Ex Parte McCardle: 1868

The Supreme Court is the only federal court specifically provided for by the Constitution. Under Article III, Section 2, the Supreme Court has original jurisdiction, meaning sole authority, only in "Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party." In all other cases, the Supreme Court has jurisdiction only on appeal from such federal courts as Congress may decide to create and from state supreme courts. This appellate jurisdiction is expressly subject to "such Exceptions, and under such Regulations as the Congress shall make."

On September 24, 1789 Congress passed the Judiciary Act, which is the basis for the federal court system and gave the Supreme Court various appellate powers. On February 5, 1867 Congress amended the Judiciary Act to enable the Supreme Court to hear appeals in habeas corpus cases. It was precisely this amendment, called the Habeas Corpus Act of 1867, that enabled the Court to hear the McCardle case.

The Radical Republicans who controlled Congress feared that the Mc-Cardle case would give the Court an excuse to overturn Reconstruction legislation and end martial law in the South. Therefore, on March 27, 1868, Congress passed a law repealing the appeal provisions of the Habeas Corpus Act of 1867:

And be it further enacted, That so much of the act approved February 5, 1867, entitled 'An act to amend an act to establish the judicial courts of the United States, approved September 24, 1789,' as authorized an appeal from the judgment of the Circuit Court to the Supreme Court of the United States, or the exercise of any such jurisdiction by said Supreme Court, on appeals which have been, or may hereafter be taken, be, and the same is hereby repealed.

The case came before the Supreme Court during the 1868 December Term. McCardle was represented by Jeremiah S. Black, David Dudley Field, Charles O'Conor, W.L. Sharkey and Robert J. Walker. The government was represented by Mathew H. Carpenter and Lyman Trumbull.

The hearing focused on the effect of Congress' repeal of the Court's jurisdiction. If the Court didn't have jurisdiction, the validity or invalidity of McCardle's imprisonment was irrelevant. Sharkey argued that Congress' action was unconstitutional because it was designed solely to affect the McCardle case:

Its language is general, but, as was universally known, its purpose was specific. If Congress had specifically enacted 'that the Supreme Court of the United States shall never publicly give judgment in the case of McCardle, already argued, and on which we anticipate that it will soon deliver judgment, contrary to the views of the majority in Congress, of what it ought to decide,' its purpose to interfere specifically with and prevent the judgment in this very case would not have been more real or, as a fact, more universally known.