The Case for Recusal: Marshall in Marbury

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STEPHEN BLINDER: As the Supreme Court suffers from widespread disapproval in the aftermath of controversial decisions, such as the reversal of Roe v. Wade and the proscription of race-conscious college admission programs, the refusal of various justices to recuse themselves from cases in which their impartiality is questionable has only added to the Court’s crisis of legitimacy. 

Alexis de Tocqueville famously observed that “[t]heir [Supreme Court Justices’] power is immense; but it is a power of opinion…[t]hey are omnipotent as long as the people consent to obey the law; they can do nothing when they scorn it.” In part, that’s why Justices Alito and Thomas’ non-recusals in recent cases involving former President Donald Trump and the January 6, 2021, attack on the U.S. Capitol have raised red flags. However, perhaps the most flagrant case for recusal comes not from recent years but from 1803 and the landmark decision that established judicial review: Marbury v. Madison.

Authored by Chief Justice John Marshall, Marbury centered around Secretary of State James Madison withholding – at President Thomas Jefferson’s direction – a commission as justice of the peace to William Marbury, who President John Adams had appointed to the position in one of his final actions in office (the so-called “midnight appointments”). Adams, a staunch Federalist, sought to fill the judiciary with party allies after narrowly losing his reelection bid to Jefferson, a member of the rival Democratic-Republican Party. Taken in isolation, the facts reflect the contentious political climate of the day but nothing necessarily egregious. The devil is in the details.

Three facts should have led Marshall to recuse himself. First, he was both Chief Justice and Secretary of State under the Adams administration in 1801 when Marbury was appointed justice of the peace. In fact, Marshall “personally affixed the Great Seal of the United States to Marbury’s commission,” entanglement that clearly should have called into question Marshall’s objectivity. Second, key evidence in the case was provided by Marshall’s brother, James, who had been tasked (but failed) to deliver the commission. Third, as University of Texas School of Law Professor Louise Weinberg notes, “[Marshall] was a business associate of Charles Lee, Marbury’s lawyer, involved with Lee in the purchase of the Fairfax estate manor lands, and had once offered to buy Lee out.”

Using contemporary standards captured in 28 U.S. Code § 455, Chief Justice John Marshall’s recusal should never have been in doubt. Not only could, applying the statute’s language, Marshall’s “ impartiality…reasonably be questioned,” but he also “served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding…” Through his inappropriate non-recusal, Marshall paved the way for his iconic opinion in Marbury, authorizing the Court’s extraordinary power of judicial review. Additionally, Marshall – whose bronze statue sits outside the Supreme Court – set a standard (or lack thereof) for recusal that too many subsequent justices have felt all too comfortable following.

In last term’s decision to overturn the longstanding Chevron doctrine and give courts – not federal agencies – the power to interpret ambiguous technical statutes, Chief Justice John Roberts invoked (rather loosely) Marshall’s dicta in Marbury that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” One only hopes the Court doesn’t exercise the same untethered discretion by embracing Marshall’s rejection of the propriety and power of recusals in our constitutional democracy.

Stephen Blinder is a staff writer for On the Record. He is a senior studying government and philosophy in the College of Arts & Sciences.