One of a Kind: The 2005 John Marshall Commemorative Silver Dollar

by Unfrozen Caveman Law Writer

It seems hard to believe that, in the entirety of American history, only one Supreme Court justice (who wasn’t previously President of the United States) has ever been on a government-issued coin.

Given his outsized judicial legacy, it’s only appropriate that said justice was John Marshall.

The Founding Father and Revolutionary War veteran from Virginia who had served as a member of the U.S. House of Representatives and Secretary of State, Marshall already had a distinguished career prior to becoming Chief Justice in 1801. Arguably, being Chief Justice was a step down for him at the time. The powers of the judiciary branch were not well-established, and the Supreme Court’s responsibilities were nothing like they are today. The Court rarely heard cases; Justices spent most of their time “riding circuit” – a long, grueling and sometimes dangerous process that most of them hated. In fact, the Court didn’t even have it’s own building in Washington, D.C. – instead, they met in various rooms in the U.S. Capitol building until 1935.

Marshall wasn’t even the first choice for the seat he would hold for 34 years (longer than any other Chief Justice). Outgoing President John Adams had re-appointed original Chief Justice John Jay to his old seat and the lame-duck Federalist-controlled Senate quickly confirmed him. Jay, however, declined, saying that the Supreme Court lacked “energy, weight and dignity.”

That would change under Marshall. During his tenure, he almost singlehandedly established the judiciary as a co-equal branch of government while taking an expansive view of federal power. The Marshall Court handed down several landmark cases that continue to guide courts today. In Marbury v. Madison, Marshall (writing for Court), spelled out the power of judicial review, which allows courts to strike down laws interpreted to be in conflict with the Constitution. “It is emphatically the province and duty of the Judicial Department to say what the law is,” wrote Marshall in one of the most famous and oft-quoted lines in American jurisprudence.

Other important opinions he wrote include McCulloch v. Maryland, a case that helped establish the supremacy of the federal government over the states and one that my Con Law professor argued was more consequential than Marbury; Gibbons v. Ogden, a decision that, more or less, continues to influence how courts interpret the Commerce Clause; and Fletcher v. Peck, a case striking down a state law for violating the Contract Clause. There were plenty of other important decisions – including Worcester v. Georgia, a case that, supposedly, caused then-President Andrew Jackson to say “John Marshall has made his decision, now let him enforce it!”

Indeed, most legal scholars and historians argue that Marshall was, by far, the most important jurist in American history – one that, essentially, made the Supreme Court into the powerful and prestigious institution it is today. “If American law were to be represented by a single figure, skeptic and worshipper alike would agree without dispute that the figure could be but one alone, and that one is John Marshall,” Justice Oliver Wendell Holmes famously said.

As such, it made perfect sense to commemorate him with a coin. The authorizing bill passed Congress easily in 2004 with heavy bipartisan support and very little debate. Then-Chief Justice William Rehnquist, who held nearly diametrically opposing views on federalism, commerce clause interpretation and states’ rights, even made a rare appearance on Capitol Hill to go to bat for the coin, extolling Marshall’s virtues before the House Financial Services Subcommittee on Domestic and International Monetary Policy.

Today, due in large part to John Marshall, the federal judiciary, headed by the Supreme Court, is regarded as a co-equal branch of the federal government, along with the legislative and the executive branches. But in the first decade of the new republic, from 1790 to 1800, the judiciary was very much a junior partner.

Chief Justice William Rehnquist, testimony before the House Financial Services Subcommittee on Domestic and International Monetary Policy, March 10, 2004.

Released in 2005 to commemorate the 250th anniversary of his birth, the silver dollar features a bust of Marshall designed by John Mercanti, an engraver at the U.S. Mint who would be promoted to Chief Engraver the following year. Another Mint artist, Donna Weaver, designed the reverse, which was a recreation of the old Supreme Court chambers in the Capitol. The reverse design of the old Court chambers is a bit confusing and doesn’t lend itself well to the coin – it takes more than a cursory glance to determine what it really is and how it relates to Marshall. It’s too bad that the marble palace that we know and associate with the Court wasn’t built until a century after Marshall’s death, since it would have made a much nicer and less confusing reverse design, but I guess you have to make due with what you’re given. Still, they could have put something else on the reverse – maybe a statute of Lady Justice or something.

