Vanderbilt Law Review


Paul Finkelman

First Page



His thirty-two years on the Supreme Court make him one of the twelve longest serving Justices in history. At the time of his death, he was the third longest serving Justice in the history of the Court, and he is sixth in length of service among all Justices who served before the twentieth century. He wrote about 240 majority opinions and about sixty separate concurring and dissenting opinions. Yet he is about as obscure a Justice as there has ever been. Few Justices have worked so hard for such a long period of time, and yet had so little impact on the Court."

How do we appreciate the "underappreciated" John McLean? It cannot be through his majority opinions-even the handful of majority opinions he wrote in important cases, such as Wheaton v. Peters, Briscoe v. Bank of Kentucky, The Passenger Cases, and Pennsylvania v. Wheeling Bridge Co., are relatively insignificant. These cases are famous for the political, economic, and constitutional issues that brought them to the Court, but not for the jurisprudence or the reasoning of their majority opinions. Rather, McLean's importance comes from three aspects of his career: 1) his unusual political aspirations and activities while serving on the bench; 2) his support for a national commerce power and a flexible approach to economic development that contrasted with the states' rights anti-nationalism of Taney and a majority of the antebellum Court; and 3) his moderate antislavery jurisprudence, which he combined with a defense of northern interests on a Court dominated by Southerners and northern supporters of slavery.