Jed Shugerman - Academia.edu (original) (raw)

Papers by Jed Shugerman

The People's Courts, 2012

Social Science Research Network, 2020

Petitioners and the en banc Court of Appeals below have rested their contention that the Constitu... more Petitioners and the en banc Court of Appeals below have rested their contention that the Constitution grants the President at-will removal authority over the head of the Federal Housing Finance Agency (FHFA) on historical claims about the first Congress’s ostensible “Decision of 1789.” In so doing, Petitioners are following Chief Justice Taft’s account in Myers v. United States, upon which this Court relied on in 2010 and again last term for an originalist interpretation of Article II. New historical research shows that Myers was incorrect. The “Decision of 1789” actually supports, rather than undermines, Congress’s power to limit presidential removal. Myers asserted that the first Congress’s “Decision of 1789” declared that the Constitution assigned removal power to the President alone: “[T]here is not the slightest doubt, after an examination of the record, that the [Foreign Affairs] vote was, and was intended to be, a legislative declaration that the power to remove officers appo...

SSRN Electronic Journal, 2020

The Roberts Court and supporters of the unitary executive rely on “the Decision of 1789” to estab... more The Roberts Court and supporters of the unitary executive rely on “the Decision of 1789” to establish an originalist basis for presidential removal power at will. However, the first Congress’s legislative debates and a senator’s diary (missed by legal scholars) suggest strategic ambiguity and retreat on the constitutional questions, and the Treasury Act contradicted the unitary model. Here are six overlooked moments from 1789 that dispel unitary assumptions: Part I (here): 1) The “decision” was actually strategic ambiguity that avoided any clear grant of power to the president and any constitutional interpretation, even though explanatory clauses were common in other acts by the first Congress. James Madison and the “presidentialist” bloc switched from an explicit grant of power to an ambiguous contingency clause because they lacked the votes in House and faced resistance in the Senate. The debates and votes suggest that only one third of the House supported Madison’s theory. 2) A senator’s diary shows that a Senate majority initially opposed the bill. Critics emphasized the bill’s confusion and its “illy concealed… design,” but proponents implied the clause had no “design” against the Senate’s power. The diary suggests that the bill’s supporters followed through on a strategy of ambiguity, confusion, and retreat, instead of clarifying the text. Part II: 1) Justices have asserted that the first Congress decided officers served “at will,” but very few members of Congress spoke in favor of presidential removal at pleasure in 1789. Members discussed justiciability of for-cause removals in the English writ tradition, suggesting an oversight role for Congress and the courts. The debates over Treasury and the Judiciary indicate Congress did not think “at will” was the rule for removal. 2) A tale of two Roberts: two scandalous finance ministers, one English, one American during the Revolution, as context for independent checks on executive power. 3) In the Treasury debate, Madison proposed that the Comptroller, similar to a judge, should have tenure during good behavior, a point misunderstood by many modern judges. 4) The Treasury Act’s anti-corruption clause established removal by the judiciary, empowering relatively independent prosecutors and judges to check presidential power. Congress frequently enabled removal by judges and juries, without necessarily connecting removal to imprisonment or criminal penalty, over the next 50 years. Because unitary theory explicitly states that removal power is “exclusively” or “solely” presidential, the first Congress rejected the unitary theory by delegating removal power to judges and juries (arguably without relying on federal prosecutors at all given the institutional arrangements of the eighteenth century). A majority of the first Congress opposed the powers cited by unitary theorists (the constitutional basis for presidential removal power, offices held “during pleasure”). On whether the president had exclusive removal power, the first Congress decisively answered no. In Seila Law v. CFPB, Chief Justice Roberts misunderstood and misused the decisions in the first Congress, and should correct these errors in Collins v. Mnuchin in 2021.

