ABSTRACT

Another way to test the imperial ambition thesis is to apply it to a highquality, contemporary work of legal history. That technique helps determine the proposition’s current influence, its ability to illuminate preexisting scholarship, and its capacity to coexist with the other work’s insights. G. Edward White’s The Marshall Court & Cultural Change 181518351 combined a thoughtful reading of the dynamic nature of American culture during the early 1800s with a careful analysis of that era’s legal beliefs to explore the Marshall Court’s internal culture, modes of reasoning, forms of rhetoric, and technical legal doctrine. White showed how the Marshall Court pursued its goal of “Union” by creating an institutional climate of judicial unanimity. Residing in the same boarding-house, the seven Justices casually resolved their differences until they could delegate the writing of their ultimate, usually unanimous decision to one Justice, normally Chief Justice John Marshall in important constitutional law cases. Marshall, in turn, appealed to the country’s sense of unity not just through his explicit rhetoric, but also through his jurisprudence, which assumed that as long as judges remained within their appropriate jurisdictional sphere, they could exercise any residual “discretion” without making law or engaging in politics. Under this theory, the Court had no “political discretion” at all; it merely fulfilled its duty to enforce the law. In other

words, a court acted legally, not politically, whenever it had appropriate legal jurisdiction over a case because that jurisdiction required the court to resolve the issue to the best of its abilities. Although Marshall’s opponents never accepted Marshall’s conception of his practice, he wrote splendid, sweeping opinions containing a body of law and modes of legal and political thought which have endured to the present day.