CJ Roberts’s First Opinion cited CJ Marshall’s Circuit Decision in U.S. v. Aaron Burr, Sir

June 13th, 2016

While reading through the Chief Justice’s decision in Halo Electronics, Inc. v. Pulse Electronics, Inc., which unanimously reversed the en banc Federal Circuit, I was drawn to this citation:

“[A] motion to a court’s discretion is a motion, not to its incli- nation, but to its judgment; and its judgment is to be guided by sound legal principles.” Martin, 546 U. S., at 139 (quoting United States v. Burr, 25 F. Cas. 30, 35 (No. 14,692d) (CC Va. 1807) (Marshall, C. J.); alteration omit- ted).

I did a bit of research and found that Roberts managed to cite C.J. Marshall in his very first published decision, Martin v. Franklin Capital Corporation. (If this was reported at the time, I missed it).  The Chief offered this early homage, “on good authority” to his judicial man-crush.

We have it on good authority that “a motion to [a court’s] discretion is a motion, not to its inclination, but to its judgment; and its judgment is to be guided by sound legal principles.” United States v. Burr, 25 F.Cas. 30, 35 (No. 14,692d) (CC Va. 1807) (Marshall, C. J.).

Martin was decided on December 7, 2005, barely one month after it was argued on November 8, 2005. (This was during the brief interregnum where Justice O’Connor served alongside Chief Justice Roberts, and before Justice Alito was confirmed).

United States v. Burr has been cited 16 times by SCOTUS, but this sentence only thrice, all by JGR. In Halo and Martin, plus Nken v. Holder 2009. Roberts has a thing for Marshall’s “discretion.”

This Circuit Court decision arose from the treason prosecution of former-Vice President Aaron Burr, who was attempting to subpoena several documents in his defense (subpoena duces tecum, for those who remember the phrase from law school, or at least the Virginia Bar exam). Burr sought:

certain orders, understood to have been issued to the land and naval officers of the United States for the apprehension of the accused, and an original letter from General Wilkinson to the president in relation to the accused, with the answer of the president to that letter, which papers are supposed to be material to the defence.

The passage Roberts cited supports the conclusion that the documents ought to be subpoenaed:

The court can perceive no legal objection to issuing a subpoena duces tecum to any person whatever, provided the case be such as to justify the process. This is said to be a motion to the discretion of the court. This is true. But a motion to its discretion is a motion, not to its inclination, but to its judgment; and its judgment is to be guided by sound legal principles.

As an aside, reading through the decision, I noted this gem:

The constitution and laws of the United States will now be considered for the purpose of ascertaining how they bear upon the question. The eighth amendment to the constitution gives to the accused, ‘in all criminal prosecutions, a right to a speedy and public trial, and to compulsory process for obtaining witnesses in his favor.’ The right given by this article must be deemed sacred by the courts, and the article should be so construed as to be something more than a dead letter. What can more effectually elude the right to a speedy trial than the declaration that the accused shall be disabled from preparing for it until an indictment shall be found against him?

Now, before you jump all over Marshall and say “it’s the sixth amendment,” remember that what we know as the 6th Amendment was in fact the 8th proposed amendment. The first two were not ratified in 1791, but hey, they were still proposed. This is fascinating that Marshall counted this way, even in 1807.

Burr was ultimately acquitted. Hamilton did not fare as well.

In honor of Hamilton’s sweeping success at last night’s Tony Awards, go ahead and sing aloud, Aaron Burr, Sir. Talk less. Smile more. Don’t let them know what you’re against or what you’re for.