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?
But again, like Taney and Black she was acting in her role as head of the district court and not for the entire Supreme Court. And again, like Black, it was not a descision. Justice O'Conner issued a stay, a temporary reprieve from a lower court order, at the request of the airlines pending the filing and disposition of a petition for certiorari for review by the Ninth Circuit. Read the desicion yourself and it's clear. Link
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.
Again, Justice Douglas issues a stay. A temporary postponement. He did not issue a decision in the name of the entire court but halted a proceeding to allow the entire court to consider it. Stays are a whole lot different from decisions. And if this is the path you're going down then I will stipulate for the record (I love talking legalese) that the Supreme Court justices issue thousands of stays and order and opinions as individuals. Just about every execution in this country involves a stay from the Supreme Court justice at one point or another. But if is your intent to define these actions as decisions made in the name of the entire court, and to assign them the same weight as full court decisions then you are completely wrong.
If Lincoln wanted to follow the rule of law, he could have appealed Taney's ruling to the whole Supreme Court.
Does this imply a change in your position? Earlier you were describing Taney's actions as a Supreme Court decision, and as such who was Lincoln supposed to appeal it to? But if it was, in fact, a Discrict Court decision then sure, it could have been appealed. So which is it now?
Ex Parte Merryman was a district court decision. And Lincoln could have, and probably should have appealed it to the entire court. But the Supreme Court was not in session and would not be in session until the fall. Lincoln was fighting a rebellion and by that time the original suspension had lapsed. Still, I agree that Lincoln probably should have taken the matter before the entire court.
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.
I suspect you may be right. But we'll never know.
Why did they do those things if Lincoln already had the right to suspend habeas corpus on his own?
Why not?