SSRN Electronic Journal, 2020

The Roberts Court and supporters of the unitary executive rely on “the Decision of 1789” to estab... more The Roberts Court and supporters of the unitary executive rely on “the Decision of 1789” to establish an originalist basis for presidential removal power at will. However, the first Congress’s legislative debates and a senator’s diary (missed by legal scholars) suggest strategic ambiguity and retreat on the constitutional questions, and the Treasury Act contradicted the unitary model. Here are six overlooked moments from 1789 that dispel unitary assumptions: Part I: 1) The “decision” was actually strategic ambiguity that avoided any clear grant of power to the president and any constitutional interpretation, even though explanatory clauses were common in other acts by the first Congress. James Madison and the “presidentialist” bloc switched from an explicit grant of power to an ambiguous contingency clause because they lacked the votes in House and faced resistance in the Senate. The debates and votes suggest that only one third of the House supported Madison’s theory. 2) A senator’s diary shows that a Senate majority initially opposed the bill. Critics emphasized the bill’s confusion and its “illy concealed… design,” but proponents implied the clause had no “design” against the Senate’s power. The diary suggests that the bill’s supporters followed through on a strategy of ambiguity, confusion, and retreat, instead of clarifying the text. Part II (Here): 1) Justices have asserted that the first Congress decided officers served “at will,” but very few members of Congress spoke in favor of presidential removal at pleasure in 1789. Members discussed justiciability of for-cause removals in the English writ tradition, suggesting an oversight role for Congress and the courts. The debates over Treasury and the Judiciary indicate Congress did not think “at will” was the rule for removal. 2) A tale of two Roberts: two scandalous finance ministers, one English, one American during the Revolution, as context for independent checks on executive power. The “Robinarchy” was a caution against executive corruption, and the first Congress focused on presidential corruption of finance, a president who would abuse the removal power to raid the Treasury and build a “throne.” 3) In the Treasury debate, Madison proposed that the Comptroller, similar to a judge, should have tenure during good behavior, a point misunderstood by many modern judges. Madison withdrew his proposal, but the debate elicited that Madison thought the House had not reached any consensus for “at pleasure” tenure, and the debate reflected more openness to executive design and independence from presidents. 4) The Treasury Act’s anti-corruption clause established removal by the judiciary, empowering relatively independent prosecutors and judges to check presidential power. Congress frequently enabled removal by judges and juries, without necessarily connecting removal to imprisonment or criminal penalty, over the next 50 years. Because unitary theory explicitly states that removal power is “exclusively” or “solely” presidential, the first Congress rejected the unitary theory by delegating removal power to judges and juries (with relatively independent prosecution under Treasury and arguably without relying on federal prosecutors at all given the institutional arrangements of the eighteenth century). A majority of the first Congress opposed the powers cited by unitary theorists (the constitutional basis for presidential removal power, offices held “during pleasure”). On whether the president had exclusive removal power, the first Congress decisively answered no. In Seila Law v. CFPB, Chief Justice Roberts misunderstood and misused the decisions in the first Congress, and should correct these errors in Collins v. Mnuchin in 2021.

Harvard Law Review, 2007

After twenty-four years of judicial experience, Judge Richard Posner contrasted the "aggressive j... more After twenty-four years of judicial experience, Judge Richard Posner contrasted the "aggressive judge" with the "modest judge" in his 2005 Foreword in the Harvard Law Review. 1 When Professor Posner became Judge Posner in 1981, anyone familiar with his ambitious, trailblazing academic achievements would have expected the bold professor to become an aggressive judge. One might have imagined the Seventh Circuit's slip opinions being transformed into the Journal of Legal Studies, as he would bring an economic perspective to every reach of the law. Instead, Judge Posner brought measured judicial restraint to many of his cases. One recent example is Stockberger v. United States, 2 in which Judge Posner had an opportunity to put his academic theories into practice. Instead, he heeded his own call for judicial restraint by not straying far from state precedent. In this brief tribute to Judge Posner, I commend this modesty but suggest that, in similar cases, he might reconcile his desire for restraint with his academic theories by engaging in bolder modesty and more aggressive deference. Specifically, he might establish supermajority voting rules in diversity cases that ask federal judges to predict the direction of state law. On March 24, 1999, Maurice Stockberger, a diabetic employed at the federal prison in Terre Haute, Indiana, announced to his colleagues that he was not feeling well. A colleague described him as "aggravated and angry, and adamant about going home." 3 His colleagues had witnessed several of his hypoglycemic episodes before and knew that he would become "hostile, suspicious, unresponsive, agitated," and in denial of his medical problem. 4 Many of these colleagues were medically trained and recognized that Stockberger was experiencing another of his hypoglycemic episodes that day. 5

