What Court (if any) Decided Ex parte Merryman?—A Correction for Justice Sotomayor (and others)

Not only is Justice Sotomayor not alone, any number of judges and other commentators have individually voiced inconsistent views on this issue—albeit at different times and in different publications. Compare infra note 5 (reporting position of Chief Judge Posner—taking the Supreme Court view), with infra note 11 (reporting alternative position of Chief Judge Posner—taking circuit court view); compare infra note 6 (reporting position of Judge Napolitano—taking the Supreme Court view), with infra note 38 (reporting alternative position of Judge Napolitano—taking the view Merryman was issued by a “federal court in Baltimore”); compare infra note 11 (reporting position of Chief Justice Frank J. Williams—taking circuit court view), with infra note 51 (reporting alternative position of Chief Justice Frank J. Williams—taking the chambers opinion view); compare infra note 7 (reporting position of Andrew C. McCarthy—taking the Supreme Court view), with infra note 11 (reporting alternative position of Andrew C. McCarthy—taking circuit court view); compare infra note 7 (reporting position of Mark E. Neely, Jr.—taking the Supreme Court view), with infra note 20 (reporting alternative position of Mark E. Neely, Jr.—taking the district judge view), with infra note 34 (reporting alternative position of Mark E. Neely, Jr.—taking the Chief Justice view), with infra note 36 (reporting a further alternative position of Mark E. Neely, Jr.—taking a complex view regarding the issue of what court issued Merryman); compare 1 Steven Gow Calabresi, The History and Growth of Judicial Review 130 n.65 (2021) (citing Merryman as “17 F. Cas. 144 (C.C.D. Md. 1861)”), with Steven G. Calabresi & Justin Braga, Judge Robert H. Bork and Professor Bruce Ackerman: An Essay on The Tempting of America, 13 Ave Maria L. Rev. 47, 52 (2015) (reviewing Robert H. Bork, The Tempting of America: The Political Seduction of the Law (1990), and Bruce Ackerman, Robert Bork’s Grand Inquisition, 99 Yale L.J. 1419 (1990)) (“President Lincoln refused to enforce [the] Chief Justice’s district court ruling . . . .”); compare Brian R. Dirck, The Executive Branch of Federal Government: People, Process, and Politics 99 (2007) (asserting that Taney issued Merryman “in his capacity as a federal district court judge”), with Brian R. Dirck, Waging War on Trial: A Handbook with Cases, Laws, and Documents 88 (2003) (asserting that Ex parte Merryman was “issued by the Supreme Court”), with Brian R. Dirck, Lincoln and the Constitution 78–79 (2012) (noting the “ambiguities” in regard to “[u]nder what authority . . . Taney hear[d]” Merryman); compare Richard H. Fallon Jr. et al., Hart and Wechsler’s The Federal Courts and the Federal System 1204 (7th ed. 2015) (citing Merryman as “17 F.Cas. 144 (C.C.D.Md.1861) (No. 9487), by Chief Justice Taney, sitting as a Circuit Judge”), and Richard H. Fallon, Jr., Executive Power and the Political Constitution, 2007 Utah L. Rev. 1, 3 (“Ruling in his capacity as circuit judge, Chief Justice Roger Taney concluded in Merryman . . . .” (emphasis added)), with Richard H. Fallon, Jr., Political Questions and the Ultra Vires Conundrum, 87 U. Chi. L. Rev. 1481, 1546 (2020) (“Chief Justice Taney issued his ruling in Merryman in his capacity as a circuit justice, not on behalf of the Supreme Court as an institution.” (emphasis added)), with Richard H. Fallon, Jr., Marbury and the Constitutional Mind: A Bicentennial Essay on the Wages of Doctrinal Tension, 91 Calif. L. Rev. 1, 17 n.63 (2003) (citing Merryman as: “17 F. Cas. 144 (1861)” absent listing any specific court); compare Amanda L. Tyler, Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay 357 n.1 (2017) (citing Merryman as a decision of “(C.C.D. Md. 1861)”), and Amanda L. Tyler, Judicial Review in Times of Emergency, 109 Va. L. Rev. 489, 501 n.69 (2023) (“Taney [acted in Merryman] in his capacity as a circuit judge.”), with Amanda L. Tyler, Suspension as an Emergency Power, 118 Yale L.J. 600, 638 n.131 & 687 n.412 (2009) (citing Merryman as a decision by “(Taney, Circuit Justice, C.C.D. Md. 1861)”), and Amanda L. Tyler, Continuity, Coherence, and the Canons, 99 Nw. U. L. Rev. 1389, 1457 n.337 (2005) (citing Merryman as an “(opinion of Chief Justice Taney as circuit justice)”), with Amanda L. Tyler, Is Suspension a Political Question, 59 Stan. L. Rev. 333, 343 n.45 (2006) (explaining that “[t]here is a debate over whether the petition in Merryman was directed to Taney in his capacity as a Circuit Justice or as Chief Justice”), with Amanda L. Tyler, Courts and the Executive in Wartime, 107 Calif. L. Rev. 789, 842 (2019) (“[James C.] Purcell [who drafted Endo’s brief in Ex parte Endo] relied upon important earlier Supreme Court habeas decisions in Ex parte Bollman, Ex parte Merryman, and Ex parte Milligan . . . .” (emphasis added)). What court (if any) do these distinguished judges and commentators believe decided Merryman?

