Path to the Supreme Court
Benjamin Robbins Curtis was the pride of the Boston commercial bar — Harvard twice over, generally credited as the first justice to hold an earned law degree — and Daniel Webster's chosen candidate when Fillmore filled Woodbury's (§30) seat in 1851. He was forty-one, a Whig lawyer's lawyer expected to bring order to commercial doctrine. He did — and then, in his sixth year, wrote the most famous dissent of the century and left.
On the Supreme Court
Curtis's Cooley v. Board of Wardens gave the Commerce Clause its lasting shape — 'selective exclusiveness': subjects demanding one national rule belong to Congress alone, while local subjects abide state regulation until Congress speaks. Then Dred Scott: his dissent demonstrated that free Black men had been citizens and voters in five states at the founding — so citizenship was never a white monopoly — and that the Missouri Compromise was valid, dismantling Taney (§24) point by point. The aftermath was ugly: Taney revised his opinion before publication and denied Curtis access to it, the correspondence turned poisonous, and in September 1857 Curtis resigned — on principle in the usual telling, though the salary and the circuit grind played their part. He had one great case left: in 1868 he opened the defense of Andrew Johnson at the impeachment bar, and the one-vote acquittal was credited in large measure to his argument.
The Voting Record
How Curtis voted in the 454 cases the Supreme Court Database records from the 1851 term through the 1856 term, using that database’s classification of each vote as liberal or conservative. The gold tick on each bar is the rate for the other justices sitting on those same cases.
Where Curtis sat among the colleagues on the same bench — and whether that Court divided clearly enough for the question to have an answer — is laid out Court by Court. See this Court →
Source · The Supreme Court Database (Spaeth, Epstein, Nelson, Martin, et al.) · how these figures are made
Key Decisions
Cooley v. Board of Wardens
1852Holding · Commerce subjects national in character demand exclusive congressional regulation; local subjects, like harbor pilotage, admit state regulation until Congress acts.
Role · Curtis wrote for the Court.
'Selective exclusiveness' — the foundation on which dormant-commerce doctrine still rests.
Read the opinion →Dred Scott v. Sandford
1857Holding · Free native-born Black men were citizens — and voters in five states — at the founding; the Missouri Compromise was valid.
Role · Curtis dissented, with McLean (§21), and resigned months later amid the feud with Taney (§24) over the opinion's revision.
The century's most celebrated dissent: the historical demolition of Taney's opinion that armed the Republican constitutional answer.
Read the opinion →Go Deeper
Justice Curtis in the Civil War Era: At the Crossroads of American Constitutionalism (University of Virginia Press, 2005) by Stuart Streichler — the modern study Curtis deserved, and the right first book because it refuses to reduce him to the dissent: the Harvard Law protégé of Story, the conservative Boston Whig, the author of Cooley, the Dred Scott dissenter, the only principled resignation in the Court's history, and the lead defense of a president at the impeachment bar.
The Bookshelf
The 'crossroads' of the subtitle is the argument: Curtis embodied a legalist middle constitutionalism that the 1850s destroyed, and his career is the best single lens on what was lost. University of Virginia Press.
The Victorian monument, assembled by his son with his brother George Ticknor Curtis, the constitutional historian — and the indispensable primary trove: correspondence, the poisonous resignation exchange with Taney, the impeachment argument, and the professional writings. Nowhere else are the documents gathered. Public domain, both volumes free online. Little, Brown.
The most celebrated dissent of the Court's first century, and it earns the reputation: sixty-plus pages proving that free Black men voted for ratification in five states and were citizens of the United States on the day the Constitution took effect, and that congressional power over the territories was textual and settled. Read beside McLean's moral-register dissent, it is the lawyer's answer to Taney — the one the Fourteenth Amendment vindicated. Republicans printed it as a campaign document. Free online.
The junior justice's first-term masterpiece: after a decade of the Court splintering over the commerce power, Curtis's Philadelphia pilotage opinion cut the knot — subjects national in character demand one uniform rule; subjects local in character admit local regulation. "Selective exclusivity" has governed dormant-commerce analysis for a hundred and seventy years. Free online.
