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Volokh Conspiracy

New on SCOTUSBlog: "It must be nice to have John Marshall on your side"

"The Roberts court, alas, only sang from the judiciary’s score. The executive’s verses fell silent."


A few moments ago, I shared my new essay, titled Presidential Subpoenas during the Burr Trials. I adapted this essay for SCOTUSBlog's Symposium on Vance and Mazars. My entry is titled, "It must be nice to have John Marshall on your side."

Here is the introduction:

Two centuries after his death, Chief Justice John Marshall still presides over the Supreme Court. His larger-than-life statue greets visitors. During investiture ceremonies, new members sit in his chair. And the justices cite him whenever possible. This term was no exception: Marshall authorized the Manhattan district attorney to subpoena President Donald Trump's financial records. Or so Trump v. Vancewould suggest. Chief Justice John Roberts' majority opinion referred over and over again to Marshall's seminal rulings from Aaron Burr's treason trials. In United States v. Burr (1807), we learn, Burr, Marshall and President Thomas Jefferson scrimmaged over the production of documents: Marshall issued a ruling, Jefferson acquiesced and Burr got what he wanted.

Alas, Roberts recounted a sanitized version of this seminal dispute. The history, which I discuss in a new essay, is far more complicated. Jefferson repeatedly ignored Marshall's decisions. Instead, he voluntarily provided redacted copies of the documents. Burr demanded Marshall take further action, but the chief justice did nothing. None of this history proves that Vance was wrongly decided. Rather, Vance followed an all-too-common practice on the court: cramming novel, expansive constitutional theories into Marshall's capacious rhetoric. This symposium post will carefully parse what Marshall and Jefferson actually said and did during the Burr episode. My research should cast some doubt on the court's unyielding obeisance to the great chief justice and his one-sided accounts of constitutional law.

And from the conclusion:

If I had to score this match, the presidency prevailed, narrowly. Regrettably, Vance discarded the complex history between Marshall and Jefferson. And this history imposes important limitations on the judiciary's powers. But according to Vance, Marshall was triumphant, and Jefferson was defeated. (Marbury v. Madison, redux!) The Burr trials, however, cannot bear the weight that Vance placed upon them. The tense clashes between the branches undermine the absolute certainty with which the court approached the separation of powers.

In the musical "Hamilton," Jefferson, Burr and James Madison are jealous of Alexander Hamilton's close relationship with President George Washington. They sing that "it must be nice to have Washington on your side." Vance sounds a similar tune: It must be nice to have Marshall on our side. The Roberts court, alas, only sang from the judiciary's score. The executive's verses fell silent.

I will write much more about this case in due course.