Seth Barrett Tillman comments:
You wrote: "This is the In re Merryman situation, in which President Lincoln refused to obey a court order to release Merryman, whom the court found to be unconstitutionally detained. (The order was from a lower court but that seems immaterial)."
I don't think your statement here is correct. Although Taney did determine that Merryman was unconstitutionally detained, Taney never issued any order (as far as I know) directing Lincoln (or anyone else) to release Merryman. See here at p.3 ("Taney issued no order to secure the release of John Merryman or to enforce the writs of the court."); at p.13 (same). Taney did issue an order that the General over the Fort detaining Merryman should produce Merryman at the start of the proceedings. This order was not obeyed, but it was not directed to Lincoln, nor was it an order to release Merryman.
Your use of "lower court" hides a variety of Taney's sins in Merryman. It was not at all clear in what capacity Taney was acting: in chambers as a Supreme Court Justice, for the Circuit Court of Maryland, or the District Court of Maryland.
My own view is that Lincoln acted here and elsewhere with punctilious regard for the Constitution.
Seth is right, of course. My apologies for writing imprecisely. Taney wrote an opinion holding Merryman's detention unconstitutional and arranged for a copy to be delivered to the President (pp. 3-4 of the document linked above), but he did not actually issue an order for release to the President or the detaining military authorities. (But getting the details right actually undermines the argument for judicial non-supremacy, because it is less clear that the Merryman episode is a precedent for the executive disregarding a judicial order).
Posted at 10:53 PM