That being the case, can it really be considered a true court decision? From USSC case Carper v. Fitzgerald in 1887: "The order of the judge that the papers be filed, and his order recorded in the circuit court, does not make his decision as judge a decision of the court." The judge in question in that sentence, by the way, was a circuit court judge and not a USSC justice, so there was no question at all to which court he belonged, but the court makes a clear distinction between a decision issued by him in a habeas case and a decision of the court.
One thing is clear, Ex Parte Merryman was not a Supreme Court decision. It was not heard by the full court, the matter did not meet the criteria necessary for a hearing by the Supreme Court, so for rustbucket or anyone else to hold it up as evidence that Lincoln's suspension of habeas corpus was unconstitutional is just plain false. At best, Ex Parte Merryman shows us how Chief Justice Taney would have voted had the matter appeared before the Supreme Court. But it did not. Taney's muddying the water by invoking his Chief Justice title notwithstanding.
I agree with the paper trail. The actual court hearing was held on May 27 and May 28, 1861. General Cadwallader did not show up at the hearing but sent an aide, Col. Lee to read his response. Here is a report of part of the hearing. From the Philadelphia Public Ledger of May 31, 1861 concerning the hearing on May 27.
Chief Justice -- Have you brought with you the body of John Merryman?
Col. Lee -- I have no instructions except to deliver the response which I have read to your honors.
Chief Justice -- The commanding officer declines to obey the writ?
Col. Lee -- After the communication I have made, my duties and powers are ended.
Chief Justice -- Gen. Cadwalader was by that writ commanded to produce the body of Mr. Merryman before me this morning, that the case might be heard, and the petitioner be either remanded to his custody or set at liberty, if held on insufficient grounds; but he has acted in disobedience to that high writ, and I direct that an attachment be at once issued against him, returnable before me at 12 o'clock to-morrow.
Col. Lee then retired, and Chief Justice Taney wrote the following order which he delivered to the clerk.
ORDER FOR ATTACHMENT
Ordered, That an attachment forthwith issue against General George Cadwalader for a contempt, in refusing to produce the body of John Merryman, according to a command of the writ of habeas corpus returnable and returned before me to day, and that said attachment be returned before me at twelve o'clock to-morrow, at the room of the Circuit Court.
R. B. TANEY
The Baltimore Sun version of that hearing had Col. Lee retiring after Taney ordered an attachment for Gen. Cadwallader but before Taney wrote it out.
Some 2,000 people turned out to hear the court hearing the following day. Those who couldn't get in the courtroom milled around in the street outside. At that hearing Washington Bonifant, the US Marshal, made his return to the writ of attachment issued by Taney. Then Taney made a statement noting that the marshal had the power to summon the posse comiatus to aid him to seizing General Cadwallader, but the power refusing obedience was so notoriously superior to any the marshal could command that he excused the marshal. He promised to put his opinion in writing and file it in the office of the Circuit Court.