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One— Origins and Early Years
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Origins and Early Years

The greatest despot of our land is the United States circuit judge.
The Nation, Jan. 6, 1881

In the century between the 1789 Judiciary Act and the Evarts Act of 1891, efforts to reform the federal judicial system lagged far behind the economic, social, and demographic transformations occurring throughout the country. Westward expansion in the mid-nineteenth century served both to exacerbate the deficiencies in the federal court system and to create opportunities for aspiring judges, who built the foundation for the post-1891 Ninth Circuit.

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]


II. The Ninth Circuit's First Judges

In the western states, formation of the circuit court of appeals in 1891 signaled more than the creation of a new judicial structure. It also symbolically represented the passing of the torch from an old generation of jurists who had served on the federal bench for decades to a new generation whose jurisprudence would light the way well into the twentieth century. Two seminal figures of the old generation, Lorenzo Sawyer and Ogden Hoffman, would die before the end of 1891. Two more, Justice Stephen Field and Judge Matthew Deady, would be dead by the end of the decade. This transformation in personnel augured significant changes for western litigants in the adjudication of numerous disputes, from mining law to Chinese rights, although it produced no greater comity among the federal judges.[26]

The Evarts Act authorized two judgeships for each circuit. One of these was to be assumed by the sitting circuit judge: in the Ninth Circuit, Lorenzo Sawyer. Before the court heard its first case in October of 1891, however, Sawyer and Hoffman both died; President Harrison was thus faced with the task of filling one district and two appellate judgeships. It went without saying that California, the largest and most populous state in the Ninth Circuit, would be represented on the court. But the informal practice of reserving judgeships for constituent states also dates from this period, and most observers correctly surmised that someone from Oregon or Washington would receive the other commission.[27]

The two leading candidates for the California "seat" on the Ninth Circuit and the northern California district judgeship were Joseph McKenna and William W. Morrow, who both coveted the more prestigious appellate seat. They had become friends during their service in Congress in the years before Harrison made his selections. When the president named Morrow to the district judgeship, the San Franciscan withdrew from consideration for the circuit judgeship, thus paving the way for McKenna's nomination. McKenna had been born in Philadelphia on November 10, 1843, and his parents had moved to Benicia, California, in late 1854. Originally hoping to become a priest, McKenna attended Catholic schools before changing his mind and embarking upon a career in the law. He graduated from Benicia Collegiate Institute in 1865; later that year he gained admittance to the California bar. Shortly after commencing his practice in Fairfield, California, he won sufficient recognition to become the county attorney for Solano County, California, from 1866 to 1870. McKenna served briefly in the Califor-


nia legislature, from 1875 to 1876, but ambition drove him to seek a seat in the United States Congress three times—in 1876, 1878, and 1880—without success. He persisted, however, and in 1884 he was at last elected. He served in Congress from March 4, 1885, to March 28, 1892, when he resigned to accept President Harrison's appointment as circuit judge for the Ninth Circuit.[28]

McKenna's tenure on the Ninth Circuit was short—approximately five years—and in that time he evinced a greater ability to maintain his political friendships than to attract the respect and admiration of his judicial brethren in the Far West. Rumors abounded that the principals of the Southern Pacific Railroad had been responsible for his appointment. It is impossible to evaluate the veracity of these rumors, but certainly fears that McKenna would prove to be a lackey of railroad interests were unfounded. Charges of dilatoriness and indifference to judging flourished, however, fed by his slow work style.[29] Despite these contentions, the Supreme Court rarely reversed McKenna and his opinions reflected competence, if not brilliance.

The main source of the ill feeling toward McKenna stemmed from his relationship with Judge William B. Gilbert, who was appointed to the Ninth Circuit in 1892 to fill the second judgeship created by the Evarts Act. Very little is known about Gilbert, despite his having served on the Ninth Circuit for nearly forty years. Born July 4, 1847, in Fairfax County, Virginia, Gilbert was named for his illustrious ancestor Colonel William Ball, who emigrated from England to Virginia in 1650 and was the grandfather of George Washington's mother, Mary Ball. The Gilbert family did not share the Confederate sympathies of other prominent Virginia families. A Unionist, John Gilbert relocated his family to Ohio sometime before the Civil War began, but his son William did not serve in the Union Army, instead attending Williams College, where he was graduated in 1866. After accompanying a scientific expedition in the upper Amazon, the future Ninth Circuit judge spent two years on a geological survey in Ohio.[30]

