In comparison with the papers of other non-Supreme Court federal jurists, the Robert H. Bork Papers are somewhat of an outlier. Appointed by President Ronald Reagan to the United States Court of Appeals for the District of Columbia Circuit in 1982, Bork served only six years, stepping down in 1988 following his unsuccessful 1987 Supreme Court nomination. Despite his short tenure on the court, his case files document the myriad number of issues heard by the District of Columbia Circuit Court including civil rights, separation of powers, freedom of speech, environmental law, worker safety and labor rights, and criminal cases. Bork heard most of these cases as a member of a three-judge panel, although he occasionally participated in en banc cases with the judges of the entire court.

The bulk of the collection addresses the years from 1973 to 2003. While researchers will find of interest the collection’s materials pertaining to his work on the court, the Bork Papers are equally valuable as a window into the rise of the New Right and social conservatism during the last quarter of the twentieth century, particularly in Bork’s work for the American Enterprise Institute, as a lawyer and legal consultant, his advocacy of the legal theory known as originalism while a law professor at Yale University, the University of Chicago, George Mason University, and the University of South Carolina, his correspondence with other conservative leaders, and his support for social conservatism through his writings and speeches. Political historians might wish to consult Bork's files from his time as Richard M. Nixon’s and Gerald Ford’s Solicitor General, 1973-1977. Also represented in this section of the papers is Bork’s correspondence with Anton Scalia, when the future Supreme Court justice served as assistant attorney general for the Office of Legal Counsel under the Nixon and Ford administrations.

The collection features a diversity of material in part due to the variety of positions held by Bork over the course of his career. Items found in the Robert H. Bork Papers include notes, memoranda, drafts, published and unpublished writings, correspondence, briefs, opinions, speeches, lectures and lecture notes, tests, and printed matter.

For political and legal historians, Bork’s files on his unsuccessful Supreme Court nomination in 1987, an event considered by some observers to be a watershed moment in American politics and the nomination process, are of particular value. “Since no evidence appeared to discredit Bork personally, and since he was plainly an able man, it seemed almost impossible that he would join the small list of defeated nominees,” legal scholar Ronald Dworkin wrote following Bork's failed confirmation. "In the end, however, he was defeated by a greater margin than any other Supreme Court nominee in history. What caused that remarkable result?”¹ Supreme Court Justice John Paul Stevens concurred. "I have always ranked him as the most persuasive solicitor general who represented the United States before the Supreme Court while I was justice," Stevens wrote in his autobiography. "I thought and still think, that he was eminently qualified for the position, and I said as much in response to a question at the Eighth Circuit Judicial Conference in the summer of 1987."²

Few sources provide as much insight into the modern nomination process as Bork’s papers which document his own experience as well as the observations of others including notable legal minds and political leaders such as Sandra Day O’Connor, Clarence Thomas, Richard M. Nixon, Donald Rumsfeld, and Alan K. Simpson among others. In addition to correspondence in this portion of the papers, researchers will find briefing books, files related to his testimony before Congress, and a press file chronicling his nomination from its announcement on July 1, 1987, to the concluding Senate vote denying him a Supreme Court seat on October 23, 1987.

In the years following his failed Supreme Court nomination, Bork emerged as an intellectual leader among social conservatives and the New Right. One of the primary focuses of his post-nomination work was the relationship of American culture to constitutional law. For example, materials found in the “Speech and Engagement File” series from 1966 to 2008, draw attention to Bork’s interest on the relationship of politics and culture to constitutional law and the impact of these issues on the Supreme Court as well as how religion and morality apply to law, original intent, the role of the attorney general, and the appointing of special counsel in government investigations. Further documentation of his conservative viewpoints can be found in his classroom lectures, speeches, published and unpublished writings, and his correspondence. Letters to Bork represent the constellation of some of the conservatism's leading political leaders and legal scholars of the day including Barry Goldwater, Theodore Olson, Kenneth Starr, Orrin Hatch, and Warren E. Burger.

