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A History of "Equal Justice"

Any adjuster who has been around litigation long enough soon realizes that justice is not always what one acquires in a trial.

By Ken Brownlee | Updated on November 26, 2008

Readers may recall the October column in which we discussed James F. Simon’s What Kind of Nation. That text was basically a historical review of Thomas Jefferson’s Republican battle with Federalists and against John Adams in the Presidential election of 1800. It explained how John Marshall, appointed by Adams as Chief Justice of the Supreme Court, eventually made that Court a co-equal with both the Congress and the Presidency. Despite much animosity between Jefferson and his Virginia cousin, John Marshall, it was Marshall who made the Court the supreme interpreter of the Constitution.

As this column was written shortly after the two political conventions — before we knew the November election outcome — it was evident that a major political issue of the 21st century will remain that of Constitutional interpretation and the role of courts. The common political theme, “We don’t want the Courts to legislate from the bench” dates back to the 18th century. In Simon’s book, the famous case of Marbury v. Madison ignited the Court’s (and Marshall’s) ire. Marshall should have disqualified himself from the case, yet it was he who wrote the decision — in fact, virtually all of the decisions — of the Court in his early years as Chief Justice.

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