Becoming Supreme | America in Pursuit

Summary

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Podcast Summary: Throughline – Becoming Supreme | America in Pursuit

Date: February 3, 2026
Hosts: Rund Abdelfattah and Ramtin Arablouei
Guests:

• Larry Kramer (Author, The People, Popular Constitutionalism and Judicial Review)
• Rachel Sheldon (History Professor, Penn State University)
  Episode Theme:
  A historical journey exploring how the U.S. Supreme Court transformed from the government’s weakest branch into the powerful arbiter of constitutional law, focusing on early American politics and the landmark Marbury v. Madison case.

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Main Theme Overview

This episode of America in Pursuit, a Throughline limited series, examines the origins and evolution of the Supreme Court's power in the U.S. government. Charting the period after the American Revolution, the episode unpacks how political conflicts and pivotal personalities – especially Chief Justice John Marshall and President Thomas Jefferson – shaped the Court, culminating in the foundational case Marbury v. Madison (1803). Through conversations with prominent historians, listeners are guided through how judicial review was established and how the Supreme Court planted the seeds for its future supremacy.

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Key Discussion Points & Insights

1. The Early Weakness of the Supreme Court

[00:18–02:35]

• After the Revolution, the creation of government was a confusing, contentious process.
• The Supreme Court was initially regarded as the “least dangerous and least powerful branch.”
  • Alexander Hamilton:

    "The judiciary, on the contrary, has no influence over either the sword or the purse... and can take no active resolution whatever." ([01:38])

• Early Supreme Court had little real authority, operating quite literally in the basement of the Capitol.
  • Rachel Sheldon:

    “That gives you a sense actually of the hierarchy of what people at the time thought about the Supreme Court.” ([02:28])

2. The Political Upheaval: Election of 1800

[04:12–06:43]

• The fiercely partisan 1800 election pitted two radically different visions:
  • Federalists (John Adams): Advocated for strong central government and stable institutions, like the courts.
  • Democratic-Republicans (Thomas Jefferson): Favored popular politics, states' rights, and government from the “bottom up.”
    • Thomas Jefferson (quoted):

      "A little rebellion now and then is a good thing and is necessary in the political world." ([05:44])

• The election resulted in a Democratic-Republican presidency and Congress, but the outgoing Federalists made a “midnight” judicial power grab, appointing federalist judges and a new Chief Justice.

3. John Marshall’s Vision for the Court

[06:51–08:47]

• John Marshall, a committed Federalist and Adams’ former Secretary of State, became Chief Justice.
  • He established new norms, such as wearing black robes and encouraging unanimous opinions to build institutional legitimacy.
  • Marshall aspired to a nationally authoritative Supreme Court, dreaming of “judicial supremacy.”
    • Rachel Sheldon:

      “Much more what we accept today, the idea that the Supreme Court is the final arbiter of constitutionality.” ([08:26])

4. Limitations of Judicial Power & the Concept of Judicial Review

[08:47–09:43]

• Judicial review: The idea that the Supreme Court could rule on the constitutionality of laws—but initially, this only applied to specific cases, not as a broad national rule.
  • Larry Kramer:

    “So judicial review is the notion that in a case before it, the court can say whether a statute that is raised in the case is in fact, constitutional and therefore enforceable.” ([09:02])

• The branches were co-equal; no single branch (including the Court) was “supreme.”

5. Personal Rivalry and the Seeds of Judicial Review

[10:02–11:14]

• The personal animosity between cousins Marshall and Jefferson added drama to political conflicts.
• The pivotal Marbury v. Madison case arose when Jefferson’s administration refused to recognize Adams’ late-term judicial appointments.
  • Rachel Sheldon:

    “He sees this as a situation in which he needs to preserve the power of the court… and try to grow it in opposition to the other branches of government.” ([11:03])

6. The Marbury v. Madison Moment

[11:19–12:57]

• Marshall needed to act strategically—he couldn’t enforce decisions directly since the Court had “no money, no army.”
  • Larry Kramer:

    “He knows if he actually tries to order Jefferson, Jefferson’s going to ignore him. So that will make the court look weak.” ([11:19])

• Instead, Marshall boldly established judicial review, declaring the relevant Congressional provision unconstitutional.
  • Thomas Jefferson (quoted):

    “It is emphatically the duty of the judicial department to say what the law is.” ([12:27])

  • Larry Kramer:

    “It becomes the first case in which the Supreme Court strikes down a federal law for violating the Constitution.” ([12:51])

7. The Long Game: Judicial Supremacy’s Seeds Are Planted

[13:08–14:05]

• Marbury did not instantly create judicial supremacy, but it solidified judicial review, giving the court a foothold for future expansion of its power.
  • Larry Kramer:

    “For somebody reading it at the time, it’s screamingly clear that he is not pushing the judicial supremacy position and is backing away from it, which of course he had to do because it would not have been acceptable at the time.” ([13:22])

• Marshall’s strategic—and often subtle—moves set up the trajectory for the Court’s eventual central power in the U.S. system.

