Balkinization: The Circuit Report of In Re Davis

The Circuit Report of In Re Davis

Gerard N. Magliocca

In my law review article on Section Three, I argued that Chief Justice Chase contradicted himself on whether an Act of Congress is required to enforce Section Three. In Griffin's Case, Chase said no. In the Jefferson Davis treason trial proceedings, Chase said yes because he thought that Section Three barred the treason prosecution in Virginia even though no Act of Congress was enforcing Section Three in Virginia. I rested that conclusion, in part, on a line at the end of the Davis report that stated:

THE CHIEF JUSTICE instructed the reporter to record him as having been of opinion on the disagreement [between Chase and District Judge Underwood], that the indictment should be quashed, and all further proceedings barred by the effect of the fourteenth amendment to the constitution of the United States.

In their comprehensive paper on Section Three, Professors Blackman and Tillman correctly point out that this comment did not appear in contemporary accounts of the case (say, in newspapers) and was written up after the Chief Justice's death. Thus, there is an authenticity question about the comment. Did Chase really say this to the reporter? Could the reporter have misunderstood this? One of the dissenting opinions in the Colorado Supreme Court referred to this point to reject the argument that Griffin's Case is unsound.

I want to respond by making the modest claim that the way in which the Davis report was published was common practice in the nineteenth century. There was nothing fishy going on.

Back then, Supreme Court Justices rode circuit and were responsible for publishing their circuit cases. Some did not do this, some did this haphazardly, and some did so systematically. I happen to know a lot about this because Bushrod Washington was the most systematic (along with Justice Story) in reporting his circuit cases. His reports (along with those of other Justices) typically came out years after the fact and differed from the initial accounts in newspapers. Why? Because the Justices edited them. Washington was editing circuit reports for publication twenty years after cases were decided. And he had help from an editor, Richard Peters Jr., who later became the U.S. Supreme Court reporter.

By necessity, some circuit reports came out posthumously. Justice Washington died while riding circuit. Obviously, his final reports were not written by him. His reporter took Washington's notes and wrote them up. Chief Justice Chase's reporter did the same thing for In Re Davis after Chase passed away. (District Judge Underwood, who sat with Chase on In re Davis, died six months after the Chief Justice died.)

My takeaway is that the posthumous publication of a Justice's comment to his court reporter about a case does not mean that the comment was inaccurate. And there is no affirmative evidence that Chase's court reporter misrepresented what was said. Thus, this issue doesn't tell us anything about whether Griffin's Case is sound.

Posted 9:03 AM by Gerard N. Magliocca [link]