Document Type



Legal History


Kent Newmyer’s classics Supreme Court Justice Joseph Story: Statesman of the Old Republic and John Marshall and the Heroic Age of the Supreme Court are important stories about the architects and heroes of the rule of law in America. In Newmyer’s account, Story played a crucial role preserving the republic and building a legal nation out of rival states, and Newmyer’s Story is fundamentally important for students of American history. But in Robert Cover’s account in Justice Accused on northern judges’ deference to slavery, Story is an anti-hero. Sometimes Story stayed silent. In Prigg v. Pennsylvania, Story overvalued formalistic comity. This Essay suggests that Story missed vital opportunities to write a judicial opinion more forcefully recognizing the rights of fugitive slaves under the Fifth Amendment’s due process clause, a preview of Dred Scott but in reverse.

One can find a balance between Newmyer’s empathetic charity and Cover’s non-empathetic clarity, to see the value of the rule of law through both interpretations. Thus, they both teach us about law, leadership, and life.

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