U.S. Supreme Court During the War

The Civil War raised questions of fundamental importance to the U.S. constitutional order. Among these were questions about whether a state could secede from the Union, the distribution of the war-making powers between the president and Congress, and the authority of the Supreme Court to review those powers. What was undoubtedly a crisis for the country was no less a crisis for the Court. In the end, these fundamental constitutional issues were decided and resolved, not through appeals to the law or to the Supreme Court, but through political force.

The Civil War was a profound threat to the stability of the U.S. constitutional order. The Supreme Court played a role in the war’s inception, the response by President Abraham Lincoln and Congress, and the war’s conclusion and aftermath. Except for a few important and controversial decisions, however, the Court had limited significance during the Civil War.

The Civil War raised questions of fundamental importance to the U.S. constitutional order. Among these were questions about whether a state could secede from the Union, the distribution of the war-making powers between the president and Congress, and the authority of the Supreme Court to review those powers. What was undoubtedly a crisis for the country was no less a crisis for the Court. In the end, these fundamental constitutional issues were decided and resolved, not through appeals to the law or to the Supreme Court, but through political force.

The Road to War

A number of factors led to the war. Prominent among them was the issue of slavery, left unresolved at the nation’s founding. Congress formally prohibited the slave trade in 1808 and tried to end the debate with the Missouri Compromise of 1820, but the problems slavery raised for the Union did not dissipate. The Court took up the issue in the case of Scott v. Sandford (1857). Dred Scott, a slave, claimed that he had become a free man because he had resided in areas where slavery was illegal under the Missouri Compromise. Writing for the Court, Chief Justice Roger Brooke Taney held that persons of African American descent, whether slaves or emancipated, were not citizens of the United States. For “more than a century,” Taney wrote, African Americans had “been regarded as beings of an inferior order, and altogether unfit to associate with the white race … and so far inferior, that they had no rights which the white man was bound to respect.”

The chief justice also ruled that the Missouri Compromise was unconstitutional because Congress had no constitutional authority to regulate slavery in the territories. Some critics of the Court complain that it should not have tried to resolve a divisive political issue through a legal decision. On the other hand, the Court had not come to the issue uninvited. President James Buchanan, for example, had encouraged the Court to rule on the issue, stating in his inaugural speech that slavery “was a judicial question, which legitimately belongs to the Supreme Court, before whom it is now pending and will … be speedily settled.” The Court’s controversial ruling, far from settling the matter, galvanized forces on both sides of the slavery question. Just four years later, the country was at war with itself.

Secession and the Constitution

In late 1860 South Carolina and several other states sought to secede from the Union. Such claims were not novel, at least as a matter of constitutional theory. The nullification controversy of 1832–1833 had involved similar claims. During that controversy, South Carolina had argued that “each state of the Union has the right, whenever it may deem such a course necessary … to secede peaceably from the Union, and that there is no constitutional power in the general government … to retain by force such stake in the Union.” President Buchanan thought secession illegal, but he agreed that the federal government lacked the authority to prevent states from leaving. In Kentucky v. Dennison (1861), the Court sanctioned this understanding of the limits of federal power. The case involved a fugitive who had helped a slave escape from Kentucky. The fugitive ran to Ohio, and the Ohio governor refused to return him to Kentucky. Ruling for the Court, Chief Justice Taney refused to order the governor to turn over the fugitive, stating that criminal extradition clause of the Constitution depended on the states for its enforcement. There is, he argued, “no power delegated to the General Government … to use any coercive means” to force a governor to act. Implicit in this opinion is the clear sense that President Abraham Lincoln lacked any constitutional authority to keep the states in the Union.

In his inaugural address, President Lincoln argued instead that “the Union of these States is perpetual. Perpetuity is implied, if not expressed, in the fundamental law of all national governments.” Lincoln thus concluded that the Union, older than the Constitution, authorized him to prevent states from dissolving the bonds of the Union. One of his first actions was to resupply the Union troops at Fort Sumter. Forces in Charleston fired upon the fort, and the constitutional nature of the Union was left to be decided by military force and not by the Supreme Court.

Presidential Authority to Make War

When he assumed office, President Lincoln was faced with the prospect of war. In his first inaugural address, he responded directly to the Court’s decision in Scott. “I do not forget the position assumed by some, that constitutional questions are to be decided by the Supreme Court. … At the same time the candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court … the people will have ceased to be their own rulers.” Lincoln’s insistence upon his own authority to interpret the Constitution foreshadowed his interaction with the Court throughout the Civil War.

