McGinty Brian. Lincoln and the Court

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After the opinions of Field and Miller had been read, the Supreme Court

rescinded its rule requiring the test oath.

Garland, Marr, and all other affected

attorneys were now eligible to practice in the Supreme Court.

For Garland, at least, the rescission was a triumph. He continued, almost

uninterrupted, the high-proﬁle career he had begun before the war. A former

Confederate senator, he was elected to the United States Senate from Arkan-

sas in 1867. Although the radical Republicans refused to seat him in the Sen-

ate, he later served as governor of Arkansas from 1874 to 1876 and was elected

a second time to the Senate in 1876. This time his qualiﬁcations were not

challenged, and he served in that body until 1885, when he resigned to become

United States attorney general under Democratic president Grover Cleveland.

He left the attorney general’s ofﬁce in 1889 to resume his private law practice

and was arguing a case in the Supreme Court in Washington in January 1899

when he suffered a stroke and died.

the court continued to hear arguments and deliver opinions through

the spring of 1867. None of its decisions, however, aroused as much raw emo-

tion as Milligan, Cummings, and Garland. Press comments on the three cases

ranged from praise to condemnation, and even to warnings that the decisions

endangered the victory just won on the battleﬁeld.

Democratic newspapers generally hailed the Milligan decision as a great

blow for freedom. The New York World (which had opposed Lincoln through-

out the war) praised Davis’s opinion as “a triumphant vindication of the Demo-

cratic party and a happy augury of the future.”

And the Louisville Democrat

expressed satisfaction “that in the worst days of party insanity and misrule,

there is one conservative department of the Government unawed and uninﬂu-

enced by the arbitrary power of Jacobinism....God save the Union and the

Supreme Court.”

Republican newspapers were less enthusiastic. The New York Herald ridi-

culed Davis’s opinion as “constitutional twaddle” and said it would “no more

stand the ﬁre of public opinion than the Dred Scott decision.”

The New York

Times lamented that the majority had not expressed “the common sense doc-

trine that the Constitution provides for the permanence of the Union, and for

such exercise of authority by Congress as may be necessary to preserve the Na-

tional existence.” The Philadelphia North American compared Davis to Confed-

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erate president Jefferson Davis and charged that Lincoln had “made a mistake

in appointing a Judge of the fatal name of Davis.”

The Independent noted the

peculiar effect the Milligan decision might have on other military trials. The

men (and one woman) implicated in Lincoln’s assassination had been tried by

a military commission in Washington, sentenced, and then hanged. Was their

trial subject to the same constitutional inﬁrmities as Milligan’s? If so, the

Milligan decision “virtually declares” that these assassins “suffered a juridico-

military murder.”

Other newspapers struck a more balanced tone. In Illinois, the Springﬁeld

Republican said that Milligan was “simply a reafﬁrmation of the sacred right

of trial by jury.”

The Chicago Tribune noted that the majority and concur-

ring opinions both agreed that Milligan was entitled to his liberty, disagreeing

only on the issue of whether Congress had power to provide for commissions,

and it criticized Davis for leaving the impression that Congress had no power

to do so.

It has occasionally been argued that the Milligan decision was guided by

the earlier opinion of Roger Taney in Ex parte Merryman. Warren wrote that

Milligan “strongly upheld” the principles laid down in Merryman, and David

Silver stated that Milligan was a “vindication for Chief Justice Taney.”

Except

that both dealt with arrests in wartime, however, Merryman and Milligan were

different cases. The issue before Taney in 1861 was whether the president or

Congress had the power to suspend the writ of habeas corpus. He decided that

only Congress could do that. It is true that his opinion (delivered without lis-

tening to any arguments from Lincoln or his administration) expounded at

length on the proper role of courts and executives in time of war, but the facts

of Merryman contrasted sharply with those of Milligan. Maryland was in a tur-

moil caused by street riots and sabotage when John Merryman was arrested.

Notwithstanding this, Merryman was never tried by a military commission—or

tried at all. Indiana was (if we may accept Justice Davis’s description) in a state

of peace when Lambdin Milligan was taken before a military commission,

tried, and sentenced to be hanged. There was no question in Milligan whether

Congress or the president could suspend the writ of habeas corpus, for Congress

had spoken in the Habeas Corpus Act of 1863, authorizing the president to

suspend the writ.

