Courts: The Fascinating & Frenetic Fifth

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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.

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