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Notable Quotes & Moments with Timestamps

• “The judiciary, on the contrary, has no influence over either the sword or the purse…”
  — Alexander Hamilton ([01:38])
• “So the story goes that Marshall wore a black robe at his swearing in… There was a degree to which some people did not like to see supreme court justices in robes at all.”
  — Rachel Sheldon ([07:34])
• “A little rebellion now and then is a good thing and is necessary in the political world.”
  — Thomas Jefferson (quoted) ([05:44])
• “It is emphatically the duty of the judicial department to say what the law is.”
  — Thomas Jefferson (quoted, referencing Marshall’s language) ([12:27])
• “It becomes the first case in which the Supreme Court strikes down a federal law for violating the Constitution.”
  — Larry Kramer ([12:51])
• “For somebody reading it at the time, it’s screamingly clear that he is not pushing the judicial supremacy position and is backing away from it...”
  — Larry Kramer ([13:22])

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Important Segment Timestamps

• [00:18] – Setting the stakes: Birth of the American government
• [01:38] – Hamilton on the judiciary’s weakness
• [04:12] – The Election of 1800 and birth of political parties
• [06:51] – Adams’ “midnight judges” and Marshall’s appointment
• [08:24] – Marshall’s vision for the Court
• [09:02] – Judicial review, defined
• [10:10] – Marshall vs. Jefferson: The personal and political clash
• [11:54] – Marbury v. Madison: Judicial review established
• [13:08] – The lasting impact of Marbury and Marshall’s long strategy

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Conclusion & Next Steps

The episode closed by highlighting that while Marshall’s Marbury v. Madison decision didn’t instantly grant the Supreme Court the political dominance we see today, it provided critical precedent and institutional vision for judicial review. The struggle for supremacy continued, but the seeds were planted.

Next week’s teaser: The series continues with a spotlight on the First Amendment, free speech, and the Bill of Rights.

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This summary provides all key content for listeners keen to understand the Supreme Court’s ascension in the American system, the characters involved, and landmark moments that shaped judicial authority.

Transcript

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[Randa Al Fattah]

This is America in Pursuit, a limited run series from Throughline and npr. I'm Randa Al Fattah. Each Tuesday we bring you stories about life, liberty and the pursuit of happiness in america that began 250 years ago this year. So today we're going back to the moment when the American Revolution ends and the revolutionaries become statesmen and build a brand new government. So I just want to take a second and sit with the magnitude of that task. Imagine having to build a brand new nation, a democratic government and all its infrastructure from scratch. It was a herculean task. And like most things that entail a lot of people getting on the same page, it was full of fights and different visions for what the US Government would be like. And while a lot of what the framers came up with back in 1787 when they drafted the Constitution has stayed the same, like the concept of checks and balances between the different branches of the government, some of it looks vastly different. Take the judicial branch and the Supreme Court. Today, the Supreme Court has a lot of power dictating the laws of the land, but back at the turn of the 19th century, not so much. This is how Alexander Hamilton put it at the time.

[Alexander Hamilton (quoted)]

The judiciary, on the contrary, has no influence over either the sword or the purse, nor no direction either of the strength or of the wealth of the society, and can take no active resolution whatever.

[Randa Al Fattah]

In other words, without the sword or purse, the Supreme Court didn't have much power to enforce its decisions, making it the least dangerous and least powerful branch.

[Larry Kramer]

There was just no notion that it would be powerful. It wasn't yet in really anybody's imagination that they had to worry about.

[Randa Al Fattah]

That's Larry Kramer, author of the People, Popular Constitutionalism and Judicial Review.

[Rachel Sheldon]

The Supreme Court is going to be situated in the basement of the Capitol.

[Randa Al Fattah]

And that's Rachel Sheldon. She's a history professor at Penn State University.

[Rachel Sheldon]

And that gives you a sense actually of the hierarchy of what people at the time thought about the Supreme Court.

[Randa Al Fattah]

So how did the Supreme Court go from being the weakest branch of the government to to the powerful force it is today? Ramtin and I are bringing you that story of how an early political fight that pitted cousins and former allies against each other paved the way for the Supreme Court's supreme power. That's coming up after a Quick break.

