Benjamin Robbins Curtis of Massachusetts generally rates high marks for his six-year tenure on the Supreme Court. His bold dissent in DRED SCOTT V. SANDFORD (1857), followed by his dramatic resignation, largely accounts for his reputation. Yet Curtis's contributions to the development of constitutional law transcend that one case.
Curtis's prominence in the Dred Scott case is ironic, considering the fact that he received his appointment in 1851 because he was a northern Whig, acceptable to southern slave interests. By that time, he already was a leading figure in Boston legal circles. He had been selected in 1846 to succeed Justice JOSEPH STORY as an overseer (trustee) of Harvard College, and he was highly regarded for his promotion of procedure and litigation reforms. In 1851 he represented the Boston school board against the desegregationists in ROBERTS V. CITY OF BOSTON. But most important, Curtis had also endorsed Senator DANIEL WEBSTER'S efforts in the COMPROMISE OF 1850, had advocated strict enforcement of the new Fugitive Slave Act, and had fought abolitionists and free-soilers, even opposing CHARLES SUMNER'S successful Senate campaign in 1851. Shortly afterward, President MILLARD FILLMORE, following Webster's recommendation, nominated Curtis to succeed Justice LEVI WOODBURY. The only criticism came from the abolitionist press. Southern politicians, however, were satisfied and the Democratic Senate quickly confirmed the appointment.
Curtis's first major opinion, in COOLEY V. BOARD OF WARDENS (1851), reflected both his legal skills and his willingness to follow the middle ground of his patron, Daniel Webster. The case involved the limiting effects of the COMMERCE CLAUSE on state regulation, a subject that had divided the TANEY COURT since 1837. Southerners feared congressional regulation of interstate traffic in slaves, and consequently sought to interpret the commerce power narrowly. In Cooley Curtis acknowledged broad congressional authority over foreign and INTERSTATE COMMERCE, but the case challenged the validity not of congressional action but of local pilotage regulations for the port of Philadelphia. Curtis devised a compromise between the EXCLUSIVE POWER and CONCURRENT POWER views. His doctrine of SELECTIVE EXCLUSIVENESS recognized exclusive congressional power over subjects demanding uniform national regulation, but invited state regulation, in cases where Congress had not acted, of subjects...