Guest Essayist: Daniel A. Cotter

Justice Joseph Story: The Youngest Justice Appointed to the Court

Most lawyers in private practice at the age of 32 are preparing for potential consideration for, and transition to, partnership.  At that same age, after a distinguished government and law firm career in Boston, Joseph Story took his seat on the United States Supreme Court in 1811, becoming the 18th Justice of the Supreme Court and the youngest justice appointed to the Supreme Court.  Story served on the Court for almost thirty-four years, writing a large number of opinions and dissents.  His tenure coincided with those of two of the longest serving Chief Justices in the Supreme Court’s history, John Marshall and Roger B. Taney.

Early Life and Career

Story was born in Marblehead, Massachusetts on September 18, 1779, to Dr. Elisha Story, a participant in the Boston Tea Party, and Elisha’s second wife, Mehitable Pedrick.  Story was the first of eleven children of the second marriage, and the eighth child of Elisha.  He attended Marblehead Academy, which he left after the schoolmaster beat him in front of his classmates, and enrolled at Harvard University at the age of 16.  Story graduated from Harvard in 1798, finishing second in his class.

Story then read law under U.S. Representative Samuel Sewall, who later became Chief Justice of the Massachusetts Supreme Judicial Court.  Story also read law under Samuel Putnam.  In 1801, Story was admitted to the bar at Salem, Massachusetts, and went on to work for a prominent shipping firm, George Crowninshield & Sons.  In 1805, Story was elected to the Massachusetts House of Representatives, serving approximately two years, until he successfully ran for the U.S. House of Representatives from Massachusetts’s 2nd district, to fill the vacancy created by the death of a Crowninshield son.  Story served less than one year and was not up for reelection in 1808.  Story returned to private practice but then returned to politics, winning election as a state representative again and becoming Speaker of the Massachusetts House in 1811.

Supreme Court

When an opening on the Supreme Court became available during James Madison’s presidency as a result of William Cushing’s death, Madison nominated Story (Story was the fourth choice of Madison for this vacancy).  Story was nominated on November 15, 1811, and was confirmed by the United States Senate a mere three days later by Senate voice vote.  Madison hoped that Story would serve as a counter to the positions and views of Chief Justice John Marshall, but Madison’s hopes were not fulfilled.  Story quickly became a strong ally of Marshall and sided with him on many of the Court’s most important decisions over the next twenty years.  Story issued a large number of opinions for the Marshall Court, second only to the Chief Justice.  After Marshall’s death, Story served another dozen years under Chief Justice Roger B. Taney. Story did not like the fragmentation on the Taney Court and believed that the Taney Court favored states’ rights over nationalism too strongly.

Story brought his expertise in commercial law to the Supreme Court and, riding circuit in the New England region, brought national jurisprudence to the North.  The process of circuit riding enabled both Story and Marshall to influence which cases reached the Supreme Court.  Story’s judicial philosophy was based on “legal science,” believing that proper and uniform application of law would make the United States stronger.

Story’s scientific judicial philosophy at times led to unintended consequences, such as his opinion in Prigg v. Pennsylvania (1842), which held that any state law that interfered with enforcement of the Fugitive Slave Act of 1793 was unconstitutional.  The Prigg case gave slavery national constitutional standing. Story claimed that the decision was an antislavery opinion, but the opinion also led to a number of “personal liberty laws” being enacted in the Northern States.  Eventually, in 1850, the Fugitive Slave Act of 1793 was replaced with a harsher one.  Around the same time as Prigg, Story authored the decision in The Amistad (1841), holding that the Africans who had been sold into slavery were free. The Amistad was the first time that the Supreme Court decided a slavery case, and Prigg was the second instance. (Story was portrayed in the movie version of Amistad by Justice Harry Blackmun — the only known time one Justice has played another Justice in a movie.)  Story also was very much opposed to slavery, but believed the language of the Constitution expressly authorized the institution.

