by Brian McGinty. Cambridge, MA: Harvard University Press, 2008. 384pp. Cloth $27.95/£18.95/€20.00. ISBN: 9780674026551.

Reviewed by Daniel Farber, School of Law, University of California, Berkeley. Email: dfarber [at]


The Civil War raised deep constitutional questions about the meaning of the Union, the extent of Presidential power, and the extent of civil liberties in wartime. Much has been written about these questions in the context of Civil War and Reconstruction history. LINCOLN AND THE COURT, by Brian McGinty, provides a lively popular introduction to these Civil War issues and their treatment by the Supreme Court. McGinty provides colorful vignettes of the leading figures, including some Supreme Court Justices who are not exactly household names. He also explains the constitutional issues and judicial rulings in very clear lay terms.

Political scientists, historians, and legal scholars will find little new here. The non-judicial side of the story is standard fare. The details about the Court’s rulings and its Justices are less familiar, but developed in painstaking detail in the Holmes Devise Supreme Court history volumes covering this era. In short, the book is not a contribution to scholarship, nor does it claim to be.

Within its own terms, however, the book is successful. It weaves together the legal developments with the breakdown of the Union, the Civil War, and the beginnings of Reconstruction. The results are sometimes genuinely enlightening. For example, McGinty effectively justaposes KENTUCKY v. DENNISON, which held that state governors could not be coerced into performing their duty to extradite prisoners, with contemporary events on the eve of Fort Sumter. The implication is a contrary ruling might have had potentially explosive implications for the Union’s then-debated power to “coerce” seceding states. It is also an interesting commentary on how far Taney was out of touch with the movement of history that the voters of his own state adopted a constitution abolishing slavery the day after he died.

LINCOLN AND THE COURT is also full of intriguing historical detail. We learn that Lincoln had first-hand experience with the Supreme Court’s occasional inconstancy in following precedent long before he was elected. We are also informed about the somewhat surprising number of Justices who weighed in at the three hundred pound level; Chief Justice Taft would have felt completely at home with this group. And we get the benefit of Senator Wade’s dour assessment of Taney’s longevity after Lincoln took office: “I prayed with earnestness for the life of Taney to be prolonged through Buchanan’s Administration, and by God Im [sic] a little afraid I have overdone the matter.”

While it can be considered a successful exercise in popular history, the book is disappointing in two respects. First, the [*697] discussion of Lincoln’s commitment to legality and constitutional regularity is superficial. The familiar facts are paraded along with the usual quotations, but we do not get much sense of penetrating more deeply into Lincoln’s character. Second, a brief discussion of the modern Supreme Court’s recent rulings on terrorism cases is tacked on at the end of the book. Perhaps this was a marketing inspiration by the publisher. In any event, it seems to add little to the book, even for those of us who agree with the author’s perspective.

The bottom line is this: If you research these topics, you do not need to read the book. If you are looking for a book for undergraduates or to recommend to a lawyer friend with an interest in the period, LINCOLN AND THE COURT could be an excellent choice.

KENTUCKY v. DENNISON, 65 U. S. 66 (1860).

© Copyright 2008 by the author, Daniel Farber.