My biography of Justice Washington changes the story of the Marshall Court. We see the Court as more of a team on which Washington was a leading player. To some extent, this revisionist account comes at the expense of Justice Story. That said, the relationship between Story and Washington gets its turn in the sun. They had an apprentice/mentor connection given their difference in age and the fact that Bushrod had no children. But what they shared was an obsession with the law.
Put simply, Washington and Story were both law nerds. You see that in the detailed reports and commentaries that they sent each other about their circuit cases. The reports read as if they couldn’t wait to tell each other about the complex issue they just decided or the nifty argument that was made. You don’t see John Marshall writing these sorts of letters. My impression of Marshall after writing this book is that he was a very bright man who happened to be a lawyer. Marshall had many interests and probably did not think much about law in his spare time. Not so for Washington and Story.
The chief difference between Washington and Story was their work method. Story was much more prolific and a much faster writer. But he also made more mistakes. Washington was slow and deliberate, in part because his poor eyesight probably forced him into that routine. These contrasting styles created some fascinating tensions in cases where Washington and Story disagreed. (I found one example where Story lost his majority opinion to Bushrod and ended up dissenting.) So I hope this book becomes part of the necessary reading for Marshall and Story scholars.
Posted by Gerard Magliocca on March 29, 2022 at 12:05 PM