Vol. 4, No. 11 (November, 1994)

RUGGED JUSTICE: THE NINTH CIRCUIT COURT OF APPEALS AND THE AMERICAN WEST, 1891-1941 by David C. Frederick. Berkeley: University of California Press, 1994. 331pp.

Reviewed by Charles H. Sheldon, Washington State University

Justice Sandra Day O'Conner writes in the forward to the volume that "The reader will have a rich and rewarding experience following the history of the largest and most diverse federal circuit in the 'big country.' Through it we can better learn who we are." Reading Frederick's fine study is indeed a "rich and rewarding" experience. However, I'm not sure the results will lead us to "better learn who we are?"

The book was written under the auspices of the Ninth Circuit . Frederick had served as a law clerk with Judge Joseph T. Sneed and Justice Byron White, providing an "insiders" perspective to his interpretations. His goal in the work was to explore "the role the court played in western development." Not only did he focus on how the court shaped its environment, but also how its context constrained the court. The work is not always a easy read, but certainly a rewarding one.

Historical accounts of courts tend to gather information within a particular framework. For example, the history can be built around the backgrounds and behaviors of individual judges as they interact on an appellate bench. Some histories focus on a Chief Judge or leading figure on a court. A pure doctrinal analysis shapes many tradition court studies. Concern for the political and legal interests that bring the cases to the court provides another framework. The shaping force of selection which excludes many and selects a few with identifying characteristics and viewpoints has explanatory powers. Frederick's history of the Ninth Circuit has elements of all of these. This inclusiveness is among the study's strengths as well as its major weakness.

Chapters follow the course of the circuit's history chronologically, analyzing both the usual and unusual. Transportation, labor and natural resources issues confronted the court from its beginnings. Legal questions generated by the railroads, the machinations of claim jumping in the Northern gold fields, Chinese immigration, and exploitation of the rich natural resources of the West fill the first half of the book. The politics of recruitment, the fears generated by the First World War, the enforcement of prohibition, and the many legal issues surrounding the New Deal constitute the remainder of the study. The analysis stops abruptly in 1941, covering the first fifty years of the circuit.

The text is richly supported by 74 pages of extensive notes. Frederick admits that his references are "only a starting point." He consulted all the judicial papers available, every law review on the Ninth Circuit and on its cases, and every contemporary newspaper article. Additionally, he reviewed a sample of the over 10,000 published decisions of the court. Missing are references to frameworks utilized in other court histories that could have provided models for gathering and organizing

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his data. Nonetheless, for anyone interested in the subject, the notes alone are worth the price of the book.

The Evarts Act of 1891 created the Ninth Circuit and almost immediately the two judges, who shared trial and appellate responsibilities with a U.S. Supreme Court Justice and at least two federal district judges, were confronted with an issue generated by railroads. Should the estate of Leland Stanford of which Stanford University was a part, be responsible for paying off the huge debts incurred by his Central Pacific Railroad?. The court saved the university by upholding the immunity of the stockholders from any debts and the U.S. Supreme Court affirmed. Frederick speculates that the university may have been saved because of the sympathy toward the institution and Stanford's widow, the generosity and magnitude of the bequest, and the general success railroad lawyers had before the courts.

Again, the railroads indirectly contributed to another series of cases before the circuit. The completion of the transcontinental railroads can arguably be attributed to the use of Chinese laborers. The opportunities for work on the railroads and in the mines and forests of the West brought an influx of Chinese immigrants, threatening native laborers and stimulating racial hatred. Congress responded with the Chinese Exclusion Acts of 1882 and 1880, which excluded all Chinese immigration except for "merchants" or privileged classes. The U.S. Supreme Court upheld the Acts but issues arose regarding entry certification, citizenship for American born and the "merchants' exception."

The obvious intolerance of the court toward the Chinese was mitigated by the assignment of judges to panels. Generally, when Justice McKenna and Judge Morrow dominated a panel, the Chinese appellee lost. However, the circulation of panel membership brought them some victories, largely through the "merchants' exception." The circuit's history of intolerance toward the Chinese can be attributed to the restrictive statutes, the anti- Chinese biases of especially McKenna and Morrow, the legal and factual context, and the developing separation of the trial and appellate roles in the circuit. Trial judges personalized their rulings, leading to some sympathy toward Chinese. The appellate judges, removed from the intimate atmosphere of the trial, turned to more impersonal sources for their rulings.