Justice Davis was a sensitive man who, as Charles Fairman has observed,

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“set great store upon the good opinion of others.”

He was chagrined by criti-

cism of his Milligan decision, particularly when it came from men in whom he

reposed special conﬁdence. One such person was his brother-in-law, Julius

Rockwell, a prominent Republican politician in Massachusetts. Rockwell had

long been speaker of the Massachusetts House of Representatives, had served

in the national House of Representatives, and had served a brief term in the

U.S. Senate from 1854 to 1855. Since 1859 he had been a highly respected

judge of the Massachusetts Superior Court. When Rockwell did not immedi-

ately write him about Milligan, Davis concluded that “he does not like my

opinion.” When Rockwell ﬁnally wrote, it was to express agreement with Chief

Justice Chase’s concurring opinion, which reasoned that Milligan was entitled

to release under the act of Congress and that it was unnecessary to decide the

case upon constitutional grounds. But he complimented Davis on the “great fe-

licity of language and the true spirit of Judicial dignity and candor” shown in

his opinion.

Davis’s reply to Rockwell mixed resignation with resolution. “It

w[oul]d be folly to say that I am indifferent to criticism,” he admitted, “but I

can conscientiously say, that I do not wilt under it.” He told his brother-in-law

that “this Court w[oul]d be a hell on earth to me, unless I can decide questions

according to the light which God has given me. I hope that God will give

me strength to utter my convictions & never to quail before any political

tempest.”

Davis knew that Ex parte Milligan was the most important case he had ever

decided—probably the most important he would ever decide. And to the end

of his days he remained convinced that he had decided it “according to the

light which God has given me.” Thousands of Americans—perhaps millions—

were also satisﬁed that he had done just that and, in the process, earned a ﬁrm

place in the history of the Court and his country.

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10 The Union Is Unbroken

hase presided over the Court during one of the most turbulent eras

of its history, for the war had settled the great questions of secession, union,

and slavery on the battleﬁeld but not in the law books. The radical Republi-

cans in Congress were determined to remake the states of the old South in a

new mold, using military power and political compulsion to “reconstruct” their

constitutions, their elections, and their governments, while Democrats gener-

ally (and former Confederates particularly) were determined to resist the radi-

cals and to enlist the support of any legislators, executives, or judges who might

help them to do so. Chase was a forceful personality but never a good adminis-

trator. He tried to have his own way on questions not only of judicial adminis-

tration but also of constitutional jurisprudence, and his efforts to coerce his fel-

low judges aroused resentment and resistance.

The death of John Catron in May 1865 marked the beginning of ﬁve years

during which the size of the Court ﬂuctuated, sometimes in response to exter-

nal demands, sometimes in response to its own needs. When Field joined the

Court in 1863, its membership was set by law at ten justices, but Catron’s long

illness had for practical purposes reduced that number to nine. Andrew John-

son waited nearly a year before he nominated a replacement. His eventual

choice was Henry Stanbery of Cincinnati, the well-known former Ohio attor-

ney general who had participated in the arguments of Ex parte Milligan and Ex

parte Garland on the government’s side.

Stanbery’s professional qualiﬁcations

were high, but in March 1866 he had been the principal draftsman of Johnson’s

message vetoing the Civil Rights Act that Congress had just passed, and this

aroused senatorial hackles. The precedent-breaking act declared “all persons

born in the United States and not subject to any foreign power” to be citizens

of the United States, and it guaranteed all citizens a broad range of equal

rights, regardless of race, color, or previous condition of servitude. Congress

overrode Johnson’s veto and the act became law on April 9, 1866.

One week

later, Johnson sent Stanbery’s nomination to the Senate. Senators who re-

sented his role in the civil rights veto quickly moved to sideline the nomina-

tion.

Movement had already begun in Congress to reorganize the Supreme

Court to improve its efﬁciency and reduce its caseload. With the approval of all

of the justices except Clifford, Senator Ira Harris of New York proposed to cre-

ate an intermediate appellate court within each circuit. The court would be ad-

ministered by a new circuit justice working with the Supreme Court justice as-

signed to the circuit, and it would have broad jurisdiction. Appeals to the

Supreme Court would be limited to more important cases.

