The Court of Appeals

by
The Honorable Harry Phillips

In 1891, Congress created the modern day system of the Courts of Appeals. This change was made in an attempt to distribute more broadly the appellate jurisdiction of the Supreme Court. Under the 1891 enactment, the Court of Appeals for the Sixth Circuit reviewed Federal District Court and Circuit Court decisions for the states of Michigan, Ohio, Kentucky and Tennessee. Circuit Judge Howell E. Jackson became the first full-time member of the Court, which was designated to sit in Cincinnati.

The organizational session for the Court was held in Cincinnati on June 16, 1891.¹ In attendance were Circuit Justice Henry Billings Brown of Michigan, Circuit Judge Jackson and District Judge George R. Sage of the Southern District of Ohio, sitting by designation. As its first order of business, the new Court adopted thirty-four rules of procedure. Walter S. Harsha of Detroit was appointed Clerk of the Court and Thomas Claiborne of Tennessee was appointed United States Marshal. Harsha, who had been the Clerk of the Circuit Court since 1882, served as Clerk for both Courts until his resignation as Court of Appeals Clerk in 1894.² John W. Herron,³ the United States Attorney for the Southern District of Ohio, became the first attorney admitted to practice before the Court of Appeals. He then moved the admission of forty-seven other lawyers who were enrolled as attorneys before the Court at its opening session.

The Court next met on October 5, 1891.⁴ Again, the panel consisted of Circuit Justice Brown, Circuit Judge Jackson, and District Judge Sage. Two more court officials were appointed at this session. H. M. Peckinpaugh of Lebanon, Ohio, became the Court Bailiff while Stephen H. Waters of the same city became Court Crier. Additionally, thirty-five more attorneys were admitted to practice before the Court. At that time the Court also heard its first case, Farmers' and Merchants' State Bank v. David Armstrong, Receiver, which was on appeal from the Circuit Court for the Western Division of the Southern District of Ohio. Certain questions in that case were certified to the Supreme Court.⁵ The Court also heard arguments in seven other cases and two were continued. In all, this second session of the Court lasted only two days.

The Court's third session convened January 11, 1892, and continued for a full week.⁶ Circuit Judge Jackson sat with District Judges Sage and Henry H. Swan of the Eastern District of Michigan. On January 15, 1892, District Judge Henry F. Severens of the Western District of Michigan sat in place of Judge Sage for one day. In addition to hearing the regular docket of cases, the Court amended two of its rules and appointed William H. Williams of Portsmouth, Ohio, as a Court Bailiff.

Also at the third session, upon the recommendation of the Chief Justice and Associate Justices of the Supreme Court, Samuel E. Blatchford⁷ of New York City was appointed as the Court's first official reporter. Serving as the official reporter for all the Courts of Appeals, Mr. Blatchford eventually published sixty-three volumes of appellate opinions in the years 1893-1899. Of those volumes, eight were devoted exclusively to Sixth Circuit opinions⁸ while eight others also contained opinions from this Court.⁹ All of these opinions are published in the Federal Reporter, First Series.

As the caseload of the Court expanded, so did the number of judges. On March 17, 1892, there was added a second Circuit Judge to the Court,  William Howard Taft of Cincinnati. The court opened an eight-day session on June 6, 1892, with Circuit Justice Brown sitting with Circuit Judges Jackson and Taft.¹⁰ Among the lawyers admitted to practice that day was Hiram D. Peck of Cincinnati, grandfather of Circuit Judge John W. Peck.

Judge Jackson presided over the October, 1892, and February, 1893, sessions of the court, serving with District Judges sitting by designation. These included Judges Sage, Swan, and Severens. The pace was leisurely, with court opening at 10 o'clock each morning. By 1895 the docket had increased to such an extent that the court convened at 9:30 a.m.

Judge Jackson was appointed Associate Justice of the Supreme Court on February 18, 1893. Circuit Justice Brown returned to Cincinnati for the June, 1893, session, sitting with Judge Taft and newly-appointed Circuit Judge Horace H. Lurton. Judge Lurton had resigned as Chief Justice of Tennessee to accept appointment March 27, 1893, as Judge Jackson's successor on the Sixth Circuit. Justice Jackson was designated as Circuit Justice for the Sixth Circuit on April 2, 1894, but was able to preside only once over the Court he had served so well. After a period of declining health, he died in Nashville on August 8, 1895. The Court of Appeals conducted a memorial service in his honor on October 16, 1895, which was attended by all District Judges within the Sixth Circuit as well as leading attorneys from the four states comprising the circuit. A memorial resolution, spread upon the Court's Journal in longhand, recognized Justice Jackson as "one of the ablest and most learned lawyers of the South."¹¹ Succeeding him as Circuit Justice was Associate Justice John Marshall Harlan of Kentucky, who received that designation on February 3, 1896.

