A Debt to Mercy Yet Unpaid

Every law student meets Supreme Court Justice Joseph Story as the author of Prigg v. Pennsylvania, a rightfully maligned decision that enforced the return of escaped slaves and stripped northern states of any power to resist. “Slavery is odious,” Story wrote, “but it is recognized by the Constitution.” His hands were clean by legal measure and bloodied by every other one; his reasoning contradicted his heart but remained true to his lifelong conviction that fidelity to law was a moral act. Story believed that only obedience to the Constitution’s form could preserve the nation’s conscience. That belief was both noble and ruinous.

Before he was a justice, Story was a poet. He was just twenty-five years of age when he wrote The Power of Solitude in 1804. His poems were steeped in the Enlightenment faith that liberty was the soul of the republic, not merely a clause in its charter. This was more than the romantic idealism of youth, for forty years later—just one year before Prigg—Story’s moral reasoning freed a group of Africans captured at sea. “It is plain they are entitled to their freedom,” he wrote in United States v. The Amistad, giving the Black men safe passage home. Reading that opinion today, one clearly hears the echo of his own verse:

Grant the rich boon to fancy’s peerless train,
Which valor asked, which justice claimed in vain,
The destined slaves to freedom’s joys restore,
And waft the captives to their native shore.

As a justice, Story strengthened his younger voice with the imprimatur of the Court. The poem and the judgment complete each other: the poet dreamed a freedom that the jurist, finally, delivered. (And then revoked.)

Almost two centuries later, the same Court faces a different crisis—not between morality and law, but between law and power. Today’s Supreme Court under Chief Justice John Roberts has dissolved the tension that once haunted Story. Conscience no longer bows to law—but neither does it recognize that law’s foundation demands conscience.

Since taking the Court’s helm in 2005, Roberts has presented himself as an institutional moderate, the man who keeps the Court above politics. That posture served for years as a convenient façade, but his own words have begun to haunt him. In Trump v. Hawai‘i (2018), Roberts wrote that Korematsu v. United States—the 1944 decision that sanctioned the internment of Japanese citizens in concentration camps—“was gravely wrong the day it was decided.” Yet in the same opinion, he upheld the Trump administration’s executive order that targeted people from Muslim-majority nations as threats to national security. The contradiction was unmistakable: the justice who renounced internment simultaneously blessed exclusion by another name.

The pattern repeated itself only last month in Noem v. Vasquez-Perdomo (2025). In haste and without reasoning (using the so-called “shadow docket”), the Court upheld a federal “domestic-threat” program authorizing detention based on composite risk profiles that weigh a person’s occupation, language, and physical appearance—an algorithmic pretext for racial and cultural profiling. The Court’s excuse was deference to executive discretion, claiming it was “not the role of the judiciary to second-guess determinations of public safety.” To readers outside the law, that sentence may sound neutral. To anyone inside it, the words are chillingly familiar. They are Korematsu rewritten in polite modern syntax.

Here, we might invoke the youthful Story’s anticipatory rebuke:

Such thro the prison’s dank, unwholesome night,
Where clanking chains the sullen spirit fright,
Immortal Howard bends his heavenly way,¹
To wake the fettered slumberer into day;
Wrings from oppressive power unwilling aid,
And claims the debt to mercy yet unpaid.

_______________

Students read Prigg v. Pennsylvania, but not United States v. The Amistad. Thus Justice Story occupies the casebooks as a technician of federal supremacy (and the upholder of slavery), not as the man who once wrote that the captives “are entitled to their freedom.” The omission is instructive. Legal pedagogy, like much of modern jurisprudence, favors order over empathy. Thus Story’s contribution to the law of civil rights is remembered chiefly through his protection of slavery, in Prigg. If we looked more completely at his intellectual life, both as poet and jurist, perhaps he would become a different kind of figure in the annals of American law.

So how will history remember the Roberts Court, and its Chief Justice? John Roberts seems loyal neither to the law nor to reflective solitude— instead he shows fealty to the company he keeps. He seems to find fraternal comfort in deference to the Chief Executive, even when that deference directly contradicts his constitutional role and the Court’s own precedents. If Story’s tragic flaw was his obedience to the letter of the law, Roberts’ is his disobedience to that law.

There is a more common meaning of poetic justice than the one I have used to frame this series of essays: a turn of fate in which a wrongdoing cycles back to punish itself. By that measure, the Roberts Court—and the power to which it bends—may yet earn its proper epitaph.

In vain shall tyrants leagued in arms oppose
The generous virtue, which from freedom flows.

Notes:

All of the lines of verse are from Joseph Story’s The Power of Solitude, Wikisource transcription of the 1804 edition.

1. Note on “immortal Howard”: This is John Howard (1726–1790), an English philanthropist and prison reformer whose State of the Prisons in England and Wales (1777) exposed the squalid conditions of confinement and inspired humanitarian reform across Europe. His moral zeal made him a symbol of civic virtue in the Romantic imagination, praised by poets such as William Cowper, Anna Laetitia Barbauld, and later Byron as a “saint of humanity” who sought redemption through public compassion.

Cases cited:

• Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539 (1842).

• United States v. The Amistad, 40 U.S. (15 Pet.) 518 (1841).

• Korematsu v. United States, 323 U.S. 214 (1944).

• Trump v. Hawaii, 585 U.S. 667 (2018).

• Noem v. Vasquez-Perdomo, 602 U.S. ___ (2025).