MCLEAN, JOHN (1785–1861)

John McLean's appointment to the Supreme Court on March 6, 1829, was andrew jackson's first and the first from the old Northwest and Ohio, where McLean had grown to manhood. He studied law with Arthur St. Clair, Jr., was admitted to the bar in 1807, and maintained an active full-time practice in Lebanon, Ohio, until his 1812 election to Congress, where he served two terms. As a National Republican, he favored a protective tariff and a national bank. From 1816 to 1822 he served as judge of the Ohio Supreme Court where he gained a respect for the common law and developed a penchant for bending it "to the diversity of our circumstances," as he put it in one case. While serving on that court, McLean assiduously cultivated political favor, first with james monroe and john quincy adams, and, when the latter began to falter, with Jackson. His efforts paid off, first in 1822 with an appointment as Commissioner of the General Land Office, then in 1823 as Postmaster General, where his brilliant administrative abilities won him a national reputation. Adams reappointed him to head the Post Office Department, and Jackson was willing to do the same but nominated him to the Supreme Court when McLean indicated an unwillingness to make political removals.

McLean served as Associate Justice from 1829 to 1861, during a period of rapid transition in American law. At the outset the new Justice inclined toward Jacksonian states ' rights dogma, as in his dissent from contract clause orthodoxy in craig v. missouri (1830). More revealing yet was his practical-minded opinion for the majority in briscoe v. bank of the commonwealth of kentucky (1837), which held that the notes of the Commonwealth Bank were not bills of credit prohibited by Article I, section 10, even though the state owned the bank and the notes circulated as legal tender.

Despite his result-oriented approach in such cases as Briscoe and mayor of new york v. miln (1837) (where he supported state police power regulations against the charge that they were regulations of interstate commerce), McLean was not a Jacksonian judge. Indeed, he moved steadily toward a conservative nationalism similar to that of Justice joseph story, who became his closest friend on the Court. That McLean was solidly conservative on property rights and corporation questions is clear from his majority opinion in behalf of contractual sanctity in piqua branch bank v. knoop (1854). His nationalism was apparent in the cherokee indian cases (Worcester v. Georgia) in 1832 (where he joined john marshall against Georgia and Jackson), and in Holmes v. Jennison in 1840 (where he concurred in roger b. taney's dissent which asserted the supremacy of the federal government in the area of foreign policy). His "high-toned federalism " in commerce clause cases can be seen in the license cases (1847) and passenger cases (1849) and in his majority opinion in Pennsylvania v. Wheeling and Belmont Bridge Company (1852) which struck down a Virginia law authorizing a bridge that obstructed commerce over a navigable river. His dissent in cooley v. board of wardens of philadelphia (1851) reaffirmed the theory of his friend Story that the power to regulate foreign and interstate commerce belonged exclusively to Congress.

McLean disliked slavery and his opinions often revealed his free-soil sentiments; but he regularly conceded the legality of the institution. Thus his separate opinion in prigg v. pennsylvania (1842) upheld the right of northern states to protect free Negroes from unlawful rendition, but it also affirmed the power of Congress to require the states to return fugitives. Equivocation was unavoidable, too, in groves v. slaughter (1841) where in a separate opinion McLean argued that slavery was a local institution under state control and that the power of Congress to regulate interstate commerce did not prevent a state from regulating the importation of slaves. Free states presumably could prohibit slaves from being brought into their jurisdiction and liberate slaves once they arrived, but slave states could also regulate imports and exports of slaves for sale. On circuit McLean also ruled against freedom when he thought the law obliged him to do so.

McLean's proslavery decisions, which were condemned in the free-soil press, increasingly ran counter to his presidential plans which, to the distress of some of his colleagues, he relentlessly pursued from the bench. In dred scott v. sandford (1857) his political ambition, now focused on the Republican party, influenced his judicial behavior. In a separate dissent, he argued that Congress had the power to prohibit slavery in the territories, that Negroes could be citizens, and that Dred Scott was free by virtue of his residence in a free state and a free territory. McLean has been unfairly blamed for the Court's wide-ranging, politically explosive decision—a burden we now know should fall most heavily on Taney and james m. wayne. But there is no doubt that McLean's determination to dissent gave Taney and Wayne a good excuse to confront the whole problem of slavery in the territories.

McLean was not a legal scholar, he pioneered no new doctrine, and he did not greatly refine the process of constitutional adjustment to new circumstances that was the hallmark of the taney court. Greatness, however, is not only rare but relative, and on a Court burdened with mediocrity McLean looked good. His opinions were generally solid and persuasive (as in the great copyright case of Wheaton v. Peters in 1834) and he assuredly carried more than his share of the Court's heavy work load (with nearly 250 majority opinions and numerous dissents). He was one of the few Justices of the period who went to the considerable trouble of publishing his circuit opinions (in six volumes) and whose circuit opinions were worth publishing. It is true that his political ambition contributed to the politicization of the judicial process. Still, he cherished the Court as an institution and worked diligently through it to preserve the Union under the Constitution.

R. Kent Newmyer
(1986)

Bibliography

Gatell, Frank O. 1969 John McLean. In Leon Friedman and Fred L. Israel (eds.), The Justices of the United States Supreme Court, 1789–1969, Vol. 1, pages 535–567. New York: Chelsea House.

Weisenburger, Francis P. 1937 The Life of John McLean: A Politician on the United States Supreme Court. Columbus: Ohio State University Press.