At Josh Blackman’s Blog, Josh Blackman: #SCOTUS Holds that CJ Marshall’s Decision in Marbury v. Madison violates the Due Process Clause.
Professor Blackman begins with a discussion of Williams v. Pennsylvania (decided by the Court earlier this week):
In Williams v. Pennsylvania, the Chief Justice of the Pennsylvania Supreme Court ruled on a capital case that he participated in three decades earlier as a district attorney. The Due Process Clause required his recusal, the Court held, in light of his “personal involvement” in the case.
So, then, what of Chief Justice Marshall's participation in Marbury v. Madison?
As soon as I read this, I immediately thought that the majority opinion would also explain that John Marshall–who failed to deliver William Marbury’s commission as Secretary of State–was required by the Due Process Clause of the 5th Amendment to recuse! I was pleasantly surprised that Justice Thomas’s dissent made the same point:
Past Justices have decided cases involving their former clients in the private sector or their former offices in the public sector. See Frank 622–625. The examples are legion; chief among them is Marbury v. Madison, 1 Cranch 137 (1803), in which then–Secretary of State John Marshall sealed but failed to deliver William Marbury’s commission and then, as newly appointed Chief Justice, Marshall decided whether mandamus was an available remedy to require James Madison to finish the job. See Paulsen, Marbury’s Wrongness, 20 Constitutional Commentary 343, 350 (2003).
And applying Justice Kennedy's majority opinion in Williams to Chief Justice Marshall:
Well, it was John Marshall who applied the Great Seal to Marbury’s commission, and this (not delivery) was the final act that made the commission final. (See this amicus brief I wrote about the chronology of Marbury’s commission). Without the seal, Marbury would have had nothing to complain about. I would say that is “significant, personal involvement” with respect to a “critical decision.”
I kind of think Marshall's participation in Marbury was arguably a due process violation. It was a longstanding principle of English common law that no man should be the judge of his own cause. As Secretary of State, Marshall failed to perform his duty to deliver the commission. That was a pretty big error, if delivery of the commission was necessary to complete the appointment (not so much, if the commission vested on signature). In Marbury, Marshall held (some might say he went out of his way to hold) that delivery was not necessary to complete the appointment. Very convenient for him! (On the other hand, Justice Thomas is probably right about the common law).
Posted at 6:43 AM