| Book Review | Law and History Review, 27.2

Book Review

Brian McGinty, Lincoln and the Court, Cambridge: Harvard University Press, 2008. Pp. 375. $27.95 (ISBN 978-0-674-02655-1).

Brian McGinty, an attorney and history writer, has published a good, clear, straightforward account of Abraham Lincoln and the Supreme Court. Not quite as engaging in style as James F. Simon's recent Lincoln and Chief Justice Taney (2006), Lincoln and the Court is well written nonetheless, and more complete. But his prose is cool. He does not very often convey the sense of crisis that surrounded the events he describes.

McGinty takes the story into the Reconstruction era and interweaves succinct biographies of all the justices. Setting the stage with Taney administering the presidential oath to Lincoln in 1861, McGinty then glances backward to the Dred Scott decision. Returning to 1861, he thereafter offers mainly a chronological narrative. After discussing the confrontation over the president's unilateral suspension of the privilege of the writ of habeas corpus (Ex parte Merryman) in the first months of the war, McGinty takes a chapter to describe the circuits and Lincoln's initial Supreme Court appointments. Then he moves on to the Prize Cases (1863), in which a divided Court upheld Lincoln's decision to blockade the South without first securing congressional authorization. He describes how the Court avoided taking up the constitutionality of military trials of civilians in Ex parte Vallandigham (1864). A very nice chapter describes Taney's final, bitter years, and another details Lincoln's decision to appoint the capable but excessively ambitious Salmon P. Chase as Taney's successor. Taking the story beyond Lincoln's assassination and the collapse of the Confederacy in 1865, McGinty centers his discussion of Ex parte Milligan (1866) on Justice David Davis, Lincoln's friend, who delivered the majority opinion that finally held military trials of civilians unconstitutional where civil courts are open and freely operating. McGinty proceeds to discuss the Court's repudiation of test oaths in 1867, its near confrontation with Congress over military trials of civilians during southern Reconstruction the following year (Ex parte McCardle), and its affirmation of the Union's indestructibility in Texas v. White (1869). McGinty ends the story with Congress's decision to memorialize Taney with a bust in the Capitol in 1874, after having refused to do so nine years earlier. A brief Afterword compares the civil liberties issues raised by the Civil War to those raised by the War on Terror, with special attention to the influence of the Milligan decision, and touches on whether Lincoln exceeded his authority in issuing the Emancipation Proclamation. McGinty avoids judgment.

McGinty likes a good story, and this leads him to enliven his account with a few myths, such as the old chestnut that Stephen A. Douglas held Lincoln's hat while he delivered his inaugural address. He repeats the tale that Lincoln ordered Taney's arrest, even though he himself immediately debunks it. Evidently, he thought it was too good a story to leave out. Moreover, McGinty exaggerates the impact that the Court could have had on wartime policy. Knowing how profoundly the Court has affected public policy in the twentieth century, McGinty assumes that it could have seriously disrupted the course of events in the Civil War and Reconstruction had it followed Taney's lead. This may create some drama, but it is probably misleading. The Court played a restrained role because it had to.

In all, this is a good survey, relying primarily on secondary sources. There is an occasional nugget for the specialist in the legal and constitutional history of the Civil War, but the book is aimed at nonspecialists. In general, McGinty's brief analyses of specific events are judicious, but he is not aiming at profundity or controversy. The publisher claims that Lincoln and the Supreme Court fills a void in the historical literature. It does so for the general public and undergraduate students, although McGinty's notes are too thin to provide many leads to further reading. Those wanting a more scholarly account will still have to go elsewhere.

Michael Les Benedict

The Ohio State University (Emeritus)

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