Ex Parte Milligan: The Restoration of Judicial Prestige?

EX PARTE MILLIGANt The Restoration of Judicial Prestige? Joseph G. Gambone Ex parte Milligan is one of those famous Supreme Court cases that has been considered extremely significant to the basic defense of American civil liberties. It is also one of those rare cases, like Marbury v. Madison, that has had profound political implications within contemporary society. By virtue of the Milligan decision, the Supreme Court restored itself to a position of greater prestige, and reaffirmed its position as the "final arbiter of the Constitution."1 The great tribunal's unanimous decision of April, 1866, declared illegal military commissions in areas where civil courts were open and functioning.2 The decision in Ex parte Milligan, however, was greeted by certain political elements with a virulence which equaled that of the Dred Scott case. The Milligan decision initiated the recovery of the Supreme Court's prestige, which had been tarnished by the Dred Scott and the Merryman cases.3 The antebellum Court had alienated the North because of its seemingly prosouthern decisions on matters of extreme political importance . In the Dred Scott case, the Court had attempted to bring a judicial end to the exclusively political question of slavery, and in the Merryman case, a basic clash of opinions between Chief Justice Roger B. Taney and President Abraham Lincoln resulted over the very issue which the Court was to settle in Ex parte Milligan. The continual decline of the Court's reputation throughout the Civil War was linked to the existence of a wartime environment which did not suit judicial decisions . During wartime, military leaders have to make fast and drastic decisions; the American judicial system operates too slowly to be effective under such circumstances. However, once the Union victory was 1 Ex parte Milligan, 4 Wallace (71 US Reports) 2 (1866); Marbury v. Madison, 1 Cranch (5 US Reports) 137 (1803). 2 Although the Supreme Court agreed unanimously that the President's power to suspend the writ of habeas corpus and establish military commissions was unconstitutional , the Justices were divided over the issue of congressional authority. Mr. Justice Davis, speaking for the majority, declared in sweeping terms that the constitutional rights of citizens would be protected against arbitrary or military rule established by either the President or Congress, in war as well as peace. Chief Justice Chase, in his dissenting opinion, insisted that the legality of military commissions resided with the Congress and was, therefore, strictly a legislative power. 3 Scott v. Sandford, 19 Howard (60 US Reports) 393 (1857); Ex parte Merryman, 17 Federal Cases 144 (1861). 246 achieved, and the war atmosphere had subsided, the Court regained its lost prestige and began to reassert its authority.4 An examination of the constitutional issues raised during the Civil War indicates that the breakdown of the Union was one of the great turning points in American constitutional development. One of the major controversies involved the right of the government to suspend the writ of habeas corpus and to institute martial law and military tribunals for the trial of civilians in both border and free states when such a course was considered necessary for the success of the war.5 The Constitution provided that "the privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion the public safety may require it." Although the constitutional provision was stated negatively, it implied that the privilege of the writ might be suspended in all cases of rebellion or invasion. Unfortunately, it did not say whether it was Congress or the President who might authorize the suspension. Since it was included in the section devoted to the powers of Congress, the implication was that Congress was the agency to act in the matter. However, President Lincoln, without authorization by Congress, took it upon himself to extend this power to the executive branch, as an emergency measure to combat the wartime exigency. The issue of habeas corpus led to the judicial decision in Ex parte Milligan. The events and circumstances which developed during the years of rebellion, and eventually caused a judicial pronouncement in regard to the suspension of the writ of habeas corpus and the legality...