The term “the War Between the States” is reasonably—but, as we shall see, not always rightly—seen as a Confederate-friendly shorthand for the Civil War, as it obscures that the southern states seceded from the Union. From the end of the Civil War through the 1960s, that shorthand appeared in a grand total of 15 Supreme Court cases as a shorthand for the Civil War, with the latest instance occurring in 1958. But in a surprising resurgence, in the barely two decades from 1971 to 1992, 16 Supreme Court opinions used the term “the War Between the States.” It hasn’t appeared in a Supreme Court opinion since then. (I’m relying on a quick database search by my trusted research assistant.)

Before reading further, try to guess which Supreme Court justice was responsible for nearly all the recent uses of “the War Between the States.”

Wrong!

The answer, it turns out, is Harry Blackmun, who used the shorthand in eleven separate opinions (in one instance, quoting his previous use of it) during his tenure from 1970 to 1994 and whose use was quoted in two other of the 16 instances. Having done the research, I figure that I might as well lay it out:

In Blackmun’s very first term, in his majority opinion in Rogers v. Bellei (1971): “In any event, although one might have expected a definition of citizenship in constitutional terms, none was embraced in the original document, or, indeed, in any of the amendments adopted prior to the War Between the States.”

In his majority opinion in Roe v. Wade (1973): “It was not until after the War Between the States that legislation began generally to replace the common law.” (Like so many of Blackmun’s historical assertions in Roe, this statement appears to be wrong. According to this essay by John Finnis, 27 of the 36 states had enacted anti-abortion statutes by 1864. By the way, it was Finnis’s use of this Blackmun quote that led to my further inquiry into Blackmun’s use of the shorthand.)

In his unanimous opinion in United States v. John (1978): “The War Between the States interrupted the payment of this Senate award, and, after the war, the Choctaws found themselves forced to prove their claims once again, this time in the federal courts.”

In his majority opinion in Rose v. Mitchell (1979): “Discrimination on account of race was the primary evil at which the Amendments adopted after the War Between the States, including the Fourteenth Amendment, were aimed.”

In his majority opinion in United States v. Sioux Nation (1980): “Klein was the administrator of the estate of V. F. Wilson, the deceased owner of property that had been sold by agents of the Government during the War Between the States.”

In his majority opinion in McCarty v. McCarty (1981): “Although disability pensions have been provided to military veterans from the Revolutionary War period to the present, it was not until the War Between the States that Congress enacted the first comprehensive nondisability military retirement legislation.”

In his unanimous opinion in United States v. Louisiana (1985): “During the War Between the 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 his majority opinion in Ngiraingas v. Sanchez (1990): “After the War Between the States, race relations in the Southern States were troubled.”

In a unanimous portion of his opinion in Georgia v. South Carolina (1990): “Except for the placement of a battery on the islands by Confederate forces during the War Between the States, there never was any resident on the islands and no schools, roads, or other public improvements.”

And in his opinion concurring in the judgment in Ankenbrandt v. Richards (1992): “I am confident, nonetheless, that the unbroken and unchallenged practice of the federal courts since before the War Between the States of declining to hear certain domestic relations cases provides the very rare justification for continuing to do so.”

I point this out not to suggest that Blackmun himself had any sympathy for the Confederate account of the Civil War. Rather, it would seem that, in the course of his education in Minnesota and later at Harvard, he had somehow become accustomed to the term “the War Between the States” and was blind to its connotations.

In addition to joining many of Blackmun’s opinions cited above, other Supreme Court justices used “the War Between the States” five times in their opinions in those same two decades. Perhaps most surprisingly, Justice William Brennan used the shorthand twice:

In his dissent in National League of Cities v. Usery (1976): During the tenure of Mr. Chief Justice Chase, the War Between the States, fought to preserve the supremacy of the Union, was won….”

In his dissent in Huffman v. Pursue, Ltd. (1975): “After the War Between the States, ‘nationalism dominated political thought, and brought with it congressional investiture of the federal judiciary with enormously increased powers.’”

Justice Thurgood Marshall twice quoted Blackmun’s passage from Rose v. Mitchell—in his opinions in Vasquez v. Hillery (1986) and Batson v. Kentucky (1986).

Justice 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 nullification doctrine—the extreme view that eventually led to the War Between the States.”