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Three gentlemen meet quietly and unpretentiously, three times a year in a red brick building, by no means an example of architectural beauty, situated in an exceedingly unbeautiful part of San Francisco, and constitute a high court of the nation. This court is conspicuously distinguished for its territorial jurisdiction, actual power and the magnitude of the interests involved in its decisions. The great mass of the citizens are, however, unaware even of the existence of this tribunal and know nothing of its important place in the judicial system of the Federal Government.
Austin Lewis, 1900

With Justice Stephen J. Field presiding and Circuit Judge Lorenzo Sawyer in attendance, the United States Circuit Court of Appeals for the Ninth Circuit held its inaugural session on June 16, 1891, in the Appraisers' Building in San Francisco. Justice Field convened the court's first meeting not to hear cases or to discuss issues of great legal import, but rather to ordain the new western court that Congress had created through the Evarts Act of March 3, 1891. An assemblage of distinguished members of the bench and bar congregated in a "dismal, cheerless" courtroom adorned with "dusty, faded draperies of red, its great square ugly corners outlined in shadow by the faint light that glimmered through dirty windows." The setting was not imbued with the splendor to be expected from a court that "has all the dignity and not a little of the power of the greatest tribunal in the land."[1]

The question that ran through most spectators' minds before the judges took their seats on the bench belied the significance of the new court's formation: Would the judges wear robes? District Judge William W. Morrow laughed in response to a query whether he had bought his gown by saying that "silk is too expensive to purchase on a contingency. But . . . I think it an excellent idea, do you not, for the judges to wear


their gowns? It is expressive of great dignity and not repugnant to republican principles." Not everyone felt this way. For many, robes symbolized the tension between the character of monarchical and republican institutions. A similar controversy arose in at least one other circuit court of appeals that opted to don the "mystic gown."[2]

This concern was forgotten once Field called the court to order. The justice explained that the object of the law creating the circuit courts of appeals "was to relieve the Supreme Court of the United States from the vast accumulation of business which now crowds its dockets, and at the same time to bring nearer to suitors the judicial force required for the disposition of a portion of such business." To achieve this objective by staffing the court with needed judges, Congress had authorized the circuit courts of appeals to designate a district judge to sit on the court along with the circuit justice and two circuit judges. In the Ninth Circuit this assignment was particularly crucial. Advancing age and the Supreme Court's vast workload prevented Justice Field from hearing more than a few circuit cases per term. As the circuit judge from the preexisting system, Lorenzo Sawyer would hold one of the judgeships designated by statute. Another judge remained to be appointed. Moreover, at the court's first session, Field announced that Matthew P. Deady, the distinguished and long-serving federal district judge for the district of Oregon, would sit on the appellate bench by designation. Although Judge Ogden Hoffman of the northern district of California was senior to Deady, Hoffman's increasing age and ill health prevented him from assuming the duties of the new court.[3]

After Field had spoken, an uncomfortable silence filled the "gloomy courtroom" of the Appraisers' Building. At Judge Sawyer's whispered suggestion, Field inquired whether perhaps "some member of the bar would care to propose something to the court." Alfred Clarke, an attorney and counselor-at-law, broke another awkward silence by addressing the court. Somewhat nervously, with hands stuck deep in the pockets of his overcoat, Clarke began by congratulating the judges, congratulating California, congratulating the United States, and congratulating the civilized world. "He only ceased his congratulations to give a synopsis of universal history." Clarke then began an interminable oratory on the origins of law and criminal justice that surveyed the use of thumb screws and iron boots from Roman times up to the present day. Not surprisingly, the San Francisco Chronicle reported that everybody "seemed to be nervous." After the court and the audience recovered from


this oration, Justice Field thanked Clarke and adjourned the court.[4] These inauspicious beginnings gave little hint of the contributions the court would make to western development during the ensuing decades.

