The term “War between States” is reasonably – but, as we shall see, not always correctly – seen as a friendly abbreviation of the Confederates for the Civil War, as it obscures that the southern states separated from the Union. From the end of the Civil War until in the 1960s, this abbreviation appeared in a total of 15 Supreme Court cases as an abbreviation for the Civil War, with the last instance occurring in 1958. But in a surprising resurgence, in just two decades from 1971 to 1992, 16 opinions of the Supreme Court used the term “war between states”. It hasn’t appeared in a Supreme Court opinion since. (I’m counting on a quick database search by my trusted research assistant.)
Before you continue reading, try to guess which Supreme Court judge was responsible for almost all of the recent uses of “the war between states”.
Wrong!
The answer, it seems, is Harry Blackmun, who used the abbreviation in eleven separate opinions (in one instance, citing his previous use) during his 1970 to 1994 term and whose use was cited in two others out of 16 instances. After doing the research, I think I might as well explain:
In Blackmun’s first term, in his majority opinion in Rogers v. Bellei (1971): “In any case, although a definition of citizenship could be expected in constitutional terms, none was adopted in the original document, or, in fact, in any of the amendments adopted before the war between states.”
In their majority opinion in Roe v. Wade (1973): “It was not until after the war between states that legislation began to replace common law.” (Like many of Blackmun’s historical statements in Roe, this statement seems to be wrong. According to this essay by John Finnis, 27 of the 36 states had enacted anti-abortion statutes in 1864. By the way, it was Finnis’s use of this quote from Blackmun that led to my further investigation of Blackmun’s use of shorthand.)
In his unanimous opinion on United States x John (1978): “The War Between the States interrupted the payment of this Senate sentence and, after the war, the Choctaws were forced to prove their claims once again, this time in federal courts.”
In their majority opinion in Rose v. Mitchell (1979): “Discrimination on account of race was the main evil addressed by the Amendments adopted after the War between States, including the Fourteenth Amendment.”
In their majority opinion in United States x Sioux Nation (1980): “Klein was the estate manager for VF Wilson, the late owner of a property that had been sold by government agents during the interstate war.”
In their majority opinion in McCarty v. McCarty “
In his unanimous opinion on United States x Louisiana (1985): “During the War between States, the fort was occupied alternately by Union and Confederate troops.”
In his dissent in McCleskey v. Kemp (1987): Quoting his statement in Rose v. Mitchell.
In their majority opinion in Ngiraingas v. Sanchez (1990): “After the war between states, race relations in the southern states were problematic.”
In a unanimous portion of his opinion in Georgia vs. South Carolina (1990): “Except for the placement of a battery on the islands by the Confederate forces during the War between States, there was never any resident on the islands and neither schools, roads nor other public improvements.”
And in your opinion, agreeing with the trial in Ankenbrandt v. Richards (1992): “I am confident, however, that the uninterrupted and unchallenged practice of federal courts since before the war between states to refuse to hear certain cases of domestic relations provides the very rare justification for continuing to do so . ”
I point this out no to suggest that Blackmun himself had some sympathy for the Confederates’ account of the Civil War. Instead, it seems that, during his education in Minnesota and later at Harvard, he somehow got used to the term “the war between states” and was blind to its connotations.
In addition to joining many of Blackmun’s views cited above, other Supreme Court judges have used “War between States” five times in their views in the same two decades. Perhaps more surprisingly, Judge William Brennan used the abbreviation twice:
In his dissent in National League of Cities v. Usery (1976): During the term of Mr. Chief Justice Chase, the War between States, fought to preserve the supremacy of the Union, was won … ”
In his dissent in Huffman v. Pursue, Ltd. (1975): “After the war between States, ‘nationalism dominated political thought and brought with it the investiture of the federal judiciary in Congress, with enormously increased powers.'”
Judge Thurgood Marshall twice cited Blackmun’s passage from Rose v. Mitchell—In your opinion in Vasquez v. Hillery (1986) and Batson v. Kentucky (1986).
Judge Lewis Powell used the term in his dissent in EEOC v. Wyoming (1983): “Thirty years later, Jefferson and Madison’s views were expanded by John C. Calhoun in his doctrine of nullification – the extreme view that ended up leading to war between states.”