How the Supreme Court Was Won

Returning the Interest to Conflicts of Interest
New books dissected over email.
March 4 2009 3:55 PM

How the Supreme Court Was Won

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Dear Akhil, Cliff, Eric, and Kenji,

Thanks for including me in this esteemed crowd. Unlike the rest of you, I don't read and reread Marbury the way I read the nutritional content on cereal boxes, and I had to actually go back and give it another look in order to get up to speed. On this point, I have to agree with Eric. I'd give it about a C+.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate

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Like Eric, I was probably far too absorbed by the color and gossip of Cliff's book, the "dust and grime of Washington" that never makes it into the case books. (John Marshall could jump 6 feet high! When he ran for a seat in Congress, Marshall stood at the polling place with a jug of whiskey!) Both Cliff and Eric point out that Marbury was pulled, howling, from a rat's nest of personal and private agendas, back-stabbings and loyalties that force you to question the purity of the entire enterprise. Cliff, you suggest that all the roiling politics beneath it make Marbury an even more impressive constitutional monument. Eric, you think the book lionizes Marshall at the expense of the law itself. But it's hard for me, reading this, to know where Marshall ends and Marbury begins. Marshall took an institution that had been seen as laughable and strengthened it in many ways. He had the justices live together and wear robes. He saw that the judiciary needed to be seen as different, independent, strong, and he used everything at his disposal, including Marbury, to get it there. It's hard to untangle Marshall the man from Marbury, in that the decision seems somehow the culmination of the man.

I was struck by the discussion on Page 170, of Marshall's failure to recuse himself from hearing Marbury even though he removed himself from Stuart v. Laird because of his earlier involvement in that case. Given that the Supreme Court just heard argument in a case about recusal and conflicts of interest, I'm particularly struck by Eric's dust and grime, and how much we can learn about secret agendas and conflicts of interest from looking back at the story of Marbury. Maybe the hope of a perfectly pure and open judicial mind is simply unattainable? Maybe there is always a quid pro quo, be it money, fame, payback, or connections.

And, like Eric, I am slightly skeptical that the marriage of Marbury's and Marshall's descendants in 1857 signifies that Marbury has somehow unified Americans under the quilt of judicial review. It seems to me that a good many Americans remain skeptical of Marbury's core proposition, and that Jefferson's complaint that the decision tuned the judiciary into "a despotic branch" is the same cry we heard at the various Justice Sundays a few years back. 

Looking forward to your thoughts.

Dahlia

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