Story strongly advocated federal jurisdiction and nationalism, causing Andrew Jackson to call him “the most dangerous man in America.”  Early in his judicial career, Story authored the opinions in Fairfax Devisee v. Hunter’s Lessee and Martin v. Hunter’s Lessee, finding in the latter that Section 25 of the Judiciary Act of 1789, which gave the Supreme Court the jurisdiction to review state judicial decisions that interpreted the Constitution and federal laws, was constitutional.  (In both cases, Marshall did not participate as the cases involved his family’s investments in properties, although some historians have asserted the language of the decisions has a Marshall-esque flavor.)  Virginia initiated an anti-Court movement after the decision, but the supremacy of the Supreme Court was further cemented by Story’s opinion.

During his long judicial tenure, Story was also a prodigious author, with numerous treaties on law and commentaries to his credit, including his three-volume Commentaries on the Constitution, a source that is still consulted for understanding the Founders’ language. Story’s nine commentaries consistently advocated nationalism and economic liberty.

In 1819, Story was elected to the Harvard Board of Overseers.  Beginning in 1829, Story also taught for many years at Harvard University as the Dane Professor of Law.  Story planned to retire from the Court to further pursue his interests in writing and teaching, but died unexpectedly of an illness on September 10, 1845, having served more than thirty-three years on the Supreme Court.


Story had a long and distinguished career on the Supreme Court. His judicial philosophy and his interest in preserving the Union led to decisions that were not always consistent.  Story is the ninth-longest serving justice in the Court’s history and also has the longest tenure as the Junior Justice on the Supreme Court—he served in that role for eleven years until Smith Thompson became the 19th Justice in 1823.

Dan Cotter is a Partner at Butler Rubin Saltarelli & Boyd LLP and an Adjunct Professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies.  He is also a Past President of The Chicago Bar Association. The article contains his opinions and is not to be attributed to Butler Rubin or any of its clients, The Chicago Bar Association, or John Marshall.

6 replies
  1. Publius Senex Dassault
    Publius Senex Dassault says:

    Thank you Professor Cotter.

    “The song remains the same today” for many Presidents as it did in 1811, “Madison hoped that Story would … but Madison’s hopes were not fulfilled.” Tenured Supreme Court justices have and will continue to surprise and disappoint their sponsors. Why should choosing a SCOTUS Justice be any different than everyday life where we live with the “Illusion” [Anthony Hopkins, Cuba Goodings Jr.] we are in control and the delusion :that we have every right to ourselves – to be selfish.” [Phillip Keller]

    Professor Cotter, what happened to the other 3 choices? Were they nominated and rejected by the Senate, refuse the nomination, or did Madison bypass them for Story?


    • Dan Cotter
      Dan Cotter says:

      Thank you. Two nominees (Levi Lincoln and John Quincy Adams) declined. At the beginning, SCOTUS was not seen as a prestigious gig. A third nominee was rejected by the Senate, Alexander Wolcott. Story ended up getting the position and the rest, as they say, is history.

  2. Ralph T. Howarth, Jr.
    Ralph T. Howarth, Jr. says:

    I remember some blurb 30 years ago hearing that Joseph Story wrote a pamphlet titled something like “How to become a lawyer” and the reaction was that lawyers pushed to institute bar associations among states to protect the tradecraft of lawyers from commoners. This is much like protectionist union behavior by making the state as an agent of protecting their association in industry.

  3. Sandy Thatcher
    Sandy Thatcher says:

    Story is also revered by copyright lawyers as the author of the first opinion in which the notion of “fair use” came into play in Folsom v. Marsh, 9. F.Cas. 342 (C.C.D. Mass. 1841).

  4. Kyle
    Kyle says:

    It is pretty shocking to me that precedent is not a big factor in many courts. Huge part of English and definitely Islamic law and in fact was for some the overwhelming majority of decisions based off precedent. May I ask, we know Madison was a loose constructionist and so was this justice. Actually a better word would be living constitutionalist


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