Except in those rare instances when the Circuit Justice was able to sit with the Court, Judges Taft and Lurton found it necessary to call upon the District Judges within the Circuit in order to have a three-judge panel. In addition to Judges Sage, Swan and Severens previously mentioned, District Judges who sat upon the Court included: Eli S. Hammond of the Western District of Tennessee, Charles D. Clark of the Eastern and Middle Districts of Tennessee, Augustus J. Ricks of the Northern District of Ohio, and John W. Barr of the District of Kentucky. In 1899 the Court was expanded to three Circuit Judges with the appointment of William R. Day of Ohio, who first sat with the Court on October 3, 1899. For the first time, the Court had a full complement of three Judges. It is noteworthy that all three were later appointed to the Supreme Court.

In 1900, Judge Taft resigned his judgeship in order to head a commission to establish civil rule in the Philippines. He was succeeded by District Judge Severens of Michigan who had served many times in the past as a designated third member of the Court. Judge Day was elevated to the Supreme Court on February 23, 1903, and was replaced by John Kelvey Richards of Ohio. On December 12, 1909, Judge Lurton was appointed to the Supreme Court, to be succeeded by Judge Loyal E. Knappen of Michigan. Meanwhile, Judge Richards died March 1, 1909, and was succeeded by John W. Warrington of Ohio.¹²

For thirty years, when dockets were not so heavy, the Court continued to consist of three judges. A fourth judge was added in 1929,¹³ a fifth in 1938¹⁴ and a sixth in 1940.¹⁵ Responding to the ever-increasing pressures created by the current litigation explosion, Congress added two judges to the Court in 1966¹⁶ and another in 1968.¹⁷ Two more judges were added in 1978.¹⁸ The court remained at eleven until Congress added four more judgeships in the Bankruptcy Amendments & Federal Judiciary Act of 1984.¹⁹ The Judicial Improvements Act of 1990 added another judgeship to bring the authorized complement to sixteen.²⁰

Throughout its history, the Court has held practically all of its sessions in Cincinnati, which is conveniently accessible from all parts of the Circuit. Sessions held elsewhere have been rare and usually limited to ceremonial functions. However, the early Court of Appeals held occasional sessions in other parts of the Circuit for various reasons. The first such session appears to have been held in Detroit from June 5 through June 22, 1893, with Circuit Judge Taft presiding, serving the Circuit Judge Lurton and District Judge Severens.

From November 6 through December 9, 1893, a session was held in Louisville, Kentucky,²¹ with Judge Taft presiding, sitting with Circuit Judge Lurton and District Judge Augustus J. Ricks of the Northern District of Ohio. The Louisville Courier-Journal reported on November 19, 1893, that the purpose of the Louisville session was to familiarize the public with the functions of the Court. A reference was made to the fact that the Civil War was over, since Circuit Judge Lurton was wearing in the lapel of his coat a button of Confederate Veterans, while District Judge Ricks wore a button of the Royal Legion, an association of veteran Federal officers. A session of the court was held in Nashville from February 5 through February 23, 1894, with Judge Taft presiding, sitting with Judge Lurton and District Judge Barr of Kentucky.

During the week of May 24, 1897, the Court, with Circuit Justice Harlan sitting with Circuit Judges Taft and Lurton, held another session at the Old Customs House in Nashville during the time the Tennessee-Centennial Exposition was in progress at the present site of Centennial Park. The Court's Journal gives no clue as to why the session was held in Nashville. It simply shows that the court had been in continuous session in Cincinnati from Tuesday, May 4, 1897, until Thursday, May 20, 1897, "Whereupon the Court adjourned to meet in Nashville, Monday, May 24, 1897, at 9:30 o'clock A.M." Newspaper accounts mention that the distinguished visitors toured the Centennial Exposition during the afternoons following the sessions of the court. A reasonable assumption is that Judge Lurton, who was a former Chancellor at Clarksville but then a resident of Nashville, persuaded his colleagues to contribute to the prestige of the Exposition by holding the court session in Nashville. A number of Tennessee lawyers were admitted to practice before the court during the Nashville session. Most prominent of those was James Clark McReynolds of Nashville, who was administered the oath before Justice Harlan and Judges Taft and Lurton. Attorney McReynolds later was to serve on the Supreme Court of the United States from 1914 to 1941, succeeding Associate Justice Horace H. Lurton before whom he appeared that day in Nashville.

