2
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.
5
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
5
See P. K
URLAND AND
G. C
ASPER
,
EDS
., L
ANDMARK
B
RIEFS AND
A
RGUMENTS OF THE
S
UPREME
C
OURT OF THE
U
NITED
S
TATES
, vol. 1, at 137-38 (1975).
Convention