The Spring issue of the indispensable Claremont Review of Books is on its way to subscribers’ mailboxes, and is already online for subscribers (you do subscribe, don’t you?). The editors have kindly made accessible to all my review of a fine new book by legal historian R. Kent Newmyer, The Treason Trial of Aaron Burr. A sample of my review:
We may forget that, in [Marshall's] day, a Supreme Court Justice was also a trial judge, “riding circuit” for much of the year, sitting alongside federal district judges to try cases in the circuit courts away from the capital. For the most part, only the closest students of the early Supreme Court have paid much attention to the Justices’ trial-court activities. And admittedly, it is a rare case at the trial level that gives rise to opinions of historic interest. But as R. Kent Newmyer, a professor at the University of Connecticut Law School and one of the best historians of the early republic, shows in his new book, United States v. Burr is that rare case.
Of all the cases on which Marshall sat in his 34 years on the bench, the 1807 treason trial of Aaron Burr in Richmond, Virginia, over which he presided with district judge Cyrus Griffin, consumed more of his time and energy than any other, and prompted more legal opinion writing than any other (some 20 items in the Marshall Papers), including two of his longest, most significant constitutional opinions. In the early 19th century, the Supreme Court convened on the first Monday in February and rarely went far into March before it had disposed of all the cases on its annual docket. (Those were the days!) But in the Richmond circuit court, Marshall was consumed with the Burr case off and on from the end of March to mid-October 1807, with the main treason trial occupying the whole month of August.
If you saw Seth Lipsky’s piece on treason in yesterday’s Wall Street Journal, you may have noticed his mention of an opinion on treason that Marshall gave in a Supreme Court case in 1807. That case was a mere prelude to the Burr trial, in which Marshall clarified what his earlier Supreme Court opinion had left rather murky.
You can read the rest of my review here.