See Hedges v. Obama, 890 F. Supp. 2d 424, 458 (S.D.N.Y. 2012) (Forrest, J.) (“In Ex parte Merryman . . . the Supreme Court made clear . . . .”).

See Richard A. Posner, Law, Pragmatism, and Democracy 272 (2003) (asserting that Merryman is “one of the few cases in which a Supreme Court decision . . . has been openly defied by one of the other branches”).

See Andrew P. Napolitano, A Legal History of National Security Law and Individual Rights in the United States, 8 N.Y.U. J.L. & Liberty 396, 406 (2014) (characterizing Merryman as a Supreme Court case).

See, e.g., Daniel R. Coquilette & Bruce A. Kimball, On the Battlefield of Merit: Harvard Law School, The First Century 268 (2015) (describing Merryman as a Supreme Court case); Tom Head & David Wolcott, Crime and Punishment in America 88 (2010) (“When a complaint was filed before the Supreme Court on [John Merryman’s] behalf, they ruled in Ex Parte Merryman . . . .” (emphasis added)); Mark R. Levin, Men in Black: How the Supreme Court is Destroying America 128 (2005) (“In Ex parte Merryman, Taney, writing for the Court . . . .”); James S. Pula, The Civil War from Its Origins to Reconstruction (2019) (describing Merryman as a ruling of the “U.S. Supreme Court”); András Sajó & Renáta Uitz, The Constitution of Freedom: An Introduction to Legal Constitutionalism 423 (2017) (characterizing Merryman as a “Supreme Court rul[ing]”); Samuel Walker, Civil Liberties in America 155 (2004) (explaining that the “Supreme Court overrule[d] President Lincoln in Ex Parte Merryman”); Steven J. Bucklin, To Preserve these Rights: The Constitution and National Emergencies, 47 S.D. L. Rev. 85, 87 n.17 (2002) (characterizing Merryman as a “famous United States Supreme Court opinion”); Ken Gormley, Conclusion: An Evolving American Presidency, in The Presidents and the Constitution: A Living History 623, 651 (Ken Gormley ed., 2016) (characterizing Merryman as a Supreme Court ruling); Drew Noble Lanier, The Political and Legal Status of Persons in the War on Terrorism, in Striking First: The Preventive War Doctrine and the Reshaping of U.S. Foreign Policy 119 (Betty Glad & Chris J. Dolan eds., 2004) (characterizing Merryman as a Supreme Court case); Mark E. Neely, Jr., The Constitution and Civil Liberties Under Lincoln, in Our Lincoln: New Perspectives on Lincoln and his World 37, 37 (Eric Foner ed., 2008) (characterizing Merryman as an “opinion from the United States Supreme Court”); id. at 39 (“Ex parte Merryman . . . stands as one of the most poorly understood of decisions to come from the Supreme Court.”); James D. Hardy, Judging Lincoln, 5(2) Civil War Book Review 1, 2 (reviewing [Chief Justice] Frank J. Williams, Judging Lincoln (2002)) (“The [Supreme] Court sustained Lincoln in the Prize Cases (1863) and reversed him in Ex Parte Merryman (1861) . . . .” (first emphasis added)); see also, e.g., Nicolas Gachon, Abraham Lincoln and the U.S. Constitution, 1861–1865 / The Presidential War 53 (2022) (discussing Merryman in a chapter titled: The Supreme Court to the rescue of civil liberty), https://tinyurl.com/yc62md2s; Luis Kutner, World Habeas Corpus 86 (1962) (“Merryman petitioned the Supreme Court for a Writ . . . .”); Michael Stokes Paulsen & Luke Paulsen, The Constitution: An Introduction 177 (2015) (“Lincoln understood the Constitution not necessarily to mean whatever the Supreme Court said it meant concerning slavery and national authority (Dred Scott) or concerning presidential power in wartime (Ex parte Merryman).”); id. at 171 & 309 (same); Allen C. Guelzo, Restoring the Proclamation: Abraham Lincoln, Confiscation, and Emancipation in the Civil War Era, 50 How. L.J. 397, 410 (2007) (“Lincoln had already defied one attempt at Supreme Court meddling in 1861 in Ex parte Merryman . . . .”); Tiffany Middleton, How to Read a U.S. Supreme Court Opinion, 77 Soc. Educ. 32, 34 (Jan./Feb. 2013) (discussing Ex parte Merryman in a post on U.S. Supreme Court opinions); John Yoo, Lincoln and Habeas: of Merryman and Milligan and McCardle, 12 Chap. L. Rev. 505, 505 (2009) (“Three cases define the Supreme Court’s encounter with the [American] Civil War: Ex parte Merryman, Ex parte Milligan, and Ex parte McCardle.” (first emphasis added)); Andrew C. McCarthy, The President Needs to Invoke the Constitution’s Wartime Provisions, USA Today, July 2010, at 22, 24 (characterizing Merryman as a Supreme Court decision); Susan Navarro Smelcer, The Evolution of Dissent in the United States Supreme Court 96 (Emory University, Political Science, PhD dissertation, 2015) (characterizing Merryman as the Supreme “Court’s challenge to Lincoln’s suspension”); id. (“The conflict in Ex parte Merryman was not the last between the [Supreme] Court and the other branches during the War or in the period immediately following.”); Brian Duignan, Select Decisions of the United States Supreme Court, Britannica (last accessed Dec. 26, 2022), https://tinyurl.com/2v4xuffd (listing Merryman among other U.S. Supreme Court cases); Robert Longley, Why Bush and Lincoln Both Suspended Habeas Corpus, ThoughtCo. (Nov. 2, 2022), https://tinyurl.com/3usk5fmn (“Taney . . . issued a writ of habeas corpus demanding that the U.S. Military bring Merryman before the Supreme Court.”); How to Read a U.S. Supreme Court Opinion, American Bar Association (May 4, 2022), https://tinyurl.com/832zekyk, https://tinyurl.com/enmy3ms8 (discussing Ex parte Merryman in a publication on U.S. Supreme Court opinions); cf., e.g., Noah Feldman, The Broken Constitution / Lincoln, Slavery, and the Refounding of America 191 (2021) (suggesting that Merryman’s counsel “may even have hoped that the Supreme Court itself would act on [Merryman’s] petition”); Jerome Barron, Decision without Power—The Dilemma of the Supreme Court, 40 N.D. L. Rev. 57, 61 n.6 (1964) (citing Merryman as a decision of “(Sup. Ct. 1861)”); Frank W. Dunham, Jr., Where Moussaoui Meets Hamdi, 183 Mil. L. Rev. 151, 156 (2005) (affirming, absent documentary support, that “[r]ather than adher[ing] to [Taney’s] ruling, Lincoln appealed [Merryman] to the full Supreme Court”).

