President Lincoln and Chief Justice Taney in 1861

I am not entirely sure that Taney and Lincoln had strongly different views about Ex parte Merryman, habeas, and suspension.

If Lincoln had believed he had unilateral authority to suspend habeas (even limited to when Congress was not in session), Lincoln certainly could have said so, and done so in clear language. And, concomitantly, he could have spared Congress and his party’s members the controversial effort of granting him statutory authority to suspend habeas—which is what Congress granted in 1863.

Likewise, if Taney believed that Lincoln lacked authority to temporarily suspend habeas while Congress was not in session, Taney could have granted John Merryman what Merryman asked for: an order, directed to Merryman’s jailer, ordering Merryman’s release. Taney could have—and should have—risked disobedience by the Executive Branch. I don’t take seriously the reports that Taney feared his being arrested. If he acted in this manner, ie, if he refused to grant Merryman relief, because he feared arrest, Taney should have put that in his opinion. What Taney primarily wanted (as I see it) was for Lincoln to take public and political responsibility for his (Lincoln’s) decision to suspend habeas. Lincoln’s July 4th address did just that—so, it is not clear to me that they were really that far apart.

Seth Barrett Tillman, ‘President Lincoln and Chief Justice Taney in 1861,’ New Reform Club (Feb. 28, 2023, 6:43 AM), <https://reformclub.blogspot.com/2023/02/president-lincoln-and-chief-justice.html>;