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.

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3 Responses

  1. Joe says:

    there are some who might say Marshall, at least as a matter of legal reasoning, was overrated.

    But, not sure about trying to find opinions of the Court — we are talking about a small sample size, I gather, since Marshall made a habit of leaving so many to himself. Story only wrote Martin v. Hunter’s Lease since Marshall did not take part. I also would be interested in his work on circuit.

  2. Brett Bellmore says:

    Story is mostly famed for his treatise, not as a justice. His commentaries on the Constitution are famous, but until you mentioned a couple, I couldn’t have cited one case he was famous for.

  3. John Dereszewski says:

    In several situations, Story was seriously on the wrong side of history. If his position in the Charles River Bridge case had prevailed, free market capitalist development in America would have been deeply constrained as the heavy handed mercantile system would have stayed in place. Story also – and rather curiously – supported the English Admiralty position that restricted jurisdiction to the tidal sections of rivers – something that ruled out this Federal jurisdiction on most of the country’s great waterways. Chief Justice Taney firmly rejected this position a few years after Story’s death – and over the objection of only the exceeding states rights oriented Justice Daniel. Finally, Story’s insistence to enforce the contract Clause for non-retroactive legislative actions in Ogden v Saunders would have greatly hampered the ability of governments to enact reasonable bankruptcy laws had it commanded a majority on the court. As you know, this case was one of the very few instances where Justice Washington parted company with both Story and Marshall.