[Judge] Diane P. Wood, The Rule of Law in Times of Stress, 70 U. Chi. L. Rev. 455, 460 n.30 (2003) (“Chief Justice Roger Taney, sitting on the Circuit Court for Maryland, in Ex parte Merryman . . . questioned the President’s authority . . . .”).

See Hon. Roy K. Altman, Foreword, 76 U. Miami L. Rev. 929, 932 n.15 (2022) (suggesting the possibility, and counterfactually, that John Merryman “petitioned the circuit court, which then assigned the case to Taney” (emphasis added)); [Judge] Sherrill Halbert, The Suspension of the Writ of Habeas Corpus by President Lincoln, 2 Am. J. Legal Hist. 95, 99 (1958) (“Taney took jurisdiction in this case as a Circuit Judge . . . .”).

See, e.g., In the Matter of the Petition for Habeas Corpus of Benigno S. Aquino, Jr. v. Hon. Juan Ponce Enrile, Secretary of National Defense, G.R. No. L-35546 (Supreme Court Philippines Sept. 17, 1974) (Castro, J.) (characterizing Merryman as a “Circuit Court” decision), https://lawphil.net/judjuris/juri1974/sep1974/gr_l_35546_1974.html; William S. Church, A Treatise of the Writ of Habeas Corpus 39 (San Francisco, Bancroft-Whitney Co. 1886) (explaining that Merryman was heard in “the United States circuit court of [Maryland]”); Laura F. Edwards, A Legal History of the Civil War and Reconstruction 22 (2015) (asserting that Taney heard Merryman as a “federal circuit court judge”); Fallon et al., supra note 3, at 1204 (citing Merryman as “17 F.Cas. 144 (C.C.D.Md.1861) (No. 9487), by Chief Justice Taney, sitting as a Circuit Judge”); Benjamin Ginsberg, Presidential Government 34, 287 (2016) (stating that Taney, in Merryman, sat as a “federal circuit court judge”); H. Leon Greene, Northern Duty, Southern Heart/George Proctor Kane’s Civil War 128 (2023) (indicating that Taney, in Merryman, sat as a “federal circuit court judge”); Mark C. Miller, The View of the Courts from the Hill: Interactions between Congress and the Federal Judiciary 57 (2000) (“[John] Merryman filed for a writ of habeas corpus with the U.S. Court of Appeals in Maryland . . . .”); James P. Pfiffner, Power Play: The Bush Presidency and the Constitution 95 (2008) (noting that in Merryman, “Chief Justice Roger Taney . . . was sitting as a circuit judge”); [Chief Judge] Richard A. Posner, Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts 188 n.50 (2001) (citing Merryman as “(Cir. Ct. D. Md. 1861)”); Christian G. Samito, Changes in Law and Society during the Civil War and Reconstruction 59 & 63 (2009) (asserting that, in Merryman, Taney sat as a “judge of the U.S. Circuit Court for the District of Maryland”); James F. Simon, Lincoln and Chief Justice Taney: Slavery, Secession, and the President’s War Powers 190 (2006) (“[I]n fact, [Taney in Merryman] was acting in his capacity as a circuit court judge.”); Jonathan W. White, Abraham Lincoln and Treason in the Civil War: The Trials of John Merryman 42 (2011) (concluding that “records confirm that the [Merryman] case was a circuit court decision”); [Chief Justice] Frank J. Williams, Judging Lincoln 63 (2002) (“Taney . . . took jurisdiction as a circuit judge.”); Senator Ted Cruz, The Obama Administration’s Unprecedented Lawlessness, 38 Harv. J.L. & Pub. Pol’y 63, 80 (2015) (asserting that, in Merryman, “Chief Justice Taney, [was] sitting by designation as a circuit court judge”); Kate Evans, Immigration Detainers, Local Discretion, and State Law’s Historical Constraints, 84 Brook. L. Rev. 1085, 1129 n.285 (2019) (characterizing Merryman as a “Circuit Court of Maryland” decision); David Farnham, “A High and Delicate Trust”: How Ignorance and Indignation Combined to Expand President Lincoln’s Claimed Power to Suspend Habeas Corpus in the Case of John Merryman, 24 J. of S. Legal Hist. 109, 110 n.8 (2016) (affirming that Taney “had issued the writ as a Circuit Judge and not as a Supreme Court justice”); Paul Finkelman, “Hooted Down the Page of History”: Reconsidering The Greatness of Chief Justice Taney, 19(1) J. Sup. Ct. Hist. 83, 98 (1994) (explaining that in “Ex parte Merryman Taney [ruled] in his capacity as circuit court judge”); David B. Kopel, Lyman Trumbull: Author of the Thirteenth Amendment, Author of the Civil Rights Act, and the First Second Amendment Lawyer, 47 Loy. U. Chi. L.J. 1117, 1145 (2016) (explaining that “in Ex parte Merryman, in which Taney was circuit-riding and sitting as a Circuit Court Judge . . . .” (second emphasis added)); David Landau et al., Federalism for the Worst Case, 105 Iowa L. Rev. 1187, 1238 (2020) (characterizing Merryman as a “circuit court” decision); James Landman, You Should Have the Body: Understanding Habeas Corpus, 72 Soc. Educ. 99, 101 (Mar. 2008) (explaining that “Taney [was] sitting as a circuit court judge”), https://tinyurl.com/2p96arrn; Michael Les Benedict, “The Perpetuation of Our Political Institutions”: Lincoln, the Powers of the Commander in Chief, and the Constitution, 29 Cardozo L. Rev. 927, 950 (2008) (characterizing Merryman as a “circuit court case”); Wayne McCormack, Threats to Judicial Independence: Traditional Transitions Challenged, in Challenged Justice: in Pursuit of Judicial Independence 37, 42 (Shimon Shetreet et al., eds., 2021) (noting that “Taney [was] sitting not as a Supreme Court Justice but as a United States Circuit Court Judge”); Steven L. Schwarcz, Rollover Risk: Ideating a U.S. Debt Default, 55 B.C. L. Rev. 1, 25 (2014) (characterizing Merryman