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The Rise of the Supreme Court Reporter: an Institutional Perspective on Marshall Court Ascendancy Author(S): Craig Joyce Source: Michigan Law Review, Vol

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The Rise of the Supreme Court Reporter: an Institutional Perspective on Marshall Court Ascendancy Author(S): Craig Joyce Source: Michigan Law Review, Vol The Rise of the Supreme Court Reporter: An Institutional Perspective on Marshall Court Ascendancy Author(s): Craig Joyce Source: Michigan Law Review, Vol. 83, No. 5 (Apr., 1985), pp. 1291-1391 Published by: The Michigan Law Review Association Stable URL: http://www.jstor.org/stable/1288984 Accessed: 05-10-2016 21:03 UTC JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at http://about.jstor.org/terms The Michigan Law Review Association is collaborating with JSTOR to digitize, preserve and extend access to Michigan Law Review This content downloaded from 128.59.179.110 on Wed, 05 Oct 2016 21:03:55 UTC All use subject to http://about.jstor.org/terms THE RISE OF THE SUPREME COURT REPORTER: AN INSTIT'UTIONAL PERSPECTI'VE ON MARSHALL COURT ASCENDANCYt Craig Joyce* "In my judgment there is no more fair or honorable road to permanent fame . ." INTRODUCTION With the death of John Marshall in 1835, the Court that bears his name passed officially into history. The sesquicentennial of the Mar- shall Court in 1985 offers a welcome opportunity to reexamine the achievement of that Court from a vantage point long neglected in the literature: namely, the institutional perspective. Fittingly, the most appropriate place to begin that inquiry is the Court's own decision in Wheaton v. Peters,2 its first pronouncement on the law of intellectual property but also, and more importantly for present purposes, the last "great case" of the Marshall Era. Admittedly, the decision in Whea- ton stands among the landmarks of the Supreme Court's early years for a variety of reasons largely unrelated to the development of the Marshall Court as an institution. The core of the case's doctrine - that copyright is a statutory grant for the benefit of the author, which can be secured only by strict compliance with statutory requirements - remains foundational to the copyright law of the United States to t Copyright 1985 by Craig Joyce. * Assistant Professor of Law, Vanderbilt University. B.A. 1970, Dartmouth College; M.A. (Jurisprudence) 1972, Oxford University; J.D. 1975, Stanford Law School. - Ed. In the prepa- ration of this Article, the author has had access to the files of the Oliver Wendell Holmes Devise History of the Supreme Court of the United States [collection hereinafter cited as Devise His- tory], for which he thanks the Devise Project, Professor G. Edward White of the University of Virginia School of Law and Professor Gerald Gunther of Stanford Law School. In addition, the author acknowledges with gratitude the research assistance of Mr. Douglas I. Brandon of the Vanderbilt Law School Class of 1985. 1. Justice Joseph Story to Reporter Henry Wheaton (Jan. 8, 1817), Wheaton Papers, The Pierpont Morgan Library, New York City (upon the publication of the first volume of Wheaton's Reports). All of the cited correspondence and other primary materials from the Morgan Library collection are used with the permission of the Morgan Library. Due to the large number of letters cited in this Article, all correspondence, regardless of its repository, is cited in an abbrevi- ated form. 2. 33 U.S. (8 Pet.) 591 (1834). 1291 This content downloaded from 128.59.179.110 on Wed, 05 Oct 2016 21:03:55 UTC All use subject to http://about.jstor.org/terms 1292 Michigan Law Review [Vol. 83:1291 the present day.3 The profoundly nationalistic import of the decision - establishing the supremacy of the copyright clause of the United States Constitution4 over common law copyright protection under state law - is a prime example of the triumph of federal sovereignty, the organizing principle of Marshall Court jurisprudence, over com- peting centrifugal forces in the early Republic.5 The manner in which that triumph came to be - including the Court's unsuccessful attempt to broker a compromise between the parties and a bitter squabble on the bench on the day of decision - shows in high relief at what cost, but how well, Marshall had built.6 There is more, however, to Wheaton v. Peters. For the principal protagonists in the litigation were none other than the third7 and fourth8 Reporters of the Court's own decisions, and the history of the contest between them provides new insight into the progress of the Court from its status as an "almost faceless" onlooker during the na- tion's first decade9 to a position of "judicial hegemony" in the federal system by the close of Marshall's tenure.10 The transformation of the Supreme Court's role and power within the American constitutional scheme during the forty-six years from the inception of John Jay's chief justiceship to the close of John Mar- shall's1' has long been a leading theme in the histories of that period.12 Notably absent from such histories, however, is any apparent con- 3. See text at notes 526-28 infra. The present governing statute is the Copyright Act of 1976. 