Establishing Judicial Review? Schooner Peggy and the Early Marshall Court

Abstract

United States vs. Schooner Peggy supports claims that the Marshall Court twisted law to reach rulings that would not antagonize political adversaries. Federalist justices at the turn of the nineteenth century followed the election returns. Ellsworth Court justices consistently reached conclusions congenial to Federalist party interests; the Marshall Court in its first years always reached the result favored by the Jefferson administration. Schooner Peggy, Marbury, and other early Court rulings belie the common assertion that the justices became independent of the executive branch during the Jefferson adminis tration. Both Schooner Peggy and Marbury seek to preserve judicial power by asserting its existence, thus establishing precedents for future use, while not actually attempting to challenge executive or legislative authority in any con troversial way. The real test for a more independent judicial power would come later, when the justices began ordering some elected officials to take actions they did not want to take.

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