The coin wasn’t a huge success – selling just over half of the authorized 400,000 to benefit the Supreme Court Historical Society. Perhaps that’s why there haven’t been any Supreme Court Justices since who have been honored with a coin.

He also had paper currency. (Image via Wikimedia Commons)

Or maybe it’s because Supreme Court Justices don’t make for very compelling subjects. Most Americans can’t even name a single current Justice, let alone all nine, and most Justices throughout history have been obscure footnotes whose accomplishments are known only to legal scholars. The ones who have managed to make names for themselves typically are controversial, polarizing, or even scandalous. And in this day of extreme political division and fragmentation, Supreme Court Justices only reinforce those battle lines due to their primary duty of voting on important matters that often engender passionate feelings on all sides.

In fact, most well-known Supreme Court Justices have one or more well-known things in their biographies that would anger large portions of the country. If we just look at our Chief Justices, we see this in spades:

  • John Jay (1789-1795). He didn’t do much as Chief Justice – his court only heard 4 cases. He’s far more renowned (or infamous – depending on your point of view) for Jay’s Treaty, his deal with Great Britain that was highly controversial back home.
  • John Rutledge (1795). Given a recess appointment as Chief Justice, Rutledge, who had been one of the original five Associate Justices on the Court before resigning, was rejected by the Senate, in part, due to his opposition to Jay’s Treaty. As such, he only served as Chief for a few months. Rutledge was the first, but hardly the last nominee to be rejected by the Senate.
  • Oliver Ellsworth (1796-1800). Like Jay, he’s probably better known for negotiating an unpopular treaty with a foreign power, this time Napoleon’s France (separation of powers was more theoretical back then). He was also instrumental in proposing the Connecticut Compromise at the Constitutional Convention, which gave us our legislative branch as we know it. So for those of you who hate Congress, you know who to blame.
  • Roger Taney (1836-1864). Marshall’s successor and the second-longest serving Chief Justice went down in infamy after writing the majority opinion in Dred Scott v. Sandford, a case so divisive and controversial it killed everything it touched, including the Court’s reputation, Taney’s legacy and, arguably, the Union itself.
  • Salmon Chase (1864-1873). The only other non-Presidential Justice on any form of U.S. currency (Chase is on the now-defunct $10,000 bill, as well as other earlier forms of paper money, primarily due to his accomplishments as a former Secretary of the Treasury), Chase pulled one of the greatest political flip-flops in Court history. As Chief Justice, he was required to preside over Jefferson Davis’s treason trial after the Civil War. Not wanting to jeopardize his Presidential aspirations in 1868 by ruling on the legality of Confederate secession, Chase “suggested” that Davis’s lawyer move for a dismissal on the grounds that the 14th Amendment prohibited additional punishment for Confederate officials beyond what was contained in the text of the Amendment (a prohibition on them holding office). Davis’s lawyer took the hint and made the motion, which was then granted by Chase. The following year, after being passed over for the Democratic Presidential nomination, Chase took the opportunity to write what he really thought about secession in Texas v. White, holding that states were not allowed to secede. “[T]he Constitution was ordained ‘to form a more perfect Union,'” he wrote. “It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not?”
  • Morrison Waite (1874-1888). He helped get the ball rolling on the corporate personhood debate with nothing more than a handwave: “The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does,” he said prior to oral arguments in Santa Clara County v. Southern Pacific Railroad Co. At the same time, his court construed the 14th Amendment very narrowly when it came to protecting newly-freed blacks in the South during Reconstruction (U.S. v. Cruikshank, The Civil Rights Cases, U.S. v. Harris a/k/a “The Ku Klux Klan Case”) setting the stage for the rise of Jim Crow.
  • Melville Fuller (1888-1910). The Mark Twain lookalike was in the majority in Plessy v. Ferguson, the decision that gave us “separate but equal.” Also gave us Lochner v. New York, ushering in an era where government regulations of business were routinely struck down. He also found income tax laws unconstitutional – a move that probably would have made him a hero to the Tea Partiers of today.
  • Edward Douglass White (1910-1921). A former Confederate soldier who was rumored to be a member of the Ku Klux Klan, White was also in the majority in Plessy. On the other hand, he wrote for a unanimous a Court striking down grandfather clauses in Guinn v. United States.