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[Narrator/Storyteller]

We start our story with a contested presidential election. The election of 1800, one of the most partisan showdowns in our country's history.

[Larry Kramer]

It's the most divisive period in American history. Except for the Civil War and possibly.

[Narrator/Storyteller]

Today, the country was still pretty new. And everybody was trying to figure out how this democracy thing was gonna work. Things like trade, taxation, foreign relations, state versus federal power.

[Larry Kramer]

It's a period of a lot of turmoil, and there's essentially one huge division, you know, around which the political parties form.

[History Expert/Commentator]

The United States didn't start out with any political parties, no teams, but competing visions of government were pulling people apart, which led to the creation of these two parties.

[Narrator/Storyteller]

The Federalists, the party of incumbent President John Adams, and the Democratic Republicans.

[Rachel Sheldon]

Always confusing because it has both Democrat and Republican in it.

[Narrator/Storyteller]

The party of candidate Thomas Jefferson.

[History Expert/Commentator]

These parties had radically different outlooks on government.

[Larry Kramer]

Almost all of the debates are around what is it that we mean by, you know, they would have said republicanism. We would say democracy. That is to say, how popular is it supposed to be?

[History Expert/Commentator]

The Democratic Republicans were fans of popular politics.

[Larry Kramer]

This is our law.

[Rachel Sheldon]

Allow more power to grow up from the people themselves.

[Larry Kramer]

The final interpretation rests with us in the community.

[History Expert/Commentator]

Jefferson famously said, I hold it that.

[Thomas Jefferson (quoted)]

A little rebellion now and then is a good thing and is necessary in the political world. As storms in the physical.

[Larry Kramer]

The much more conservative Federalists push back in all sorts of ways, interpreting the Constitution in ways that would limit the capacity for.

[Narrator/Storyteller]

Popular politics to Federalists wanted more stability and they Thought in order to get.

[Rachel Sheldon]

That the federal government ought to have more power.

[Narrator/Storyteller]

They believed their still very young country needed a strong, centralized government with lasting institutions that would be around much longer than elected officials, Institutions like the courts.

[History Expert/Commentator]

The federalists were the party of power throughout the 1790s. But in the election of 1800, they faced defeat. Adams lost the race, and Jefferson became president.

[Rachel Sheldon]

So congress becomes democratic republican, and you have Jefferson in the white house.

[History Expert/Commentator]

But as outgoing president John Adams term was coming to an end, he and his party made one final power grab.

[Narrator/Storyteller]

Adams nominated a bunch of federalist judges at the very end of his term, so called midnight judges, as well as a new chief justice of the supreme court, John marshall.

[Rachel Sheldon]

He becomes sort of the foundational chief justice in terms of thinking about development of the court as an institution.

[Larry Kramer]

Marshall's a straight up federalist. He was secretary of state for John Adams, and then he made him the chief justice.

[Rachel Sheldon]

He's now in control of only one branch, with the federalists in charge of as chief justice.

[History Expert/Commentator]

John Marshall made a lot of symbolic changes to the supreme court.

[Rachel Sheldon]

So the story goes that Marshall wore a black robe at his swearing in, and that after that, this became common practice. There was a degree to which some people did not like to see supreme court justices in robes at all. Thinking of it as a royal court as opposed to sort of a democratic body. He wants all the justices to board together and to work together. He is a big proponent of having unanimous opinions. He thought that that had the tendency to make the court seem more important.

[History Expert/Commentator]

Marshall dreamt of a supreme court with national authority, A supreme court that gets to interpret the constitution, basically be the umpire for the entire country.

[Larry Kramer]

He believes in judicial supremacy, which is.

[Rachel Sheldon]

Much more what we accept today, the idea that the supreme court is the final arbiter of constitutionality.

[Narrator/Storyteller]

This idea, judicial supremacy, gives the supreme court final say over what's constitutional and what's not. And then everybody has to do what they the law of the land.

[History Expert/Commentator]

But again, this was a dream.

[Narrator/Storyteller]

It's just not how things worked then. But there was this other thing, a much more restricted power that was on the judicial review.

[Larry Kramer]

So judicial review is the notion that in a case before it, the court can say whether a statute that is raised in the case is in fact, constitutional and therefore enforceable.

[Narrator/Storyteller]

The court gets to decide what's constitutional in a case, but the ruling doesn't extend beyond that specific case.

[Randa Al Fattah]

So it's the law of the case.

[Narrator/Storyteller]

But not the law of the land.

[Larry Kramer]

The whole idea of judicial review without judicial supremacy is that you have three co equal branches, each with equal authority to interpret the Constitution.

[History Expert/Commentator]

Remember, that was how the federal government was designed to work. No one branch was supreme over the others, so they could all keep each other in check.

