Supreme Court justices criticized. a lot of. Alas, they were unable to respond. At least in public. But this isn’t always the rule. Chief Justice Marshall, considered the most influential member of the court, wrote a series of articles in The New York Times defending his views. McCulloch v. Maryland. These articles were published in 1819 under the pseudonym “Friends of the Constitution.” (“Frequent Visitors” this day in supreme court history You’ll notice that I mark this post every July 15th.
Is Marshall’s article correct or does it violate judicial ethics? Of course, by modern standards, this behavior doesn’t work. Some judges do defend their views publicly, but they do so in their own names. (Whether a judge provides information to the media privately rather than for attribution is another matter). We know that critics are happy to judge long-ago judges according to contemporary rules. But was Marshall acting correctly? We have at least one indication that this behavior is correct.
exist Trump v. United StatesChief Justice Roberts thought it appropriate to quote from one of Marshall’s pseudonymous articles:
The case raises a question of lasting significance: When can a former president be prosecuted for official actions he took while in office? Our country has never needed answers before. But in addressing this issue today, unlike the political establishment and the public at large, we cannot focus solely, or even primarily, on the current emergency. In situations like this, focusing on “transient outcomes” could have profound consequences for the separation of powers and the future of our republic. youngstown (Jackson, J., agrees). We must be more far-sighted because “[t]The extraordinary circumstances of the present may make a measure more or less sensible, but they cannot render it more or less constitutional.April 5, in The Defense of John Marshall McCulloch v. Maryland.
So be it. Presidential immunity should be evaluated similarly to the constitutionality of the Bank of the United States.
This isn’t the first time Roberts has quoted this passage. He did this in (wait for it) NFIB v. Sebelius:
However, our obedience on policy issues cannot translate into abandonment on legal issues. “The powers of the Legislature are prescribed and limited; the Constitution is so written that these limitations cannot be mistaken or forgotten.” Marbury v. madison, 1 Cranch 137, 176 (1803). Therefore, our respect for Congress’s policy judgment must not extend to negating the Constitution’s carefully constructed limits on federal power. “Extraordinary circumstances of the present may render a measure more or less wise, but they cannot render it more or less consistent with the Constitution.” Chief Justice John Marshall, Friend of the Constitution No. 5, Alexandria Gazette, July 1819 5th, John Marshall defended McCulloch v. Maryland 190–191 (edited by G. Gunther, 1969). There can be no doubt that this Court has the duty to enforce limitations on federal power by striking down congressional violations of those limitations. Marbury v. madison, abovepp. 175–176.
In both cases, Roberts clung to the reputation of the great chief justice to provide cover for his decisions. While some justices still live in Justice Scalia’s shadow, Roberts will always live in Marshall’s.
