The following is a guest post by Ryan Reft, a historian of the modern United States focusing on domestic policy and law in the Manuscript Division at the Library of Congress. Ryan previously contributed three other posts to In Custodia Legis - Federal Courts, Judge Gerhard Gesell, and the Security State, Simon Sobeloff and Jewish Baltimore, and Rights and Resistance: Civil Liberties during World War I Scholarly Panel.
In his unpublished memoir, “My Jealous Mistress,” Gerhard Gesell, judge of the U.S. District Court for the District of Columbia, recounted the moment he discovered his two great loves- one tangible, future wife Peggy Gesell, and the other abstract, jurisprudence.
Hired by the Securities and Exchange Commission in 1935 and living in the nation’s capital, he had to love the future Mrs. Gesell from afar. “As I have already suggested, I had found the girl I wanted to marry, but Peg was keeping me dangling from Detroit for about a year,” Gerhard wrote. Meanwhile, alone in Washington, D.C., Gesell’s affections for the U.S. legal code deepened: with “no ties to anyone else, [and] only the job at hand[,] I ate it up, and welcomed the law as the ‘jealous mistress’ she has remained ever since.”
Whether or not other judges included in the Manuscript Division’s new library guide, The Federal Paper Chase: Judges’ Papers, would describe their passion for the law in such terms remains to be seen, but all clearly held it in high regard even if they refrained from thinking of it in romantic terms.
Gesell’s unpublished manuscript, and his papers more generally, serve as just one example of the two dozen judges whose archives represent arguably the largest collection of federal jurisprudence held in any U.S. repository. When one considers the division’s three dozen Supreme Court collections, two dozen from the 20th century, the claim seems unassailable.
Unsurprisingly, the federal circuit most represented in the Manuscript Division’s collection is the District of Columbia Circuit which consists of the U.S. Court of Appeals for the District of Columbia and the U.S. District Court for the District of Columbia. Eleven judges from the appellate court and four from the district court comprise the division’s holdings from the D.C. Circuit. These include Robert H. Bork, Henry White Edgerton, Harry T. Edwards, Charles Fahy, Ruth Bader Ginsburg, Harold Leventhal, Carl McGowan, E. Barrett Prettyman, Wiley B. Rutledge Jr., Harold M. Stephens, David S. Tatel, and J. Skelley Wright. Judges Gesell, Harold H. Greene, John Garrett Penn and John J. Sirica comprise the division’s holdings regarding the District Court.
Gesell, appointed to the District Court by President Lyndon B. Johnson in 1967, joined as the D.C. Circuit began to distinguish itself nationally from other federal circuits. His esteem for the circuit – he frequently described it as second only to the U.S. Supreme Court in its importance – was not unique.
During the 1960s, the U.S. Court of Appeals for the District of Columbia emerged “as the nation’s second most important court, a significance attributable to the caliber of its judges and the quality of its jurisprudence, as well as to the variety of its docket,” historian Jeffrey Brandon Morris noted in his 2001 history of the circuit. During Richard Nixon’s administration, the District Court also shined, exerting a national, lasting influence on constitutional law, “for a time placing its superior Court of Appeals in the shadows,” notes Morris. “More than any other American court the District Court demonstrated that the judiciary would not flinch from making the separation of powers work.”
While the two courts have been a major force in American law for decades, more recently the Court of Appeals has also functioned as a stepladder to Supreme Court nominations and, more often than not, confirmation. For failed nominations, perhaps no collection in the nation better encapsulates the complexity, and some would argue inequity, of the modern process for nominees than the Robert H. Bork papers.
Researchers hoping to study the current nomination process will find insight in Bork’s archive. Moreover, Bork’s papers, like many others included in the library guide, reveal the unique world of federal jurists, some of whom sympathized with his experience. “There is much talk about the confirmation process and the court being harmed as a result of the way your nomination was treated. I dissent!” wrote then Chair of the Equality Employment Opportunity Commission and future Supreme Court Justice Clarence Thomas in October of 1987 (as cited in Bork’s papers).
Yet the Manuscript Division’s collection is not limited to the D.C. Circuit; it also houses the papers of influential judges from other appellate and district court circuits. Moreover, these papers are not confined to abstract debates of constitutional law or Capitol Hill intrigue, but offer numerous avenues of historical inquiry and examples of law as the “rubber hits the proverbial road” of reality. For example, historians of the civil rights movement, the carceral state, and mental health reform will find the papers of Frank M. Johnson illuminating. First appointed to the U.S. District Court for the Middle District of Alabama in 1955 and later elevated to the U.S. Court of Appeals for the Fifth Circuit (1979-1981) and the U.S. Court of Appeals for the Eleventh Circuit (1981-1999), Johnson presided over critical civil rights cases of the 1950s and 1960s such as Browder v. Gayle (Montgomery Bus Boycott) and Williams v. Wallace (March on Selma) as well as his reform of the Alabama prison system in Pugh v. Locke and James v. Wallace. Additionally, he intervened in the state’s mental health institutions attempting to remedy their ills in Wyatt v. Stickney. Those interested in more sensational aspects of the law might consider consulting his files on serial killer Ted Bundy’s appeals before the Eleventh Circuit Court during the late 1980s.