[Rachel Sheldon]

Marshall himself was interested in having more of that supreme power for the court, but he also understood it was not possible. He operates in this world in which he knows he's a minority, especially when the Democratic Republicans led by Thomas Jefferson and James Madison are in power.

[History Expert/Commentator]

Plus, there was some personal beef.

[Rachel Sheldon]

Marshall and Jefferson were cousins. They famously did not like each other.

[Narrator/Storyteller]

In 1803, the cousins, Chief justice John Marshall and president Thomas Jefferson, met in court, going head to head in a case called Marbury v. Madison.

[Rachel Sheldon]

Probably the most famous decision and sort of the beginning of most constitutional law experiences is Marbury versus Madison.

[Narrator/Storyteller]

We won't get into all the details of the case, but in short, the Jefferson administration was being sued for refusing to acknowledge some of those midnight judges that John Adams had appointed right before leaving office. William Marbury was one of them. He and the other appointees were able to take the case directly to the supreme Court thanks to a provision in a federal law that Congress had passed more than a decade earlier. And Marshall saw this as an opportunity.

[Rachel Sheldon]

He sees this as a situation in which he needs to preserve the power of the court that had existed and try to grow it in opposition to the other branches of government.

[Narrator/Storyteller]

Marshall wanted to flex his authority as the head of the judicial branch, but.

[Larry Kramer]

He knows if he actually tries to order Jefferson, Jefferson's going to ignore him. So that will make the court look weak.

[History Expert/Commentator]

Remember, the court didn't have the power to enforce its decisions. The no money, no army. It all depended on how much the other branches chose to respect its decisions.

[Narrator/Storyteller]

But there was one tool that Marshall could use. The power of judicial review. Up to this point, judicial review had only been applied sporadically. But in Marbury v. Madison, John Marshall formally established it.

[History Expert/Commentator]

It was a calculated trade off. Marshall was like, fine, we know we can't force these appointments through. But you know that provision in the federal law Congress passed, the one that allowed Marbury to bring the case directly to the supreme court? Well, we've decided that provision is unconstitutional. We, the supreme Court, have the power to interpret the Constitution in any case, state or federal, even if that means overriding an act of Congress. We have the power of judicial review.

[Thomas Jefferson (quoted)]

It is emphatically the duty of the judicial department to say what the law is.

[Larry Kramer]

It's one of those instances of playing politics. So he finds a way to say, you know, we don't have jurisdiction. I can't tell Jefferson what to do, but I'm going to tell you he violated the Constitution. This was wrong.

[Thomas Jefferson (quoted)]

The government of the United States has been emphatically termed a government of laws and not of men.

[Larry Kramer]

It becomes the first case in which the Supreme Court strikes down a federal law for violating the Constitution.

[Narrator/Storyteller]

In other words, this is the first time the Supreme Court flexed its power to say that what another branch of the federal government wanted to do was not constitutional.

[History Expert/Commentator]

It was the moment when judicial review, which had been around but heavily debated, solidified as part of the Court's power. This case would reverberate for centuries to come.

[Larry Kramer]

For somebody reading it at the time, it's screamingly clear that he is not pushing the judicial supremacy position and is backing away from it, which of course he had to do because it would not have been acceptable at the time.

[History Expert/Commentator]

So while this was an important win for the Court, it was a long way from Marshall's ultimate goal, judicial supremacy. The Court with final say. He was a visionary, though, and he knew he had to play the long game. During his three decades on the bench, he helped plant the seed of what the Court could be and the amount of power the Supreme Court could have in the future.

[Randa Al Fattah]

That's it for this week's episode of America in Pursuit America, a special series from Throughline and npr. If you want to learn more about the Supreme Court's ascension to power, make sure to check out Throughline's full length episode called the Supreme Court. Or listen to the Shadow Docket, which goes more in depth about the ability for the Court to issue quick decisions. And make sure to join us next week for the first edit or correction, if you will, to the Constitution.

[Rachel Sheldon]

The bottom line is free speech affects everyone. It's obviously an incredibly important value for Americans.

[Randa Al Fattah]

The story of the First Amendment and the beginning of the Bill of Rights. That's next time. Don't miss it. This episode was produced by Kiana Mouraddam and edited by Christina Kim with help from the Throughline production team. Music as always by Ramtin Adabloui and his band Drop Electric. Special thanks to Julie Kane, Irene Noguchi, Beth Donovan, Casey minor and Lindsay McKenna. We're your hosts, Rund Abdelfattah and Ramtin Arablouei.

[History Expert/Commentator]

Thank you for listening.

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