Justice Joseph Story and the Rise of the Supreme Court

By Gerald T. Dunne | Go to book overview

CHAPTER XXXII
The 34th Section

THE UNIQUE DISTINCTION

Story achieved two posthumous distinctions in 1938. In that year Congress passed the Chandler Act and thereby finally vindicated his vision of a comprehensive bankruptcy system. In that year also, his own Court accorded him a different type of recognition by adjudging him its only member to write an unconstitutional opinion in a leading constitutional case.1 The almost incredible distinction was underscored by being given to one whose threefold accomplishment as justice, writer, and teacher made him regarded -- from Commager to Cooley, from de Tocqueville to Lord Bryce -- as the paramount authority on the Constitution in general and on the constitutional bounds of the national judicial power in particular.

It must also be stressed that Story does not hold his adjudicated distinction merely because he was subsequently overruled on a point of constitutional law. On the contrary, Story himself -- by

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1
Erie R. R. v. Tompkins, 304 U.S. at 64 ( 1938). The circumstances of the opinion are set out in Mason, Harlan Fiske Stone ( 1956), 478-81. Justice Butler dissented. Justice Reed, concurring, held in effect that Story did not write an unconstitutional opinion but merely misconstrued a statute. Prof. Philip Kurland suggests that this concurrence "may yet prove to be his most important opinion" ( Kurland, "Mr. Justice Frankfurter, the Supreme Court, and the Erie Doctrine in Diversity Cases," Yale Law Journal, LXVII [ 1957 ], 190).

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