Ex Parte McCardle: 1868 - Congress Could Not Be Denied

Carpenter and Trumbull responded by citing the plain language of Article III, Section 2 of the Constitution, under which Congress' authority to restrict the Court's appellate jurisdiction could not be denied. Further, Carpenter Trumbull pointed out that the language of Congress' repeal of the Court's authority "embraces all cases in all time." Although Sharkey was certainly accurate in describing Congress' real motivations, Carpenter and Trumbull correctly pointed out that legally, any assumption that the repeal was aimed specifically at McCardle couldn't be proven and therefore was "gratuitous and unwarrantable."

Chief Justiice Salmon Chase (center)announced the Court's unanimous decision in Ex parte McCardle. (Bettmann/Corbis)

By the end of the 1868 December Term, Chief Justice Salmon P. Chase announced the Court's unanimous decision. Chase held that McCardle's appeal was dismissed for lack of jurisdiction, because of Congress' repeal of the Court's authority. Chase stated in blunt terms that Congress had undeniably exercised its power to create exceptions to the Court's authority:

The provision of the act of 1867 affirming the appellate jurisdiction of this court in cases of habeas corpus is expressly repealed. It is hardly possible to imagine a plainer instance of positive exception.

The McCardle case is the only time in American history that Congress used its power under the Constitution to prevent the Supreme Court from hearing certain types of politically sensitive cases. There have been periodic movements in Congress to restrict the Court's authority to hear school desegregation cases, school prayer cases, abortion cases and other politically sensitive cases, but nothing has ever happened. However the Court did not completely surrender to Congress actions. Only one year later, in 1869, the Court agreed to hear a case very similar to McCardle's called Ex Parte Yerger, and side-stepped Congress' repeal of the Court's authority. Yerger was released from custody before the Court could hear the case and get into any confrontation with Congress. As more than one legal commentator has opined, given the need for the different branches of government to work peacefully with each other, it may be politically healthy that the limits of congressional power under the Constitution have never been completely clarified.