Chief Justice Roberts, A Friend of the Constitution
Supreme Court Justices are criticized. A lot. Alas, they are not able to respond. Publicly at least. But this was not always the rule. Chief Justice Marshall, who is celebrated as the most influential member of the Court, wrote a series of essays defending his opinion in McCulloch v. Maryland. These essays were published in 1819 under the pseudonym “A Friend of the Constitution.” (Regular readers of Today in Supreme Court History will note I flag this essay every year on July 15.)
Was Marshall’s essay proper or was it a breach of judicial ethics? Certainly by modern standards, this behavior would not fly. Some judges do defend their opinions in public, but they do so under their own names. (Whether Judges privately give information to the press, not for attribution, is a different matter). And we know that critics are content to assess judges from long ago based on contemporary rules. But was Marshall’s behavior proper at the time? We have at least one indicia that this behavior was proper.
In Trump v. United States, Chief
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