The creation of this intermediate tier of federal courts accorded with the dual character of the lower federal courts established by Congress in the 1789 Judiciary Act. In both instances Congress ensured that the lower federal courts would be instruments of national power by vesting in them jurisdiction to decide cases involving crimes and offenses against the United States, causes in admiralty, and, eventually, cases arising under the Constitution and laws of the United States. These subaltern federal courts also assumed regional attributes. The 1789 act granted them subject-matter jurisdiction over suits between citizens of different states that arose under state law; it also delineated the territorial jurisdiction of these courts into "districts," which comported with the boundaries of states or parts of states.[5]

Congress preserved this territorial concept in its 1891 reform. It gave each circuit court of appeals jurisdiction to hear appeals from within a defined circuit composed of the districts of a number of states. Congress intended that these courts would render final dispositions in a great majority of cases from federal trial courts (and thereby relieve the Supreme Court of much work) and that they would also refine issues in appeals to the Supreme Court. The respective dockets of the fledgling circuit courts of appeals in the 1890s exemplified both the disparate levels of development throughout the country and the wide array of local concerns in the regions they served. These parochial issues at times paralleled concerns in other circuits, thus implicating questions of wider importance that, in certain circumstances, merited further review by the Supreme Court. From one perspective, therefore, the different circuits looked alike. At a deeper level, however, regional forces gave these intermediate appellate courts their defining characteristics.

When Congress established the United States circuit courts of appeals in 1891, it empowered the Ninth Circuit to hear certain appeals from trials in United States courts in California, Oregon, Nevada, Washington, Idaho, Montana, and the Territory of Alaska. Eventually, the circuit also included Arizona and Hawaii, both as territories and then as states, Guam and the Northern Mariana islands, and, for over fifty years, an extraterritorial court operating in China.[6] At its inception the circuit comprised states and territories at very different stages of development. From the sophistication of San Francisco to the barren desert of Nevada and Ari-


zona, the West presented a range of problems and opportunities unmatched in diversity by any other circuit. Stretching from the Arctic Circle to the Mojave Desert and later to the tropics, the circuit boasted a wealth of natural resources and a host of natural wonders. These states and territories contained not only the sites for many of the country's national parks and monuments but also vast stores of hidden gold, silver, copper, and other valuable minerals; huge tracts of land suitable for lumbering and agriculture; and a long coastline for fishing and international sea trade.

To understand the U.S. Circuit Court of Appeals for the Ninth Circuit as an institution is impossible without attempting to know something about its judges and the legal problems they confronted. During the court's first half-century, the men who held circuit judgeships on the court embodied the same pioneering impulse as other newcomers to the West. Until the 1930s, when the first judges born in the region took office, the judges were also transplants from other parts of the country who had moved westward in search of opportunity. Some of the Ninth Circuit judges received appointments from political offices; others from state judgeships; and still others from private practice. Because Congress authorized only three circuit judgeships for the Ninth Circuit during the court's first four decades of existence, the administration of the court was quite informal and the character of the institution clearly reflected the personalities of its judges. For most of this period, the longevity of three judges gave the court an institutional solidity unmatched by any other federal circuit court of appeals. When these judges retired in the 1920s and early 1930s, the court fell into disarray, with a spate of new, inexperienced judges taking office just as the court's docket was increasing rapidly. How judges came to the court and how they coped with their judicial responsibilities provide two perspectives from which to view the Ninth Circuit in its first half-century.

The personalities of the court's judges, if studied alone, however, would scarcely bring to light the importance of the court in western development. Numerous issues of regional importance never drew the Supreme Court's attention, thus heightening the significance of the Ninth Circuit's work. On the most important issues facing the West between 1891 and 1941—transportation, labor, and natural-resource development—the Ninth Circuit issued key rulings. Exploring the context of its decisions is just as vital to understanding the Ninth Circuit as is an examination of the lives of its judges and the institutional pressures they


confronted. This context was complex and distinct from that of the other circuits in the federal system. Much more so than in other, more industrialized parts of the country, the Far West depended on extractive enterprises for economic growth. Population patterns and the region's geographical diversity also set the Ninth Circuit apart.

The Ninth Circuit's significant role in various aspects of western development has been overlooked by historians, who have featured key rulings by the court in monographs on certain subjects but have neglected any concentrated study of the court itself. Because no detailed treatment of the Ninth Circuit exists, much of this book is devoted to a descriptive, roughly chronological account of the court's evolution through its first fifty years. The date of 1941 offers a convenient stopping point for this narrative, because in that year the judges publicly debated the circuit's role in the West and whether the geographical boundaries of the circuit should be altered. These debates occurred on the eve of the United States' entry into World War II, a conflict that presented the Ninth Circuit with difficult issues of a character qualitatively different from those confronted by the court in its first half-century. Thematically those issues seem better suited to a subsequent study.

