Merryman Redux: A Response to Professor John Yoo

Abstract

In a recent issue of Chapman Law Review, Professor John Yoo wrote: “While FDR did not join Lincoln’s blatant defiance in declining to obey a judicial order, [Roosevelt’s] administration regularly proposed laws that ran counter to Supreme Court precedent . . . .” My focus in this short responsive essay is on Yoo’s claim regarding Lincoln. Professor Yoo’s claim is odd — isn’t it? He tells us that Lincoln passively “declin[ed] to obey a judicial order,” but then he recharacterizes Lincoln’s passivity as “blatant defiance.” Odd. He cites to no particular case, and he cites to no specific judicial order in any case. Very odd. We are all just supposed to know that the case was Ex parte Merryman, a Civil War case, and the purported judicial order was issued by that old curmudgeon: Chief Justice Roger Brooke Taney. In a prior publication, in 2015, Yoo wrote that Lincoln had “ignored Taney’s order releasing Merryman.” “Ignored” — no mention of defiance here. On another occasion, in 2009, Yoo characterized Lincoln’s response to Merryman as “outright presidential defiance.” But here the passive language of ignoring and declining to obey is absent. Now, in 2018, Yoo says it is both. We are down the rabbit hole. So which is it? [A] Lincoln passively declined to obey a judicial order; [B] Lincoln actively defied the Chief Justice; or, [C] Both. Which is it? The correct answer is....