Another proposal,

made by Congressman James F. Wilson of Iowa, would reduce the authorized

size of the Supreme Court from ten to nine justices. Wilson defended his pro-

posal on the ground that the existing court was too large for efﬁcient adminis-

tration and that an even number of justices risked a tie vote. He also thought

that further reductions in the size of the Court might be justiﬁed as vacancies

occurred.

Justice Miller hoped that the Senate bill would pass, for intermedi-

ate appellate courts would do much to reduce the court’s substantial backlog.

While the Supreme Court was out of session, Chase took it upon himself

to intervene with the House judiciary committee. Without consulting the

other justices, he asked that the legislation before Congress be amended to in-

crease the salaries of Supreme Court judges (associate justices would receive

$10,000 per year and the chief justice $12,000) and to change his title from

“Chief Justice of the Supreme Court” to “Chief Justice of the United States.”

And he agreed that no new judges should be appointed until the Court’s mem-

bership was reduced to seven.

(Reducing the number of justices would, he

thought, make the higher salaries more acceptable to Congress.) As ﬁnally

passed, the bill reduced the number of judges to seven and changed Chase’s ti-

tle, but it did not increase the judges’ salaries or create intermediate appellate

courts. As thanks for his meddling, Chase got part of what he wanted (a

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grander title, though it was so effectively buried in the legislation that the pub-

lic took no notice of it), and Miller and the other judges got nothing. The ﬁnal

act was submitted to President Johnson and signed by him on July 23, 1866.

By signing the bill, the president acknowledged that Stanbery’s nomination

would die. Three days earlier, Johnson had nominated Stanbery to be attorney

general, as successor to James Speed, who had resigned.

The nomination was

promptly conﬁrmed by the Senate.

It has often been asserted that the bill reducing the Court from ten to

seven justices was designed to deprive Andrew Johnson of the power to make

any Supreme Court appointments.

Johnson was, by this time, in a bitter

struggle with the radical Republicans in Congress over reconstruction and a

host of other issues. Justice Davis, who was not in Washington when Congress

reduced the size of the Court, was “puzzled by the bill,” primarily because it left

the justices’ circuit court assignments in doubt. But he “supposed” the bill was

passed “simply to prevent the Presdt fr[om] appointing Supreme Judges & that

it might be changed hereafter.”

A careful analysis of the chronology of the

legislation indicates that Davis’s supposition was mistaken. In fact, the idea of

reducing the Court to seven justices predated the radicals’ difﬁculty with John-

son, and it found its way into the 1866 legislation when Chase suggested it as

an offset for higher salaries. It was only in the last days of the legislative process

that the ﬁnal bill emerged with a reduced court and no intermediate appellate

courts to help the justices with their work. Johnson (who was never reluctant

to veto acts of Congress that he disagreed with) had readily signed the reduc-

tion bill and acquiesced in its results.

Further, Congress did not have to re-

duce the size of the Court to make sure that Johnson would not make unac-

ceptable appointments, for the radicals had enough votes in the Senate to

reject any nominees they disapproved. As Fairman has observed: “It is no won-

der that the President made no contest over the bill.”

january 14, 1867, marked the thirty-second anniversary of Justice James

M. Wayne’s accession to the Supreme Court. Entering his seventy-seventh

year, the justice from Savannah was the longest-serving judge remaining on

the Court. He had begun his service when Chief Justice John Marshall pre-

sided and had served during the administrations of eleven presidents. Though

frail, he was not in bad health and still contributed to the Court’s work, even

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giving occasional lectures at universities in Washington.

But the summer of

1867 was hot and humid, and typhoid was in the capital. Sometime early in the

summer, Wayne fell victim to the disease, and on July 5, he died.

He had

completed thirty-two years, ﬁve months, and twenty-one days of service on the

high court, a record exceeded up to that time only by Marshall himself, who

served thirty-four years, ﬁve months, and two days before his death in 1835.

Wayne’s contribution to the Supreme Court was measured not only by

time served but also by his important decisions. While he had been a member

of the majority that handed down the notorious Dred Scott decision in 1857,

during the war he had provided indispensable support for some of Lincoln’s key

measures. He sided with the majority to sustain the blockade in the Prize Cases

in 1863 (his vote in those cases made the difference between victory and a

crushing defeat for the administration), and in 1864 he wrote the opinion in

Ex parte Vallandigham that denied the Supreme Court’s jurisdiction to hear

an appeal from a military commission and enabled the president to avoid a po-

tentially disastrous decision.

