I. Origins of the Federal Circuit Courts of Appeals

The creation of the United States circuit courts of appeals in 1891 changed the structure of the federal courts. The Constitution invested Congress with unlimited discretion to establish "inferior Courts" of its own design; and for over a century, Congress had periodically enacted reforms designed to make the nation's judicial system more responsive to litigants' needs. The 1789 Judiciary Act, for example, ordained a system of courts in three circuits and thirteen districts. With the exceptions of Massachusetts and Virginia, the districts comported with the geographical contours of each state. Congress provided for a single judge to hold district court. The district courts mainly heard suits involving admiralty issues, although they also had original jurisdiction over other miscellaneous matters. The circuits, by contrast, comprised groupings of districts. The eastern circuit, for instance, consisted of the districts of

New Hampshire, Massachusetts, Connecticut, and New York. In each district of the three circuits, Congress required that a circuit court be convened twice a year. Circuit courts had trial jurisdiction over suits involving issues of state law when the litigants were from different states, and limited appellate jurisdiction over the district courts.^[1] Except from 1801 through 1802, the circuit courts retained their dual purpose until 1891, when Congress divested them of appellate jurisdiction and created the circuit courts of appeals. Circuit courts continued to exercise trial, or nisi prius , jurisdiction until Congress finally eliminated them altogether in the 1911 Judicial Code.^[2] The confusing nomenclature of the federal court system thus dates from its earliest days.^[*]

Because Congress expected that a light Supreme Court workload would free the justices to ride circuit in pairs, it made no provision for the appointment of separate circuit judges. Such inaction rankled members of the highest court, who found the expectations of their own workload too low and the burdens of circuit travel too high. Partly to address the problems created by the 1789 Act, which were readily evident within a decade, and partly to maintain Federalist control over one aspect of the national government machinery, the outgoing Adams administration enacted the infamous "Midnight Judges" Act of February 13, 1801. This statute regrouped the districts into six numbered circuits and authorized sixteen circuit judgeships: three judges for each of the first five circuits covering the eastern seaboard states, and one for the sixth circuit, which consisted of Tennessee, Kentucky, and the Ohio Territory. In addition to creating the circuit judgeships, the 1801 reform foreshadowed the 1891 circuit courts of appeals system in authorizing circuit court sessions for the entire numbered geographical region. Congress also continued to authorize circuit court sessions in each district of the circuit.^[3]

Except for its retention of original jurisdiction in both circuit and district courts, the 1801 Act was a logical blueprint for the federal

judiciary's growth as the country expanded westward. Distrust of the Adams administration's motives, however, obscured the tangible benefits of the reform. Within a year of assuming office, on March 8, 1802, the Jeffersonians rescinded the "Midnight Judges" statute. They were not wholly confident that this repealer legislation would win approval from the Federalist-dominated Supreme Court, however, and six weeks later they passed a statute canceling the upcoming August session of the Court. A section of this law also reconfigured the circuits but omitted any new authorization of circuit judges. Resumption of circuit-riding duty soon proved to be very onerous for the justices, but they acquiesced because they interpreted the 1802 statutes by implication to require such travel. As the burdens of travel in a growing country steadily increased, the justices gradually abdicated some of their statutory circuit responsibilities, and district judges filled the gap by holding circuit court.^[4]

In midcentury, the addition of California as a state gave Congress the impetus needed to confront the undesirability of the country's highest judges failing to meet the strict requirements of the law. As one lawyer would later observe dryly, "It would seem that the Judges of the Supreme Court, at least, ought to be exempt from statutes enacted with an eye single to their disregard and violation." In 1855, Congress took its first tentative step since the ill-fated "Midnight Judges" Act to create intermediate-level judgeships. It established California as a separate, unnumbered circuit and authorized the appointment of a circuit judge to exercise authority analogous to that of a circuit-riding justice. The California circuit court thus had the same original and appellate jurisdiction as all other circuit courts, except that it covered two district courts, the northern and southern districts of California. The vast distance between California and Washington, D.C., made this a pragmatic solution to free a justice from riding circuit in the Far West. Although the sitting district judge for the northern district of California, Ogden Hoffman, coveted the new circuit judgeship, Matthew Hall McAllister received President Franklin Pierce's appointment.^[5]

