The License Cases

Roger Taney’s career in the U.S. Supreme Court began inauspiciously. A longtime ally of Andrew Jackson, he carried with him a somewhat tarnished reputation as a political hack. In the veto message he had drafted to accompany Jackson’s death blow to the national bank, Taney had written: “The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive.” Thus was the power of judicial review, the “invention” of Taney’s well-loved predecessor, John Marshall, dismissed out of hand.

It was not long, however, before Taney staked out his own judicial territory, developing a body of law that addressed the public welfare rather than private, individual rights. The three leading cases decided during Taney’s first term had all been argued while Marshall was still serving as chief justice, and all would have been decided differently if Marshall had lived. Taney made certain all three were reargued and decided during his first month on the high bench—and he ensured that all three decisions bore his stamp.

Charles River Bridge v. Warren Bridge was the most significant of these decisions but the License Cases were also noteworthy for generating nine opinions from six justices, a sign of things to come. In this case the justices were able to agree unanimously on an outcome, but the issue of human commerce prevented them from reaching agreement as to their reasons for doing so.