In Ex parte Milligan, he declined to join Justice

Davis’s opinion striking down the military commissions as unconstitutional,

agreeing with Chase’s concurring opinion that Milligan was entitled to his re-

lease but that the military commission that tried him did not violate the Con-

stitution.

And he had, by orders made in circuit court cases in Washington,

sustained the administration’s position in key habeas corpus cases.

In late De-

cember 1866, Wayne had considered a petition for habeas corpus ﬁled on be-

half of Dr. Samuel A. Mudd, one of the eight persons convicted for complicity

in Lincoln’s assassination. The Supreme Court’s recent decision in Ex parte

Milligan had persuaded Mudd’s lawyers that he was entitled to release from his

imprisonment on the Dry Tortugas in Florida because his conviction, like

Milligan’s, had been by a military commission. Wayne, however, refused to or-

der Mudd’s release; as did Chief Justice Chase, to whom Mudd’s lawyers ap-

pealed after Wayne turned them down.

Only in the Test Oath Cases did

Wayne oppose the government’s position, joining with Field, Nelson, Grier,

and Clifford to strike down the oaths.

In all, Wayne’s record was one of dependable support for the government

in its efforts to deal with secession. He had paid dearly for his Union loyalty,

losing his property in Savannah early in the war and forfeiting the opportunity

to go home. He had, however, earned a reputation as a judge of principle and

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character. Wayne’s death reduced the Supreme Court to eight judges. By terms

of the act of July 23, 1866, no successor was appointed.

a potentially explosive case raising some of the same issues that the

Court faced in Milligan arrived in Washington a few months after Wayne’s

death. A ﬁercely racist newspaper editor named William McCardle had pub-

lished articles in a Vicksburg, Mississippi, newspaper attacking the govern-

ment’s reconstruction policies. Military authorities found the articles “incendi-

ary and libelous” and had McCardle arrested and held for trial by a military

commission. The commission had been established pursuant to the Recon-

struction Act of 1867, in which Congress authorized military commanders in

the former insurrectionary states to organize military commissions when they

deemed them necessary “for the trial of offenders.”

McCardle ﬁled a petition

for a writ of habeas corpus in the federal circuit court, but it was denied. He

then appealed to the Supreme Court in Washington, which made a prelimi-

nary ﬁnding that it had jurisdiction to hear the case.

The merits of McCardle’s petition were extensively argued between March

2 and 9, 1868, by a panel of distinguished lawyers that included, among others,

Jeremiah Sullivan Black, David Dudley Field, and Senator Lyman Trumbull of

Illinois. Justice Field later said that he had rarely heard arguments of such

“learning, ability and eloquence.” Reports soon began to circulate that the ar-

guments against the validity of military commissions had been so persuasive

that the majority of the justices were almost certain to strike down the recon-

struction laws. Congress heard the reports and decided to take action.

It had been generally agreed, at least since 1789, that Congress had exten-

sive power to deﬁne and limit the jurisdiction of the Supreme Court, for Arti-

cle III, Section 2, of the Constitution provides that “the Supreme Court shall

have appellate jurisdiction, both as to law and fact, with such exceptions, and

under such regulations as the Congress shall make.”

By giving Congress the power to make “exceptions” and “regulations,” the

Constitution gave the legislature a large degree of control over the Court’s ap-

pellate jurisdiction. McCardle’s petition was brought under an 1867 act of

Congress giving the Supreme Court jurisdiction to hear appeals in habeas cor-

pus cases when any person was deprived of liberty “in contravention of the

constitution or laws of the United States.”

Before the Court could announce

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its decision in McCardle’s case, however, Congress began to consider a bill re-

pealing the part of the 1867 law that gave the Supreme Court jurisdiction of

the case. When the justices assembled for their conference, the bill had passed

in both houses of Congress but had not yet been signed by President Johnson.

Conceding that Congress had the power to repeal the 1867 law, and believing,

as Justice Davis later explained, that it was “unjudicial to run a race with Con-

gress,” the justices withheld their decision.