McAllister, a Georgian of distinguished background, was the son of Matthew McAllister, an eminent lawyer whom President Washington had appointed as district attorney for the district of Georgia. Matthew Hall McAllister himself followed in his father's footsteps, first as a student at the College of New Jersey (later Princeton), where he did not distinguish himself, and later as an attorney in Georgia, where he did. Politically active, the second McAllister served in a number of public offices, including district attorney for the southern district of Georgia,

mayor of Savannah, and state senator. He was a fervent Unionist and an opponent of nullification. The political situation in Georgia, coupled with the riches to be made practicing law in California, undoubtedly influenced McAllister in 1850 to join his sons in San Francisco. Within two years he had earned enough to retire and travel to Europe. On a return visit to Georgia in 1853 he narrowly lost an election to become one of that state's United States senators. This defeat, and the imprudent expenditure of his retirement monies by one of his sons, caused McAllister to return to San Francisco, where he and his family were to leave a lasting mark.^[6]

McAllister served as circuit judge for seven years, resigning on April 7, 1862, for reasons of health. This judgeship, which had possibly been intended as a surrogate Supreme Court justiceship, became just that with the exigencies presented by the Civil War.^[7] By 1863 the Supreme Court confronted a number of important war-related cases, and the Republicans were naturally anxious for the Court to affirm the legality of the Lincoln administration's actions. Addition of a tenth justice, who would be vetted for sympathy to the Union cause, would solidify a precarious pro-administration majority.^[8] The man who assumed this post, Stephen J. Field, had turned down the California circuit judgeship made vacant by McAllister's resignation, with the reply that he "preferred to remain Chief Justice of the Supreme Court of the State than to be a judge of an inferior federal court." He had generously hinted, however, that "if a new justice were added to the Supreme Court of the United States, I would accept the office if tendered to me." The administration evidently took no umbrage at this audacity: when in 1863 Congress authorized the tenth justiceship and abolished the circuit judgeship, Lincoln offered the Supreme Court position to Field. Even though Field was a Democrat, he appointed him on the assurance that Field was a fervent Unionist. Whether the intention was for Field to serve as a full-time justice in Washington or as a resident circuit-rider who would occasionally travel to the nation's capital is not entirely clear.^[9] In any event, Field enjoyed a long tenure on the Supreme Court, but he continued to maintain close ties to the western federal courts.

When Congress abolished the California circuit judgeship in 1863, it formed a Tenth Circuit comprising the districts in California and Oregon. Three years later, Congress reconfigured the circuits and added Nevada to a new Ninth Circuit with California and Oregon. The legislature did not provide these circuits with any formal staffing until 1869, when it authorized appointment of a circuit judge for each of the coun-

try's nine circuits. This reorganization implemented a modified version of the Federalist plan of 1801. For the first time since 1801, Congress established a nationwide tier of circuit judges, who were to perform both trial and appellate functions. The 1869 reform commanded the justices to continue their circuit-riding duties, but their obligation was reduced to one circuit term every two years.^[10] This law notwithstanding, the justices probably did not hold circuit court in more than one court in the circuit every other year, and Stephen Field, who may well have been the justice most diligent in performing circuit work, only infrequently held circuit court outside California.^[11]

Congress commanded the far western circuit judge to hold court in each district of the three-state Ninth Circuit. The man who assumed this circuit judgeship, Lorenzo Sawyer, was confirmed by the Senate on January 11, 1870, when he was nearly fifty years old. A native of Jefferson County, New York, Sawyer at age twenty began to make his way westward. He stopped first in Ohio, where he read law with Judge Noah H. Swayne, a distinguished jurist who later was a colleague of Field's on the United States Supreme Court.^[12] The discoveries of gold in California lured Sawyer to the West, but he arrived in July of 1850, too late to reap the immense riches of the earliest and luckiest miners. As he wrote after settling in California, "I would advise no man to come here," because the "risk of failure, and to life and health, far overbalance every prospect of success to those who come here with a view of returning." Sawyer himself was determined to stay, "not to make his pile and return, but to cast his lot with the new State, with her to sink or swim." He soon abandoned his mining pan to sluice the muddy waters of legal practice. After holding the offices of San Francisco city attorney and California district judge, he ascended to the California Supreme Court in 1863, serving as chief justice from 1868 to 1870. When he lost his reelection bid, he saw a great opportunity in the new circuit judgeship that Congress established in 1869. With the support of his mentor, Noah Swayne, who by then sat on the U.S. Supreme Court, Sawyer successfully secured a life-tenured judgeship.^[13]

The two decades during which Sawyer served as circuit judge saw tremendous change in the federal court system. Even though Sawyer performed his duties as circuit judge with great industry and integrity and Congress enacted several reforms, litigants' needs outpaced these efforts. After the Civil War, a number of factors contributed to the inability of the federal courts to handle ever-expanding dockets. Adoption of the Thirteenth, Fourteenth, and Fifteenth amendments embedded in the

Constitution the transformation in federal-state relations that the North had won on the battlefield. Civil rights legislation enacted by Congress in the postwar period prompted another spate of federal lawsuits.^[14] By explicitly providing for the vindication of federal rights, these laws inaugurated a fundamental alteration in the role of the federal judiciary.

