Old Man Yells at Cloud

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Letters to the Editor

Lawfare

June 18, 2026

RE: George Croner, Presidential Discretion and the Insurrection Act, Lawfare (June 16, 2026, 10:02 AM), <https://www.lawfaremedia.org/article/presidential-discretion-and-the-insurrection-act>.

Croner ends his article with: “In Ex parte Merryman, the Supreme Court ruled ….” That is not correct. Merryman was a decision by Chief Justice Taney at chambers, sitting alone, acting under a special authority granted to all Article III Justices and judges by the 1789 Judiciary Act.

Merryman was not a decision of the United States Supreme Court.

It was not a decision of the United States Court of Appeals for the Fourth Circuit (which had not yet then come into existence).

It was not a decision of the United States Circuit Court for the District of Maryland.

It was not a decision of the United States District Court for the District of Maryland.

It was neither a decision of the Maryland Supreme Court nor of any other Maryland state court.

 

Indeed Merryman was not a decision of any court of record.

 

Today, “chambers” opinions by Justices of the Supreme Court are primarily “dispos[itions] of an application by a party for interim relief, e.g., for a stay of the judgment of the court below, for vacation of a stay, or for a temporary injunction” as part of a wider, prior, imminent, and/or ongoing appeal to the Supreme Court. See <https://www.supremecourt.gov/opinions/in-chambers.aspx>. In such circumstances, the individual Justice is acting on behalf of the Court as a whole, and as such, a decision of a single Justice is a decision of the Supreme Court of the United States. By contrast, Merryman—a decision from a much earlier time—was not such a decision. Not only was Merryman not a decision in the process of being appealed to the United States Supreme Court, it was not even possible, for either of the parties, to appeal Taney’s final order in Merryman to the Supreme Court! See also In re Metzger, 46 United States Reports (5 Howard’s Reports) 176, 191 (1847) (McLean, J.) (“This Court can exercise no power in an appellate form over decisions made at his chambers by a Justice of this Court or a judge of the district court.” (emphasis added)). See generally Seth Barrett Tillman, What Court (if any) Decided Ex parte Merryman?—A Correction for Justice Sotomayor (and others), 13(1) British Journal of American Legal Studies 43 (2024) (peer review), <http://ssrn.com/abstract=4157572>, <https://sciendo.com/article/10.2478/bjals-2023-0007>.

 

Seth Barrett Tillman, Associate Professor

Maynooth University School of Law and Criminology

(academic title & affiliation for identification purposes only)

Seth Barrett Tillman, ‘Old Man Yells at Cloud,’ New Reform Club (June 18, 2026, 3:59 AM), <https://reformclub.blogspot.com/2026/06/old-man-yells-at-cloud.html>;