Abandoning these initial flirtations with science, Gilbert enrolled in the University of Michigan, where he received a Bachelor of Laws degree in 1872. The following year, he moved to Portland, Oregon, his home for the remainder of his life. A member of the Portland bar, Gilbert practiced law in a succession of partnerships from 1873 to 1892, when President Harrison announced his nomination of Gilbert as circuit judge. The nomination appeared to encounter little opposition until it was revealed that Wallace McCamant, one of Gilbert's associates in Gilbert


& Snow, had written to a friend that "Mr. Gilbert's appointment would be to my professional and pecuniary advantage." Unexplained, this message raised obvious questions about Gilbert's rectitude. McCamant hastily attempted to undo the damage by writing a series of letters to senators and the attorney general accounting for this statement. Apparently Gilbert's law partner, Zera Snow, had suggested to McCamant that he would be offered the partnership if Gilbert ascended to the bench. This explanation of "pecuniary advantage" was clearly more palatable than others, and the Senate gave its advice and consent to Gilbert's appointment on March 18, 1892.[31] Although Gilbert managed to avoid ignominy from his young associate's remarks, McCamant himself was less successful three decades later, when he would irrevocably damage his own nomination to the Ninth Circuit in 1925 through another imprudent choice of words.[32]

For nearly thirty-five years Gilbert was the ranking circuit judge in the Ninth Circuit, and for a considerable time before his death in 1931 he was the ranking circuit judge in the United States in length of service.[33] In his long judicial career, Gilbert's opinions were to span almost three hundred volumes of the Federal Reporter , including many of the most important decisions rendered by the Ninth Circuit. Tireless, industrious, and possessed of great charm, Gilbert was very much a nineteenth-century man, even though more than a third of his life was spent in the twentieth. He refused to ride in an automobile, an invention he decried as "a symbol of the new mechanical age." His anachronistic view of progress did not, however, dim the significance of his many contributions to the development of Ninth Circuit law. In the ensuing decades, Gilbert wrote for the court in the Stanford controversy, a notorious Alaska gold-mining scandal, one of the Teapot Dome suits, and the Olmstead case, which established the constitutional authority of the government to impose wiretaps without search warrants. Yet despite gaining nationwide prominence as a judge, Gilbert zealously guarded his privacy. His "passion for inconspicuousness" extended to never carrying a bundle on a street car, "fearing," he confided, "to attract attention."[34] He performed his judicial service with little fanfare, leaving the public spotlight to Erskine Ross and William Morrow, his colleagues of nearly a quarter-century.

III. Ross Arrives and McKenna Moves Up

The available indications are that Gilbert's relations were strained not only with McKenna, but also with Judge Erskine Ross. Ross and Gilbert


served together for over thirty years on the Ninth Circuit. Their judicial differences extended to a wide range of issues that arose in the federal courts. How far their diverse backgrounds shaped their judicial disagreements is difficult to say, but their contrasting family origins did little to promote comity between them. Ross too hailed from a prominent Virginia family, but his chose to stay in Virginia and fight for the South. Born June 30, 1845 at Bel Pré, his father's plantation in Culpeper County, Virginia, Ross was fifteen years old when war broke out. He had just enrolled at Virginia Military Institute when four companies of V.M.I. cadets were ordered to Camp Lee, Virginia, outside Richmond, under the command of Thomas J. ("Stonewall") Jackson. These young cadets served as drillmasters for the raw recruits who began to pour in after Virginia seceded in April of 1861. Not long after the war started, Ross saw battle at Cedar Run. His military service undoubtedly would have continued but for a conspiracy of three influences: his father insisted on his returning to V.M.I., his three older brothers were already in the Confederate Army, and Ross himself was barely sixteen years old at the time. He continued his education at V.M.I. and became cadet captain of A Company, which saw service at the Battle of Newmarket.[35]

The devastation in his home state at the conclusion of the war left few opportunities for Ross. After helping to found the Alpha Tau Omega fraternity in Richmond, Ross left Virginia in the spring of 1868. At the invitation of his uncle, Cameron E. Thom, Ross journeyed to Los Angeles, traveling by boat around South America just a year before the first overland railroad was completed. Only 5,000 persons of various nationalities inhabited Los Angeles when Ross arrived on May 19, 1868, but the city was to grow during Ross's residency there, passing 700,000 by the mid-1920s. Ross himself helped to establish the nearby city of Glendale, which by the time of his death in 1928 had a population of more than 23,000.[36] Ross wasted little time embracing the legal profession under the tutelage of his uncle, a practicing attorney in Los Angeles. Ross was admitted to the state bar in 1869 and practiced for ten years.

