Thursday, June 14, 2007

Marburygate or Misconduct in Marbury v. Madison

John Marshall is the greatest Chief Justice of the Supreme Court, Marbury v. Madison, 1803, the most important case. These are accepted dogma down to grade school. Arcane lawyer textbooks mention ethics problems, but quickly gloss over (1,2). Critical reviews go unread, not even referenced (3).


1. Double Dipping. Marshall was Secretary of State for Pres. John Adams, until inauguration, March 4, 1801. He served as Chief Justice of the Supreme Court February 4, 1801. Jefferson won the election, breaking an electoral tie, February 17. Article I, Section 6, the Incompatibility Clause, prohibits simultaneous service in the Executive and Legislative branches. Service in the Judicial branch is not expressly forbidden (4).

2. Nepotism. James Marshall, the brother was assigned the task of delivering the Justice of the Peace Commissions. These were not judgeships, but at will, executive branch agency jobs for the
administration of the District of Columbia. Salary was to come from the executive branch. James failed to deliver Marbury's commission prior to midnight, March 3. Jefferson was cousin to Marshall. They hated each other.

3. Personal Involvement. The undelivered commissions were left in the office of the Secretary of State Marshall. Marshall judged his own conduct in this case.

4. Supreme Court Jurisdiction. Mr. Marbury claimed the Judiciary Act of 1789 permitted a trial at the Supreme Court on a writ of mandamus. Article III, Section 2, The Original Jurisdiction Clause, assigns appellate jurisdiction in such matters. The Supreme Court so held, to their credit. But it chose to go on with the case. It held Section 13 of the Judiciary Act, conferring such jurisdiction to be unconstitutional. Although, it felt it proper to grant Marbury his writ, the unconstitutionality of that Section precluded doing so by lack of jurisdiction.

5. Conflict of Interest. There was a little tension between Federalist Court and Republican Congress. They canceled the Supreme Court sessions of June and December, 1802. They repealed the Circuit Court Act, forcing the Justices to ride circuit, once again. They removed Justice Pickering for alcoholism and insanity. They impeached Justice Chase, but failed to remove him.

6. Misreading. Section 13 of the Judiciary Act allows mandamus remedy where the Court has jurisdiction. It does not extend jurisdiction, in violation of Article III. If it were read properly, Congressional discretion to enlarge jurisdiction, in the Exceptions and Regulation Clause, would permit enlargement of jurisdiction. The central holding is therefore incorrect (5).

7. Judicial Power to Increase Judicial Power. In its trickiness and dodging, it is equally wrong to refrain from carrying out a duty to mandate delivery of a commission. May a Judge "refuse to do justice under the law in order to advance his own personal power and that of other judges"? (6)

Judge Disqualification in 1803

In English common law, judges could be disqualified for money interest in a case (7). The Act of May 8, 1792, permitted disqualification if the Judge was "concerned in interest," had "acted in the cause, or had "been of counsel."(8). In those days, judicial temperament was supposed
to overcome bias, as a judge duty.

Judge Disqualification Today

28 USC Section 4559 applies to Federal Judges, including those on the Supreme Court (9).

Marbury grounds for modern disqualification would include: "personal knowledge of disputed evidentiary facts", "served in governmental employment and in such capacity participated as counsel, adviser or material witness", "a person within the third degree of relationship"
is involved.

No waiver from the party adversely affected is permitted (Section 455 (e)).


There is no mechanism of enforcement if a Supreme Court Justice refuses to recuse voluntarily.

Exclusionary Rule II

What product or method of service from 1803 is acceptable today? None. If someone tried to sell carriages from those days for daily use, tried to practice the medicine of those days, they deserve to be arrested as a threat to public safety.

Why is a corrupt decision from 1803 holding sway? The answer is lawyer cover up, indoctrination of the nation, and worse, of themselves, and lawyer self-dealing. This cover up is for power, in furtherance of judge tyranny.

Summary impeachment is appropriate for challenged judges who violate federal statute on disqualification. Congress is unlikely to go through that difficult, time consuming process.

Failing impeachment, the decision should be voided automatically by statute. It is not enough to cancel the vote of the disqualified Justice. Given the secrecy and cover up at the Court, it is unknown if the disqualified Justice tried to convince, made deals, or otherwise influenced peers. That decision must be voided as "bearing the fruit of the poisoned tree." Marbury v Madison should be the first case so voided.


1. Barron, JA, Dienes, CT, McCormack, W, Redish, MH: Constitutional Law: Principles and Policy Cases and Materials. LexisNexis, Newark, NJ, 2002. Pp.11-12.
2. Chemerinsky, E. Constitutional Law, Principles and Policies. Aspen, New York, NY. 2002. Pp. 39-46.
3. Paulsen, MS: Marbury's Wrongness. Const Comment. 20: 343-357, 2003.
4. Id. at 350.
5. Id. at 353, summarizing several critics of this misreading.
6. Id. at 357.
7. Flamm, RE: Judicial Disqualification, Recusal and Disqualification of Judges, Aspen, New York, NY, 1996. P. 9.
8. Id. P. 10.
9. Bassett, DL: Judicial Disqualification in the Federal Appellate Courts, IA L Rev 87:1214-1256, 2002.

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