as a decision of the “Circuit Court for the District of Maryland”); Jason H. Silverman, The Odd Couple of American Legal History, 10 Green Bag 2d 511, 517 (2007) (characterizing Merryman as “a federal circuit court case”); Tyler, Judicial Review in Times of Emergency, supra note 3, at 501 n.69 (“Taney [acted in Merryman] in his capacity as a circuit judge.”); Jonathan W. White, The Strangely Insignificant Role of the U.S. Supreme Court in the Civil War, 3 J. Civil War Era 211, 218 (2013) (“Taney was sitting as a circuit justice in the U.S. Circuit Court for the District of Maryland, but he made his opinion appear to be that of a Supreme Court justice ‘at chambers.’”); [Chief Justice] Frank J. Williams, Abraham Lincoln and Civil Liberties: Then & Now—The Southern Rebellion and September 11, 60 N.Y.U. Ann. Survey of Am. L. 463, 474 (2004) (“This time, [in Ex parte Vallandigham, 68 U.S. (1 Wall.) 243 (1864)] unlike Merryman, the circuit court agreed with the suspension.” (third emphasis added)); Kenneth Holland & Matthew Woessner, Taney, Roger B., in Encyclopedia of the Supreme Court 742, 744 (David Schultz ed., 2d ed. 2021) (explaining that “Taney in Ex parte Merryman, Circuit Court, District of Maryland (1861), issued the writ”); Zac Frank, Elizabeth Cheney, Bush Legal Counsel, Slate (Jan. 29, 2009, 1:00 PM), https://tinyurl.com/4peksdma (“Correction, Jan. 30, 2009: This article originally referred to Ex Parte Merryman as a Supreme Court case. It was a circuit court order written by Roger Taney, the [C]hief [J]ustice of the Supreme Court, who was sitting on the circuit court at the time.”); Allen Guelzo, Ex parte Merryman (1861), Constituting America (last accessed Dec. 29, 2022), https://tinyurl.com/4rwe6t9h (“Taney issued [Merryman] in his co-capacity as a federal circuit judge, but prefaced it as being issued from his U.S. Supreme Court chambers as though it were the product of a full hearing before the Supreme Court.”); infra note 26 (collecting authority asserting that Merryman was a decision of the “Fourth Circuit”); see also, e.g., 2 James Bradley Thayer, Cases on Constitutional Law 2361 (Cambridge, George H. Kent 1895) (reporting: “Ex parte John Merryman. Circuit Court of the United States for Maryland.”); Fallon, Executive Power and the Political Constitution, supra note 3, at 3 (“Ruling in his capacity as circuit judge, Chief Justice Roger Taney concluded in Merryman that . . . .”); Deborah Pearlstein, Contemporary Lessons from the Age-Old Prize Cases: A Comment on the Civil War in U.S. Foreign Relations Law, 53 S. Louis U. L.J. 73, 83 n.52 (2008) (“Merryman was decided by Chief Justice Taney while sitting with the Circuit Court of the District of Maryland.”); James F. Simon, Lincoln and Chief Justice Taney, 35(3) J. Sup. Ct. Hist. 225, 236 (2010) (explaining that Taney issued the ex parte writ “in his capacity as a circuit court judge”); cf., e.g., Albert Bushnell Hart, Salmon Portland Chase 326 (Boston, Houghton, Mifflin and Company 1899) (indicating that Taney, in Merryman, was “sitting alone on the Circuit bench”); Harold M. Hyman, The Reconstruction Justice of Salmon P. Chase 124 (1997) (characterizing Merryman as a “circuit opinion”); Robert J. Pushaw, Jr., Creating Legal Rights for Suspected Terrorists: Is the Court Being Courageous or Politically Pragmatic, 84 Notre Dame L. Rev. 1975, 1990 (2009) (“John Merryman, filed a habeas writ to the appropriate Circuit Court, where Chief Justice Taney sat.” (emphasis added)); Geoffrey R. Stone, Civil Liberties in Wartime, 28(3) J. Sup. Ct. Hist. 215, 220 (2003) (“The judge assigned to hear [John] Merryman’s petition was Chief Justice Roger B. Taney.” (emphasis added)); John Harrison, Would All the Laws But One be Close Enough for Government Work, 2 Green Bag 2d 333, 334 (1999) (reviewing [Chief Justice] William H. Rehnquist, All the Laws But One: Civil Liberties in Wartime (1998)) (“Chief Justice Taney, apparently sitting on the Circuit Court, ordered Merryman released . . . .”); Andrew C. McCarthy, How the sausage was made, 41(6) The New Criterion 55, 58 (2023) (reviewing Brad Snyder, Democratic Justice: Felix Frankfurter, the Supreme Court, and the Making of the Liberal Establishment (2022)) (“Taney, acting as a circuit judge, ruled . . . .”); Judicial Review of Executive Orders, Federal Judicial Center (last accessed Dec. 18, 2022), https://tinyurl.com/3hbj4266 (“In Ex parte Merryman (1861), Chief Justice Roger Taney, sitting on the U.S. circuit court in Maryland, held that the power to suspend the writ rested exclusively with Congress.”); Ex Parte Merryman / United States law case [1861], Britannica (last accessed Dec. 26, 2022), https://tinyurl.com/4r36tcmp (explaining that “Supreme Court Chief Justice Roger B. Taney, sitting as a federal circuit court judge [in Merryman]”). See generally An Act to amend the Judicial System of the United States, ch. 31, § 4, 2 Stat. 156, 157 (1802) (providing that the “districts of Maryland and Delaware shall constitute the fourth circuit”), https://tinyurl.com/4aj7dma3. This 1802 statute was famous for repealing the 1801 Midnight Judges Act. See infra note 47 (citing Midnight Judges Act). The statutory circuits controlled circuit riding duties by the Justices and also when term would be held. Nevertheless, from this time until the Evarts Act (1891), a different circuit court of appeals met in each state.