In 1879 Ross was elected a California Supreme Court justice for one of the truncated, three-year terms prescribed by the state's new constitution. At the end of his term, Ross was reelected for a full term of twelve years. After considering resignation in 1884 or early 1885, Ross was persuaded by a strong showing of public support to continue in office for another year. Then, despite a petition signed by more than one hundred leaders of the bar urging him not to step down, he announced


his resignation effective October 1, 1886. Ross's reasons for relinquishing his seat on the state Supreme Court remain unclear. Even years after his resignation, Ross offered only that he resigned for "several good and substantial reasons." Two theories are plausible. One is that Ross left the court to take a more lucrative position in private practice. This theory does not seem entirely persuasive, given that Ross practiced law for no more than a year, taking a seat on the federal district court in 1887. The more likely reason for Ross's resignation is that he stepped down to move his sickly wife and child to the warmer climate of southern California.[37]

Ross's resignation from the California Supreme Court made him a tempting candidate for President Grover Cleveland to appoint to the judgeship for California's southern district. J. D. Bicknell, a distinguished Los Angeles lawyer whom Ross himself had recommended for the judgeship, was the early front-runner for the position, but friends of Ross enthusiastically pressed his nomination with the president and with Justice Field, who retained some influence in questions of California judicial politics. Francis G. Newlands, a lawyer in San Francisco and later a Nevada representative to Congress, for instance, sent a telegram to Justice Field on December 10, 1886, lauding Ross as the best candidate for the district judgeship. Newlands explained that Ross had resigned not from disinterest in public service, but due to his family's health, and he extolled Ross's virtues: "He possesses in an eminent degree the judicial faculty, and in point of character, reputation and general esteem is surpassed by no man in the State." Justice Field's response to the telegram showed that getting Ross nominated would be difficult. He pledged to bring Ross's great merits to President Cleveland's attention, but Field himself was already committed to another candidate. Despite the fact that most of the Democratic organization and California's congressional delegation, including Leland Stanford, had come out for Bicknell, Ross was held in such high esteem that when word of his availability for the district judgeship was made known, dignitaries throughout the state began to communicate their support to the Democratic administration. But it was no sure thing that Ross would accept the nomination if it were offered. Newlands telegraphed Ross's friend James de Barth Shorb: "Have received telegram that President has offered position to Ross. See him immediately & urge acceptance answer."[38] Though met with surprise by the press, the appointment of Ross was praised, and he earned a national reputation as district judge by his handling of several important cases. Most notable among these were his decisions in one of the 1894 Pullman strike cases and in the case of Chum Shang Yuen . This latter case led to


a spat between Ross and Attorney General Richard Olney over whether the Justice Department would enforce the Chinese Exclusion Act, and it marked Ross as very strict on the issue of Chinese exclusion.[39]

When Congress established the third judgeship for the Ninth Circuit in 1895, therefore, Ross seemed an obvious candidate for elevation. Even after his appointment to the circuit court of appeals bench in early 1895, Ross well exemplified the flexibility in roles performed by federal judges in this era. The creation of circuit courts of appeals did not lead immediately to specialization of the federal judiciary. Ross, for instance, continued to hear trials regularly for more than a decade after becoming circuit judge. Indeed, he rendered some of his most important trial court rulings after his elevation, including his decision to strike down as unconstitutional California's irrigation law in Bradley v. Fallbrook Irrigation District , and his ruling to reject the United States government's suit to collect on the bond of Leland Stanford's estate in United States v. Stanford . Ross's handling of these cases more than validated his excellent reputation as a judge.[40]

