In her 2022 Katzmann Lecture, Justice Sotomayor stated:
[O]nly twice in our history have presidents ignored Supreme Court rulings—imagine that—in two hundred years of history. First, Andrew Jackson permitted states to displace Indians from their sovereign lands and gave them federal support to do so in direct contravention of the Supreme Court’s ruling in Worcester v. Georgia, holding that Indian nations were sovereigns and states could not pass laws controlling Indian lands. Second, after Chief Justice Taney ruled [in Ex parte Merryman] (in a case he heard alone, not with the full Court, and that was filed with the United States District Court) that President Abraham Lincoln’s unilateral suspension of the writ of habeas corpus was unconstitutional, President Lincoln maintained the suspension and did not release the detainee in question. 1
Here, Justice Sotomayor made three claims. First, she asserted that Ex parte Merryman 2 was decided by Chief Justice Taney acting alone—Sotomayor was correct about that. Second, Sotomayor asserted that Merryman was “filed with the United States District Court”—she was not correct about that. And finally, Sotomayor characterized Merryman as a Supreme Court case—she was not correct about that either. We all make mistakes—but characterizing a case as a Supreme Court case, when it is plainly not such a case, is odd. One might think Sotomayor, a Supreme Court Justice, would know what cases her own Court had decided. Still, Sotomayor is not alone 3—other judges have also asserted that Merryman was a Supreme Court decision, including Judge Katherine B. Forrest, in a district court opinion, 4 as well as both Chief Judge Posner, 5 a federal appellate judge, and Judge Napolitano, 6 a state trial court judge, writing extrajudicially. Any number of other judges, academics, and authors have also asserted that Merryman was a Supreme Court decision. 7 The position taken by these commentators (including Justice Sotomayor, Chief Judge Posner, Judge Forrest, and Judge Napolitano) is not correct. Apparently, the basis for these authors’ mistaken inference was that Merryman was authored by the Chief Justice of the United States, and it was assumed that his opinion spoke for the Supreme Court as an institution.
Others have asserted that Merryman was a decision of the United States Circuit Court for the District of Maryland—the local intermediate federal appellate court. Chief Justice Rehnquist, 8 Judge Diane Wood, 9 a federal appellate judge, and two federal district court judges 10 took this position, as well as any number of other domestic judges, foreign judges, academics, and authors. 11 (It is possible that this is also the position of Justice Alito and others on today’s Supreme Court. 12) The position of these commentators (including Chief Justice Rehnquist and several other federal judges) is not correct. Apparently, the basis for these authors’ mistaken inference was that Merryman is usually cited as a circuit court decision, 13 presumably because Taney chose to leave his final written opinion of the case with the clerk for the United States Circuit Court for the District of Maryland with directions that his opinion be filed with the circuit court’s records and transmitted to President Lincoln. As a result, Taney’s opinion has been reported, on many, if not most, occasions (e.g., in the Federal Cases reporter) as a circuit court case. 14 Still, there are (other) good reasons contemporaries might have been confused on this point. Why? First, during the initial public Merryman hearing, on May 27, 1861, both Chief Justice Taney, the circuit justice for Maryland, and William F. Giles, the single federal district court judge for Maryland, appeared on the bench. 15 Having two judges on the bench might have led the public to believe they were hearing a federal circuit court case. However, on May 28, 1861, the date of the final Merryman hearing, Judge Giles did not appear on the bench with Taney, nor did Judge Giles participate in deciding Merryman. 16 Second, both public Merryman hearings, on May 27 and May 28, 1861, were held in the room where federal circuit court hearings had been and were regularly held. 17 This too was likely to have led the public to believe they were hearing a federal circuit court case. One also notes that some of those who have adopted the Merryman-was-a-circuit-court-decision position, including one federal district court judge writing extrajudicially, have also indicated that Merryman was heard as an appeal of a lower court decision, 18 but the basis for such a view remains obscure. 19
Others have asserted that Merryman was a district court decision—in effect, a decision of the United State District Court for the District of Maryland. 20 Indeed, Justice Sotomayor hinted at this possibility, 21 as has Judge Salmon, a judge on the Maryland Court of Special Appeals 22 and other authors. 23 The position of these commentators (including Justice Sotomayor and Judge Salmon) is not correct. Apparently, the basis for these authors’ mistaken inference was that Merryman was decided by a court of first instance or trial court, 24 and in the modern federal judicial system, it is the district courts which customarily function as the court of first instance or trial court.