17 U.S.C. ?? 101-812 (1982). 4. U.S. CONST. art. I, ? 8: "The Congress shall have Power ... to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." 5. See generally C. HAINES, THE ROLE OF THE SUPREME COURT IN AMERICAN GOVERN- MENT AND POLITICS 1789-1835, at 331 (1944) (by 1811, the Court had been "Federalized, or perhaps Marshallized") (quoting K. BABCOCK, THE RISE OF AMERICAN NATIONALITY, 1811- 1819, at 293 (1906)); L. TRIBE, AMERICAN CONSTITUTIONAL LAW 22 (1977); Haskins, Law Versus Politics in the Early Years of the Marshall Court, 130 U. PA. L. REV. 1 (1981); White, The Art of Revising History: Revisiting the Marshall Court, 16 SUFFOLK U. L. REV. 659 (1982). 6. See text at notes 484-89, 496-514 infra. 7. Henry Wheaton, Reporter from 1816 to 1827. Wheaton published 12 volumes of the Reports. 8. Richard Peters, Jr., Reporter from 1827 to 1843. Peters was dismissed by the Court on January 25, 1843, after the publication of 16 volumes of his Reports. His little-known seven- teenth volume, covering the Court's 1843 Term, is not a part of the United States Reports. C. SWISHER, THE TANEY PERIOD 1836-64, at 304-06 (5 Devise History, 1974, supra note *). 9. J. GOEBEL, JR., ANTECEDENTS AND BEGINNINGS TO 1801, at 662 (1 Devise History, 1971, supra note *). 10. R. MCCLOSKEY, THE AMERICAN SUPREME COURT 79 (1960). 11. 1789 to 1835. 12. See, e.g., H. CARSON, THE HISTORY OF THE SUPREME COURT OF THE UNITED STATES; WITH BIOGRAPHIES OF ALL THE CHIEF AND ASSOCIATE JUSTICES (1891); C. WARREN, THE SUPREME COURT IN UNITED STATES HISTORY (rev. ed. 1937); G. HASKINS & H. JOHNSON, FOUNDATIONS OF POWER: JOHN MARSHALL, 1801-15 (2 Devise History, 1981, supra note *). This content downloaded from 128.59.179.110 on Wed, 05 Oct 2016 21:03:55 UTC All use subject to http://about.jstor.org/terms April 1985] Supreme Court Reporters 1293 sciousness of the indispensable role played by the Court's early Re- porters in its rise to preeminence among the lawgivers of the new nation. Commentators have largely ignored the institutional compo- nent of the Court's ascendance in favor of the doctrinal aspects of that development. Two examples will suffice. Representative of an earlier day is H.L. Carson's Centennial History of the Court, published in 1891. Carson summarized the effects of Marshall's insistent nationalism in terms suggestive of inescapable destiny: "Beneath the strong and steady rays cast by his mind the mists were rising, and the bold outlines of our national system were gradually revealed."13 Similarly, among present- day historians, George L. Haskins, in his recent study of the separa- tion of law from politics in Marshall Court jurisprudence, has written: Under Marshall, the Court became the ultimate seat of federal judi- cial power and, more important, a fertile breeding ground for developing the idea of the supremacy of the rule of law, as distinct from elusive and unpredictable accommodations to the executive and the legislature. In- evitably, these developments and the ideas they nurtured permeated the lower federal courts, and helped to spread nascent ideas of a new Ameri- can nationalism.14 Inevitable? No. Moder lawyers, accustomed to air courier deliv- ery of judicial opinions announced in Washington, D.C., the preceding day, are understandably blind to the difficulties encountered by the bar, the public at large and even the lower courts, in obtaining copies of the Supreme Court's decisions in an earlier age. In truth, however, the reputation of the Court in those years, and even knowledge of its utterances, depended in large part upon dissemination of its opinions by an unofficial system of private enterprise reporting whose hallmarks were delay, omission and inaccuracy, and unmanageable expense. Ob- scured by such deficiencies in the reporting of Marshall Court deci- sions, it is little wonder that the "bold outlines of our national system" rose but slowly from the "mists" during the first decades of the nine- teenth century. To understand fully, then, the Supreme Court's ascendance to power under John Marshall, one must comprehend not only the doc- trine of its decisions, but also the simultaneous occurrence of a little- noted revolution within the institution itself, namely, the development of a dynamic official reporter system that led ultimately to the contro- versy at the heart of Wheaton v.
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