John Marshall’s Probity

by Matthew J. Franck

I am completely on board with Andrew Kloster (and Gerry Bradley) regarding the utter frivolity of the ethics complaint against Judge Edith Jones regarding some remarks she made recently at Penn about the death penalty.  But I feel compelled to defend another judge, long dead, whom Andrew disparages a bit, namely Chief Justice John Marshall.  Andrew writes:

[J]udges generally recuse themselves from cases where their impartiality might fairly be called into question, based not upon vague ideological or interpretive allegiances but upon hard, factual connection to the case at hand.

To be sure, judges have not always lived up to these high standards. Chief Justice Marshall authored the opinion in the landmark 1803 case of Marbury v. Madison, a case which dealt in part with the actions of the secretary of state under John Adams. Who was this secretary of state? Justice Marshall himself.

To say that Marbury “dealt in part with the actions of the secretary of state” is not precisely true, if by “dealt with” one means that the actions of the secretary formed any part of the case such that the facts regarding those actions were somehow in dispute between the parties, or their legal propriety was part of the controversy, or the person who undertook those actions had any stake in the outcome of Marbury’s case.  The answers to each of these questions were no, no, and no.  It is true that part of the reason Marbury did not have the commission he was suing to get is that the State Department headed by Marshall failed to deliver it before the end of the Adams administration, and the incoming Jefferson administration refused to do its legal duty of delivering it.  This was an unforeseen eventuality for which Marshall could hardly be blamed, and there was no substantive reason for him to recuse himself from the case.  No one on either side of the case thought Marshall had such a duty of recusal, and even Jefferson (who sharply criticized aspects of the Marbury opinion) never claimed as much.  Probably no one for over a century, in fact, ever made the slightest noise about this aspect of the case.

Though it is only the most trivial of a whole raft of wrongheaded complaints about Marbury, it is a commonplace criticism today of Marshall’s conduct that he would have had to recuse himself under today’s norms of judicial ethics (which nobody followed in 1803).  This would be true only on a highly sensitive reading of the “appearance of impropriety” standard, since there was nothing actually improper at all in his sitting on the case.  He had a “hard, factual connection to the case” only in the most innocent and disinterested way, unless one supposes that his presumptive politics–in common with every other Federalist–made him interested.

Still, one could fault Marshall–with a sigh and a shrug before moving on to more serious things–without coming within a country mile of faulting Judge Jones on the basis of the current complaint against her, which is stuff and nonsense all the way down, and right on the surface too.


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