Thus, on Thursday morning, May 27, 1897, one Justice of the Supreme Court of the United States (Harlan), a future Chief Justice (Taft), and two future Associate Justices (Lurton and McReynolds) were together in the Courtroom of the old Customs House in Nashville.²² It was also at this session that the Court heard arguments in United States v. Addyston Pipe & Steel Company,²³ which was to become a landmark case under the newly enacted Sherman Antitrust Act.

Other sessions held outside of Cincinnati were primarily for commemorative occasions. In May, 1899, one such session was held in Detroit to dedicate a new courtroom for the Circuit Court for the Eastern District of Michigan. The panel on that occasion consisted of Circuit Judges Taft and Lurton, sitting with District Judge Severens. Circuit Judge Day was absent because of illness. Although the session did not produce any landmark cases, it serves to illustrate the problems encountered by the Court in unfamiliar surroundings. In that connection, an article in the Detroit Free Press, dated May 21, 1899, entitled "The Troubles of the United States Court of Appeals Crier," related:

The opening words of the crier were supposed to be: "Oyez, oyez, oyez, The United States Circuit Court of Appeals for the Sixth Circuit is now in session. All persons having business therein draw nigh, pay attention and they shall be heard. God save the United States and its honorable court." The Marshall, who had succeeded in rehearsals, had more difficulty when he actually opened the court session. The "Oh yes, oh yes, oh yes," heard the first morning called forth a subdued expostulation that sounded like the negation "Oh no, oh no, oh no."

Thursday morning, the dignity of the bench was visibly ruffled by the crier's prayer: "God bless the United States of America and its respectable court." The climax was reached Thursday afternoon when "the Supreme Court of the United States", instead of the Circuit Court of Appeals, was adjourned. Judge Taft, shaking his giant frame with ill-concealed merriment, summoned Deputy U.S. Marshall Matthews into chambers and told him that the court could no longer contain itself in the presence of such opera bouffe.

The handsome new circuit courtroom which was dedicated by the Court of Appeals in Detroit in 1899 later became the most elegant of the courtrooms of the District Court for the Eastern District of Michigan. For many years it was the courtroom of District Judge Arthur J. Tuttle. When Detroit's old federal building was replaced by the present courthouse in 1934, the marble, mahogany, medallions and other embellishments were moved to the courtroom in the new building where the Chief Judge of the District Court of the Eastern District of Michigan now presides.²⁴

A session of the Court was held at Cleveland beginning May 21, 1900, and continuing through June 1.²⁵ During the time the present quarters of the Court were under construction in Cincinnati from 1936 to 1939, sessions were held at the Federal Building across the Ohio River in Covington, Kentucky. The Court met again in Detroit in December, 1937, and in Louisville in January, 1938.

In modern times, the Court has also made it a practice to hold special sessions in a newly-appointed judge's home state when he is administered his oath of office. As a result of this practice, court sessions have been held in recent years in Nashville, Cleveland, Kalamazoo, Lexington and Grand Rapids.

The Court occasionally has been forced to hold sessions outside of Cincinnati in emergency situations as well. Such an emergency arose on July 2, 1971, during a meeting of the annual Sixth Circuit Conference being held that year on Mackinac Island, Michigan. When an application for a stay of a District Court order required immediate attention, a panel consisting of Judges John W. Peck, Wade H. McCree, Jr., and Henry L. Brooks was convened in an improvised courtroom at the Grand Hotel. An unreported order denying the stay was issued the same day before the Judges returned to the matters facing the Conference.

A much-publicized special session in the Dr. Sam Sheppard case was held in Akron, Ohio, July 22, 1964. A special session was held at Akron, June 6, 1975, in dual commemoration of the 100th Anniversary of the Akron Bar Association and the opening of the new United States Courthouse and Federal Building there. The Court of Appeals for the Sixth Circuit had the distinction of having the first woman Circuit Judge in the United States. Florence Ellinwood Allen  was appointed by President Franklin D. Roosevelt on March 27, 1934, to succeed Judge Smith Hickenlooper. She had served as an Associate Justice of the Supreme Court of Ohio since 1922, and earlier as a Judge of the Court of Common Pleas at Cleveland.

After her retirement in 1959, Judge Allen wrote a book entitled, To Do Justly²⁶ in which she described her initiation as a Court of Appeals Judge thusly:

My life in the Federal Court began under a certain restraint which was removed in an unexpected way. The Court was composed of four judges, Presiding Judge Charles Moorman of Louisville; Judge Charles C. Simons of Detroit, Judge Xenophon Hicks of Tennessee, and myself. Three of us always sat in hearing the cases.

