Was an Appeal Possible in Ex parte Merryman?

 

 

Professor Vladeck wrote: “But perhaps reflecting some doubt as to the legal arguments, Lincoln did not appeal Taney’s decision to the full Court.” See Steve Vladeck, 65. Lincoln, Taney, and Ex parte Merryman, One First (Feb. 5, 2024), <https://stevevladeck.substack.com/p/65-lincoln-taney-and-ex-parte-merryman>.

 

There are any number of reasons explaining why Lincoln, the Executive Branch, the Army, and General Cadwalader (the actual named defendant) took no appeal. The primary reason is that no appeal, by them, was possible. Cadwalader was the prevailing party in Merryman, and under the aggrieved party rule, only the non-prevailing party (that is, John Merryman) may seek an appeal. See Seth Barrett Tillman, Ex parte Merryman: Myth, History, and Scholarship, 224 Mil. L. Rev. 481 (2016) (peer review), <http://ssrn.com/abstract=2646888>; see also Seth Barrett Tillman, Merryman Redux: A Response to Professor John Yoo, 22 Chap. L. Rev. 1 (2019), <https://ssrn.com/abstract=3213353>. See generally Seth Barrett Tillman, What Court (if any) Decided Ex parte Merryman?—A Correction for Justice Sotomayor (and others), 13 Br. J. Am. Leg. Studies 43 (2024) (peer review), <http://ssrn.com/abstract=4157572>. 

In 2016, I wrote:

“The third Merryman myth is that Lincoln could have (and should have) upheld rule of law values by seeking clarity from the courts by appealing Taney’s Merryman decision to the (full) United States Supreme Court. However, this was not feasible. In the context of a habeas action, if the decision had been in chambers, the prevailing view is that there was no route to appeal to the full Court. Moreover, even if the court which heard Merryman was the Circuit Court for the District of Maryland, or even if an appeal could be taken to the full Court from an otherwise jurisdictionally sound in-chambers habeas decision, Cadwalader, the government, and Lincoln could have taken no such appeal in Merryman. Why? Merryman had brought a habeas corpus proceeding seeking a judicial order compelling Cadwalader to release him. Taney never issued any such order against Cadwalader (or against anyone else). As such, Merryman was the nonprevailing party, and only he was entitled to take an appeal (assuming any such appeal was authorized by statute or otherwise permitted). Cadwalader—as odd as it sounds—was the prevailing party in Merryman, and in the American system of justice, absent special circumstances, only a nonprevailing party, i.e., only a party aggrieved by a judicial order (not by an opinion) may take an appeal.”

Seth Barrett Tillman, Ex parte Merryman: Myth, History, and Scholarship, 224 Mil. L. Rev. 481, 506–08 (2016) (peer review) (footnotes omitted) (emphases in the original).

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Seth Barrett Tillman, ‘Was an Appeal Possible in Ex parte Merryman?,’ New Reform Club (Mar. 27, 2024,  8:41 AM), <https://reformclub.blogspot.com/2024/03/was-appeal-possible-in-ex-parte-merryman.html>;