Collins and Woolhandler on Judical Federalism under Marshall and Taney

Michael G. Collins and Ann Woolhandler, University of Virginia School of Law have posted Judicial Federalism under Marshall and Taney, which is to appear in 2017 Supreme Court Review:

The Supreme Court during the Chief Justiceship of John Marshall is associated with endorsement of broad regulatory powers in Congress and broad federal question jurisdiction in the federal courts under Article III. By contrast, the successor Court under Chief Justice Roger Taney remains tied to its determination in Dred Scott that Congress lacked powers to enact the Missouri Compromise prohibiting slavery in certain of the territories, and to Taney’s opinion that descendants of African slaves could never be citizens who could invoke the federal courts’ diversity of citizenship jurisdiction. This article addresses the ways in which the Taney Court nevertheless outdid the Marshall Court in terms of a nationalist approach to judicial federalism.

Roger Taney (NYPL)

The Marshall Court faced a political environment hostile to the Federalist-dominated federal courts, and in reaction repeatedly expressed respect for congressional power over its jurisdiction, and tied its expansions of federal judicial power closely to expansive views of congressional power. The Taney Court, by contrast, did not face similar political-branch threats. Its jurisdictional opinions were less deferential to Congress than Marshall Court opinions. And while the Marshall Court tied its expansions of judicial power to broad views of congressional power, the Taney Court’s expansions of judicial power operated to limit any concomitant expansion of congressional power.

The Taney Court accomplished this by expanding diversity of citizenship jurisdiction beyond what the Marshall Court had done and by explicitly adopting the use of a uniform judge-made general common law in diversity cases. It also expanded admiralty jurisdiction by an interpretation of Article III’s admiralty provision that was contrary to Marshall Court precedent, and rejected a proffered Commerce Clause justification that would have entailed broader congressional powers. And when it channeled certain matters away from the state courts to the federal courts based on exclusive federal powers, the Taney Court relied on implied federal powers whose enforcement could be limited by notions of necessity, as distinguished from the Marshall Court’s looser version of “necessary and proper.”