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Aaron Burr and Antonin Scalia, Acting Chief Justice

Today Justice Scalia was Acting Chief Justice, cracking jokes and posing tough questions as he sat in Chief Justice Roberts’ chair at the Supreme Court. No, you didn’t miss a palace coup — Scalia was literally “acting,” playing the role of Chief Justice John Marshall in a reenactment of portions of the Aaron Burr treason trial as part of the Tenth National Heritage Lecture hosted in part by the Supreme Court Historical Society.

It was a pretty entertaining event: former OLC head Chuck Cooper explained the historical setting of the case, former Department of Labor Solicitor and son-of-Nino Eugene Scalia represented the United States, and Bob Fiske represented Burr. Justice Scalia presided, playing the part of John Marshall.

For those who aren’t American history buffs, former Vice-President Burr was charged with plotting an insurrection designed to lead to a new independent nation in the Western territorities. At President Thomas Jefferson’s urging, Burr was indicted for the capital crime of treason. Article III, Section 3 of the Constitution states:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The most important legal issue in the Burr prosecution was figuring out what evidence the government could use to establish its case. The key problem was that the indictment was poorly drafted: It charged Burr with the overt act of leading an insurrection on a particular island where his troops were located, even though it turned out that Burr was hundreds of miles away at the time. Chief Justice Marshall had to decide whether the government could establish the overt act required for treason based on Burr’s conduct hundreds of miles away, or whether the government could only offer evidence of Burr’s conduct on the island.

After the arguments, Scalia discussed and commented on the opinion that Chief Justice Marhall wrote in the case, published as United States v. Burr, 25 F. Cas. 55 (Circuit Court, D. Virginia 1807). Scalia aptly described the opinion as discursive, indirect, filled with unneeded asides, but ultimately correct: Marshall held that the United States could only try to prove its case based on the evidence at the island, as otherwise it would gut the overt act requirement imposed by Article III, Section 3. According to Chuck Cooper’s post-argument wrap-up, Marhsall’s ruling effectively ended the government’s case. The United States had no evidence of an overt act on the island, so the jury had little choice but to acquit.

Interesting stuff. I knew that the Burr case was the first testing ground for a number of constitutional provisions relevant to criminal procedure, and I knew that Burr had been acquitted by the jury. I hadn’t known that the main reason for the acquittal was a poorly drawn indictment. For more about the trial, read here.

A few amusing moments from the reenactment: 1) Justice Scalia, instructing counsel for the United States (that is, his son) to proceed: “You may proceed, Mr. SCALL-yah. Am I pronouncing that correctly?” 2) Justice Scalia, responding to Eugene Scalia’s tongue-in-cheek comment that the Court should rule in the government’s favor because ‘it is a constitution we are expounding’: “That’s a good line. I need to write that down.”

Oh, and in case you’re wondering, counsel for Burr did not bring a recusal motion on the ground that opposing counsel was the presiding judge’s son.