The Hidden Hand

The great mystery of the Marshall Court is how the Justices worked together. Because most of those opinions were unanimous and there are few internal documents available on the Court’s deliberations, scholars often fall back on the thought that the author of any given opinion (usually Chief Justice Marshall or Justice Story) supplied all of the reasoning. In some sense we know that cannot be true, but how to prove that?

In writing about Bushrod Washington, I hope to answer that question. Thus far, I have two clues. One is the Justice’s journal that is in the Chicago History Museum. Here you can find draft opinions for a few Supreme Court cases during the 1820s, and I can use those notes as a basis for comparison with the final product.

The second clue relates to an opinion written by Justice Story (Terrett v. Taylor). Taylor is a very interesting case (I’ll say more about it in another post) that addressed the legality of a Virginia statute that sought to strip the state’s Episcopal Church of its property. The Court’s opinion finding the statute unconstitutional can be compared to an opinion that Washington wrote as a private attorney about the issue in the 1790s. Story’s opinion and Washington’s earlier analysis are quite similar in many passages. I’m not sure yet whether this is a coincidence or indicates that Washington (who knew a lot about the matter) contributed significantly to Story’s draft.

Anyway, it’s another piece of the puzzle. The search for more continues.

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2 Responses

  1. Joe says:

    The lesser known justices in the Marshall Court in various cases have certain skill-sets which biographical accounts reference. If a specific opinion was written by another person where this skill-set arose (e.g., some field of property law), it could be useful. One problem here is that we might not have much material about the other justices, Bushrod Washington appearing to have a useful trove of papers.

  2. John Dereszewski says:

    I believe that Story and Washington corresponded between themselves fairly often. I do not know how much of this could be preserved. This could provide a clue to prove – or disprove – your point.