None of the judges favored my appointment. I am told that when it was announced one of them went to bed for two days. However, both Judge Moorman and Judge Simons wrote, congratulating me. Judge Hicks did not write, and I noted the omission with some concern as it indicated that he was strongly opposed to a woman on the Court.

But after all I was used to sitting in court, and I was not particularly apprehensive. I had sat eleven years in the highest court of Ohio, and the task of being a federal judge could not be markedly different. I had learned that judges who were at first opposed to women officials accepted us when we handled our work steadily and conscientiously. Also, I had early learned the importance of keeping up with my docket and disposing of my cases.

* * *

In the first session after my appointment to the United States Court of Appeals I asked one or two pertinent questions, and in the conference after the cases I expressed myself in the normal way. During all this time Judge Hicks seemed to avoid looking at me. At the very last he did look at me, and I thought, "That's a victory." We went on from there, I feeling my way, and asserting myself little except in the matter of voting.

All at once, as often happens in the surprising turns of life, what seemed a disadvantage proved to be a benefit. The courthouse where we sat was old and dark and the elevators were extremely slow and crowded, so sometimes I used the stairs. One day I was going down the stairs, as I had just missed an elevator. Suddenly I found myself rolling down the worn, uneven steps. Luckily I came to a stop on a broad, flat area, but I landed squarely on my nose and mouth. I picked myself up and reached the court office. The clerk secured an immediate appointment for me with a skillful oral surgeon across the street. He removed one tooth, one-half of another, and bandaged my battered face.

I went back to the court where I knew my mishap had been reported to the Presiding Judge who was a fine Kentucky gentleman. I was assigned to sit the next day in a big Detroit bank case. A number of lawyers in this case were already on trains for Cincinnati. The Presiding Judge said, "You can't possibly sit; we'll have to postpone the case." I was aghast at this decision. It was during the latter part of the great depression, and to delay this case and send back to Detroit a number of lawyers who were already under way to Cincinnati, seemed a step to be avoided at all costs. I said, "Judge Moorman, I am quite aware how I look, but if I am willing to sit are you not willing to let me, rather than postpone this case?" He finally agreed, and the next morning with my chin bound in adhesive tape and bandages I helped to make the quorum of the court.

Judge Hicks, who had seemed to avoid me, looked at me then and always afterward. I know now that he became my real friend when I took this common sense decision. Some time later he remarked, regarding an opinion I had written, "That's a damn fine opinion." I felt I had joined the club.

When the Court held a special session in Detroit in December 1937, Detroit newspapers explained that Judge Allen could not be present because she was sitting with two District Judges in Tennessee in a case "determining the fate of TVA." Judge Allen wrote the opinion in Tennessee Electric Power Co. v. Tennessee Valley Authority,²⁷ upholding the constitutionality of the TVA Act. The Supreme Court affirmed.²⁸

The case required seven weeks of trial at Chattanooga. Judge Allen devoted an entire chapter to the TVA case in To Do Justly. She gave this account of her assignment:

Because the three-judge statute was enacted August 24, 1937, the TVA case was not only my first three-judge case, but it was also one of the early cases arising under the new law. I discuss it here because of the new and highly important doctrines involved and discussed, because of its bearing on vital questions as to making rivers navigable and exercising flood control, as well as generation of electric power-all affecting situations in several states-and also because of the widespread interest throughout the nation.

It was not normal that the duty of presiding in this tremendous three-judge case should be assigned to the youngest member of the Circuit Court. Judge Hicks of our court was disqualified, as his family was related to an officer of a power company. Judge Moorman, our Presiding Judge, was increasingly ill with the disease of which unfortunately he soon died. Judge Simons, an exceedingly able judge, was a close friend of the chief attorney for the power companies, and felt he should not sit. Judge Moorman then appointed me to sit and hear the case with Judge John D. Martin and Judge John J. Gore, both of Tennessee.

Eleanor Roosevelt, wife of President Roosevelt, strongly supported Judge Allen for elevation to the Supreme Court of the United States, but failed to persuade her husband to make the appointment.

The court also has the distinction of having as one of its members the first ethnic American ever appointed to the Court of Appeals bench. Circuit Judge Anthony J. Celebrezze was born in Anzi, Italy, September 4, 1910. He brought to the Court a long history of public service and experience, having served in the Ohio State Senate in 1952-53 and as Mayor of Cleveland, Ohio, from 1953 to 1962. President Kennedy appointed him to the post of Secretary of Health, Education and Welfare in 1962, where he served until being named to the Court of Appeals in 1965.