The elevation of Ross brought the Ninth Circuit's contingent of circuit judges to three for the first time. But within two years, politics intervened to disrupt the court's composition and to present an intriguing circumstance that determined the career paths of two Ninth Circuit judges, Ross and McKenna. After McKinley won the 1896 election, he persuaded Joseph McKenna to relinquish a life-tenured judgeship on the Ninth Circuit to become attorney general. McKenna and McKinley had formed a warm friendship during their joint service on the House Ways and Means Committee during the 1880s. McKenna, touted as a possible secretary of the interior or attorney general, was prepared to accept either of the two positions. In the wake of a spirited controversy between Catholics and non-Catholics a few years earlier over the interior secretary's administration of Indian schools, McKenna's Catholicism aroused some opposition to the post at the Department of the Interior. McKinley shrewdly named McKenna for the top spot at the Justice Department, thus nullifying the religious issue.[41] President McKinley announced this appointment in February of 1897, a full month before he himself was to take the oath of office. Not insensitive to the political patronage involved, McKenna announced that he would delay submitting his resignation to prevent President Cleveland from filling his Ninth Circuit seat with a Democrat. McKenna did, however, publicly hint that he favored William Morrow for elevation to his seat on the Ninth Circuit when it became available.[42]


McKenna's appointment to the Cabinet was generally greeted with favor among Californians, who were proud to have their state represented for the first time in a president's Cabinet. Once ensconced in the office of attorney general, McKenna established a hearty work ethic that usually met with approval. He was regarded by the media as something of an anomaly—a Cabinet officer who rode his bicycle to work. "There is something quite interesting in the spectacle of an Attorney-General of the United States, a man of the greatest dignity and learning, scudding about at dewy morn on a racing-machine; but the interest grows to wonder when it is noted that he is quite capable of going along without using his handlebars!" McKenna frequently took lunch at his desk, one hand on his sandwich and the other on a book, much to the consternation of subordinates in the Department of Justice who struggled to keep pace. "'It is rather a wonder to me,'" one such official reportedly said, "'that he does not sleep in his office.'"[43]

Perhaps it was this dedication to hard work and physical fitness that enabled McKenna to enjoy a lengthy career, which reached a higher station when Justice Field finally announced his retirement. During the election year of 1896, Field had begun to intimate that he was ready to step down from the Supreme Court. A feud between Field and President Cleveland, however, led the justice to remain on the bench until a new president took office. Field's well-known intransigence may have prevented Ross's elevation to the Supreme Court, for the young California judge was widely rumored to be Cleveland's first choice. Field held on, however, despite Justice Harlan's by now legendary visit to persuade him to step down. During 1897, the justices had huddled to devise a way to persuade their enfeebled colleague to resign. They drafted Justice John M. Harlan to remind Field of the time he had gone to Justice Robert Cooper Grier to persuade him to step down. They hoped a retelling of the story would drive the hint home to Field that he should retire. When Harlan finished, Field burst out: "'Yes! And a dirtier day's work I never did in my life!'"[44]

Field's resistance weakened when the new president took office. In April of 1897, a month after the inauguration, Field privately communicated to the new president his plans to retire on December 1 of that year. Regional politics caused a buildup of pressure to fill the Supreme Court vacancy with another Californian. Thus Field's decision to resign while McKinley, and not Cleveland, was president opened the way for the appointment of the Republican McKenna. The California judiciary's leading Democrat, Erskine Ross, had missed his first opportunity for


elevation to the Supreme Court. Ross was held in such esteem, however, that he also received prominent mention as a successor to Justice Rufus Peckham twelve years later.[45]

McKinley's nomination of McKenna to the Supreme Court sparked fierce opposition. His religious faith was one impediment, given the prevalence of anti-Catholicism in the late nineteenth century. A number of citizens from Maine, for example, presented petitions to their senators urging the president not to name McKenna as a successor to Field. These petitions contained inflammatory language:

[T]here is now one Roman Catholic Judge upon the Supreme Bench of the United States; and whereas, the appointment of another papist will give the papist[s] two ninths of the members of said court, when they have but proximately one ninth of the population of the United States; and whereas, all papists owe their first and highest allegiance under the canon law, which is an article of their religious faith and binding upon their consciences under the penalties of their Church, which in all cases involving a conflict between their Church and the State, compels their obedience to the Supreme Pontiff and not to the Constitution of the United States and the laws of the land.[46]

President McKinley had attempted to insulate himself somewhat from anti-Catholic opposition by announcing from the outset of his campaign that he intended to represent all Americans, Protestant and Catholic alike. Such statements, however, failed to deter anti-Catholics from opposing McKenna's appointment to the Supreme Court.[47]