See Dep’t of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 1978 (2020) (Alito, J.) (citing Merryman as a decision of “(CCD Md. 1861)”); see also Parisi v. Davidson, 405 U.S. 34, 47 (1972) (Douglas, J., concurring) (citing Merryman as a decision of “(CC Md. 1861)”); cf. Beras v. Johnson, 978 F.3d 246, 258 (5th Cir. 2020) (Oldham, J., concurring) (citing Merryman as a decision of “(C.C.D. Md. 1861)”); Zweibon v. Mitchell, 516 F.2d 594, 627 (D.C. Cir. 1975) (Skelly Wright, J.) (citing Merryman as a decision of “(C.C.Md.1861)”); U. S. ex rel. Martinez-Angosto v. Mason, 344 F.2d 673, 685 (2d Cir. 1965) (Marshall, J.) (citing Merryman as a decision of “(C.C.Maryland 1861)”). If these Justices and judges meant that Merryman was a decision of the federal Circuit Court for the District of Maryland, then they erred. Why? Because, as the Bluebook explains, a parenthetical’s referring to a court identifies the “deciding court,” and Merryman was not decided by the federal circuit court. The Bluebook: A Uniform System of Citation 55 (Columbia Law Review Ass’n et al. eds., 17th ed. 2000). Nevertheless, this ambiguous language within these citations is arguably helpful. Why? Because Merryman, in fact, was adjudicated within the confines of the territory of the federal Circuit Court for the District of Maryland—even if not a decision of the federal circuit court. See generally An Act to amend the Judicial System of the United States (1802), supra note 11 (providing that the “districts of Maryland and Delaware shall constitute the fourth circuit”); Ex parte Merryman, 17 F. Cas. 144, 145 (C.C.D. Md. 1861) (No. 9487) (Taney, C.J.) (reproducing litigation-related affidavits, including two certified by “John Hanan, U.S. Commissioner” who was “appointed by the circuit court of the United States, in and for the Fourth circuit and district of Maryland, to take affidavits”).