In addition to these constitutional and statutory influences, Congress increased the load on federal courts by expanding their jurisdiction. Two statutes were instrumental to this growth. The first, enacted in 1863, portended significant changes by permitting removal from state to federal court of cases brought against United States officials for acts committed during the Civil War under the authority of the president or Congress. This statute was but an insignificant amendment compared to the revolutionary effects of the Removal Act of 1875. Until passage of the 1875 statute, litigants were able to bring a federal suit only in limited circumstances. The 1875 law gave federal tribunals full power, through original jurisdiction or removal from state court, to hear cases implicating federal rights arising under the Constitution and laws of the United States. The federal courts were no longer "subsidiary courts." Despite its revolutionary consequences, however, the statute's legislative history reveals very little of the drafters' intent, for floor debate on the bill was minimal.^[15]

Concomitant with these structural factors, the natural outgrowths of business in a transcontinental society affected the work of the federal judiciary. Reconstruction unleashed involvement by the national government in such matters as transportation and commerce, issues in which the states had heretofore exercised primary influence. And although the South experienced an economic slump after the Civil War, the rest of the country was booming. These influences, combined with the growth in national population, contributed to an increase in business that the federal courts were ill equipped to handle. Between 1873 and 1890, the number of cases filed in circuit and district courts rose from 29,013 to 54,194.^[16]

Partly by design and partly by default, therefore, the federal courts became repositories of a burgeoning number of suits that steadily increased in complexity. Efforts by Congress to maintain the proper functioning of the courts lagged far behind the developments that severely pressured the system. Although a step in the right direction, the 1869 reform was outmoded even at its adoption. This law added fewer new judgeships than had the 1801 "Midnight Judges" statute. For the vastly overloaded Supreme Court, the authorization of nine circuit judgeships

did not go far to relieve the justices of their statutory responsibility to hear cases in circuit courts. Moreover, the enactment of the 1869 circuit-judge law lulled Congress into a complacency that militated against greater structural reform.

Practicing lawyers quickly felt the limitations of the 1869 legislation. In the more than two decades between the authorization of circuit judgeships and the creation of the circuit courts of appeals, the newly created American Bar Association worked hard to reform the federal judicial system. One major complaint lawyers made was that frequently only a single judge held circuit court. Congress had originally envisioned that a panel of judges would hold circuit court, but there were simply too few authorized judgeships for a panel to sit in every session of circuit court. Indeed, district judges handled approximately two-thirds of the circuit court work, and they assumed an even greater share of the circuit courts' appellate duty. By one estimate, in approximately eight-ninths of all cases brought in a four-year period during the 1880s, the same district judge heard and decided the appeal for rehearing or new trial.^[17]

Burgeoning federal dockets and the perceived unfairness of the same judge performing trial and appellate functions in the same case constituted two fundamental issues in the continuing effort to reform the federal judiciary. An important political dimension was also involved. The reorganization contemplated by members of the American Bar Association struck at the heart of federal-state relations. Throughout its first century the federal court system was quite small; the low caseload inadequately foreshadowed what was to come. After the Civil War, several factors combined to increase federal court dockets: the effect of the Removal Act of 1875, the growth in interstate commerce and population, and the assumption by Congress of control of matters that had traditionally been left to the states. The circuit court system with nine circuit judges lacked sufficient personnel to handle this work. Yet because an expanded federal court appellate system would entrench power in the national government, certain interests in Congress resisted enacting further reforms. The sectional rivalries and concern for states' rights that had been prevalent in the Civil War era were not completely dead. These forces would attempt to dilute the power of federal courts during the debates over the Evarts Act of 1891, which established the circuit courts of appeals.^[18]

