Op-Ed: If Trump causes a constitutional crisis, will Roberts court show the courage of John Marshall?

U.S. Supreme Court Chief Justice John Roberts, from left, Associate Justice Stephen Breyer, and Associate Justice Elena Kagan listen to President Trump's State of the Union address in the U.S. Capitol on Jan. 30.
(Win McNamee / Associated Press)

As President Trump tangles with his own Justice Department, the country could be plunging toward a constitutional crisis. Whatever one thinks of the various allegations and ongoing investigations related to the president, it’s getting hard to imagine that Trump will agree to answer the special counsel’s questions under oath. If the president fires Robert S. Mueller III, seeks to obstruct the investigations or refuses to answer questions, what then? Ultimately, the answers must come from the Supreme Court.

The Roberts court, however, is bitterly divided between ideologues on the left and right. Chief Justice John G. Roberts Jr. has been unable to forge a genuine consensus up until now on almost any significant issue. Unless the Supreme Court speaks with one voice, Trump may refuse to comply with the court’s order. And if the president flouts the court, the Constitution and the rule of law itself may be threatened.

When the Supreme Court ordered President Nixon to surrender his presidential tapes during the Watergate investigations, the high court spoke with a unanimous voice to a man, who, whatever his faults, respected the authority of the judiciary. By contrast, Trump has often displayed disrespect and even disdain for judges and courts that disagreed with his views. Unlike Nixon, the president appears unfamiliar and impatient with the Constitution, its history and the delicate balance of power between the legislative, executive and judicial branches of government.

If we reach back to the early days of our republic, we find comparable circumstances.


If we reach back to the early days of our republic, we find comparable circumstances in the uneasy relationship between Presidents Thomas Jefferson and Andrew Jackson and the Supreme Court under John Marshall, chief justice from 1801 to 1835. Like Trump, Jefferson and Jackson were elected on waves of rural Southern and Midwestern populism. Their victories — Jefferson in 1800 and Jackson in 1828 — signaled the revolt of the common man against the urban financial interests of the Northeast, a movement colored by racial prejudice and claims of “states’ rights.” Jefferson and Jackson disdained Marshall and other like-minded Federalist judges, who believed in the supremacy of the national government over the states.

Before Marshall, the Supreme Court was the weak sister in the federal trinity. It had modest authority and commanded little respect. It heard only about six cases a year, and none of them were of great importance. Being a justice was no fun; they had to ride horseback around the country, officiating as appeals judges in taverns. The planners in Washington forgot to build a federal courthouse, and Congress grudgingly allowed the Supreme Court , the U.S. Court of Appeals and the District Court to share a cramped committee room on the ground floor of the Capitol. Its physical location testified to the lowly stature of the nation’s highest court.

Against all odds, Marshall elevated the Supreme Court to the level of a co-equal branch of the federal government. He did it by insisting the court speak with a unified voice, in a single decision, as the final arbiter of the law. (Before Marshall, each justice issued a separate opinion.)

Marshall oversaw more than 1,100 cases over 34 years and wrote more than half of the opinions for those cases. In all but 36, the decision was unanimous. What makes this record that much more remarkable is that every justice appointed to the court after Marshall was chosen by a president who opposed the chief justice’s Federalist philosophy.

Marshall fostered a high degree of collegiality and compromise among the justices. He consistently moved the court to the center, rejecting ideology and embracing pragmatism. Under him, the justices lived together and took their meals at the same Washington boardinghouse. Endowed with wit as well as intellect, Marshall was able to cajole and charm even his most adamant opponents.

When Jeffersonians campaigned to impeach Federalist justices, Marshall refused to be intimidated. He successfully resisted Jefferson’s efforts to prosecute the vice president, Aaron Burr, for treason on questionable grounds. And the chief justice stood up to Jackson by defending the right of the Cherokee nation to occupy its ancestral land.

Marshall had the legal imagination, grace and courage to secure the integrity of our justice system against powerful presidents, bolstered by majorities in both houses of Congress, who often viewed the courts as an impediment to their agenda. We can only pray that if President Trump and his party precipitate a constitutional crisis today, Chief Justice Roberts will prove as capable of forging a consensus to defend the rule of law.

Joel Richard Paul is the author of “Without Precedent: Chief John Marshall and His Times.” He teaches constitutional law at the UC Hastings College of the Law.

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