So you keep saying. And you insist that the Merryman case was a Supreme Court decision. But I'm still puzzled on how the Merryman case became a Supreme Court case to begin with given the constitutional restrictions on jurisdiction. And I'm also hoping that you can provide me with the names of some other cases where a single justice decided the matter for the whole court. I'm anxious to improve my wealth of knowledge. Can't you help me here?
Justice O'Connor once issued an in chambers ruling granting relief although the applicant did not seek relief from a lower court first, 480 U.S. 1301, issued as a Supreme Court in chambers ruling. She did it as the circuit justice, but the opinion appears under the Supreme Court heading. From the ruling:
The timing and substance of the Court of Appeal's order under the exigencies of this case made compliance with Rule 44.4 of this Court, requiring that a motion for a stay first be filed with the court below, both virtually impossible and legally futile. I conclude that this situation presents one of those rare, extraordinary circumstances in which request for a stay before the Court of Appeals is not required under the Rule.
Then there is the example of two individual justices issuing differing opinions on the opposite sides of a stay. They can't both be the circuit justice for the case in question, the bombing of Cambodia. The Second Circuit issued a stay on the injunction against the bombing. Justice Thurgood Marshall was asked to vacate the stay; he declined. Justice William O. Douglas then vacated the stay in a single justice ruling. Justice Marshall then poled the other seven members of the Court, and they agreed that he should grant the stay, which he did.
Justice Douglas had done something similar in the Rosenberg case, where he stayed the execution of Ethyl and Julius Rosenberg, something the Supreme Court had earlier refused to do. His stay was in effect until the Court was called back in session a couple of days later from their six-month vacation, and Douglas's stay was put aside.
If Lincoln wanted to follow the rule of law, he could have appealed Taney's ruling to the whole Supreme Court. He didn't. I suspect that he would have lost, and it would have been clear that he didn't have the legal authority to suspend habeas corpus. He couldn't risk that, but he had enough votes for Congress to later indemnify him for his habeas action and authorize him to suspend habeas corpus in 1862 or 1863 (I forget which). Why did they do those things if Lincoln already had the right to suspend habeas corpus on his own?