Habeas Corpus and the exceptions clause : exploring intergenerational institutional struggle.

Abstract

Grout 8 Judiciary Act of 1789. 23 To prove this point, Kutler coupled McCardle with another case, Ex Parte Yerger (1869). In this related decision, the Chase Court affirmed Yerger's plea for a writ of habeas corpus under the Judiciary Act of 1789. Kutler concluded that the United States Supreme Court had not been overpowered by the Republicans in Congress, but rather that "Chase's opinion made it emphatically clear that the Court would not tolerate any interference with its proper constitutional functions." 24 Although Warren examined the Yerger decision in his book, he missed the hint Chase left in McCardle and called it an "unexpected ruling." 25 The emphasis Kutler placed on the final paragraph of Chase's opinion in McCardle, along with the Supreme Court's reassertion of institutional authority in Yerger, differentiated his line of thought from previous historians. Celebrated historian of the Civil War and Reconstruction Harold M. Hyman agreed with Kutler and other of his contemporary historians about the Chase Court's decision in McCardle. 26 He wrote that Chase was conscious of the mistake of his predecessor, Chief Justice Roger Taney. Hyman argued that the McCardle Court avoided a direct confrontation with the executive, but expressed concern about "the decline in separation of powers as a result of Andrew Johnson's southern policy." 27 At a time when the Supreme Court's jurisdiction changed often between civil and military courts in the South, Chase accepted the role of his branch. 28 Therefore, like Kutler, Hyman focused on the last paragraph of the majority opinion in McCardle. The Supreme Court refused McCardle's appeal, and the justices accepted Congress' authority to determine