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Monday, July 13, 2020

The Burr Trial

The Supreme Court's reliance on John Marshall's rulings in Aaron Burr's Treason trial to resolve Trump v. Vance raises some interesting questions and points.

  1. Was the Burr trial the most important in American history? If not, what was? There's a fun cocktail party debate. 
  2. The Burr Trial is the only significant time where we see Chief Justice Marshall acting alone as a judge. Everything he did on the Supreme Court was done in collaboration with at least some colleagues. It's easy to overlook this fact.
  3. Some quick research suggests that citing the Burr Trial as a precedent coincided with the start of Marshall-mania in 1895. In that year, the Court relied heavily on Marbury to justify its decision in Pollock and cited the Burr Trial in a significant way for the first time (in Sparf and Hansen), one of my favorite sets of Supreme Court opinions. Marshall's reputation before 1895 was not as strong as it was after that year.

UPDATE: Orin Kerr correctly points out that Marshall was not acting alone: he sat alongside a District Judge. I should have been clearer about that. In practice, District Judges rarely challenged a Circuit Justice unless the Justice wanted a legal question appealed to the Supreme Court, which required a formal disagreement. (One of Washington's District Judge partners basically just cracked the occasional joke during circuit case.) We can, therefore, be confident that Marshall's rulings in the Burr Trial were his own rather than the product of extended consultation. 

Posted by Gerard Magliocca on July 13, 2020 at 07:55 PM | Permalink

Comments

I'm not sure how important the trial was.

There were various famous trials in the the 19th and early 20th Centuries. One can debate how important one or the other might be. But, they all seem pretty important vis-a-vis the Burr trial. Yes, John Brown included.

There is some lingering law from this one (including habeas) but even there I'm unsure that others cannot be find with important legal significant. Maybe, this was the FIRST big one?

Posted by: Joe | Jul 14, 2020 1:32:37 PM

I'm not sure how important the trial was.

There were various famous trials in the the 19th and early 20th Centuries. One can debate how important one or the other might be. But, they all seem pretty important vis-a-vis the Burr trial. Yes, John Brown included.

There is some lingering law from this one (including habeas) but even there I'm unsure that others cannot be find with important legal significant. Maybe, this was the FIRST big one?

Posted by: Joe | Jul 14, 2020 1:32:37 PM

Trials are often overlooked by legal scholars, so thanks for asking the first question. I would say that the 1859 trial of John Brown in Virginia was the most important in U.S. history. It was certainly the most consequential, given the role it played in sparking the Civil War.

Posted by: Steven Lubet | Jul 14, 2020 11:04:15 AM

Marty,

I would argue that Stuart was not significant in Marshall's case because the Justices more or less decided before they resumed circuit riding that the repeal of the Judiciary Act of 1801 would stand. I go into that a fair bit in the book.

Posted by: Gerard | Jul 14, 2020 9:28:26 AM

Also not the only significant time he acted alone as a judge. He decided Stuart v. Laird while riding circuit, and therefore recused from the case when it reached the SCOTUS. (At the time, Stuart was understood to be far more important than Marbury, which the Court decided six days earlier. Marshal's recusal practice would sure look strange today. He might have recused in Stuart, but he didn't do so in Marbury despite the fact that Marshall was the executive actor who failed to deliver the commissions!)

Posted by: Marty Lederman | Jul 14, 2020 9:01:30 AM

Re (2), technically Marshall was not acting alone. Under the Judiciary Act of 1802, he joined on the bench by a district judge, Cyrus Griffin, who was the only district judge in the District of Virginia at the time. But Griffin was almost completely silent the entire time -- he made only one comment in the entire proceedings, about the facts of a prior case he had heard -- and it appears that he completely deferred to Marshall.

Posted by: Orin Kerr | Jul 14, 2020 2:46:12 AM

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