Wednesday, May 22, 2013

White on the "Strangely Insignificant Role" of the Supreme Court in the Civil War

At least since the publication of Peter Irons’s The New Deal Lawyers (1982), constitutional historians of the twentieth-century United States have understood the role Franklin D. Roosevelt’s lawyers played in shaping the legislation and litigation that produced the constitutional landmarks of the 1930s.  Now, in a (gated) article in the Journal of the Civil War Era 3 (June 2013): 211-38, Jonathan W. White, an Assistant Professor of American Studies at Christopher Newport University, has investigated the role legal strategy played in producing “The Strangely Insignificant Role of the U.S. Supreme Court in the Civil War.”  Professor White identifies three main factors:

Roger B. Taney (credit)
"First, the Lincoln administration worked strategically to reduce the amount of litigation involving federal war measures. For example, the Union military often released or moved political prisoners before they could petition for writs of habeas corpus. Similarly, Lincoln carefully crafted the Emancipation Proclamation to make it difficult for slave owners to sue in the federal courts. Second, the Lincoln administration ignored lower court decisions that struck down federal war measures rather than appeal them to the U.S. Supreme Court. Third, and most importantly, the Judiciary Act of 1789–the law that first created and organized the federal judicial system–gave the government a distinct advantage in litigation involving controversial war measures because it limited the route of appeal to the nation’s highest tribunal."