Is Justice Story Overrated?
This is a question that I am asking myself as I begin researching the life of Bushrod Washington. The typical story about the Marshall Court is that Marshall and Story towered above everyone else. Part of Justice Story’s reputation rests on his voluminous scholarly writings, most notably his 1833 treatise on constitutional law. But if you look at his judicial opinions, the record is quite mixed.
Aside from Martin v. Hunter’s Lessee, it’s hard to think of a great Supreme Court opinion by Story. By contrast, I can think of two that were terrible (Prigg v. Pennsylvania and Swift v. Tyson). As a circuit Justice, Story did write some important decisions (such as the one that essentially created the copyright fair use doctrine), but over 34 years you’d expect more given his importance.
Moreover, I see indications that Justice Story made mistakes that Washington had to clean up. For instance, Story’s 1821 opinion for the Court in Green v. Biddle was so poor that it led to a rehearing where Washington (in 1823) wrote a new opinion reaching the same result. (Justice Washington was ill when Biddle was decided the first time.) As my research progresses, I’ll flesh this out.