MCCARDLE, EX PARTE 7 Wallace (74 U.S.) 506 (1869)

inEx Parte McCardle, Chief Justice salmon p. chase, for the Supreme Court, validated congressional withdrawal of the Court's jurisdiction over appeals in habeas corpus proceedings under an 1867 statute but reasserted the Court's appellate authority in all other habeas cases.

A federal circuit court remanded William McCardle, a Mississippi editor hostile to Republican Reconstruction policies, to military custody. When he appealed to the Supreme Court, Democrats predicted that the Justices would use his case as a vehicle to hold unconstitutional the trial of civilians by military commissions in southern states undergoing reconstruction. Democrats inferred from the earlier decision of ex parte milligan (1866) that a majority of the Court believed that military commissions could not constitutionally try civilians accused of crimes where courts were functioning in peacetime. Alarmed congressional Republicans, seeing this essential machinery of Reconstruction threatened, enacted a narrow statute in 1868 that revoked Supreme Court appellate authority in habeas cases under the habeas corpus act of 1867.

In the McCardle opinion, Chief Justice Chase acknowledged the validity of this repeal under the "exceptions clause" of Article III, section 2, but pointedly reminded the bar that the 1868 repealer "does not affect the jurisdiction which was previously exercised." In Ex Parte Yerger (1869), the Court promptly affirmed this obiter dictum, accepting a habeas appeal under section 14 of the judiciary act of 1789 and rebuking Congress for the 1868 repealer. McCardle is therefore historically significant as evidence not of judicial submission to political threats during Reconstruction but rather of the Court's uninterrupted determination to preserve its role in questions of civil liberties.

McCardle remains important in the modern debate on congressional power to curtail the Supreme Court's appellate jurisdiction over cases raising controversial issues such as school busing, school prayer, and abortion. Some constitutional scholars have argued that Congress cannot erode the substance of the judicial power of the United States vested in the Supreme Court by Article III, section 1, through jurisdictional nibbling at the Court's appellate authority, but the extent to which Congress can affect substantive rights by jurisdictional excisions remains controverted.

William M. Wiecek
(1986)

(see also: Judicial System, Federal.)