#SCOTUS Holds that CJ Marshall’s Decision in Marbury v. Madison Violates the Due Process Clause

June 9th, 2016

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.

The Court’s due process precedents do not set forth a specific test governing recusal when, as here, a judge had prior involvement in a case as a prosecutor. For the rea- sons explained below, however, the principles on which these precedents rest dictate the rule that must control in the circumstances here. The Court now holds that under the Due Process Clause there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant’s case.

As soon as I read this, I immediately thought that the majority opinion would also explain that John Marshall–who failed to deliver William Mabury’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 v 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).

It brings me so much joy to see an article titled “Marbury’s Wrongness” published in the U.S. Reports. The old Chief needs to be knocked down a few pegs. Kudos CT. (For why Marbury was wrong, see this post).

Let’s apply the Court’s new-fangled test. Justice Kennedy wrote for the majority:

Nor is there any doubt that Chief Justice Castille had a significant role in this decision. Without his express authorization, the Commonwealth would not have been able to pursue a death sentence against Williams. The importance of this decision and the profound consequences it carries make it evident that a responsible prosecutor would deem it to be a most significant exercise of his or her official discretion and professional judgment.

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.”

Maybe the heirs of William Marbury can file a motion for reconsideration, and seek the backpay their ancestor was due?

Update: As a treat, Justice Thomas manages to cite Coke’s Institutes, Dr. Bonham’s case, and Blackstone.

At common law, a fair tribunal meant that “no man shall be a judge in his own case.” 1 E. Coke, Institutes of the Laws of England §212, *141a (“[A]liquis non debet esse judex in propiâ causâ”). That common-law conception of a fair tribunal was a narrow one. A judge could not decide a case in which he had a direct and personal financial stake. For example, a judge could not reap the fine paid by a defendant. See, e.g., Dr. Bonham’s Case, 8 Co. Rep. 107a, 114a, 118a, 77 Eng. Rep. 638, 647, 652 (C. P. 1610) (opin- ing that a panel of adjudicators could not all at once serve as “judges to give sentence or judgment; ministers to make summons; and parties to have the moiety of the forfei- ture”). Nor could he adjudicate a case in which he was a party. See, e.g., Earl of Derby’s Case, 12 Co. Rep. 114, 77 Eng. Rep. 1390 (K. B. 1614). But mere bias—without any financial stake in a case—was not grounds for disqualifi- cation. The biases of judges “cannot be challenged,” ac- cording to Blackstone, “[f]or the law will not suppose a possibility of bias or favour in a judge, who is already sworn to administer impartial justice, and whose author- ity greatly depends upon that presumption and idea.” 3 W. Blackstone, Commentaries on the Laws of England, 361 (1768) (Blackstone); see also, e.g., Brookes v. Earl of Riv­ ers, Hardres 503, 145 Eng. Rep. 569 (Exch. 1668) (deciding that a judge’s “favour shall not be presumed” merely because his brother-in-law was involved).