Academic journal article Harvard Journal of Law & Public Policy

Judicial Review of Unenumerated Rights: Does Marbury's Holding Apply in a Post-Warren Court World?

Academic journal article Harvard Journal of Law & Public Policy

Judicial Review of Unenumerated Rights: Does Marbury's Holding Apply in a Post-Warren Court World?

Article excerpt

Last year law schools across the country celebrated the 200th anniversary of the Supreme Court's landmark decision in Marbury v. Madison, which firmly entrenched judicial review as a fundamental component of our constitutional system of government--so fundamental, in fact, that adorning the east wall of the Justices' dining room in the building that is home to the Supreme Court of the United States are portraits of William Marbury and James Madison, side-by-side, facing each other as if in eternal combat. (1) At Chapman Law School, where I teach, we marked the occasion with a re-enactment of the oral argument in the case. University of Southern California Law Professor Erwin Chemerinsky (who is now a member of the faculty at Duke Law School) and I were opposing advocates. Fifth Circuit Court of Appeals Judge Jerry Smith, of Hopwood v. Texas (2) fame, played the role of Chief Justice, while a combination of Chapman law students and undergraduate legal studies majors filled out the bench.

Complete transcripts of the original oral argument are not available, of course, so we were able to exercise a little literary license to fill in the gaps. I was there to argue Madison's case, for example, when no one appeared on Madison's behalf during the original proceedings, and various executive and legislative branch officials would not even provide Marbury's lawyers with documentary evidence of his nomination, confirmation, appointment, and commission. (3) I appeared specially only to challenge the Court's jurisdiction, and I began the argument with a motion that the Chief Justice recuse himself; it was, after all, Marshall's own failure while still Secretary of State to deliver Marbury's midnight commission that generated the controversy in the first place.

"Chief Justice" Smith thundered a question to me from the bench: "Are

you accusing me of bias?" (Actually, the question from Judge Smith was quite tame, but I did imagine the responsive thunder that such a question might have evoked from Chief Justice John Marshall himself!). My response drew a predictable round of laughter from the crowd: "I would never make such an accusation, Mr. Chief Justice. But the mere appearance of bias is sufficient to warrant recusal here." "Chief Justice" Smith denied my motion--thankfully, as my Dean would undoubtedly have been upset with me were our star jurist to leave the bench in the opening moments of the argument--but I suspect Chief Justice Marshall would have denied the motion as well, despite his connection to the case and familial relationship with the real party in interest, President Thomas Jefferson, his cousin.

Why is it even arguably the case that Marshall should have recused himself?. Nothing in the Constitution explicitly bars one from serving as judge in a legal case or controversy in which he has an interest. On the contrary, Article III provides that "the judicial power of the United States shall be vested in one Supreme Court," and Marshall, as Chief Justice, was clearly a member of the Supreme Court. To be sure, Article III also specifies that judges "shall hold their Offices during good Behaviour," (4) and the Fifth Amendment guarantees that no one can be "deprived of life, liberty, or property without due process of law," (5) but neither of these clauses explicitly prevented the self-interested Marshall from presiding over the case, and there was at the time no positive law pronouncement, no statutory code of judicial ethics, that barred a biased jurist from taking the bench.

Yet, even absent an express statutory prohibition, I think most of us have the innate sense that a judge should not sit in judgment over a case in which he has a personal interest. Call it "bad" behavior for a judge, or a deprivation of the process that is due as a matter of fundamental fairness, but is it not evident that to pursue either inquiry necessarily requires that we look beyond the mere text of the Constitution, to some notion of justice that would help give substance to its provisions? …

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