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Wednesday, January 31, 2024

How Would John Marshall Explain the Trump Decision?

I don't mean how would John Marshall decide the Trump case. When I invent a time machine, we'll find out. I want to focus here on how the Court (or individual Justices) will write the opinions.

Chief Justice Marshall loved discussing issues that were unnecessary to his decisions. He talked about the merits of William Marbury's case before concluding that the Supreme Court lacked jurisdiction. He wrote a long essay on the autonomy of Native American Tribes in the Cherokee cases. He said a lot about the Commerce Clause in Gibbons v. Ogden before holding that the state law was inconsistent with a federal statute. And so on.

This should be a model for the Court today. Instead of saying as little as possible to decide the Trump case, the Court should seriously think about saying as much as possible. Explaining that the 2020 election was not a fraud, for example, would be a national service. Denouncing what happened on January 6th or Trump's conduct would also have an enormous impact. Perhaps these tasks will fall to separate concurrences and dissents and might carry special weight if they come from a Justice that President Trump appointed.  

Posted by Gerard Magliocca on January 31, 2024 at 10:51 AM | Permalink

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