When the bill got to Johnson, he

vetoed it, but Congress promptly passed it over his veto. After the bill ﬁnally

became law, the Court postponed McCardle’s case to the next term, to give the

judges and attorneys the opportunity to fully consider the effect of Congress’s

action.

In April 1869, after hearing extensive arguments, Chase announced that

the case was to be dismissed. The chief justice conceded Congress’s power to

make “exceptions” to the Court’s appellate jurisdiction and stated that it was

“hardly possible to imagine a plainer instance of positive exception....With-

out jurisdiction the court cannot proceed at all in any cause. Jurisdiction is

power to declare the law, and when it ceases to exist, the only function remain-

ing to the court is that of announcing the fact and dismissing the cause.”

But there were protests. Orville Browning (now Andrew Johnson’s secre-

tary of the interior) condemned the Court’s failure to decide McCardle before

Congress repealed its jurisdiction as an “exhibition of cowardice.”

Gideon

Welles complained that the justices had “caved in, fallen through, failed, in

the McCardle case.”

And on the Court itself, Justice Grier (joined by Jus-

tice Field) prepared a written statement in which he condemned the initial

postponement. Grier argued that the case involved the liberty not only of

McCardle but also of “millions of our fellow-citizens,” and that it deserved a

prompt decision. He charged that his fellow justices had “evaded the perfor-

mance of a duty imposed on us by the Constitution” and added: “I am not will-

ing to be a partaker either of the eulogy or opprobrium that may follow.”

The views expressed by Browning, Welles, and Grier had an effect on later

appraisals of Ex parte McCardle, prompting some historians to call the case an

abdication of judicial responsibility. If the Court had stood up to Congress in

the battle over jurisdiction, these historians argued, it could have restrained

some of the excesses of Reconstruction, striking a blow for civil liberty at the

same time that it upheld its independence. By failing to do so, it badly impaired

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its prestige and dignity.

These criticisms, however, do not take account of a

decision the Court rendered just a year later.

At the end of his McCardle opinion, Chase dropped a hint. It was a mis-

take, he said, to conclude that Congress had repealed all of the Court’s appel-

late jurisdiction in habeas corpus cases. It had repealed only the 1867 provision

authorizing appeals from the federal circuit courts.

Left untouched was a gen-

eral provision in the Judiciary Act of 1789 granting the Supreme Court juris-

diction to issue writs of habeas corpus.

Taking the hint, attorneys for a Missis-

sippian named Edward Yerger petitioned for Yerger’s freedom from a military

prison in Mississippi, where he was held on charges of having murdered an

army ofﬁcer. Yerger ﬁrst petitioned the federal circuit court for habeas corpus

under the Judiciary Act of 1789 and, when it denied relief, he applied to the

Supreme Court for a writ of certiorari reviewing the circuit court’s denial, and a

writ of habeas corpus ordering his release. In Ex parte Yerger, decided on Octo-

ber 25, 1869, Chase upheld the Court’s habeas corpus jurisdiction. He said that

“the general spirit and genius of our institutions has tended to the widening and

enlarging of the habeas corpus jurisdiction of the courts;...andthis tendency,

except in one recent instance [McCardle], has been constant and uniform.” The

Court could not exclude from its habeas jurisdiction “any cases not plainly ex-

cepted by law.” Since Yerger was “a case of imprisonment alleged to be unlaw-

ful,” it was the Court’s responsibility to exercise its jurisdiction and hear the case.

Viewed in the light of Yerger, McCardle does not seem so much a judicial

abdication as a recognition of realities. Congress had power under the Consti-

tution to create an “exception” to the Court’s appellate jurisdiction, and in

McCardle it did so. In Yerger, the Court forcefully asserted its general habeas

jurisdiction, proving that it need not (and perhaps would not) acquiesce in

all cases to congressional “exceptions.” As Supreme Court historian Stanley

Kutler has written: “The Court’s full position in McCardle, and its later behav-

ior in the Yerger case, are clearly inconsistent with the usual charges of judicial

impotence and cowardice. . . . [I]n the light of prevailing political passions, the

Court’s counter-response in the two cases indicates the quintessence of judicial

independence and courage, besides being a clever bit of judicial strategy.”

relations between andrew johnson and the radical Republicans in

Congress deteriorated badly after 1865. Siding with Southern whites who op-

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