Path to the Supreme Court
David Davis was Lincoln's judge: for fourteen years he presided over the Illinois Eighth Circuit while Lincoln tried cases before him, and at the Chicago wigwam in 1860 he managed the convention operation that made his friend president. Lincoln put him on the Court in 1862, and after the assassination Davis administered the dead president's estate. He never stopped being a politician who happened to wear the robe.
On the Supreme Court
Davis wrote one opinion that outweighs most careers: Ex parte Milligan, holding that military commissions cannot try civilians where the civil courts stand open — 'the Constitution of the United States is a law for rulers and people, equally in war and in peace.' The rest was restlessness. The Labor Reform party nominated him for president in 1872, and he angled for the Liberal Republican nomination the same year. In January 1877 the Electoral Commission was built around the assumption that Davis, the Court's one true independent, would be its fifteenth and deciding member — whereupon the Illinois legislature elected him to the Senate, he declined the Commission, and Bradley (§41) took the seat that decided Hayes–Tilden. He resigned the Court that March, served his Senate term, and presided as president pro tempore.
The Voting Record
How Davis voted in the 2,040 cases the Supreme Court Database records from the 1862 term through the 1876 term, using that database’s classification of each vote as liberal or conservative. The gold tick on each bar is the rate for the other justices sitting on those same cases.
Where Davis sat among the colleagues on the same bench — and whether that Court divided clearly enough for the question to have an answer — is laid out Court by Court. See this Court →
Source · The Supreme Court Database (Spaeth, Epstein, Nelson, Martin, et al.) · how these figures are made
Key Decisions
Ex parte Milligan
1866Holding · Military commissions may not try civilians where the civil courts are open and functioning.
Role · Davis wrote for the Court; Chase (§39), with Wayne (§23), Swayne (§35), and Miller (§36), would have allowed Congress to authorize such tribunals.
'A law for rulers and people, equally in war and in peace' — the great charter of civilian supremacy, cited in every wartime civil-liberties fight since.
Read the opinion →Go Deeper
David Davis has one full biography, and it is exactly the right place to start: Willard L. King's Lincoln's Manager, David Davis (Harvard, 1960), the standard life of the Illinois circuit judge who ran Lincoln's 1860 nomination, followed him onto the national stage, and then — from the seat Lincoln gave him — wrote the opinion that repudiated Lincoln's own military tribunals. For the two episodes that made him, read the landmark itself (Ex parte Milligan) and the 1877 crisis that pulled him off the Court.
The Bookshelf
The one full biography, and still the standard life six decades on. King tells the whole arc: the Maryland-born, Kenyon-educated lawyer who rode Illinois's Eighth Circuit alongside Abraham Lincoln, ran the Chicago convention floor fight that won Lincoln the 1860 nomination, and was rewarded with a seat on the Court in 1862. King is especially good on the friendship and its strains — Davis as Lincoln's confidant and campaign manager, and, after the assassination, the administrator of his estate. Warm, thorough, and built on the Davis papers. Harvard University Press.
Davis's one immortal opinion, and one of the great civil-liberties statements in the U.S. Reports. Writing for the Court in 1866, he held that a civilian could not be tried by military commission where the ordinary courts were open and functioning — even with the writ of habeas corpus suspended — because "the Constitution of the United States is a law for rulers and people, equally in war and in peace." The extraordinary thing is the author: Lincoln's closest political friend, repudiating the military tribunals of the administration he had helped elect. Free online.
The modern scholarly reckoning with Davis's most famous opinion — a collection that carries Milligan from its Civil War origins through Reconstruction, the World War II Japanese-internment cases, and the post-9/11 detention debates. It complicates the heroic reading: the same decision that limited military power over civilians also constrained the federal government's ability to protect Black Southerners by military force during Reconstruction. The best place to see why the case still matters, and still divides. University Press of Kansas.
Returning from the Clifford shelf (§34), where the same crisis sits — but for Davis it is the hinge of his whole career. As the Court's one true independent, Davis was to be the tie-breaking fifteenth member of the Electoral Commission that would decide Hayes v. Tilden. Illinois Democrats, hoping to buy his vote, instead elected him to the Senate; Davis took the seat, quit both the commission and the Court, and Joseph Bradley replaced him — casting the 8–7 vote that made Hayes president and ended Reconstruction. Holt is the modern account of the greatest "what if" in the Court's electoral history. University Press of Kansas.
Only the second full biography of Davis ever written — and the first since 1960. McKoski, a retired Illinois judge, covers the whole improbable arc: circuit-riding companion, the manager who won Lincoln the 1860 nomination, author of Ex parte Milligan, and the senator whose seat-switch decided the 1876 election commission. University of Illinois Press.
The standard modern biographical encyclopedia of the Court: a signed essay on each of the 110 justices from Jay to Alito, alphabetically arranged, by a named scholar or journalist. Length tracks reputation — two pages for Thomas Johnson, three for Woods, eleven for Holmes — which is itself a rough map of who the literature has bothered with. It is not a substitute for a biography, and for the justices who have never had one it is often the most careful short account in print. Borrow it free at the Internet Archive.
The one-volume reference on the Court: more than a thousand signed entries on cases, doctrines, institutions and the justices, current to 2005. Cases and people share one alphabet, so a citation can be followed without changing volumes, and the biographical entries are short, written by specialists, and better than a longer sketch at carrying the historiography — what the argument about a justice currently is. Borrow it free at the Internet Archive.
The Reading Path
A researched route through the literature — in order.
- 1.King — for the whole life and the Lincoln friendship
- 2.Ex parte Milligan — for the one immortal opinion, in Davis's own words
- 3.Milligan Reconsidered — for why the case still divides — from internment to Guantánamo
- 4.Holt — for the 1877 crisis that pulled him off the Court
Where the Papers Are Kept
The David Davis correspondence is split between the Chicago History Museum and the Abraham Lincoln Presidential Library in Springfield, which together hold the letters King built the biography on — Davis on Lincoln, the circuit, the 1860 convention, and the Court. Visit →
Online Resources
Ideas for Further Research
- Lincoln's friend on the bench — and his conscience. Davis rode Illinois's Eighth Circuit with Lincoln for a decade, ran the Chicago convention floor fight that won him the 1860 nomination, and took his seat (§37) in 1862 as Lincoln's personal choice — filling the chair John A. Campbell (§33) had vacated to join the Confederacy. Then, in 1866, he wrote Ex parte Milligan against his dead friend's own military tribunals: "a law for rulers and people, equally in war and in peace."
- The greatest "what if" in the Court's electoral history. As the one independent on the bench, Davis was slated to be the tie-breaking fifteenth member of the 1877 Electoral Commission deciding Hayes–Tilden. Illinois Democrats elected him to the Senate to sway him; he took the seat instead, left the Court, and Joseph Bradley replaced him — voting 8–7 for Hayes and ending Reconstruction. Ties to Clifford (§34, a dissenter on that commission) and the site's planned 1877 essay.
- The most politically ambitious justice. Davis is the rare member courted for the White House while sitting — the Labor Reform party nominated him for president in 1872 — who then resigned the Court outright for elective office, served a Senate term, and rose to President pro tempore (1881–83), one step from the presidency under the VP-less Arthur. A useful foil to the cloistered-judge ideal; cf. Campbell's political exit (§33) and the ambition threads of Swayne (§35) and Miller (§36).