Merryman is usually cited along the lines of: “Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861) (No. 9487) (Taney, C.J.).” See also Paul D. Halliday & G. Edward White, The Suspension Clause: English Text, Imperial Contexts, and American Implications, 94 Va. L. Rev. 575, 578 n.2 (2008) (“Taney’s oral opinion denying that a president could suspend the writ without congressional authorization was subsequently published as a federal circuit court opinion.” (emphasis added)); cf. Katherine L. Vaughns, Of Civil Wrongs and Rights: Kiyemba v. Obama and the Meaning of Freedom, Separation of Powers, and the Rule of Law Ten Years after 9/11, 20 Asian Am. L.J. 7, 20 n.92 (2013) (“Ex Parte Merryman was technically issued as an opinion of the Circuit Court for the District of Maryland.” (second emphasis added)). But see Jeffrey D. Jackson, The Power to Suspend Habeas Corpus: An Answer from the Arguments Surrounding Ex Parte Merryman, 34 U. Balt. L. Rev. 11, 17 n.41 (2004) (“However, it is not at all clear that this characterization of Taney acting as a circuit court judge is correct.”).

See Merryman, 17 F. Cas. at 144 (providing in the caption of the case’s report: “Circuit Court, D. Maryland.”); see also id. at 153 (“I shall, therefore, order all the proceedings in this case, with my opinion, to be filed and recorded in the [C]ircuit [C]ourt of the United States for the [D]istrict of Maryland, and direct the clerk to transmit a copy, under seal, to the [P]resident of the United States.”); Brian McGinty, The Body of John Merryman: Abraham Lincoln and the Suspension of Habeas Corpus 176 (2011) (affirming that part of the cause of the (subsequent) confusion surrounding Merryman’s status as a federal circuit court case sprung from Taney’s using the clerk of the circuit court during and at the close of the proceedings); White, supra note 11, at 42 (suggesting that the circuit court’s clerk having taken control of the final written opinion, having transmitted it to Lincoln, and having filed it with the circuit court’s records—all “confirm that the case was a circuit court decision”). Volume 17 of Federal Cases, the traditional reporter currently and long used for citing to Merryman, was published by West Publishing Company in 1895. See 17 The Federal Cases Comprising Cases Argued and Determined in the Circuit and District Courts of the United States 144, 144 (St. Paul, West Publishing Co. 1895) (providing in the caption of Merryman’s report: “Circuit Court, D. Maryland.”), https://tinyurl.com/mvu5z92w; McGinty, supra, at 176 & 224 n.12 (affirming that part of the cause of the (subsequent) confusion surrounding Merryman’s status as a federal circuit court case sprung from Merryman’s later appearing in the Federal Cases reporter). The report of Merryman in Federal Cases relied upon an earlier report of the case which had appeared in “Taney, 246”—also known as Campbell’s Reports. See James Mason Campbell, Reports of Cases at Law and Equity and in the Admiralty Determined in the Circuit Court of the United States for the District of Maryland by Roger Brooke Taney / April Term 1836 to April Term 1861, at 246 (Philadelphia, Kay & Brother 1871) (providing in the caption of Merryman’s report: “Circuit Court, April Term, 1861”), https://tinyurl.com/9ehd8vrf. Professor Hartnett points to two 1861 reports of Merryman which captioned the case as a circuit court decision. See Edward A. Hartnett, The Constitutional Puzzle of Habeas Corpus, 46 B.C. L. Rev. 251, 280 n.126 (2005) (“Two contemporary reports denominate the case as decided in chambers, not in the April 1861 term of the Circuit Court for the District of Maryland, although they also denominate it as decided in the Circuit Court. See Ex parte Merryman, Am. L. Reg. & U. Pa. L. Rev., 1861, at 524 (providing caption ‘In the United States Circuit Court, Chambers, Baltimore, Maryland. Before Taney, Chief Justice’); 3 W. L. Monthly 461, 461 (1861) (providing caption ‘U.S. Circuit Court—At Chambers. Baltimore, Md. . . . . Before Hon. Roger B. Taney, Chief Justice of the United States.’).”). As to Taney’s original Merryman decision, a PDF is available on the website of the Maryland state archives. See 1 June 1861, Order that opinion be filed and recorded in the Circuit Court of the United States for the District of Maryland, directing the Clerk transmit a copy under seal to the President of the United States, Archives of Maryland (Biographical Series): John Merryman (1824–1881), https://tinyurl.com/2cdpd8w5, https://perma.cc/SQ7V-2EFU.

