Book Review by Burke Marshall
During the two decades following Brown v. Board of Education, the trial and appellate judges of the old Fifth Circuit, which comprised Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas, had the major share of the responsibility for implementing Brown in the former Confederate states. Judges from other circuits, notably the Fourth (Maryland, Virginia, North Carolina, and South Carolina) and to some extent the Sixth, Eighth, and Tenth Circuits, were of course also involved in the litigation. But most of the attention and the resulting literature has focused on the old Fifth Circuit. In part, this publicity resulted because the circuit was composed of the states that were the sites of many of the confrontational aspects of school desegregation, voting rights, and public accommodations disputes. These disputes attracted the priorities of the civil rights movement and the Department of Justice, and created drama particularly in Alabama (Birmingham, Montgomery, Selma, Tuscaloosa), Mississippi (Greenwood, McComb, Oxford, Philadelphia), and Louisiana (Baton Rouge, New Orleans). Some of the attention that the old Fifth Circuit received, however, is attributable to the heroic stature of its dominant judges: Circuit Judges John R. Brown of Texas, Richard T. Rives of Alabama, Elbert P. Tuttle of Georgia, and John Minor Wisdom of Louisiana, as well as District Judges Frank M. Johnson of the Middle District of Alabama, and J. Skelly Wright of the Eastern District of Louisiana (in the New Orleans school suit).
These men and Brown's impact on the old Fifth Circuit are the background for A Court Divided, a book by political scientists Deborah J. Barrow and Thomas G. Walker about the division of the old circuit into the new Fifth and Eleventh Circuits. The split finally occurred in 1980 after more than fifteen years of judicial and congressional squabbling. It resulted, in part, from the old Fifth Circuit's administrative problems, many of which were attributable to the surge in civil rights activities in the 1960s. That movement increased the court's workload in section 1983, voting rights, and other rights-based cases in ways that cannot be measured statistically; the time that appellate judges put into the supervision of these cases went far beyond the proportion that the cases represented of the old Fifth Circuit's total caseload.
About the Author
Burke Marshall. Nicholas deB. Katzenbach Professor of Law, Yale University.
Citation
63 Tul. L. Rev. 1241 (1989)