Historians of American Judaism and Baltimore will discover the richness of the city’s Jewish life in the Simon Ernest Sobeloff papers. A Charm City native and Jewish American, Sobeloff engaged with Baltimore’s Jewish community for decades. Named the president of the Baltimore Branch of the American Jewish Congress in 1933, Sobeloff fought to make his fellow Americans aware of the dangers represented by the rising anti-Semitism of the 1930s. “We have been and are using every means in our power to awaken our community, non-Jewish as well as Jewish, to an understanding of our problem and an earnest interest in dealing with it,” he wrote to one of the era’s most recognizable Jewish American leaders, Rabbi Stephen Wise, in November 1933. Civil Rights issues as well play a prominent role in the collection as Sobeloff presided over the desegregation of schools in Maryland, Virginia, West Virginia, and the Carolinas from his perch atop the U.S. Fourth Circuit Court of Appeals. The papers of Clement F. Haynsworth, who served with Soboleff on the Fourth Circuit, are also housed in the division and offer further insights into the issues appearing before the Fourth Circuit during this period. In particular, Haynsworth sometimes took opposing positions on school integration from his colleague.
Before his promotion to the U.S. Court of Appeals in Washington, D.C., in 1962, J. Skelly Wright presided over the integration of public life in New Orleans. First appointed to the United States District Court for the Eastern District of Louisiana in 1949, Wright endured social ostracization as his rulings proceeded to integrate Crescent Cities schools, parks, and public transportation. He issued 41 rulings between 1951 and 1962 in litigation known as Bush v. New Orleans Parish School Board through which he prevented the closing of the city’s public schools, upheld federal supremacy as dictated by the Constitution, and became the first district judge to issue his own plans when the school board balked at integration, as well as the first district judge to place a school board under injunction. By the end of his tenure as a district court judge, Wright might have been the most hated man in Louisiana. “[W]hen a coffin bearing a coffee-colored doll named ‘Smelly Wright’ was carried through the state capital, nearly all the legislators stood up and cheered,” Michael S. Bernick wrote in a 1980 law review article.
Harry Blackmun’s papers from his time as an appellate judge on the Eighth Circuit (1959-1970) provide insights into the legal issues of the day as well as his own processes that he carried with him in 1970 to the Supreme Court. “Early in his judicial career, Blackmun established a practice that he would follow throughout his tenure on the Eight Circuit on and the Supreme Court,” notes legal expert Linda Greenhouse. “Before a case was argued, he would review the briefs submitted by the parties and any memos prepared by his law clerks. He would then dictate a memo to himself, summarizing the arguments and giving his preliminary responses. Offering his unvarnished personal reaction to the debates swirling around him, these notes are among the most valuable documents in the Blackmun case files.” Blackmun’s federal judiciary papers are just one of three from eventual Supreme Court justices held by the division who also served on lower federal courts: Wiley B. Rutledge Jr. and Ruth Bader Ginsburg, both from the D.C. Circuit’s appellate court, comprise the other two.
Unsurprisingly, Washington, D.C., also stars in the collections. From the papers of Henry White Edgerton to Harold Leventhal to Carl McGowan to Gesell, the D.C. Circuit captures numerous aspects of the city’s history. Gesell’s sentencing files serve as a vantage point from which to explore the capital’s system of criminal law and imprisonment. Gesell kept many of his sentencing files and though some restrictions regarding their use exist, they provide researchers with documentation of the police, the courts, and the policed. They also serve as a valuable text of D.C.’s social history, particularly before its courts were reformed, removing many local violations that were heard in U.S. District Court to the municipal court system.
For legal scholars interested in the transformation of D.C.’s municipal courts, the papers of Judge Harold H. Greene, who oversaw and implemented such reforms, and John Garrett Penn, part of the first cohort of judges to preside over trials in the new court, provide historical insights into this process.
Countless other aspects of the law and history can be found in the Manuscript Division’s federal judiciary collections. Just let The Federal Paper Chase be your guide. Who knows, if you’re anything like Gerhard Gesell, you might find love.