See The Habeas Corpus Case, The South (Baltimore, Md.), May 28, 1861, at 2 (reporting that Taney explained that Judge Giles “was present at yesterday morning’s hearing at [Taney’s] special request, to afford [Taney] the aid of [Giles’] counsel, but as the writ of attachment had been issued by himself [Taney], in his capacity as Chief Justice of the United States, Judge Giles did not conceive it to be requisite that he should be present this morning [on May 28, 1861], unless at [Taney’s] request . . . .”), https://tinyurl.com/4a59xjfu; see also McGinty, supra note 14, at 28 (same); id. at 74–75 (explaining that Taney regularly “presided [over federal circuit court cases in Baltimore] in conjunction with the U.S. district judge for the District of Maryland, William F. Giles”).

Giles’ name nowhere appears in the report of Merryman in Federal Cases. See Merryman, 17 F. Cas. passim; see also McGinty, supra note 14, at 176 (explaining that Judge “Giles did not participate in the [Merryman] decision”); supra note 15.

See Merryman, 17 F. Cas. at 146 (noting that Taney’s order stated that the writ was “returnable . . . at the circuit court room, in the Masonic Hall, in the city of Baltimore”); id. (noting that the clerk issued the writ, which stated that the defendant was to appear with John Merryman in the “United States court-room, in the Masonic Hall, in the city of Baltimore”); City Intelligence: The Habeas Corpus Case, The [Baltimore] Daily Exchange, May 29, 1861, at 1 (reporting that “[a]t an early hour of the day, the United States Circuit Court building was besieged by an immense crowd”); see also McGinty, supra note 14, at 176 (“Taney heard Merryman “in the courtroom of the [federal] circuit court in Baltimore.”); cf. Charles Grove Haines & Foster H. Sherwood, The Role of the Supreme Court in American Government and Politics, 1835–1864, at 457 (1957) (noting that Taney’s writ directed Cadwalader to produce John Merryman “in the Baltimore circuit court”—an ambiguous statement which might refer to a federal or state court, a building, or both); 3 Charles Warren, The Supreme Court in United States History, 1856–1918, at 90 (1922) (noting that in Merryman, “Taney [was] sitting in the United States Circuit Court”—which might refer to the building, or the court, or both); Robert Eugene Cushman, History of the Supreme Court in Resume, 7 Minn. L. Rev. 275, 289 (1922) (noting that in Merryman, “Taney [was] sitting in the circuit court”—which might refer to the building, or the court, or both).

See, e.g., Joshua E. Kastenberg, A Confederate in Congress: The Civil War Treason Trial of Benjamin Gwinn Harris 44 (2022) (asserting that Merryman first took his case to Judge Giles, the Maryland federal district court judge, and then Merryman “appealed directly to Chief Justice Taney”); Thomas C. Mackey, Opposing Lincoln: Clement L. Vallandigham, presidential power, and the legal battle over dissent in wartime 59 (2020) (characterizing Taney’s Merryman decision as a decision of the “federal circuit court” on appeal from a prior federal district court decision); [Judge] Stephen M. Orlofsky, Judicial Independence in the Age of Trump, New Jersey Lawyer 24, 25 (June 2018) (“A district court judge in Maryland issued a writ for the benefit of John Merryman nonetheless. When it was not respected, Merryman appealed to Taney as the circuit judge for Maryland.”), https://tinyurl.com/5ar3ywh7; Peter David Finn, Emergency and Modernity: Contextualizing the Contemporary Debate 80–81 (National University of Singapore, Department of Political Science, PhD dissertation, 2017) (describing Merryman as first having been heard by Judge Giles, who issued the writ, which was ignored by the commander of Fort McHenry, and then the case “made its way to the United States Supreme Court where Chief Justice Roger B. Taney wrote the majority opinion”); see also Harry A. Ezratty, Baltimore in the Civil War: the Pratt Street riot and a city occupied, ch. 18 (2010) (asserting that Taney heard Merryman after prior federal district court proceedings).

See Jonathan W. White, Book Review, 11 J. Civil War Era 579, 581 (2021) (reviewing Thomas C. Mackey, Opposing Lincoln: Clement L. Vallandigham, presidential power, and the legal battle over dissent in wartime (2020)) (“Merryman was not an appeal from a federal district court.”); see also infra notes 20–24 (showing that Merryman was heard by Taney as a trial judge).

