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Wednesday, May 19, 2021

Houston v. Moore--The Backstory

A favorite parlor game each year is to figure out whether a Justice lost a majority between the conference and final opinion in a case. This is not a new phenomenon, of course, though identifying examples from long ago is difficult. But here is one I hadn't seen until now.

Houston v. Moore was argued before the Supreme Court in 1819. Chief Justice Marshall wrote Joseph Story and assigned Story the opinion. In 1820, the opinion came out. But Moore was written by Justice Washington over Story's dissent. What happened? The most logical thought is that Story lost his majority, as the personnel of the the Court did not change. Score one for Bushrod here. 

Story said in his dissent that at least one of his colleagues concurred with him. Was that Chief Justice Marshall? There's no way to know. In his letter to Story, Marshall said that he basically agreed with Story on the case. Could he have changed his mind? Perhaps.

 

Posted by Gerard Magliocca on May 19, 2021 at 01:50 PM | Permalink

Comments

Interesting. By the way, one may reach Houston here:

https://tile.loc.gov/storage-services/service/ll/usrep/usrep018/usrep018001/usrep018001.pdf?

Posted by: El roam | May 19, 2021 6:51:42 PM

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