So, which was it? 25 Was Ex parte Merryman a decision of:
(a) the Supreme Court of the United States;
(b) the United States Circuit Court for the District of Maryland;
(c) the United States Court of Appeals for the Fourth Circuit; 26
(d) the United States District Court for the District of Maryland; or,
(e) the Supreme Court of Maryland? 27
Of course, the correct answer is: (f) none of the above. 28
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So what did happen? Taney decided Merryman under special authority granted by the Judiciary Act of 1789 to all Article III judges and Justices. Section 14 of the act stated: “And that either of the justices of the supreme court, as well as judges of the district courts, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment.” 29 This position is confirmed by Chief Justice Taney’s own words in Merryman. Taney wrote: “The application in this case for a writ of habeas corpus is made to me under the 14th section of the judiciary Act of 1789 [1 Stat. 81], which renders effectual for the citizen the constitutional privilege of the writ of habeas corpus.” 30 This understanding of the actual procedural posture of Merryman has been recognized by some (but not all) Justices 31 and commentators, 32 along with some of the earliest reports of the case. 33 In other words, Taney was acting as a Justice on or riding circuit, 34 but he was not acting as a Justice or judge for the local federal circuit court or any other duly constituted court. 35 Indeed, as Professor Jonathan White explains, Chief Justice Taney, in developing his draft Merryman opinion, “crossed out ‘the court’ and inserted ‘a judicial tribunal’ in pen. Taney then crossed out ‘a judicial tribunal’ and ‘I’ and [instead] inserted in pencil ‘a justice of the Sup. Court’ and ‘he’ . . . .” 36
Taney issued his oral opinion in Merryman from the bench while he was on or riding circuit, 37 that is, away from his home chambers which was in the nation’s capital, but not in his capacity as a circuit court judge or as a judge of the circuit court. Because Taney’s power to decide Merryman was a special statutory authority committed to him as an individual Supreme Court Justice, that is, because he was not acting for any duly constituted court, 38 his decision is properly characterized as “at chambers”. The characterization of Merryman as “in chambers” or “at chambers” or a “chambers” decision is the correct one. Indeed, it is how Taney characterized his Merryman decision. 39 Nevertheless, this characterization has led to confusion for several reasons. 40
First, some object to characterizing Merryman as a chambers decision because they believe Merryman was a decision of the Circuit Court for the District of Maryland. Admittedly, Merryman looks like a circuit decision for a variety of reasons. First, its two public hearings—on May 27 and May 28, 1861—were held in the federal circuit court’s courtroom. 41 However, a courtroom is just that—a room can be used for many purposes and even by other courts. Second, during the first public hearing, on May 27, 1861, two federal judges appeared on the bench: Chief Justice Taney and Judge Giles, the Maryland federal district court judge. But, Giles did not appear on the bench with Taney on the second day, nor is there any indication that Giles joined or dissented from Taney’s opinion as part of a two-judge panel. 42 Third, the Merryman decision appeared in the Federal Cases reporter, which primarily reported circuit court (and district court) decisions. 43 Primarily, but not exclusively. And finally, Taney co-opted the circuit court’s clerk during Merryman’s proceedings, including issuing an express instruction to put his written opinion on file with the records of the circuit court. 44 Of course, this latter instruction is something Taney need not have ordered had Merryman been a run-of-the-mill circuit court decision.
Second, Taney’s Supreme Court chambers was in Washington, District of Columbia. But no Merryman proceedings were actually heard there—in Taney’s chambers in the capital district. Instead, on May 26, 1861, Taney received Merryman’s lawyers’ submission in his home, and not in his chambers. After reviewing that submission, and while still in his home, Taney issued a writ of habeas corpus: an ex parte order directing the defendant, General Cadwalader, to produce (but not release 45) John Merryman for the May 27, 1861 hearing, which was to be held in the Baltimore circuit court courtroom. Furthermore, Merryman was decided and announced from the bench, on May 28, 1861, while Taney was physically in Maryland, 46 and not in his District of Columbia chambers. All this has led some to doubt the propriety of characterizing Merryman as a “chambers” decision.
Third, Merryman included three separate hearings. As explained, the first hearing was an ex parte May 26, 1861 hearing in Taney’s home in the capital. The second hearing, on May 27, 1861, 47 was in Baltimore. This hearing was not ex parte—both parties had notice and both parties were represented—at least in some fashion. 48 Furthermore, the May 27, 1861 hearing was open to the public, as was the third and final hearing, which was held in the same Baltimore courtroom on May 28, 1861. Traditionally, an “in chambers” proceeding is one conducted “a. in the privacy of a judge’s chambers[; or,] b. in a court not open to the public.” 49 But neither of these definitions squarely applied to the ex parte Merryman hearing held on May 26, 1861 in Taney’s home, nor to the public Merryman hearings held on May 27 and 28, 1861 in the circuit court courtroom in Baltimore. These circumstances have led some to doubt the propriety of characterizing Merryman as a “chambers” decision.
Finally, in modern times, “chambers” opinions by Justices of the Supreme Court are primarily “dispos[itions] of an application by a party for interim relief, e.g., for a stay of the judgment of the court below, for vacation of a stay, or for a temporary injunction” 50 as part of a wider, prior, imminent, and/or ongoing appeal to the Supreme Court. In such circumstances, the individual Justice is acting on behalf of the Court as a whole, and as such, a decision of a single Justice is a decision of the Supreme Court of the United States. 51 Merryman, by contrast, was not such a decision. Not only was Merryman not a decision in the process of being appealed to the Supreme Court, it was not even possible, for either of the parties, 52 to appeal Taney’s final order in Merryman to the Supreme Court! 53 In other words, it is not now widely appreciated that the prevailing modern understanding of what a “chambers” decision is, has changed substantially from what a “chambers” decision was in the mid-nineteenth century. This too has led some to doubt the propriety of characterizing Merryman as a “chambers” decision.
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For all the reasons above, I suggest that, to avoid future confusion, citations to Merryman should eschew referencing the Circuit Court for the District of Maryland and the customary reporter: Federal Cases. 54 The traditional form of citation has only led to substantial confusion. Instead, I suggest Merryman should be cited by referencing the modern reporter for in chambers decisions by Justices of the Supreme Court: Cynthia Rapp and Ross E. Davies’ A Collection of In Chambers Opinions by the Justices of the Supreme Court of the United States. 55
Scoil an Dlí agus na Coireolaíochta Ollscoil Mhá Nuad. I thank Professor Jonathan W. White and Brian McGinty for their past and recent willingness to entertain my many questions, and I thank Professors Paul D. Halliday and G. Edward White for their willingness to entertain my obscure theories.