See Sotomayor, supra note 1, at 881 (asserting that Merryman was “filed with the United States District Court”). I see no good basis for Sotomayor’s assertion that Merryman was “filed” with district court for Maryland. Taney’s written opinion and other historical records establish that Merryman was not initially filed with any court—instead, John Merryman’s Maryland counsel, George M. Gill and George H. Williams, presented (or, at least, sent) Merryman’s habeas corpus petition to Chief Justice Taney at Taney’s Washington home. See McGinty, supra note 14, at 76 (explaining that the “petition and supporting affidavits arrived at Taney’s Washington home”); Arthur T. Downey, The Conflict between the Chief Justice and the Chief Executive: Ex parte Merryman, 31(3) J. Sup. Ct. Hist. 262, 262 (2006) (explaining that Merryman’s petition was presented to “Taney at his home in Washington”). When the case ended, Taney expressly directed that his “opinion [was to be] filed and recorded in the [C]ircuit [C]ourt of the United States for the [D]istrict of Maryland . . . .” Ex parte Merryman, 17 F. Cas. 144, 153 (C.C.D. Md. 1861) (No. 9487) (Taney, C.J.). At some later stage, the case file was transferred to (or, perhaps, inherited by) the United States District Court for the District of Maryland. And the case file, including Taney’s opinion, was subsequently borrowed by the Maryland state archives. See Archives of Maryland (Biographical Series): John Merryman (1824–1881), https://tinyurl.com/bdfeze5x, https://tinyurl.com/2cdpd8w5 (noting that “Ex Parte Merryman, orig[i]nal [sic] case papers [were] borrowed from the Federal District Court”). Compare White, supra note 11, at 42 (explaining, in 2011, that “the [case] records are still with the clerk’s office at the U.S. District Court for the District of Maryland”), with E-mail from the Maryland State Archives to Seth Barrett Tillman (Jan. 4, 2022) (explaining, in 2022, that “the originals are housed here at the Maryland State Archives for preservation, but still are under the ownership of the U.S. District Court”). To be clear, Merryman was not “filed” with the district court by Merryman’s lawyers, nor by the presiding judge. At some stage, perhaps long after the case became a final judgment and appeared in the reporters, the stale records of the case were put in the possession of the district court, and that court put those records in its files.

See Hayfields, Inc. v. Valleys Planning Council, Inc., 716 A.2d 311, 315 n.5 (Md. App. 1998) (Salmon, J.) (citing Merryman as a decision of “D. Md.”). “D. Md.” is the standard modern form of citation for the United States District Court for the District of Maryland. If Judge Salmon meant that Merryman was a decision of the federal district court for the District of Maryland, then he erred. Why? Because, as the Bluebook explains, a parenthetical’s referring to a court identifies the “deciding court,” and Merryman was not decided by the federal district court. The Bluebook, supra note 12, at 55. Nevertheless, this ambiguous language within this citation is arguably helpful. Why? Because Merryman, in fact, was adjudicated within the confines of the territory of the federal district court for the District of Maryland—even if not a decision of the federal district court. Judge Salmon sat on the Maryland Court of Special Appeals. In 2022, in consequence of a constitutional amendment, that court was renamed the Appellate Court of Maryland. See Supreme Court of Maryland, Maryland Courts (last accessed Dec. 21, 2022), https://www.courts.state.md.us/coappeals.

See, e.g., Susan N. Herman, Advanced Introduction to US Civil Liberties 26 n.6 (2023) (discussing Merryman, and citing “(D. Md. 1861)”); Eric Berger, Of Law and Legacies, 65 Drake L. Rev. 949, 954 n.12 (2017) (discussing Merryman, and citing “(D. Md. 1861)”); James P. George, Jurisdictional Implications in the Reduced Funding of Lower Federal Courts, 25 Rev. of Litig. 1, 64 n.297 (2006) (discussing Merryman, and citing “(D. Md. 1861)”); Eugene V. Rostow, The Japanese-American Cases–A Disaster, 54 Yale L.J. 489, 511 n.58 (1945) (citing Merryman as a decision of “(D. Md. 1861)”); George Rutherglen, Structural Uncertainty over Habeas Corpus & the Jurisdiction of Military Tribunals, 5 Green Bag 2d 397, 398 n.4 (2002) (citing Merryman as a decision of “(D. Md. 1861)”); Robert L. Tsai, Manufactured Emergencies, 129 Yale L.J. Forum 590, 596 n.22 (Feb. 15, 2020) (citing Merryman as a decision of “(D. Md. 1861)”); Ingrid Brunk Wuerth, The President’s Power to Detain “Enemy Combatants”: Modern Lessons from Mr. Madison’s Forgotten War, 98 Nw. U. L. Rev. 1567, 1611 n.256 (2004) (citing Merryman as a decision of “(D. Md. 1861)”); Adrienne Lee Benson, Note, Routine Emergencies, 90 N.Y.U. L. Rev. 1662, 1675 n.55 (2015) (citing Merryman as a decision of “(D. Md. 1861)”); Scott J. Shackelford, Habeas Corpus Writ of Liberty, Boumediene and Beyond, 57 Clev. St. L. Rev. 671, 678 n.54 (2009) (reviewing Robert Searles Walker, Habeas Corpus Writ of Liberty (2006)) (citing Merryman as a decision of “(D. Md. 1861)”).

See also 1 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure § 6.13(b)(i) n.12 (5th ed. 2022) (“The [Merryman] case did not reach the Supreme Court, but the trial judge was Chief Justice Taney.”); James A. Dueholm, Lincoln’s Suspension of the Writ of Habeas Corpus: An Historical and Constitutional Analysis, 29(2) J. of the Abraham Lincoln Ass’n 47, 48 (2008) (explaining that “Merryman’s lawyer promptly petitioned Chief Justice Roger Brooke Taney, sitting as a trial judge . . . .” (emphasis added)); Michael J. Gerhardt, Presidential Defiance and the Courts, 12 Harv. L. & Pol’y Rev. 67, 76 (2018) (affirming that “[i]n his opinion as a trial judge in the matter, then-Judge Taney ruled”); supra notes 20–23 (collecting authority).