John Marshall and the need for judicial transparency

Whatever you think about the U.S. Supreme Court’s controversial, 5-4 midnight ruling on the Texas statute forbidding most abortions in the state, one thing is clear: the Court bears, in the name of accountability, the great responsibility of explaining its reasoning to the American people.

The Court’s reliance on the “shadow docket,” a historic practice of ruling on emergency petitions, to uphold a novel law that greatly diminishes Roe v. Wade and converts every Texan into a law enforcement official, constituted a sharp departure from the usual process. The Court spent less than three days on the case. There was no oral argument. The opinion was unsigned and a mere paragraph long. Given the Court’s weighty impact on a constitutional battle that has been raging since at least 1973, when the Court held that women possess a fundamental right to obtain an abortion, the citizenry had every right to expect more transparency from the nation’s highest tribunal.

Justice Hugo Black was fond of reminding his colleagues of the Court’s duty to explain its reasoning in terms that average Americans could understand. “The Constitution was written for the people, not the government,” he often said. For Justice Black, this meant that the Court’s opinions sorting out the meaning of constitutional provisions and language should be clearly written in the name of transparency and accountability.

Justice Black’s view of the responsibility of the Court to explain its reasoning was shared by Chief Justice John Marshall, who served as Chief from 1801-1835, and is universally regarded by scholars as the greatest Chief Justice in American history. Marshall took this duty so seriously that, in response to what he regarded as stinging, but confused, criticism of his landmark opinion in 1819, in McCulloch v. Maryland, he picked up his pen and wrote a pseudonymous defense of it under the name, “A Friend to the Union”

in a series of op-ed pieces. He wrote these newspaper columns in the name of transparency and accountability.

McCulloch v. Maryland, one of the most important Supreme Court rulings in our history — for its treatment of fundamental constitutional principles and resolution of historic arguments about federalism, the scope of congressional authority and the exercise of judicial power in the interpretation of the Constitution — generated immediate and heated criticism. Suffice it to say that critics, including James Madison and Virginia’s leading Judge, Spencer Roane, thought Marshall’s opinion declared that Congress possessed authority to increase its constitutionally limited powers.

Chief Justice Marshall was alarmed by these criticisms, precisely because he believed nothing of the sort. Nor did he believe that his opinion for the Court had intimated any such conclusion. The point of his opinion was to state that Congress enjoyed considerable latitude in choosing the means by which it could exercise its enumerated powers, not that Congress could invent new powers for itself. In sum, no branch of government possessed authority to revise its constitutionally granted authority.

Marshall fretted. What could he do, given the Court’s institutional understanding that its opinions alone speak for the Court? But Marshall found the public confusion so disturbing, so threatening to the constitutional system and particularly harmful to the Court’s reputation, that he decided to engage in an extra-judicial measure by further explaining the Court’s reasoning in newspaper columns. These were the only newspaper replies in his storied judicial career.

Marshall’s pseudonymous newspaper explanations, so knowledgeable of the Court’s discussion of foundational constitutional issues, and so thorough in their explanations of the Court’s reasoning, inspired speculation about their author. Who could possibly know so much about the Court’s reasoning and conclusions? At the time, nobody guessed that it was none other than Chief Justice Marshall himself.

Indeed, nobody knew the identity of the author of the op-ed pieces signed under the name, “A Friend to the Union,” until Gerald Gunther, a renowned constitutional scholar then teaching in the Stanford Law School, stumbled upon them in 1967 while conducting research for his biography of the legendary federal judge, Learned Hand. While working through the collection of Hand’s papers, Gunther found Marshall’s essays sandwiched between some documents that had nothing to do with McCulloch v. Maryland. In 1968, Gunther published the essays in his book, “John Marshall’s Defense of McCulloch v. Maryland.”

For all of you who have ever experienced the great joy and surprise of finding a delightful book on the shelves of a library or in a bookstore, imagine Professor Gunther’s jubilation in finding Marshall’s op-ed pieces. Talk about a library coup!

Marshall’s extraordinary efforts to inform the public of the Court’s reasoning in McCulloch, to bring a halt to the misunderstanding of its rulings on fundamental constitutional issues, represents a fulfillment of the judicial duty, in the name of transparency and accountability, to explain its opinions to the American people.

Marshall’s extra-judicial elaboration of the Court’s reasoning, however, is not without criticism. After all, if individual members of the Court decide to comment on the Court’s opinions, perhaps bringing a different version of the Court’s legal conclusions than those printed on paper, the result might well be confusion. More than that, if Justices offer competing views of the Court’s reasoning, what happens to the meaning of the “authoritative” Supreme Court opinion? Indeed, what happens to the principle that the Court’s opinions speak for the Court? Those are issues for another time, but it is clear that the citizenry is better off with a full explanation of how and why the Court resolves the legal issues before it.