A recent blog post by Mike Ramsey discussed judicial supremacy and referred to the 1861 case of Ex Parte Merryman. Mike wrote: "at least, I think we can say without apology that Lincoln erred as a constitutional matter in Merryman; otherwise, there is simply no legal check on executive power." However, Lincoln did describe a very enormous check on executive power when he said the following on July 4, 1861: "it cannot be believed the framers of the instrument [i.e. the Constitution] intended, that in every case, the danger should run its course, until Congress could be called together; the very assembling of which might be prevented, as was intended in this case, by the rebellion." Thus, Lincoln did not purport in Merryman to suspend the writ of habeas corpus in the face of congressional refusal to do so.
Even if we imagine that Lincoln erred as a constitutional matter in Merryman, or that he was prepared to defy both Congress and the courts, still the fact remains that he had the raw power to do what he believed was constitutional, and a president today would likely have that raw power too. The judiciary did not stop him. If General Winfield Scott had been imprisoned for contempt of court, the president had unquestioned power to pardon Scott and also had the military resources to enforce that pardon, which may explain why neither General Scott nor his subordinates nor any U.S. Marshal was in fact held in contempt of court in Merryman.
Again, imagine that Lincoln erred as a constitutional matter in Merryman. Does that mean Lincoln also would have been erring if Taney had issued the writ despite an express suspension of the writ by Congress? Or, does it mean that Lincoln would have been erring if the writ was instead a judicial order that secession is legal and therefore imprisonment of all Confederate soldiers is cruel and unusual punishment? My answers are no and no.
Chief Justice Marshall
once said: "It is the peculiar province of the legislature to prescribe general rules for the government of society; the application of those rules to individuals in society would seem to be the duty of other departments." If the judiciary, under the guise of saying what the law is (or under the temptation of saying what the law should be) instead prescribes general rules for the government of society, I think it must be the duty of the other branches to resist. This is checks and balances, rather than supremacy of any one branch over the others. For example, if the president refuses to prosecute state government officials for utilizing the death penalty, because the president denies the constitutionality of a judicial opinion that the death penalty is always unlawful, then the president can be impeached by Congress, he can be voted out of office, he can be defunded, the Supreme Court can stop treating the executive branch as a friend of the court, the Chief Justice can announce that he will no longer administer the oath of office, but the courts cannot take over the executive branch. Just because SCOTUS is supreme among courts does not mean that it must be supreme among branches.
UPDATE: In this post, I wrote that, "If General Winfield Scott had been imprisoned for contempt of court, the president had unquestioned power to pardon Scott…." That is clearly correct as to criminal contempt, but not so for imprisonment pursuant to civil contempt, which I should have made clear (my thanks to Seth Barrett Tillman for the heads up). But even as to civil contempt, Lincoln would have been able to simply instruct the U.S. Marshals Service not to take Scott into custody.
Posted at 6:59 PM