We live in an era where the confirmation process has become toxically partisan. There are some who allege that Justice Kavanaugh committed perjury.  So, not surprisingly, there are some who yearn for the ‘good old days.’ Were there really good old days?  Professor Anthony Gaugan posted this recently on the Faculty Lounge.

On CSPAN’s Q & A program Sunday evening, Brian Lamb interviewed Joel Richard Paul about his new book, Without Precedent: Chief Justice John Marshall and His Times. The whole interview is quite good but one part of it especially caught my attention. While researching his book, Professor Paul found a letter that suggests Chief Justice John Marshall may have suborned perjury in the landmark case of Marbury v. Madison.

The basic facts of Marbury are well-known. On March 3, 1801—the last day of the Adams Administration—the lame duck Federalist Senate confirmed 42 Federalist nominees for justices of the peace. The confirmations were part of the “Midnight Appointments” whereby the Federalists attempted to stack the federal judiciary before the Jeffersonian Republicans took power following the election of 1800.

During the final hours of the Adams presidency, John Marshall simultaneously served as chief justice and secretary of state. In the latter capacity, he signed with an official seal each of the commissions for the new justices of the peace. But amid the chaotic rush to get the commissions out, some inadvertently remained behind on a desk in the State Department. The new Secretary of State, James Madison, refused to deliver the commissions when he took office the next day. Nine months later, four of the would-be justices of the peace—including a wealthy Federalist named William Marbury—filed a writ of mandamus asking the Supreme Court to order Madison to deliver the commissions.

The case of Marbury v. Madison reached the Supreme Court in February 1803, which is where Professor Paul’s discovery comes in.

The key witness in the Marbury case was James Marshall, brother of the chief justice. In an affidavit submitted to the Court, James explained that he agreed to deliver the commissions on behalf of the State Department, but the package containing the commissions was too large to carry. James decided to leave behind some of the commissions, apparently assuming someone else would deliver them, but no one did.

James Marshall’s affidavit was absolutely crucial to William Marbury’s case because without it Marbury would have lacked evidence of his undelivered commission. In a display of partisan defiance, the Jefferson Administration and the Republican Congress refused to provide any evidence regarding the Adams commissions. John Marshall, of course, had personal knowledge of the commissions, but he obviously could not serve as a witness in a case he presided over as judge. The upshot was Marbury’s whole case rested on James Marshall’s memory of events.

But according to Professor Paul, James Marshall’s testimony “was most likely a complete fabrication. Historians have long accepted James’s story, but it made no sense.” Paul’s revisionist account rests on a letter he discovered in the Marshall papers. In mid-March 1801, two weeks after Jefferson’s inauguration, John Marshall wrote a letter to his brother in which the chief justice expressed his “infinite chagrin” that the Jefferson Administration had refused to deliver the remaining commissions. The chief justice explained that he expected James Madison to deliver them since they had already been signed and sealed. In the letter, John Marshall then went on to take personal responsibility for the undelivered commissions:

“I should however have sent out the commissions which had been signed & sealed but for the extreme hurry of the time & the absence of Mr. Wagner who had been called on by the President to act as his private Secretary.”

The crucial point is that John Marshall blamed himself, not his brother, for the non-delivery of the commissions. The letter could thus be read as an indication that James did not have any role in delivering the commissions. As Professor Paul explains, “If James was responsible for delivering the commissions, then Marshall’s explanation to James would have been superfluous. ”

But when Marbury later brought suit against Madison, James Marshall signed an affidavit asserting that it was his responsibility to deliver the commissions, and that he personally saw the undelivered commissions (thus establishing their existence). In the words of Professor Paul, “It is apparent that James Marshall perjured himself in the Supreme Court and that the chief justice not only knew this but probably asked him to lie.” Paul argues that John Marshall persuaded James to take responsibility for the undelivered commissions in order to maintain the viability of Marbury’s case.

Ironically, Marshall ultimately ruled against Marbury. In one of the shrewdest opinions of his career, the chief justice (writing for a unanimous Court) held that Article III of the Constitution did not grant the Supreme Court original jurisdiction to issue writs of mandamus, and thus Section 13 of the Judiciary Act of 1789—which purported to grant the Court such jurisdiction—violated the Constitution.

As Paul explains, “Marshall invented a conflict between the Constitution and the Judiciary Act in order to create the opportunity to assert the power of judicial review,” all while avoiding a direct political confrontation with the Jefferson Administration. “Most likely,” Paul conjectures, “John and James Marshall sat down with their friend Charles Lee [Marbury’s attorney]—perhaps over a glass of Marshall’s favorite Madeira—and constructed this case from start to finish.”

It is a very interesting argument. The relevant portions of the book are on pages 243-60 (especially 252-4) and the CSPAN interview with Joel Richard Paul is available here.