The first significant issue concerned the president’s authority to conduct war without prior congressional approval. The issue was raised when Lincoln, responding to the South’s declaration of independence from the Union, ordered a naval blockade of Southern ports in April, 1861. Acting pursuant to Lincoln’s order, Union warships seized a number of Southern and foreign ships and put them and their cargoes up for sale. In the Prize Cases (1863), the owners of four such ships argued that the president had no constitutional authority to order the blockade, for the power “to declare war [and] make rules concerning captures on land and water” was given by the Constitution to Congress, not the president. Congress did not ratify the president’s decision until July, 1861.

In a 5–4 decision, the Court ruled for Lincoln. Writing for the majority, Justice Robert C. Grier admitted that the Constitution gave to Congress alone the power to declare a national or foreign war. He noted also that the Constitution entrusts the position of commander-in-chief to the presidency. “If a war be made by invasion of a foreign nation,” Grier continued, “the President is not only authorized but bound to resist by force.” In this case, “the President was bound to meet [the war] in the shape it presented itself, without waiting for Congress to baptize it with a name.” The Court further underscored the president’s autonomy by declaring that “whether the President, in fulfilling his duties, as Commander-in-Chief, in suppressing an insurrection, has met with such armed resistance, and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents, is a question to be decided by him, and this Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted.”

In dissent, Justice Samuel Nelson agreed that “in one sense, no doubt this is war, but it is a statement simply of its existence in a material sense, and has no relevancy or weight when the question is what constitutes war in a legal sense … and of the Constitution of the United States.” The Court’s deference to the president’s decision about when the war began was mirrored at war’s end by its decision in Freeborn v. the “Protector,” (1872), which held that the war was formally concluded when the president said so. Together, these cases have provided strong support for presidential decisions to initiate military actions without first seeking congressional authorization.

The Court and Civil Liberties

President Lincoln’s decision to impose a naval blockade on Southern ports was just one part of a larger war effort. In addition to the blockade, Lincoln undertook a series of actions that amounted to the imposition of martial law. Among these were orders directing military authorities to search homes without warrants, imprisonment without charge or trial in civilian or in military courts, and suspension of the writ of habeas corpus. The most expansive order suspending the writ was issued in September, 1862; Lincoln did not seek congressional authorization for this order, and Congress did not finally authorize the president to suspend habeas corpus until the following March. Thousands of citizens were detained by the military and held without charge and without trial in either a civilian or a military court.

Chief Justice Roger Brooke Taney. (Library of Congress)

The constitutionality of Lincoln’s decision to suspend the writ was first tested in a federal circuit court in Baltimore, Maryland, in 1861. The military had arrested John Merryman for his participation in an attack on Union forces. Merryman petitioned the court for a writ of habeas corpus. Chief Justice Taney, riding circuit, granted the writ and had it sent to the general in command of the fort where Merryman was detained. Sending an aide in his place, the general replied that he would not obey the writ because Lincoln had suspended its operation. In response, Chief Justice Taney found the general in contempt of court, an action with little practical effect, and issued an opinion that directly addressed the constitutionality of Lincoln’s decision. Taney held that Lincoln had no authority to suspend the writ because Article I of the Constitution entrusted that authority to Congress “in language too clear to be misunderstood by anyone.” Taney ordered a copy of the opinion sent to Lincoln.

Lincoln failed to respond directly, instead stating in a later special session of Congress: “Now it is insisted that Congress, and not the Executive, is vested with [the power]. However, the Constitution itself, is silent as to which, or who, is to exercise the power.” In the same speech, Lincoln offered a more fundamental objection: “Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?”

The Supreme Court was presented with another claim concerning habeas corpus just two years later, in the case of Ex parte Vallandigham (1864). Vallandigham was arrested and tried by the military. He sought a writ of habeas corpus, but the Court dismissed his case, claiming that it had no authority over a military court. The Court’s reluctance to entertain the case was symbolic of its silent posture on military interferences with civil liberties throughout the Civil War. Moreover, the Court would not again consider the constitutionality of Lincoln’s wartime suspensions until well after the war was over, in the case of Ex parte Milligan (1866).


