The Strangely Insignificant Role of the U.S. Supreme Court in the Civil War

For as much as has been written about the legal and constitutional issues of the Civil War, few scholars have ventured to answer the question of why the Supreme Court did not decide more war-related cases during the war years. Harold M. Hyman suggests that a majority of the justices on the bench were not willing to join Chief Justice Roger B. Taney in striking down federal actions in wartime. They had learned from their “Dred Scott mistakes” which had caused “awful consequences nationally.” Thus, when they were again given the opportunity to decide issues of national consequence (related to civil liberties, in the instance that Hyman discusses), they denied themselves jurisdiction rather than condemn the actions of a coordinate branch of the government. “Politics and battles more than litigations decided public policies,” concludes Hyman.¹

This view has some credibility. The Court denied itself jurisdiction in Ex parte Vallandigham (1864), refusing to determine the validity of Lincoln’s use of the military to arrest and try civilians in places where the civil courts were open. Justice David Davis’s opinion in Ex parte Milligan (1866) seems to confirm that the Court was unwilling to weigh in on certain constitutional issues during the war but that it would do so after the firing had ceased. “During the late wicked Rebellion, the temper of the times did not allow that calmness in deliberation and discussion so necessary to a correct conclusion of a purely judicial question,” wrote Davis in Milligan. “Then, considerations of safety were mingled with the exercise of power, and feelings and interests prevailed which are happily terminated. Now that the public safety is assured, this question, as well as all others, can be discussed and decided without passion or the admixture of any element not required to form a legal judgment.”²

William M. Wiecek raises the question of the Supreme Court’s sparse war docket in his short history of the Court, Liberty under Law: The Supreme Court in American Life, but then neglects to offer a satisfactory answer. “The Civil War, in short, was a constitutional conflict,” he writes. “Yet despite the prominence of questions of constitutionality and legitimacy, the Supreme Court’s role during the war and Reconstruction appears inconsequential, and this fact requires some explanation.” He points to the English Civil War and the Glorious Revolution as “illuminating comparison[s]” since they, too, were internal convulsions in which the courts had a “similarly inconspicuous role.” Wiecek concludes: “Sometimes, it seems, especially at times of revolutionary upheaval, courts are simply dehors the action, and properly so.”³

“During the middle and late nineteenth century,” Wiecek continues, “economic and social shifts were occurring outside the judicial sphere, beyond the power of courts to control or even to influence in a constructive way.” He points to the centralization of power in the federal government, the changing economic situations in the postwar South, and the rise of industrial capitalism and the regulatory state, among other things, as some examples of arenas in which the courts would have less influence. “The legislatures and the executive were better equipped to deal with these matters, and consequently the role of the courts sometimes seemed marginal. Courts were relegated to being spectators on the sidelines, in peripheral ways approving or impeding important developments in American life.”⁴

Despite the promise of “some explanation,” Wiecek’s account does not explain the minimal role of the U.S. Supreme Court in the Civil War, other than to assert that the judiciary generally plays a minor role in times of war and that it is generally not well situated to make decisions about certain types of issues. Such a view neglects to appreciate the caseloads of the state and lower federal courts during the war. These courts heard numerous cases involving all manner of war measures—conscription, suspension of the privilege of habeas corpus, legal tender, confiscation, fugitive slaves, piracy, draft resistance, treason. The state and federal judiciaries were actively hearing war-related cases between 1861 and 1865. The question remains as to...