Pursuing Judicial Independence in America

Pursuing Judicial Independence in America

Pursuing Judicial Independence in America

Journal of Tort Law, 2008

... Calabresi, Morris Cohen, Kris Collins, Bob Ellickson, Dan Ernst, Mark Geistfeld, John Goldber... more ... Calabresi, Morris Cohen, Kris Collins, Bob Ellickson, Dan Ernst, Mark Geistfeld, John Goldberg, Morton Horwitz, Gregory Keating, John Langbein, William Nelson, Susan Rose-Ackerman, Burden Walker ... The Johnstown Flood was the Hurricane Katrina of the nineteenth century. ...

University of Pennsylvania Journal of Constitutional Law, 2002

Legal historians have searched for state law antecedents to Marbury v. Madison,' and have pinpoin... more Legal historians have searched for state law antecedents to Marbury v. Madison,' and have pinpointed the Maryland decision Whittington v. Polk 2 for its bold dicta about judicial supremacy. The facts of Whittington are strikingly similar to those of Marbury: when the Republicans seized the Maryland legislature in 1801, they stripped Federalistjudges of their offices, and an aggrieved Federalist judge, William Whittington, sued to reclaim his position. Only a few months before Marbuy, the Maryland General Court proclaimed in Whittington: It is the office and province of the court.., to determine whether an act of the legislature, which assumes the appearance of a law, and is clothed with the garb of authority, is made pursuant to the power vested by the constitution in the legislature; for if it is not the result or emanation of authority derived from the constitution, it is not law, and cannot influence the judgment of the court in the decision of the question before them. 4 Law Clerk to Chief Judge John M. Walker, U.S. Court of Appeals for the Second Circuit.

the Take Care Clause, 6 and the "Decision of 1789" 7 do not accomplish what Chief Justice Roberts... more the Take Care Clause, 6 and the "Decision of 1789" 7 do not accomplish what Chief Justice Roberts assumes that they do: establish an exclusive, indefeasible presidential removal power. This Essay summarizes recent historical research, especially by Professors Jane Manners and Lev Menand, on the breakthrough solution hidden in plain sight in Marbury. Marbury also hints at two problems (first, the question of judicial offices versus executive offices; and second, the little word "vest"), but I summarize how Madison (not as a defendant in 1801-03 but as leader of the House of Representatives in 1789) solves these problems, too. Unitary executive theory depends on the exclusivity of executive power to deny a role for Congress to set conditions on removal of officers, to reject congressional and judicial oversight, or to otherwise limit presidential power. Unitary theorists often attempt to squeeze exclusivity back into the text of the Constitution, despite glaring gaps and textual problems. In his Morrison v. Olson 8 dissent arguing that the independent counsel statute 9 infringed on the presidential removal power, Justice Antonin Scalia wrote of the Vesting Clause: "[T]his does not mean some of the executive power, but all of the executive power." 10 A century ago, Chief Justice William Howard Taft made a similar textual insertion of the word "alone" into Article II's Vesting Clause in Myers v. United States. 11 Unitary scholars also insert "all" into Article II's Vesting Clause. For example, Professors Steven Calabresi and Saikrishna Prakash contend that "Article II's vesting of the President with all of the 'executive Power' [unambiguously] give[s] him control over all federal governmental powers that are neither legislative nor judicial." 12 They further note that the "Constitution. .. gives an exclusive grant of all of the executive power to the President alone." 13 The Office of Legal Counsel's 6. Id. § 3, cl. 1. 7. The Decision of 1789 refers to "the First Congress' vigorous debate about the removal of executive officers."