A second impediment to McKenna's elevation was more difficult to overcome: the candidate's detractors questioned his competence for the job. Instead of rallying behind their former colleague, both of McKenna's Ninth Circuit brethren opposed the appointment. Despite press reports that the nominee would easily be confirmed, Gilbert led an attack on McKenna in a futile attempt to prevent confirmation. The recognized ringleader of the McKenna protests, Gilbert went so far as to present a petition advocating the nominee's rejection by the Senate. Other prominent Oregonians signed the petition, including Judge Charles B. Bellinger of the United States District Court and a number of state judges.[48] Firsthand experience as McKenna's colleague sparked Gilbert's animus. In nearly five years' service with McKenna on the Ninth Circuit, Gilbert had had numerous opportunities to see firsthand the quality of Judge McKenna's mind and character. In his view, both came up lacking.[49]

He was more circumspect than Gilbert, but Ross too favored Senate rejection of McKenna, though he knew it was unlikely. Whether because he harbored a lingering resentment at his own lost opportunity or be-


cause he genuinely believed that McKenna was ill suited to the task, Ross indiscreetly shared his views with the press. "'I do not know of any concerted action to defeat his confirmation in the event he is appointed,'" Ross told them. "'But attorneys generally who are acquainted with Judge McKenna as a rule do not think the appointment is a wise one. He is not competent.'"[50] Unlike Gilbert, however, Ross did not actively lobby against the nomination.

Opposition to McKenna's appointment was marked; the daily San Francisco newspapers throughout early December, 1897, printed seemingly every rumor about his Supreme Court prospects. This intense press attention partly reflected the rivalry between California and Oregon. The California papers also perceived that the Oregon protest was animated by state jealousy. Although this opposition did not seriously threaten McKenna's promotion, the Senate delayed confirming him until January of 1898. The San Francisco Call confidently took credit for holding off McKenna's enemies and for preserving the appointment to the high court: "It is apparent that The Call has turned the attack on Judge McKenna and that its promoters are in retreat." McKenna was confirmed by the Senate on January 21, 1898, with opposition coming only from Senator William V. Allen, the populist from Nebraska, "whose hand seems to be against all men who do not believe in his peculiar doctrines."[51] McKenna served on the Supreme Court until his retirement on January 5, 1925, his long service overshadowed by the brilliance of colleagues such as Justices Harlan, Brewer, Holmes, and Brandeis. He died November 21, 1926.

IV. Morrow's Elevation

The year before his appointment to the Supreme Court, McKenna's promotion to President McKinley's cabinet opened up a seat on the Ninth Circuit that was filled by McKenna's own choice, William W. Morrow, the United States district judge for the northern district of California. Born near Milton, Indiana, on July 15, 1843, Morrow was nine when his father died. In 1856 his mother apparently left their farm in Illinois, where the family had moved, to return alone to North Carolina to tend an inherited plantation. Three years later, at age sixteen, Morrow immigrated to California and settled in Santa Rosa, where he taught school and studied law. With the outbreak of the Civil War, Morrow made his way back east, for reasons that are somewhat obscure. According to one biographer, Morrow enlisted in the Union Army in


1862 and was attached to the Army of the Potomac. During his service there he was detailed to the office of the secretary of the treasury, where he served until the end of the war. Another biographer posits that Morrow went east during the first month of 1863 with the intention of attending college. While visiting Washington he was appointed by Secretary Salmon P. Chase to a position in the Treasury Department that he held for two years. During this time he also joined a local military unit and took part in army maneuvers near Washington. In January, 1865, he was appointed by the secretary of the treasury as a special agent carrying five million dollars to San Francisco.[52]

Regardless of Morrow's motivations for heading east, the Civil War undoubtedly had a major impact on him. Like many other families, the Morrows were deeply divided by the great issues posed by the conflict. As a young man in Illinois, Morrow became a devoted follower of Abraham Lincoln in spite of his mother's ties to the Confederacy. When the South seceded, Mrs. Morrow still lived in North Carolina. During the war Morrow attempted to get her through military lines, even going so far as to obtain a special pass from President Lincoln, but she apparently never received it and never saw her son again. In 1875, Morrow visited her grave in North Carolina and erected a monument to her memory. While there, he met up with a man who seemed to know a great deal about Morrow's maternal relatives. When they finally introduced themselves, the man said, "'Why I used to belong to you.'" In her last will and testament Mrs. Morrow had left her slaves to her anti-slavery son. Morrow's reaction to the bequest is unknown, but it was starkly at odds with his Republican values.[53]

