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Reviewed by:
  • Lincoln and the Court
  • R. Owen Williams
Lincoln and the Court. By Brian McGinty. (Cambridge, Massachusetts: Harvard University Press, 2008. Pp. 375. Cloth, $27.95.)

Given the endless bloodshed of the Civil War, it would be easy to forget that the rule of law continued uninterrupted. Historians often ignore the proceedings of the U.S. Supreme Court, and legal histories tend to focus on technically arcane constitutional matters. Few readily digestible accounts of the role played by the nation’s highest tribunal during the Civil War exist. So the current offering from lawyer and independent historian Brain McGinty is a welcome addition to Civil War scholarship. Here the Supreme Court justices are treated not as “cogs in an impersonal machine” but as fallible men shaped by the difficulties of their times (10). McGinty successfully demonstrates that the “Civil War was essentially a legal struggle” with the Supreme Court at its core (1). He also provides a valuable contextual lens through which to consider twenty-first-century war powers.

The two prominent figures in this history of the Supreme Court, not surprisingly, are President Abraham Lincoln and the man who swore him in, Chief Justice Roger Taney. (Taney had sworn in six previous presidents, all of whom, like the chief justice, hailed from the Democratic Party.) McGinty begins by introducing the eight justices present at Lincoln’s March 1861 inauguration; Peter Daniel of Virginia had recently passed away. In the next chapter, traveling backward in time, McGinty lays out Taney’s majority opinion in the infamous Dred Scott v. Sandford case of 1857, which “made a substantial contribution to Lincoln’s 1860 victory” (63). That decision—for which Lincoln was openly and vociferously critical of Taney—altered the way Americans viewed the court and quickly elevated the profile of Abraham Lincoln, who became nationally known for his great Cooper Union speech in response.

In eleven chapters, McGinty alternates between coverage of the key cases before the Civil War Supreme Court—Dred Scott v Sandford, Ex parte Merryman, Prize Cases (“the most significant vindication that Lincoln ever received from the Court,” 303), and Ex parte Vallandigham—as well as other aspects of the federal judicial system, including vacancies in the Supreme Court, personalities on the bench, and the various congressional reorganization plans of the judiciary that often delayed Lincoln’s appointments. The workings of the court are intelligibly presented and the justices compellingly humanized, none more than the “Old Lion” Roger Taney. McGinty pays close attention to details—particularly regarding the many initiatives before Congress that attempted to reorganize the court at a time when the justices still rode circuit—the [End Page 313] effect of which is as interesting as it is colorful. The several tensions and pressures that drove the court, not least political factionalism and the exigencies of sectional war, are made abundantly clear. Some of the cases considered, such as Ex parte Milligan—“the most famous Supreme Court decision” of the Civil War era—in 1866 or Cummings v. Missouri in 1867, came after Lincoln’s death but delivered important opinions on his war measures (307). The book contains an insightful afterword on the legacy of the Civil War court and a useful sixteen-page biographical gallery of justices.

Lincoln and the Court provides an excellent synthesis of existing scholarship and a bit of original research, as the somewhat limited footnotes (only twenty-nine pages worth) attest. The only notable shortcoming of the book is that it examines too few of the hundreds of cases before the court during the war; the handful of decisions McGinty addresses are already quite well known to Civil War and legal historians. It would have been especially interesting to learn, for example, how the Court dealt with commercial matters during this period. Although a good mix of law and history, it offers little technical or doctrinal analysis. Partly because of that, academics and general readers alike will find this an enjoyable and useful read.

R. Owen Williams
Yale University