By the 1880s, as reform efforts failed to accommodate social change, the system erected by Congress had fallen into disarray. The circuit-riding situation in the Eighth and Ninth Circuits was particularly di-

sastrous. The great distances involved made coverage of these circuits by a circuit judge and justice impossible. Although the justice assigned to the Ninth Circuit, Stephen J. Field, traveled west frequently, the assignment was not completely satisfactory. Increasing age—by the 1880s Field was in his seventies—and a traumatic incident that left one man dead and himself no doubt badly shaken, served to restrict Field's circuit-riding still further.^[19] Moreover, relations between Field and Judges Sawyer and Hoffman had deteriorated dramatically, the result of disputes both professional and personal.^[20] Some of the tension between Field and the California federal judges stemmed from basic party differences: Field was a Democrat and Hoffman and Sawyer were Republicans. Democrats generally sought restrictions on federal courts and federal jurisdiction, whereas Republicans advocated maintaining the postwar growth in the power of the federal judiciary. The changing fortunes of the two parties in the post-Reconstruction era significantly affected the pace of federal court reform. The 1875 legislature that passed the Removal Act was the last overwhelmingly Republican postwar Congress. After 1875, the Democrats for the most part controlled the House of Representatives and the Republicans maintained precarious majorities in the Senate. Deadlocked in Congress, neither party was able to impose its vision of the role and structure of the federal court system on the other.^[21]

In 1885, A. H. Garland, the new attorney general, advocated the creation of a court of appeals in each circuit. His proposal in many respects presaged the establishment of a separate tier of federal courts in 1891. Under Garland's scheme, each court of appeals would be composed of the circuit justice, a circuit judge, and two district judges. The new courts would have jurisdiction to hear appeals or writs of error from final judgments of district and circuit courts when the amount in controversy exceeded $500 or when the district or circuit judge certified a question as being of general importance for the appellate court's guidance. Instead of adopting Garland's proposal, Congress enacted more modest reforms by raising the amount-in-controversy requirement to $2,000 and limiting other grounds for invoking federal court jurisdiction. While this statute may have eased pressure somewhat on the lower courts, on the very same day Congress enacted another law with precisely the opposite effect, this one conferring on district and circuit courts concurrent jurisdiction with the court of claims in actions against the United States.^[22]

The failure of the 1887 law to decrease the load on the Supreme Court led bench and bar alike to renew their pleas for reform. Their actions achieved some success at last on April 4, 1890, when Representative

John H. Rogers introduced a bill that attempted to address the Supreme Court's backlog problem. The bill essentially repeated many earlier proposals, including Attorney General Garland's plan of 1885. It went further, however, by advocating the fusion of district and circuit courts and the creation of nine intermediate courts of appeals that would have final decision in cases arising solely through diversity jurisdiction (subject to certification to the Supreme Court). It also authorized the addition of two circuit judges for each circuit, for a total of three, and repealed all existing laws requiring Supreme Court justices to perform circuit work. These proposals finally became politically acceptable after 1890, when, following Benjamin Harrison's presidential victory in 1888, the Republicans captured control of both the House and the Senate. Partisan considerations no longer impeded the creation of politically attractive patronage positions.^[23]

On August 5, 1890, Senator William M. Evarts substituted a bill of his own for the House version. Evarts's bill modified the House proposal in several important respects. First, it divided the appellate stream from the district and circuit courts by transmitting the most important issues directly to the Supreme Court and diverting the more numerous but less difficult issues to the nine new appellate courts. The bill also proposed retaining original jurisdiction in both district and circuit courts and provided for direct appeals from these courts to the United States Supreme Court in certain classes of cases. All other cases were to go to the circuit courts of appeal for final decision, subject to review by the Supreme Court. Appellate jurisdiction in the circuit courts would finally be abolished. In a response as much to traditional sentiment as to political expediency, the Evarts bill retained the old circuit courts and permitted Supreme Court justices to attend them. This last provision was a bow to believers that the justices gained a better perspective—a common touch with the people—by continuing to ride circuit, if only in an abbreviated form. Finally, the Evarts proposal authorized only one additional circuit judge, for a total of two, for each circuit.^[24]

The Evarts bill triumphed, becoming law on March 3, 1891. The Supreme Court felt the benefits of this reform immediately. According to reports by the attorney general, the Supreme Court reduced its backlog from 1,190 cases in 1890 to 313 by 1897, as docketings fell from 623 to 302. As then-Attorney General Joseph McKenna was able to report in 1897, "I think it is generally conceded that [the circuit courts of appeals] have justified their creation by accomplishing what was expected of them."^[25]