After the war Morrow returned to California. In 1870 he became the assistant United States attorney for California, a post he held for four years. In 1884 he was elected to Congress as a Republican from San Francisco and served three full terms, from March 4, 1885, to March 4, 1891. Intent on resuming the private practice of law after his congressional service ended, Morrow entered a partnership with Frederick S. Stratton, a union that lasted less than a year before Ogden Hoffman's death opened up the district judgeship in San Francisco. As district judge, Morrow earned a reputation for honesty and forthrightness on the bench, and, like Ross, Morrow presided over a difficult case that arose out of the famous Pullman strike of July, 1894. In the law of conspiracy this case, United States v. Cassidy , was important because it applied the rule that each person who furthers an unlawful scheme becomes a member of the conspiracy even if the person's role is a subordinate one


or is executed at some distance from the other conspirators. Even three decades later, the charge to the jury in Cassidy was reputed to be the longest ever in a criminal case in the United States.[54]

Unlike his predecessor, Joseph McKenna, who had been somewhat reclusive and single-minded in his pursuit of work, Morrow was active in a number of political and civic roles. He helped incorporate the American Red Cross and held the presidency of its California branch. After the San Francisco earthquake of 1906, the national committee of the Red Cross commended him for distinguished service. Morrow was also a committed internationalist, serving as a trustee of the Carnegie Institution after 1900. He frequently gave speeches in various parts of the country on a wide range of international and domestic topics, and he won deep friendships through his involvement in noble causes, which he pursued with zeal and political savvy. As a judge, Morrow was very much the conservative, "leaning rather toward precedent than toward experimentation, and choosing the tried and beaten paths of conservatism rather than those which lead into unexplored fields." Morrow's long and distinguished career on the Ninth Circuit ran from 1897 to his retirement in 1923.[55]

These disparate origins shaped the values of the early Ninth Circuit judges—values that guided their judicial work. As succeeding chapters will seek to demonstrate, commonalities and differences in their backgrounds offer a reference point for evaluating their judicial philosophies and work together on the court. The Civil War, for example, affected far more than the individual personal circumstances in the early lives of Gilbert, Ross, and Morrow; arguably, it shaped their respective views about the function of the national government in a growing country and the evolution of federal-state relations. Perhaps because Morrow and Ross shared the experience of a district judgeship, they reviewed trial decisions much less deferentially at the appellate level than did Gilbert, who was appointed to the Ninth Circuit directly from private practice. Morrow tended to scrutinize trial decisions less critically than Ross, but he too occasionally fired off lengthy critiques of trial court proceedings. The political careers of Morrow and McKenna made them sensitive to public opinion, though never beyond the basic constraints inherent in their judicial role. Indeed, Morrow's political savvy and the understanding of the Southern mindset he had gained from his mother may have been crucial in keeping the court from rupturing under the competing influences of Ross and Gilbert, two men whose judicial philosophies


were as different as the political sympathies of their families. Over the course of the next three decades, Ross and Gilbert were to disagree on issues large and small, and the outcomes of cases often depended on who sat on the panel with them.

Although McKenna was the first judge to be appointed to the Ninth Circuit after the creation of the circuit courts of appeals, his five-year tenure did not suffice to make a lasting impact on the court as an institution. The real stalwarts of the Ninth Circuit's early decades were Gilbert, Ross, and Morrow, each of whom served for more than twenty years and dedicated the bulk of his legal career to the court.[56] The longevity of these three jurists contributed greatly to the early development of the Ninth Circuit and provided stability in the handling of the court's work. From the 1890s to the 1920s (in Gilbert's case, to 1931), these judges laid a solid foundation for the court's jurisprudence in a rapidly changing West. During this period the court rendered judgments on a variety of key issues, from the consolidation of the railroads and the enforcement of anti-Chinese immigration laws to mining and the use of public lands. From its inception, the court faced a variety of difficult cases, the successful handling of which contributed to western development.


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One— Origins and Early Years
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