Supreme Court justices get criticized. They get criticized a lot. Unfortunately, they can’t respond to it. At least publicly. But this wasn’t always the case. Justice Marshall, hailed as the Supreme Court’s most influential justice, wrote a series of essays defending his opinions. McCulloch v. MarylandThese essays were published in 1819 under the title “Friends of the Constitution( Today in the History of the Supreme Court Please note that I flag this essay on July 15th each year.
Was Marshall’s essay appropriate, or did it violate judicial ethics? Surely, by modern standards, such behavior would be unacceptable. Some judges defend their opinions publicly, but they do so in their own names. (Whether judges give information privately to the press, attributing it to their sources, is another matter.) And I know that critics are content to evaluate past judges by modern rules. But was Marshall’s behavior appropriate at the time? There is at least one piece of evidence that suggests it was.
in Trump vs. the United StatesChief Justice Roberts saw fit to quote one of Marshall’s anonymous essays:
This case raises a question of enduring importance: When can a former president be prosecuted for official acts he took while in office? Our nation has never needed that answer. But in addressing the question today, unlike our political branches and the public at large, we cannot afford to fixate solely or primarily on the emergency of the present. In a case like this, a focus on “temporary results” could have significant implications for the separation of powers and our nation’s future. Youngstown (Justice Jackson, concurring). Our perspective must be more forward-looking.[t]The particular circumstances of the time may make a measure more or less wise, but not more or less constitutional.” Chief Justice John Marshall, Friend of the Constitution No. 5, Alexandria Gazette, July 5, 1819, John Marshall’s Affirmation of the Constitution McCulloch v. Maryland.
Yes. Presidential immunity should be evaluated with the same standards as the constitutionality of the Bank of the United States.
This isn’t the first time Roberts has quoted this passage. He (hold on) NFIB v. Sebelius:
Our deference to policy, however, does not translate into a waiver of law: “The powers of the legislature are defined and limited; and the Constitution is so enacted that these limitations will not be misunderstood or forgotten.” Marbury v. Madison1 Cranch 137, 176 (1803). Thus, our respect for the policy judgment of Congress can never extend so far as to negate the Constitution’s carefully constructed constraints on Federal power. “The particular circumstances of a given time may render a measure more or less wise, but not more or less constitutional.” Chief Justice John Marshall, Defender of the Constitution No. 5, Alexandria Gazette, July 5, 1819, from John Marshall’s Affirmation of the Constitution McCulloch v. Maryland 190–191 (ed. G. Günther, 1969). And there can be no question that it is the responsibility of this Court to enforce the limits of Federal power by invalidating acts of Congress which infringe upon those limits. Marbury v. Madison, Abovepp. 175-176.
In both cases, Roberts tried to justify his decisions by relying on the reputation of the great Chief Justice, and while some justices still live in the shadow of Justice Scalia, Roberts will always remain in the shadow of Justice Marshall.
