The Fascinating & Frenetic Fifth

Apart from the Supreme Court, the most fascinating bench in the U.S. is the Deep South's Fifth Circuit Court of Appeals -- the trail-blazing intermediate court that handles most of the nation's civil rights cases by hearing appeals from district courts in Alabama, Florida, Georgia, Texas, Louisiana and Mississippi. "Without the Fifth Circuit," says a leading civil rights lawyer, "we would be on the verge of actual war fare in the South." The Fifth's main home is the fourth floor of the cavernous Louisiana Civil Courts Building in New Orleans. But the nine judges seldom sit all together in New Orleans or elsewhere. To handle their vast circuit, they shuttle about in three-judge panels that sit in any of five other cities: Atlanta, Fort Worth, Houston, Jacksonville, Montgomery.

Litigation Explosion. So busy is the frenetic Fifth that last term it took on 40% more cases than any of the nation's ten other circuit courts. In four years the caseload has jumped nearly 100% to a projected 1,200 appeals this term. With almost 175 cases per judge, the Fifth is now well beyond the 80 a year said to be tops for efficient ap- pellate judges. Yet only about 5% of the Fifth's cases stem from civil rights disputes. It is deluged with writs of habeas corpus arising from the Supreme Court's criminal law precedents. And the South's burgeoning industry and population have touched off a litigation explosion that confronts the court with complex disputes involving everything from oil and gas to taxes and labor.

Civil rights, though, remains the big problem. For ten years the Fifth has steadily overruled segregationist district judges while vigorously carrying out the Supreme Court's 1954 ban against segregated schools. In the process it has upheld the desegregation of everything else in sight--buses, parks, juries, ballots, libraries, sporting events, the universities of Alabama, Georgia and Mississippi. The court has made law, not just followed it. It has pioneered, for example, in the use of injunctions to force state and federal courts to act faster in carrying out constitutional rights. Chief Judge Elbert P. Tuttle has made strategic use of a special "interim" panel that hears emergency appeals with remarkable speed, thus foiling district court orders aimed at delaying school integration indefinitely.

Dishonored Grave. The Fifth's all-Southern judges have inevitably been denounced by Alabama's Governor George Wallace as "scallywagging, carpetbagging federal judges." They have been ostracized by former friends, constantly threatened by all-night phone callers. After his son's death in an auto accident, Judge Richard T. Rives was honored by his fellow Alabamians--they threw garbage on his son's grave.

Stoutly unswayed are the court's four hard-core moderates: -- Chief Judge Tuttle, 67, a native Californian, who has lived in Atlanta since graduating from Cornell Law School in 1923. A former G.O.P. state chairman of Georgia, Tax Lawyer Tuttle was the U.S. Treasury Department's general counsel when Eisenhower appointed him to the court in 1954. As the senior man under 70, Tuttle became chief judge in 1961 when the overworked Rives relinquished the job. Tough-minded Tuttle is regarded as one of the fairest, most efficient judges in the U.S.

>John Minor Wisdom, 59, a New Orleans aristocrat, topflight corporation lawyer and former G.O.P. national committeeman. Another Ike appointee (1957), Wisdom is probably the court's top constitutional scholar; he is equally at home in archaeology, Greek tragedy and Louisiana civil law. Wisdom is one of the best (and most painstaking) opinion writers on any U.S. bench.

> John R. Brown, 54, a native Nebraskan, who began practicing admiralty law in Houston in 1932. Also an Ike appointee (1955), Brown proved to be a surprisingly adept constitutional lawyer and such a firm believer in such things as jury duty that in 1960 he refused exemption from duty in a state court. Houston lawyers wryly rejected him because "a federal judge's idea of the requirements for a search warrant is a little different from ours." > Alabama's courtly Judge Rives, 69, who never went to law school, but "read law" in Montgomery and became the town's most popular advocate before Harry Truman appointed him to the court in 1951. Rives's strong decisions for Negro rights have made him a pariah among white segregationists. With unwitting irony, his former friends mutter: "Dick could have gotten any political job he wanted." 4-4 Split. Until recently, the four "activists" were hotly opposed by another Ike appointee--the late Judge Benjamin F. Cameron, a Mississippi Republican (and friend of Democratic Senator James O. Eastland), who seemed to believe that the 14th Amendment did not apply to the South. As Cameron saw it, the Supreme Court had turned Southern states into "conquered provinces"; he accused his brethren of "applying force, blind and witless, where only love can triumph." Cameron's importance was clear last year in the crucial case of Mississippi's Governor Ross Barnett, whom the court had cited for contempt of its orders to desegregate Ole Miss. Cameron voted to try Barnett by jury--a precedent with the potential effect of nullifying all of the court's civil rights orders. Cameron had three supporters: Ike Appointee Warren L. Jones of Jacksonville and two new Kennedy appointees--Alabam-ian Walter P. Gewin and Georgian Griffin B. Bell. Since the aged Joseph C. Hutcheson Jr. of Houston was incapacitated, the court split 4 to 4, a vote that seemed to promise trouble.

Cameron died last spring, just before the Supreme Court itself denied Barnett a jury trial. But his death raised another prickly problem: Mississippi's Segregationist Eastland, chairman of the Senate Judiciary Committee, will undoubtedly insist that Cameron be replaced by another Mississippian of Eastland's persuasion. Judge Hutcheson, 85, has meanwhile handed in his resignation at a time when the new Civil Rights Act promises more and more tough cases.

Suspect Solution. Even if Southerner Lyndon Johnson solves the formidable problem of getting Democratic Southern Senators to approve two Southerners of the type the Fifth deserves, the trouble is that nine judges cannot handle the court's runaway caseload. There are two alternatives: add judges or cut the load. Because some experts insist that appellate courts should have no more than nine judges, Congress will shortly be asked to reduce the Fifth's jurisdiction by creating a new seven-judge circuit court to handle Texas, Louisiana and the Canal Zone.

But this plan, backed by Senator Eastland, includes provisions for all but stripping the Fifth of moderate judges. As the new circuit court is set up, it would get Texas' Brown and Louisiana's Wisdom, leaving the Fifth with only Rives and Tuttle as moderates, and Tuttle would soon be succeeded as chief judge by the traditionalist Alabamian Gewin.

To the plan's critics, who include the South's most enlightened judges, the best solution is to keep the Fifth intact, while adding more and more good judges to handle the load. As they put it, There is no magic in the number nine." The real magic lies in preserving a great court that balances local feelings against the needs of the region and the nation.

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