The end of the Civil War left the Union with difficult questions about how to bring the Southern states back into the fold. Congressional representatives from the Northern states had denied that the Southern states could validly leave the Union, but a return to the status quo that had existed before the hostilities was unlikely. Some congressional representatives and President Andrew Johnson, Lincoln’s successor, favored a policy of accelerated reconstruction that included provisional state governments. However, so-called Radical Republicans in Congress insisted that the Southern states could be readmitted only on whatever terms Congress imposed. What followed was the imposition of military rule, which included trials in military courts and the use of federal troops to maintain order. The result was a great contest between the president and Congress, a contest that revolved around the question of how the South should be “reconstructed” and about which branch of government would be responsible for the process. The Supreme Court played a small, but nonetheless significant, part in this contest.

Initially the Court cast some doubt on the constitutionality of various Reconstruction measures. In the Test Oath Cases (1867, Cummings v. Missouri and Ex parte Garland), for example, the Court found the loyalty oaths required of voters, attorneys, and others in the Southern states a violation of the ex post facto clause. In the well-known Milligan case, the Court seemed to cast further doubt on the constitutionality of congressional reconstruction by holding that military courts could not try civilians in those areas in which the civilian courts were functioning. In this case, the military had arrested Milligan, and he was convicted and sentenced to be hanged by a military commission. He sought a writ of habeas corpus. Notwithstanding its earlier decision in Vallandigham, the Court ruled for Milligan. In his opinion for the Court, Justice David Davis wrote

The Constitution of the United States is a law for rulers and for people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.

The Court did agree, though, “that there are occasions when martial law can be properly applied.” If civilian courts are “actually closed” and it is “impossible to administer criminal justice according to law,” then the military may supply a substitute for civilian authority. In Milligan’s case, the courts had been open and functioning; consequently, Milligan’s arrest by military authorities had been unconstitutional.

Although the Court did not fervently protect civil liberties until the war was over—in stark contrast to its behavior during the war—many congressional leaders saw in the case a more general threat to Reconstruction policy, which included military governments and tribunals. Thaddeaus Stevens, for example, complained that the decision “although in terms not as infamous as the Dred Scott decision, is yet far more dangerous in its operation.” Several bills were introduced in Congress to curb the Court, including one by Representative John Bingham of Ohio, who warned ominously of a constitutional amendment that could result “in the abolition of the tribunal itself.”

Opposition to Reconstruction

Many congressional leaders believed that a case then working its way through the federal courts would give the Court a chance to declare much of the Reconstruction effort unconstitutional. The case, Ex parte McCardle (1869), concerned a newspaper editor in Mississippi who had been arrested and tried by a military commission. McCardle petitioned for a writ of habeas corpus, arguing that the Reconstruction statute that had authorized his trial was unconstitutional. An appellate court denied the writ, whereupon McCardle appealed to the Supreme Court under an 1867 statute that governed such appeals. The Court accepted the appeal and heard arguments on the case. Fearful of the ruling, Congress reacted by passing a new law repealing the 1867 statute. This led the Court to reschedule oral argument, this time focusing on the question of whether Congress could withdraw jurisdiction from the Court in a pending case. A unanimous Court concluded that the statute withdrawing its jurisdiction in McCardle was constitutionally permissible. No longer having jurisdiction, the Court dismissed McCardle’s appeal.

Milligan aside, the Court generally refrained from inquiring into the constitutionality of Reconstruction. Thus, in Mississippi v. Johnson (1867), the Court ruled that a president is immune from an injunction by a court to restrain enforcement of Reconstruction legislation. Mississippi had asked the Court to enjoin President Johnson from executing the Reconstruction acts because they were, according to Mississippi, unconstitutional. The Court declined to intervene, finding that such interference would be “an absurd and excessive extravagance.” One year later, in a similar case (Georgia v. Stanton, 1868), the Court again indicated that it was unwilling to inquire into the details of Reconstruction policy by refusing to enjoin enforcement of the Reconstruction acts by the secretary of war.

In 1869 the Court put its imprimatur on Reconstruction—and on Lincoln’s insistence that the Union was perpetual—in Texas v. White. The Court ruled, first, that Texas’s decision to leave the Union was invalid because when Texas “became one of the United States, she entered into an indissoluble relation. … There was no place for reconsideration, or revocation.” Therefore, Texas had remained a “state” in the Union throughout the war. In some ways, the Court simply reaffirmed the result of the war, but the opinion is also an important statement of constitutional principle, for it held that the Union was not a mere “compact of states.” The case is also important for a second reason: The Court conceded that the initial responsibility for Reconstruction rested with the president in his capacity as commander-in-chief; however, that authority “must be considered as provisional” to the greater authority of Congress to “guarantee to every state in the Union a republican form of government.”