By Judge Michael B. Hyman
Cook County Circuit Court
Feb. 3, 1812: Joseph Story, age 32, was sworn in as an associate justice of the U.S. Supreme Court.
A mere 11 years after his admission to the bar of Massachusetts, Story joined the U.S. Supreme Court. Few judges in American history experienced a more meteoric rise from obscurity to celebrity.
Story's story is the stuff that makes legends. Story graduated from Harvard College (1798), read law, maintained his own practice in Salem, served one term in the U.S. House, served in the Massachusetts House and was elected its speaker, published a popular book of forms for civil actions and established a reputation as a gifted legal scholar.
The appointment of Story to the Supreme Court was a fortuitous turn of events that would profoundly influence the jurisprudence of pre-Civil War America. Story was President James Madison's fourth candidate, after two of his picks declined the position and another was rejected by the Senate.
Story drew fierce opposition too. His major detractor was none other than Madison's predecessor, Thomas Jefferson, who perceived Story to be a "pseudo-Republican," with Federalist sympathies and a potential ally of Jefferson's nemesis, Chief Justice John Marshall. Needing to choose a New Englander for geographic diversity, and running short of viable candidates, Madison hoped Story would act as a counterpoint to Marshall. But Jefferson proved prophetic — Story became Marshall's alter ego and truest confidant.
Story possessed a legal mind of uncommon brilliance, which remains virtually unmatched in the history of legal analysis. Story was the court's versatile workhorse and, when he was not grinding out the business of the court, he was teaching as a part-time professor at Harvard Law School (beginning in 1829), serving as president of a Massachusetts bank (beginning in 1815) or preparing one of his nine treatises, including three volumes on the Constitution and two volumes on equity jurisdiction. As if that was not enough to fill his day, Story drafted legislation such as a federal crimes act, wrote speeches for his friend Daniel Webster and advised Webster on political and legal strategies.
According to Story's son, a lawyer and noted sculptor, "His knowledge of the law had scarcely any boundaries … He had read nearly everything of any value in the range of jurisprudence. And he remembered with wonderful accuracy what he had read."
This workaholic with seemingly limitless energy coined one of the most famous expressions of the intensity of practicing law — the law "is a jealous mistress, and requires a long and constant courtship. It is not to be won by trifling favors, but by lavish homage."
You might think that Story was stuffy and aloof. He wasn't in the least. Indeed, he was a "people person." Contemporaries describe Story as sociable, generous and cheerful. One of his law students recalled "a sunny, smiling face which bespoke of a heart full of kindness." Virtually from the start, Story and Marshall bonded. At their first meeting in 1808, Story was smitten by Marshall's "great subtlety of mind" and his hearty laugh. Marshall, for his part, wrote Story years later that "[w]ithout your vigorous and powerful cooperation, I should be in despair, and think the 'ship must be given up.'"
So supportive and facilitative were they of one another that Marshall's biographer, Albert J. Beveridge, suggested "Marshall and Story may be considered one and the same person." Beveridge said, "Marshall steadied Story, while Story enriched Marshall. Each admired the other, and between them grew affection like that of father and son." The two jurists frequently collaborated and court historians contend that Story authored portions of opinions attributed to Marshall.
But, Story abhorred slavery, calling it "unnecessary, unjust and inhuman (and) repugnant to the general principles of justice and humanity." While Marshall, a slave owner, condoned slavery as an economic necessity.
Story, sitting as a circuit court judge, ruled that the African slave trade constituted piracy violative of international law. But when the issue reached the Supreme Court, Marshall, in the Antelope case (1825), concluded otherwise, that international law permitted the slave trade.
Sixteen years later, the issue presented itself again. This time Story's view prevailed. The Africans on board the Amistad were held to have been seized illegally and thus free under international law. The following year, despite his personal beliefs, Story felt constrained to invalidate a Pennsylvania statute interfering with enforcement of the Fugitive Slave Act of 1793. In Prigg v. Pennsylvania, Story asserted that the Constitution, as "the supreme law of the land," required states to return escaped slaves to their owners on demand.
One of the eight panels that grace the huge ceremonial bronze doors to the U.S. Supreme Court Building portray Marshall and Story discussing Marbury v. Madison (1803), even though Story was not then a member of the court. That Marshall and Story are depicted together, the only justices so honored on the doors, testifies to their immense individual and collective greatness and the nation's eternal indebtedness to them both.