Supreme Court Justices are criticized. A lot. Alas, they are not able to respond. Publicly at least. But this was not always the rule. Chief Justice Marshall, who is celebrated as the most influential member of the Court, wrote a series of essays defending his opinion in McCulloch v. Maryland. These essays were published in 1819 under the pseudonym “A Friend of the Constitution.” (Regular readers of Today in Supreme Court History will note I flag this essay every year on July 15.)
Was Marshall’s essay proper or was it a breach of judicial ethics? Certainly by modern standards, this behavior would not fly. Some judges do defend their opinions in public, but they do so under their own names. (Whether judges privately give information to the press, not for attribution, is a different matter). And we know that critics are content to assess judges from long ago based on contemporary rules. But was Marshall’s behavior proper at the time? We have at least one sign that this behavior was proper.
In Trump v. United States, Chief Justice Roberts saw fit to cite one of Marshall’s pseudonymic essays:
This case poses a question of lasting significance: When may a former President be prosecuted for official acts taken during his Presidency? Our Nation has never before needed an answer. But in addressing that question today, unlike the political branches and the public at large, we cannot afford to fixate exclusively, or even primarily, on present exigencies. In a case like this one, focusing on “transient results” may have profound consequences for the separation of powers and for the future of our Republic. Youngstown (Jackson, J., concurring). Our perspective must be more farsighted, for “[t]he peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.” Chief Justice John Marshall, A Friend of the Constitution No. V, Alexandria Gazette, July 5, 1819, in John Marshall’s Defense of McCulloch v. Maryland.
There you go. Presidential immunity should be assessed along similar lines as the constitutionality of the Bank of the United States.
This is not the first time Roberts has quoted this passage. He did so in (wait for it) NFIB v. Sebelius:
Our deference in matters of policy cannot, however, become abdication in matters of law. “The powers of the legislature are defined and limited; and that those lim- its may not be mistaken, or forgotten, the constitution is written.” Marbury v. Madison, 1 Cranch 137, 176 (1803). Our respect for Congress’s policy judgments thus can never extend so far as to disavow restraints on federal power that the Constitution carefully constructed. “The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.” Chief Justice John Marshall, A Friend of the Constitution No. V, Alexandria Gazette, July 5, 1819, in John Marshall’s Defense of McCulloch v. Maryland 190–191 (G. Gunther ed. 1969). And there can be no question that it is the responsibility of this Court to enforce the limits on federal power by striking down acts of Congress that transgress those limits. Marbury v. Madison, supra, at 175–176.
In both cases, Roberts clung to the reputation of the great Chief Justice to provide cover for his decisions. While some Justices are still living in Justice Scalia’s shadow, Roberts will always be in Marshall’s shadow.
