Justice Roger Taney's Rotten Ruling

IN 1861, ACTING through his agents, Abraham Lincoln detained a Marylander named John Merryman (who had waged private war against the federal government), suspended the legal writ of habeas corpus that is ordinarily used to test the validity of detention in court, and then ignored a judicial ruling, issued by Chief Justice Roger Taney, that declared the suspension unconstitutional. In Brian McGinty’s engaging treatment of this famous episode, Lincoln comes across as a familiar figure—both thoughtful and decisive, respectful of constitutional law yet aware of the unusual necessities of the time. More novel is McGinty’s picture of Lincoln’s judicial adversary. Taney’s lightly concealed sympathy for the rebellion, his rush to issue judgment in Merryman’s case without even hearing arguments from counsel, his later efforts to thwart federal proceedings against indicted traitors, and his willingness to portray the law of habeas corpus as far more clear than it really was, all amounted to enlisting the courts as a weapon against the government—a form of “lawfare” in one sense of that term, conducted from the judicial bench itself.