He acknowledged that this was not an argument against term limits Caroline Fredrickson on the Progressive Constitution (2021).
Across episodes
The excerpts show a consistent treatment of Marshall across episodes rather than a development in the argument. In the 2017 episode, Zadek presents Marbury v. Madison as establishing the Supreme Court’s power of judicial review. In the 2020 episode with Keith Whittington, the question of whether Marshall invented that power is debated, with Whittington rejecting the idea that Marshall simply made it up. In the September 2020 episode with Josh Blackman, Marshall’s appointment is discussed in the context of Adams’s court packing. In the October 2020 episode with Randy Barnett, Barnett again rejects the idea that Marshall invented judicial review. In the November 2021 episode with Caroline Fredrickson, Marshall’s long tenure is cited by Zadek as an argument against term limits. The same question—whether Marshall’s exercise of judicial power was legitimate or invented—is argued in the 2020 episodes, with Whittington and Barnett both rejecting the invention narrative, while the 2021 episode shifts to the question of tenure rather than the origin of the power.
What the sources do not cover
The excerpts do not provide Marshall’s birth or death dates, his place of birth, his education, his military service, or his career before joining the Supreme Court. They do not describe the facts of Marbury v. Madison beyond identifying the parties involved and the principle established. They do not state which amendment or constitutional provision the case turned on, nor do they quote Marshall’s opinion. They do not cover his role in other major cases, his relationship with Jefferson beyond the election of 1800, or his influence on constitutional doctrine beyond judicial review.