  • William Howard Taft (1921-1930). Okay. Taft is on the Presidential $1 coin series. Since he was honored for his time in the White House and not as Chief Justice, I think it still counts that Marshall is the only Supreme Court Justice to be on a coin. Either way, Taft was a progressive President who became a conservative Chief Justice. Taft’s court ruled on many important issues – primarily upholding the status quo, especially when it came to maintaining the Lochner era. On the other hand, Taft and the conservative majority also got the ball rolling on incorporating the Bill of Rights to the states in Gitlow v. New York (a case my high school civics teacher argued was the most important Supreme Court case) – something that they perhaps would have regretted once the more liberal Warren Court started applying most of the other sections of the Bill of Rights to the states as a means of expanding individual rights.
  • Charles Evans Hughes (1930-1941). One of the most respected Chief Justices in history, Hughes, nevertheless, confounded both conservatives and liberals. As one of two swing votes on a bitterly divided court, Hughes would occasionally join the Four Horsemen in striking down a New Deal initiative or the Three Musketeers in supporting one.
  • Harlan Fiske Stone (1941-1946). Stone was in the majority in Korematsu v. U.S., a case upholding Japanese internment during World War II that was one of the most infamous and notorious Supreme Court decisions until it was, only recently, overturned. Meanwhile, his famous “footnote 4” in U.S. v. Carolene Products set the stage for decades of jurisprudence in which economic regulations are subjected to very little judicial scrutiny, while laws affecting women and minorities are looked at more critically.
  • Frederick Vinson (1946-1953). Dissented from Youngstown Sheet & Tube Co. v. Sawyer, which invalidated Harry Truman’s seizure of private steel mills. His court also ruled in favor of desegregation in a number of education cases that set the grounds for Brown v. Board of Education following Vinson’s death.
  • Earl Warren (1953-1969). “Warren and his fellow justices were no strangers to controversy. ‘Impeach Earl Warren’ billboards and bumper stickers were common throughout the South, where segregated public schools became illegal thanks to Brown v. Board of Education and other rulings. Warren and his court earned the ire of conservatives everywhere by taking a broad view of free speech, reproductive rights and due process while vigilantly maintaining a clear separation of church and state. But it was the Warren Court’s decisions in favor of expanded rights for the accused that angered large swaths of the country. Richard Nixon seemed to spend more time during the 1968 presidential campaign attacking Warren and his pro-defendant court than going after his opponents in the race.”
  • Warren Burger (1969-1986). Voted in the majority in Roe v. Wade. Once said this about the Second Amendment: “The Gun Lobby’s interpretation of the Second Amendment is one of the greatest pieces of fraud, I repeat the word fraud, on the American People by special interest groups that I have ever seen in my lifetime. The real purpose of the Second Amendment was to ensure that state armies – the militia – would be maintained for the defense of the state. The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires.”
  • William Rehnquist (1986-2005). There were so many votes that infuriated liberals. He was in the majority in Bowers v. Hardwick, dissented in Texas v. Johnson, and consistently voted against abortion rights, starting with his dissent in Roe. And of course, there’s Bush v. Gore. Meanwhile, conservatives weren’t crazy about him either, seeing him as less ideologically pure as Antonin Scalia and Clarence Thomas, while criticizing him for being on the losing end in many of the important cases of his Chief Justiceship.
  • John Roberts (2005-present). Liberals hate him for a variety of reasons, but particularly for D.C. v. Heller and Citizens United v. Federal Electoral Commission. Conservatives hate him for saving Obamacare.

Indeed, no other Justice has come close to getting a commemorative coin. Since the John Marshall coin hit the market, there have been a few proposed bills to honor another Supreme Court Justice named “Marshall” — in this case, Thurgood. Yet, those bills have consistently failed to move forward, and any momentum for the coin seems to be have been lost (there haven’t been any bills filed on the issue in over a decade). There haven’t been any proposals to honor Sandra Day O’Connor for breaking the gender barrier, however she’s still alive and putting living people on coins is, mostly, a no-no. Maybe there will be a flood of bills coming honoring her, Thurgood Marshall and other firsts in Court history. Like the first Jewish Justice. Or the first Hispanic Justice. Or the first Justice who once played for the NFL franchise now known as the Pittsburgh Steelers.

Or the first Justice to have become a bona fide pop culture icon. Given how everything else seems to have Ruth Bader Ginsburg’s image on it, why not a commemorative coin?