The modern argument over what the dissent means, largely from the 2007 Chicago-Kent Dred Scott symposium — with Maltz (returning from the Daniel page) as the essential complicator: Curtis was no abolitionist but a Compromise Whig who had defended fugitive-slave enforcement in Boston; the dissent is a legalist following law where it led, which is exactly why it devastated. Williams's "Top of the List" argues Curtis belongs at the very top of the Court's rankings — a title this site's law-school list gives a second meaning.
The standard scholarly account of the 1868 trial, where the ex-justice delivered his second historic performance: Curtis's opening for the defense framed impeachment as a legal proceeding requiring an indictable offense — the theory on which Johnson survived by one vote. Benedict is critical of that framing's politics, which makes him the right guide: Curtis's legalism, vindicated in 1857, is here the thing on trial. W. W. Norton.
Two profession-facing appraisals sixty years apart, as the FJC's bibliography lists them — Leach (author of the Nelson "rediscovery") presenting Curtis as the model lawyer's career; Williams & Bader (Bader returning from the Woodbury page) as the model of judicial independence. That the bar keeps reaching for Curtis as its exemplar is itself the finding.
The frame for the six years: Cooley's place in the commerce-clause wars, the 1857 conference politics, and the fullest account of the Taney–Curtis correspondence war that ended the tenure. Swisher's sympathy for Taney makes his careful documentation of the quarrel the more damning. Macmillan.
The only book-length Curtis study besides Streichler — his 1851 work enforcing the Fugitive Slave Act in Boston, prosecuting the rescuers of Shadrach Minkins. The uncomfortable prehistory of the man who would write the great Dred Scott dissent six years later. Talbot Publishing.
The standard modern biographical encyclopedia of the Court: a signed essay on each of the 110 justices from Jay to Alito, alphabetically arranged, by a named scholar or journalist. Length tracks reputation — two pages for Thomas Johnson, three for Woods, eleven for Holmes — which is itself a rough map of who the literature has bothered with. It is not a substitute for a biography, and for the justices who have never had one it is often the most careful short account in print. Borrow it free at the Internet Archive.
The one-volume reference on the Court: more than a thousand signed entries on cases, doctrines, institutions and the justices, current to 2005. Cases and people share one alphabet, so a citation can be followed without changing volumes, and the biographical entries are short, written by specialists, and better than a longer sketch at carrying the historiography — what the argument about a justice currently is. Borrow it free at the Internet Archive.
The Reading Path
A researched route through the literature — in order.
- 1.Streichler — for the modern study of the whole constitutional career
- 2.The Dred Scott dissent — for the greatest dissent of the Court's first century, in full
- 3.Cooley — for the doctrine still governing — written in his first full term
- 4.Maltz and Williams — for the modern debate: unlikely hero, last angry man, top of the list
- 5.Benedict — for the impeachment defense — legalism's second great performance
- 6.The Memoir — for the documents: the Taney letters, the arguments, the life
- 7.Swisher — for the Court he served and the quarrel that ended it
Where the Papers Are Kept
Benjamin Robbins Curtis papers, 1831–1879 — 4 containers, 450 items of correspondence and legal papers, as the FJC lists them. The two-volume Memoir functions as a published archive of the essential documents; the dissent, Cooley, and the impeachment argument are all free online. Visit →
Online Resources
Ideas for Further Research
- The shortest great tenure in Court history: six years produced the era's most durable doctrine (Cooley), its greatest dissent, and its only resignation on principle — publicly the salary, unmistakably the Dred Scott breach beneath. Taney revised his opinion after delivery, refused Curtis the filed text, and accused him of leaking; the poisonous correspondence is preserved in the Memoir.
- Three loops close here: the Story seat's New England line (Story → Woodbury → Curtis); the law-school list's milestone (first justice with a law degree — "Top of the List" in both senses); and Dred Scott's fifth voice (dissenter McLean, broadener Wayne, author Taney, fixers Catron and Grier, refuter Curtis).
- The second career as vindication: fifty-plus Supreme Court arguments and the lead defense of Andrew Johnson in 1868, where his opening framed the theory that won acquittal by one vote. The bar has reached for Curtis as its exemplar ever since — the appraisals span 1955 to 2012.