At a different level, this book tries to say something about the nature of federal courts and the federal courts system. First, I hope to demonstrate that key administrative developments arose out of substantive disagreements among the judges over the outcomes of cases. Intellectual conflict between judges is to be anticipated, especially when they are appointed by presidents of different political parties at different times. Perhaps less expected is that those jurisprudential disagreements will contribute to institutional changes. One development that emerges from this study is the specialization in roles performed by the federal judiciary. In the late nineteenth and early twentieth centuries, circuit and district judges were almost interchangeable in the performance of trial and appellate work. Over the half-century covered in this book, this flexibility of roles largely disappeared, at least in the Ninth Circuit. The chapters that follow will attempt to account for this transformation, which led to a much more hierarchical federal judicial system by the 1930s. As this role specialization was occurring, the disagreements among the circuit judges who performed appellate tasks sharpened. These substantive conflicts in turn forced the need for administrative reforms. What began in the 1890s as an almost informal system of assigning judges to hear cases rigidified as the court's caseload and its number of judges expanded. Ultimately,


concerns arising out of substantive disagreements among the circuit judges led to the creation of a procedure to decide cases by an en banc panel composed of all the circuit judges on the court.

Second, I will try to show that the "federalization" of the law was occurring well before the New Deal era, when the conventional wisdom posits that a legal "revolution" took place in the nature of federal-state relations.[7] In some respects, the concentrated attention of legal scholars on the Supreme Court is partly responsible for the prevailing view, because many federal law cases never required plenary consideration by the Supreme Court in the pre-New Deal period. If the Ninth Circuit is any guide, the experiences of the various circuit courts of appeals and district courts, however, can well document the change in legal culture that was occurring in the early twentieth century; these subaltern federal courts are a rich and largely untapped lode for legal historians. As docket pressures on the Supreme Court escalated and Congress responded by vesting in the Court greater discretion to decide which cases it would hear, the influence of circuit courts of appeals rose correspondingly. And since many appeals of right to the appellate tribunals raised no important federal constitutional issues, the circuit courts of appeals functionally became the courts of last resort in the overwhelming majority of the cases they decided.

Issues involving federal law, and the federal government's "encroachment" upon matters heretofore left to the states, are particularly evident in the period from 1891 to 1941 in the Ninth Circuit, because of the dynamics of western development. Much of the land in the Ninth Circuit's constituent states was federal public land, and Congress enacted numerous statutes to regulate it. Issues that in other parts of the country were questions of state law became "federalized" in much of the West as a result of the existence of vast tracts of federal public land upon which westerners depended for the extraction of natural resources. Moreover, federal concern for domestic labor underscored certain immigration issues, such as the exclusion of the Chinese, a topic that occupied much of the Ninth Circuit's attention in the late nineteenth and early twentieth centuries. And in World War I, Congress even went so far as to authorize regulations on houses of ill repute within a certain distance from a military base. This regulation appears to have created significant litigation only in the Ninth Circuit, but there it displayed a palpable expansion in the role of the federal government in local affairs, as did national laws to prohibit the consumption and sale of liquor in the 1920s. In certain instances, the Ninth Circuit judges themselves debated the contours of


this process of incursion by the federal government into state and local affairs, and their arguments have a familiar ring today. By attempting to develop these themes, therefore, this book seeks to improve understanding of the federal court system generally in this century.

From 1891 to 1941, major developments in western history provided work for the Ninth Circuit. Sometimes the Ninth Circuit's opinions affected people throughout the region; sometimes they touched only the immediate litigants. In many cases, how the court's judges viewed the law directly influenced the course of progress in the West. An exploration of this symbiosis between the social and economic forces that created work for the court and the impact of judicial decisions on those forces will uncover the importance of the court as it progressed through its first half-century. The theme of western development animated the life of the court, from the types of issues it decided to the pioneering qualities of the judges who served on it.


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