`The "Anvil Creek" incident brought issues of claim jumping, corruption, and judicial authority to the Ninth Circuit. Alexander McKenzie, who through highly questionable means, accumulated the rich claims of Anvil Creek and elsewhere, when his co-conspirator, District Judge Arthur H. Noyes awarded him the receivership of challenged claims. However, McKenzie continued to extract gold from the claims. When ordered by the a circuit judge to discontinue, McKenzie ignored the order and Noyes refused enforcement. Ultimately, the circuit court upheld the single judge order, cited Judge Noyes for contempt and sentenced McKenzie to prison. Frederick saw the Court's handling of the Anvil Creek incident as restoring faith in the judiciary, maintaining the hierarchical structure of the courts and confirming the independence of the court from the political machinations of the time.

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"No one could doubt that the court stood resolute against similar lawlessness in its other tribunals throughout the circuit" and "would handle disputes by process of law without succumbing to corruption or political pressure." (p.97).

Discord on the court was evident with issues surrounding the West's vast mining, timber and oil resources. Judges William Gilbert and Erskine Ross had disagreed on other matters, but the conflict was clear in natural resources issues. However, the contrast was in decisional style rather than end results, although the former often dictated the latter. Ross's approach to statutory interpretation was as a strict constructionist. Gilbert would remain flexible in construing statutes and contracts. Throughout litigation concerning the Anaconda copper mines, exploitation of federal timber lands and California oil disputes, these two judges carried on a dialogue about the appropriate judicial role. Neither Ross nor Gilbert were able to dictate the direction of the circuit, however.

Abrupt changes in the court occurred just prior to the First World War. The growth in appellate litigation exploded. The dual role of serving at both the trial and appellate levels ended and new judges were appointed. Competition, lobbying by special interests, and Congressional-President politics highlighted the appointment process.

The new bench was confronted with issues generated by the First World War, prohibition and the Tea Pot Dome scandal. As expected, anti-war protesters, draft dodgers and German-Americans fared poorly with the circuit. Interestingly, the "Wobblies" consistently proved their cases before the circuit judges and the procedural rights of those prosecuted under the Volstead Act often prevailed. However, order generally prevailed over free speech rights.

The Great Depression and Roosevelt's New Deal as with all American politics transformed the Ninth Circuit. Roosevelt appointees, four of the five by 1935, required creativity to further the goals of the New Deal and to circumvent the U.S. Supreme Court. Two judges were added in 1937. It was then possible for two of the seven, sitting on a panel of three, to dictate the outcome for the circuit. When those two were anti- New Deal, the government consistently lost. En banc hearings would eventually solve the problem.

Pressures of expanding litigation without a corresponding increase in judgeships prompted the use of "one-judge decisions." A case would be assigned to a single judge who would draft the opinion before a conference vote had been taken. Commonly, that opinion would prevail. By now, circuit judges no longer conducted trials and district judges were no longer called upon to sit on appellate panels. A clear distinction between trial and appellate judicial roles was drawn.

The vast territory under the jurisdiction of the court and the diversity of issues also prompted discussions, heard still today, for dividing the circuit. Then as today, the debates revealed the difficulties created by the split exceeded the benefits.

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Frederick's study concludes that the court's work "mirrored the prevailing concerns of the West." (p.240) The image of the court is also explained by the kinds of judges on the bench, the fluidity of panel assignments, and the development of judicial roles.

The study abruptly ends with 1941, thus covering the first 50 years of the court. Other than dividing the study exactly in half, Frederick fails to be convincing in justifying the cut-off. Further, cases saving Stanford University, excluding Chinese immigrants, reviewing arguments of claim jumpers and bootleggers hardly constitute precedent setting law.

My greatest concern is with the lack of an organizing scheme for the vast amount of information Frederick reports. He is concerned with a variety of themes that could hold the analysis together, but fails to favor one. The "who we are" about which Justice O'Conner writes, fails to take shape. No matter! The book needs to be read and referenced by all interested in court history generally and the Ninth Circuit specifically.