Texas' habeas history fraught, but potent

The New York Times yesterday published an interesting article by former Rhode Island Chief Justice Frank Williams comparing the use and suspensions of habeas corpus writs during the Civil War by Abraham Lincoln and Jeff Davis, respectively. While Lincoln unilaterally suspended habeas corpus, famously defying the US Supreme Court over the matter, Williams pointed out that his counterpart, Jefferson Davis, thrice signed suspensions of habeas corpus passed by the Confederate Congress, and also requested authority to suspend it in other instances when he was denied. Interesting history on a rarely discussed topic. Williams concluded, IMO correctly, that:

Differences between their treatments of the writ [by Lincoln and Davis] can be traced to how they saw the abrogation of civil liberties contributing to the achievement of [their] goals, and not to any fundamental difference in political philosophy. Most important, Jefferson Davis was in practice no more committed to protecting the Great Writ than was Abraham Lincoln. Both men embraced the military and political realities confronting them in wartime.

That's a fair assessment. Davis' relative respect for the writ compared to Lincoln almost certainly had more to do with political expediency and a desire for recognition of the Confederate States by European powers than his profound respect for civil liberties.

However, the story reminded me of a Grits post last year detailing some of the history of wartime habeas corpus in Texas, which in at least some instances remained stronger than either the Union or Confederate national governments. Specifically, it's worth recalling an episode where the Texas Supreme Court ordered a Confederate military commander to release Union sympathizers who'd been confined in a military camp on suspicion of treason and conspiracy. When the general refused to comply with the court's writ, Chief Justice George F. Moore responded that:

If the refusal to obey the writ was by order of the commanding general, then he is the principal offender. Those by whom he has perpetrated so glaring an outrage upon the law and authority of this court are alike his subordinates in criminality and inferiors in rank. ... Better it would be for the prisoners who are in custody, though doubly guilty, beyond all that is charged against them, to go unwhipped of justice, than for the civil authorities to be subordinated to military control and made dependent on the consent of the latter for the discharge of its functions.

According to Moore's eulogist, "The commanding general bowed his head, purged himself of the contempt, and the doomed  men, rescued by the hand of the law from a drum-head court martial, were restored to their families." (See more detail in Grits' original post.) I could be mistaken, but to my knowledge there's no comparable Union example of the military suborning its goals to habeas corpus authority and the episode stands in stark contrast to Lincoln's open defiance of the US Supreme Court's application of the writ.

Certainly, as a NY Times commenter pointed out, not every episode involving Union sympathizers in Texas ended with similar comity, the most egregious example being the notorious Nueces massacre in which German Unionists were attacked and killed by Confederate forces as they tried to flee the state. But that episode never tested the Great Writ - Confederate soldiers attacked then summarily executed fleeing Germans in an extra-judicial action without any opportunity for the courts to intervene. Whatever Jeff Davis' stance toward habeas corpus, it seems clear to me its power was respected more during the Civil War, at least in Texas, than one might infer from Justice Williams' NY Times column.

After the Civil War was another matter. When Richard Coke - himself a former Texas Supreme Court Justice who, like George F. Moore, was ousted by the military government during Reconstruction - was elected Texas Governor in 1873 by a 2-1 margin, he openly defied a habeas corpus writ and assumed office in what can only be described as an extra-legal coup. Here's how the same Grits post described the episode:

The Texas Supreme Court declared Coke's election invalid in an extraordinary habeas corpus writ styled Ex Parte Rodriguez - a petition by a man accused of voting twice in a Harris County election. In a ruling handed down Jan. 6, 1874, less than two weeks before Coke's inauguration, "The judges ruled against the state and concluded that Rodríguez should be released because the election had not been valid." So the judgment on the election's validity was a secondary consequence of the ruling, which at its core was about a criminal conviction in a voting fraud case. In the political arena, though, it was viewed (as it was almost certainly intended) as an opportunistic means to rescind the election of a man the military government had openly deposed a scant few years before.

What happened next, though, must have been one of the most exciting moments ever in Texas politics, and certainly in the annals of Texas habeas law:

Disregarding the court ruling, the Democrats secured the keys to the second floor of the Capitol and took possession. [Incumbent Gov. Edmund] Davis was reported to have state troops stationed on the lower floor. The Travis Rifles (see TRAVIS GUARDS AND RIFLES), summoned to protect Davis, were converted into a sheriff's posse and protected Coke. On January 15, 1874, Coke was inaugurated as governor. On January 16, Davis arranged for a truce, but he made one final appeal for federal intervention. A telegram from President Ulysses S. Grant said that he did not feel warranted in sending federal troops to keep Davis in office. Davis resigned his office on January 19. Coke's inauguration restored Democratic control in Texas.

Imagine if, upon receipt of the Supreme Court order in Bush v. Gore, Vice President Gore had holed himself up in the White House with an armed contingent and assumed the Presidency anyway, with the military and law enforcement reluctantly acquiescing to his rule over the court's objections: That would be a rough, modern equivalent of Coke's bold ascension to Governor after his ouster from the Texas Supreme Court.

Thus, Texans' respect for the Great Writ had limits which, as with Jefferson Davis, were dictated in the Coke episode by politically expediency that ultimately trumped the rule of law by force of arms. Coke's ascension to power spurred the rewriting of the constitution and the establishment of Jim Crow, making it in retrospect one of the darkest moments in the state's hesternal lore.

So Texas' habeas history remains complicated and more fraught with political interference than many jurists and Confederate apologists might like to pretend. But Grits remains impressed that, even during wartime, Texas' Supreme Court continued to exercise habeas corpus and its authority was so revered that a Confederate general felt obligated to "bow his head" in deference.

Today, truncated and emasculated over time by both the legislature and jurists too deferential to state power, habeas corpus in Texas has devolved, until recently becoming nearly as anachronistic as the pardon power. But lately, its use in innocence cases and its application by the Court of Criminal Appeals to nullify an unconstitutional statute show signs of its nascent revival. As was true 150 years ago, habeas remains more potent in the Lone Star State than in the federal courts. Texans should view that as a matter of pride and do all we can to bolster and protect the Great Writ of Liberty from state actors who'd prefer to relegate its essential protections to the dustbin of history.