The article looks at a panel discussion on judicial responsibility and the U.S. Supreme Court\u27... more The article looks at a panel discussion on judicial responsibility and the U.S. Supreme Court\u27s decision in \u27Caperton v. A.T. Massey Coal Co.\u27 discussed by several law professionals including Jed Shugerman, Debra Lyn Bassett and Dmitry Bam at a 2014 symposium held in the New York University

Kent Newmyer’s classics Supreme Court Justice Joseph Story: Statesman of the Old Republic and Joh... more 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 ...

https://scholarship.law.bu.edu/clark\_speakers/1065/thumbnail.jp

The People's Courts, 2012

Social Science Research Network, 2020

Petitioners and the en banc Court of Appeals below have rested their contention that the Constitu... more Petitioners and the en banc Court of Appeals below have rested their contention that the Constitution grants the President at-will removal authority over the head of the Federal Housing Finance Agency (FHFA) on historical claims about the first Congress’s ostensible “Decision of 1789.” In so doing, Petitioners are following Chief Justice Taft’s account in Myers v. United States, upon which this Court relied on in 2010 and again last term for an originalist interpretation of Article II. New historical research shows that Myers was incorrect. The “Decision of 1789” actually supports, rather than undermines, Congress’s power to limit presidential removal. Myers asserted that the first Congress’s “Decision of 1789” declared that the Constitution assigned removal power to the President alone: “[T]here is not the slightest doubt, after an examination of the record, that the [Foreign Affairs] vote was, and was intended to be, a legislative declaration that the power to remove officers appo...

SSRN Electronic Journal, 2020

The Roberts Court and supporters of the unitary executive rely on “the Decision of 1789” to estab... more The Roberts Court and supporters of the unitary executive rely on “the Decision of 1789” to establish an originalist basis for presidential removal power at will. However, the first Congress’s legislative debates and a senator’s diary (missed by legal scholars) suggest strategic ambiguity and retreat on the constitutional questions, and the Treasury Act contradicted the unitary model. Here are six overlooked moments from 1789 that dispel unitary assumptions: Part I (here): 1) The “decision” was actually strategic ambiguity that avoided any clear grant of power to the president and any constitutional interpretation, even though explanatory clauses were common in other acts by the first Congress. James Madison and the “presidentialist” bloc switched from an explicit grant of power to an ambiguous contingency clause because they lacked the votes in House and faced resistance in the Senate. The debates and votes suggest that only one third of the House supported Madison’s theory. 2) A senator’s diary shows that a Senate majority initially opposed the bill. Critics emphasized the bill’s confusion and its “illy concealed… design,” but proponents implied the clause had no “design” against the Senate’s power. The diary suggests that the bill’s supporters followed through on a strategy of ambiguity, confusion, and retreat, instead of clarifying the text. Part II: 1) Justices have asserted that the first Congress decided officers served “at will,” but very few members of Congress spoke in favor of presidential removal at pleasure in 1789. Members discussed justiciability of for-cause removals in the English writ tradition, suggesting an oversight role for Congress and the courts. The debates over Treasury and the Judiciary indicate Congress did not think “at will” was the rule for removal. 2) A tale of two Roberts: two scandalous finance ministers, one English, one American during the Revolution, as context for independent checks on executive power. 3) In the Treasury debate, Madison proposed that the Comptroller, similar to a judge, should have tenure during good behavior, a point misunderstood by many modern judges. 4) The Treasury Act’s anti-corruption clause established removal by the judiciary, empowering relatively independent prosecutors and judges to check presidential power. Congress frequently enabled removal by judges and juries, without necessarily connecting removal to imprisonment or criminal penalty, over the next 50 years. Because unitary theory explicitly states that removal power is “exclusively” or “solely” presidential, the first Congress rejected the unitary theory by delegating removal power to judges and juries (arguably without relying on federal prosecutors at all given the institutional arrangements of the eighteenth century). A majority of the first Congress opposed the powers cited by unitary theorists (the constitutional basis for presidential removal power, offices held “during pleasure”). On whether the president had exclusive removal power, the first Congress decisively answered no. In Seila Law v. CFPB, Chief Justice Roberts misunderstood and misused the decisions in the first Congress, and should correct these errors in Collins v. Mnuchin in 2021.

