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?
Not like Taney. He was legitimately acting under authority of the 1789 Judiciary Act where a Supreme Court Justice is authorized to issue writs of habeas corpus. He states that in Ex Parte Merryman, and I've quoted the section of the Judiciary Act for you above. Here is what Taney said in Ex Parte Merryman:
The application in this case for a writ of habeas corpus is made to me under the 14th section of the judiciary act of 1789 [1 Stat. 81], which renders effectual for the citizen the constitutional privilege of the writ of habeas corpus. That act gives to the courts of the United States, as well as to each justice of the supreme court, and to every district judge, power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment.
Maybe if I keep repeating the law to you enough times it will sink in. One can only hope.
I did read O'Connor's stay and quoted from it. I stated that she had done her action as a circuit justice. My point was that in an emergency, she took action without a call from the lower court. So did Taney, and he could act under the 1789 law, emergency or no emergency.
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.
I have no sympathy for the Rosenbergs. but Justice Douglas made a valid Supreme Court ruling though I disagree with his argument. If the Court had decided not to reconvene and address the issue Douglas raised, the issue could have stopped there.
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?
As I read the law in force back then this morning, I'm not sure Lincoln could have appealed Taney's Ex Parte Merryman ruling. If the whole Supreme Court could only hear appellate cases as you and the Constitution says, then the whole Supreme Court could not hear an appeal to Taney's perfectly legal action as a Supreme Court Justice ruling on habeas Corpus per the 1789 law. Taney's ruling stands, fully legal, unappealable.
Ex Parte Merryman was a district court decision.
No, it wasn't. If the 1789 law is in error, it might be, but it was not.
Well, maybe I overstated Ex Parte Merryman not being appealable. Lincoln could have appealed it to the full Supreme Court if he took the position that Taney’s legitimate Supreme Court Justice at chambers ruling represented the decision of an inferior tribunal.