McCardle, Ex Parte, 74 U.S. 506 (1869), argued 2–4 and 9 Mar. 1868, decided 12 Apr. 1869 by vote of 8 to 0; Chase for the Court, Wayne had died. A product of the often‐strained relations between the Supreme Court and Congress during Reconstruction, the McCardle case posed fundamental questions concerning Congress's ability to use its authority over the Court's appellate jurisdiction to curb judicial independence.

In late 1867, army officials responsible for administering Reconstruction in Mississippi arrested William McCardle, a Vicksburg editor, charging him with publishing libelous editorials that incited insurrection. Invoking the authority conferred by the Reconstruction Act (1867), they ordered McCardle tried by military commission. The editor challenged the government's action, asserting that Ex parte Milligan (1866) precluded military trial of civilians when the civil courts were open and that the Reconstruction Act was therefore unconstitutional (see Military Trials and Martial Law). Relying on the Habeas Corpus Act of 1867, which directed federal courts to issue writs of habeas corpus in cases involving persons who were confined in violation of their constitutional rights, he sought relief in the United States circuit court. When that tribunal rejected his argument, McCardle invoked a provision of the Habeas Corpus Act allowing the Supreme Court to hear appeals in habeas corpus, bringing the politically explosive question of the Reconstruction Act's constitutionality before the high court.

Republican leaders in Congress feared that the Court might strike down the act and destroy the party's Reconstruction program. Consequently, in March 1868, after the Court had heard arguments but before it had rendered a decision, Congress struck at the Court's jurisdiction by repealing the provision of the Habeas Corpus Act allowing appeals to the Supreme Court. Although Justices Robert C. Grier and Stephen J. Field wished to decide the case before Congress enacted the repeal, the majority rejected such a course. With the end of the Court's term approaching, the justices agreed to hold the case over until the next term.

When the Court issued its opinion, it bowed to Congress, dismissing the case for want of jurisdiction without passing judgment on the Reconstruction Act. Chief Justice Salmon P. Chase pointed out that the Constitution provided that the Court was to exercise its appellate jurisdiction “with such exceptions, and under such regulations as the Congress shall make.” Because Congress possessed express authority to make exceptions to the Court's appellate jurisdiction, he continued, the 1868 repeal measure was constitutional, regardless of Congress's motive. Consequently, the Court had no jurisdiction to hear McCardle's appeal and must dismiss the case.

Although sometimes viewed as an example of the Reconstruction Court's supineness, McCardle actually suggests its resiliency. In concluding his opinion, Chase pointedly noted that while Congress had repealed the provision of the Habeas Corpus Act on which McCardle had relied, this did not affect the jurisdiction that the Court possessed under other statutes. This was a thinly veiled reference to the Judiciary Act of 1789, which authorized the Court to issue writs of habeas corpus to persons held under federal authority. Several months later, in Ex parte Yerger (1869), the Court agreed to hear a challenge to the Reconstruction Act brought under the 1789 statute by a Mississippi civilian who was charged with the murder of an army officer and held for trial by a military court. Although the Court again failed to reach the merits, its willingness to accept jurisdiction suggests that it had not been overawed.

McCardle has never been repudiated by the Court and has been read by some authorities to suggest unlimited congressional authority over the Court's jurisdiction. Indeed, some politicians have used it to support legislation prohibiting the Court from rendering unpopular decisions on controversial matters such as school prayer and busing. Others disagree, arguing that the case should not be read to permit Congress to use its authority to regulate the Court's jurisdiction to shield government policies from judicial review. They point out that in McCardle, because the avenue provided by the Judiciary Act remained open, the Court did not accept congressional action denying the federal courts authority to hear challenges to the Reconstruction Act. Moreover, they note that in U.S. v. Klein (1872), the Court limited Congress's authority, holding that it may not limit the Court's jurisdiction to control the results of a particular case.

See also Judicial Power and Jurisdiction.

Bibliography

Charles Fairman , History of the Supreme Court of the United States, vol. 6, Reconstruction and Reunion, 1868–88. Part I (1971).

Donald G. Nieman

EX PARTE McCARDLE,

EX PARTE McCARDLE, 7 Wallace 73 U.S. 506 (1869), is the most famous judicial acquiescence in the Radical Republican punishment of the postwar South. The Southern rebellion having ended in 1865, despotic military occupation had continued across the Southern states, and military courts afforded no civil rights under the Constitution.

William McCardle, a Natchez, Mississippi, newspaper editor, had criticized Congress and General E. O. C. Ord, the military commander of Mississippi. McCardle was tried before a military commission, which convicted him of publishing inflammatory articles. He sought habeas corpus from the circuit court, which denied it, and he appealed to the U.S. Supreme Court, seeking release through habeas corpus.

The Supreme Court had issued an opinion in 1866 strongly limiting the power of military commissions over civilians, but it had refused to hear two cases brought by states against federal officials in 1867. In December of that year, it took jurisdiction over McCardle's appeal, which was brought under an 1867 law that assured that freedman and federal officials could have federal review of unlawful arrests in state court by allowing an appeal of cases seeking habeas corpus from any federal or state court. The press, and increasingly the Congress, believed that McCardle's case would lead the Court to invalidate most of the Reconstruction statutes. While McCardle's case was being argued, Congress rushed through, over President Andrew Johnson's veto, a repeal of the 1867 law that allowed McCardle's appeal.

Chief Justice Salmon P. Chase, speaking for a unanimous Supreme Court, ruled the amendment of the statute was binding upon the Court, and the effect of the repeal was to make it as if the 1867 statute had never existed. Thus, he ruled that the Court lacked jurisdiction and McCardle's appeal was dismissed. Later that same term, Chase wrote another habeas case, Ex Parte Yerger, 75 U.S. 85 (1869), reasserting the courts' powers of habeas corpus under the law existing prior to 1867.

The McCardle opinion was both immediately and repeatedly criticized for allowing Congress to determine the outcome of cases pending before the courts, as well as for allowing the military trial of civilians. The under-lying policy of not allowing military jurisdiction over American civilians was clearly resolved in Reid v. Covert (1946). Still, several points of Chase's opinion remain the law in force, particularly that a repeal of habeas jurisdiction applies to pending cases but that it does not affect habeas jurisdiction that existed prior to that statute.

BIBLIOGRAPHY

"Ex Parte McCardle: Judicial Impotency: The Supreme Court and Reconstruction Reconsidered." American Historical Review 72 (1967).

Foner, Eric. Reconstruction, 1863–1877: America's Unfinished Revolution. New York: Harper and Row, 1988.

Kutler, Stanley I. Judicial Power and Reconstruction Politics. Chicago: University of Chicago Press, 1968.

Van Alstyne, William O. "A Critical Guide to Ex Parte McCardle." Arizona Law Review 15 (1973).

SteveSheppard

See alsoReconstruction .