Marbury and Pardons

[Mark S Kende]

Regarding the justiciability of litigation challenging pardons, there's
been some argument that a racially discriminatory pardon could be
challenged.  See Osborne, 735 F.2d 1316 (governor's pardon I believe at
issue) and 106 Yale L.J. at 791 n. 79 (Kalt note on Pres. self pardon
power).  One of the most significant equality cases decided by the
South African Constitutional Court involved President Mandela's decision
after inauguration as President to pardon mothers in prison for
non-violent offenses who had children under the age of 12.  This pardon
was challenged by a Mr. Hugo as being gender discriminatory under the new
SA Constitution.  The Court ruled the issue was justiciable, and then held
that this was in essence permissible gender discrimination because it was
based on the reality that mothers end up doing more of the childrearing
than fathers, and this would help these children's lives.  Pragmatically,
the Court also worried that releasing a possibly large group of male
convicts might cause worry among the populace.  It's a fascinating and
highly disputed case that I write about in a forthcoming article (sorry
for the shameless promotion!), Vol. 10, University of Southern
Calif. Review of Law and Women Studies page 1 "Stereotypes in South
African and American Constitutional Law: Achieving Gender Equality and
Transformation."

Regarding Marbury, a student who was a history major claims to have
researched the question and determined that Marbury never pursued his
commission further.  I've not verified that assertion though.  Take care
all.

Mark Kende
Associate Professor of Law
University of Montana School of Law
Missoula, Montana 59812
406-243-4317 (phone)
406-243-2576 (fax)