SSRN Electronic Journal, 2020

The Roberts Court and supporters of the unitary executive rely on “the Decision of 1789” to estab... more The Roberts Court and supporters of the unitary executive rely on “the Decision of 1789” to establish an originalist basis for presidential removal power at will. However, the first Congress’s legislative debates and a senator’s diary (missed by legal scholars) suggest strategic ambiguity and retreat on the constitutional questions, and the Treasury Act contradicted the unitary model. Here are six overlooked moments from 1789 that dispel unitary assumptions: Part I: 1) The “decision” was actually strategic ambiguity that avoided any clear grant of power to the president and any constitutional interpretation, even though explanatory clauses were common in other acts by the first Congress. James Madison and the “presidentialist” bloc switched from an explicit grant of power to an ambiguous contingency clause because they lacked the votes in House and faced resistance in the Senate. The debates and votes suggest that only one third of the House supported Madison’s theory. 2) A senator’s diary shows that a Senate majority initially opposed the bill. Critics emphasized the bill’s confusion and its “illy concealed… design,” but proponents implied the clause had no “design” against the Senate’s power. The diary suggests that the bill’s supporters followed through on a strategy of ambiguity, confusion, and retreat, instead of clarifying the text. Part II (Here): 1) Justices have asserted that the first Congress decided officers served “at will,” but very few members of Congress spoke in favor of presidential removal at pleasure in 1789. Members discussed justiciability of for-cause removals in the English writ tradition, suggesting an oversight role for Congress and the courts. The debates over Treasury and the Judiciary indicate Congress did not think “at will” was the rule for removal. 2) A tale of two Roberts: two scandalous finance ministers, one English, one American during the Revolution, as context for independent checks on executive power. The “Robinarchy” was a caution against executive corruption, and the first Congress focused on presidential corruption of finance, a president who would abuse the removal power to raid the Treasury and build a “throne.” 3) In the Treasury debate, Madison proposed that the Comptroller, similar to a judge, should have tenure during good behavior, a point misunderstood by many modern judges. Madison withdrew his proposal, but the debate elicited that Madison thought the House had not reached any consensus for “at pleasure” tenure, and the debate reflected more openness to executive design and independence from presidents. 4) The Treasury Act’s anti-corruption clause established removal by the judiciary, empowering relatively independent prosecutors and judges to check presidential power. Congress frequently enabled removal by judges and juries, without necessarily connecting removal to imprisonment or criminal penalty, over the next 50 years. Because unitary theory explicitly states that removal power is “exclusively” or “solely” presidential, the first Congress rejected the unitary theory by delegating removal power to judges and juries (with relatively independent prosecution under Treasury and arguably without relying on federal prosecutors at all given the institutional arrangements of the eighteenth century). A majority of the first Congress opposed the powers cited by unitary theorists (the constitutional basis for presidential removal power, offices held “during pleasure”). On whether the president had exclusive removal power, the first Congress decisively answered no. In Seila Law v. CFPB, Chief Justice Roberts misunderstood and misused the decisions in the first Congress, and should correct these errors in Collins v. Mnuchin in 2021.

Harvard Law Review, 2007

After twenty-four years of judicial experience, Judge Richard Posner contrasted the "aggressive j... more After twenty-four years of judicial experience, Judge Richard Posner contrasted the "aggressive judge" with the "modest judge" in his 2005 Foreword in the Harvard Law Review. 1 When Professor Posner became Judge Posner in 1981, anyone familiar with his ambitious, trailblazing academic achievements would have expected the bold professor to become an aggressive judge. One might have imagined the Seventh Circuit's slip opinions being transformed into the Journal of Legal Studies, as he would bring an economic perspective to every reach of the law. Instead, Judge Posner brought measured judicial restraint to many of his cases. One recent example is Stockberger v. United States, 2 in which Judge Posner had an opportunity to put his academic theories into practice. Instead, he heeded his own call for judicial restraint by not straying far from state precedent. In this brief tribute to Judge Posner, I commend this modesty but suggest that, in similar cases, he might reconcile his desire for restraint with his academic theories by engaging in bolder modesty and more aggressive deference. Specifically, he might establish supermajority voting rules in diversity cases that ask federal judges to predict the direction of state law. On March 24, 1999, Maurice Stockberger, a diabetic employed at the federal prison in Terre Haute, Indiana, announced to his colleagues that he was not feeling well. A colleague described him as "aggravated and angry, and adamant about going home." 3 His colleagues had witnessed several of his hypoglycemic episodes before and knew that he would become "hostile, suspicious, unresponsive, agitated," and in denial of his medical problem. 4 Many of these colleagues were medically trained and recognized that Stockberger was experiencing another of his hypoglycemic episodes that day. 5

Pursuing Judicial Independence in America

Pursuing Judicial Independence in America

Pursuing Judicial Independence in America

Journal of Tort Law, 2008

... Calabresi, Morris Cohen, Kris Collins, Bob Ellickson, Dan Ernst, Mark Geistfeld, John Goldber... more ... Calabresi, Morris Cohen, Kris Collins, Bob Ellickson, Dan Ernst, Mark Geistfeld, John Goldberg, Morton Horwitz, Gregory Keating, John Langbein, William Nelson, Susan Rose-Ackerman, Burden Walker ... The Johnstown Flood was the Hurricane Katrina of the nineteenth century. ...

University of Pennsylvania Journal of Constitutional Law, 2002

Legal historians have searched for state law antecedents to Marbury v. Madison,' and have pinpoin... more Legal historians have searched for state law antecedents to Marbury v. Madison,' and have pinpointed the Maryland decision Whittington v. Polk 2 for its bold dicta about judicial supremacy. The facts of Whittington are strikingly similar to those of Marbury: when the Republicans seized the Maryland legislature in 1801, they stripped Federalistjudges of their offices, and an aggrieved Federalist judge, William Whittington, sued to reclaim his position. Only a few months before Marbuy, the Maryland General Court proclaimed in Whittington: It is the office and province of the court.., to determine whether an act of the legislature, which assumes the appearance of a law, and is clothed with the garb of authority, is made pursuant to the power vested by the constitution in the legislature; for if it is not the result or emanation of authority derived from the constitution, it is not law, and cannot influence the judgment of the court in the decision of the question before them. 4 Law Clerk to Chief Judge John M. Walker, U.S. Court of Appeals for the Second Circuit.

the Take Care Clause, 6 and the "Decision of 1789" 7 do not accomplish what Chief Justice Roberts... more the Take Care Clause, 6 and the "Decision of 1789" 7 do not accomplish what Chief Justice Roberts assumes that they do: establish an exclusive, indefeasible presidential removal power. This Essay summarizes recent historical research, especially by Professors Jane Manners and Lev Menand, on the breakthrough solution hidden in plain sight in Marbury. Marbury also hints at two problems (first, the question of judicial offices versus executive offices; and second, the little word "vest"), but I summarize how Madison (not as a defendant in 1801-03 but as leader of the House of Representatives in 1789) solves these problems, too. Unitary executive theory depends on the exclusivity of executive power to deny a role for Congress to set conditions on removal of officers, to reject congressional and judicial oversight, or to otherwise limit presidential power. Unitary theorists often attempt to squeeze exclusivity back into the text of the Constitution, despite glaring gaps and textual problems. In his Morrison v. Olson 8 dissent arguing that the independent counsel statute 9 infringed on the presidential removal power, Justice Antonin Scalia wrote of the Vesting Clause: "[T]his does not mean some of the executive power, but all of the executive power." 10 A century ago, Chief Justice William Howard Taft made a similar textual insertion of the word "alone" into Article II's Vesting Clause in Myers v. United States. 11 Unitary scholars also insert "all" into Article II's Vesting Clause. For example, Professors Steven Calabresi and Saikrishna Prakash contend that "Article II's vesting of the President with all of the 'executive Power' [unambiguously] give[s] him control over all federal governmental powers that are neither legislative nor judicial." 12 They further note that the "Constitution. .. gives an exclusive grant of all of the executive power to the President alone." 13 The Office of Legal Counsel's 6. Id. § 3, cl. 1. 7. The Decision of 1789 refers to "the First Congress' vigorous debate about the removal of executive officers."

The article looks at a panel discussion on judicial responsibility and the U.S. Supreme Court\u27... more The article looks at a panel discussion on judicial responsibility and the U.S. Supreme Court\u27s decision in \u27Caperton v. A.T. Massey Coal Co.\u27 discussed by several law professionals including Jed Shugerman, Debra Lyn Bassett and Dmitry Bam at a 2014 symposium held in the New York University

Kent Newmyer’s classics Supreme Court Justice Joseph Story: Statesman of the Old Republic and Joh... more 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 ...

https://scholarship.law.bu.edu/clark\_speakers/1065/thumbnail.jp