1. Ronald Dworkin, "The Bork Nomination," New York Review of Books, October 1987. Back to text
2. John Paul Stevens, The Making of a Justice (New York: Little Brown and Company, 2019), 234. Back to text

The following collection title links to fuller bibliographic information in the Library of Congress Online Catalog. A link to the collection finding aid is included when available.

“He was the first judge of our circuit to rule that racial restrictive covenants on real estate were enforceable by injunction,” Judge Henry White Edgerton wrote of his onetime court of appeals colleague and Supreme Court Justice Wiley Rutledge Jr. “The case was one in which a majority of the court held a particular covenant no longer enforceable because of changes in the character of the neighborhood, but reasserted the validity of such covenants in general.”³

Of course, Edgerton could easily have been describing his own beliefs on the matter of civil rights; he cast dissenting votes in both school and housing segregation cases, the former four years prior to the landmark Brown v. Board of Education decision in 1954. His dissent in Carr v. Corning and Browne Junior High School PTA v. Magdeburger in 1950 was the first by any judge in the United States "to subscribe in an opinion to the view that segregated schools amounted to a violation of due process of law." A series of dissents during the 1940s in Mays v. Burgess (1945) and Hurd v. Hodge (1947) indicated Edgerton's thinking on the subject of housing discrimination. His dissent in the latter articulates this clearly: "It is strangely inconsistent ... to hold as this court does that although no legislature can authorize a court, even for a moment, to prevent [African Americans] from acquiring and using particular property, a mere owner of property at a given moment can authorize a court to do so for all time."⁴

Henry White Edgerton served as judge on the United States Court of Appeals for the District of Columbia Circuit from 1938 to 1970. During his tenure, Judge Edgerton wrote numerous dissents, frequently about cases relating to civil liberties and civil rights. “The extraordinary sparseness and precision with which he used words gave his opinions great power,” the Washington Post’s editorial board commented following his death in February 1970. "[N]o doubt this is why his dissents, breaking with tradition, so often proved seminal and found subsequent support in the Supreme Court.”⁵

Indeed, Jeffrey Brandon Morris in his history of the courts of the District of Columbia Circuit concurred, "the mighty dissents of Henry W. Edgerton in the Court of Appeals not only inspired attorneys seeking to end judicial enforcement of racially restrictive covenants but greatly influenced courts elsewhere in the country." Edgerton also stood practically alone among federal judges during the early years of the Cold War in his "willingness to curb congressional power," notably in his dissent in United States v. Barsky in which he viewed the actions of the House Un-American Activities Committee as contradictory to individual rights: "unconstitutional both as abridging freedom of speech and as attempting to punish without a trial."⁶

Though the collection spans from 1910 to 1970, the bulk of the Henry White Edgerton Papers focuses on the years from 1929 to 1966. The papers document his service on the court and chronicle his time as a law professor at Cornell University (1929-1937).

As evidenced by the finding aid, the collection does not cover Edgerton’s tenure on the court comprehensively. Case files are sporadically located in the main portion of his papers, and researchers will find a small concentration of materials related to his service on the court in the case files of the Addition section as well as the Miscellany portion of that section. The Miscellany files contain memoranda, opinions, orders, and judgments. In addition, Edgerton’s correspondence with Archibald Graustein, a Boston attorney, spans over three decades and features discussions, mostly from Graustein, regarding Edgerton’s decisions and includes references to the judge’s activities while still serving as a judge on the court of appeals.

Legal scholars and historians will also find Edgerton’s files related to his work as a law professor useful. Consisting of correspondence, drafts of articles, letters to the editor, notes, pamphlets, reports, newspaper clippings, and printed matter, Edgerton’s work at Cornell University engaged topics such as civil liberties, criminology, law school curriculum, and the separation of powers. Classroom lectures, however, are absent from the papers. Correspondents include numerous law school deans and professors as well as legal figures such as Roscoe Pound, J. J. Robinson, and Herschel Whitefield Arant among others. Especially notable is Edgerton’s correspondence with Felix Frankfurter and others regarding an article he wrote about judicial supremacy over Congress, though no drafts or working papers of that article are located in the collection.

For those interested in the early history of the American Civil Liberties Union (ACLU), Edgerton’s papers contain several folders related to his correspondence with the organization, trials in which the ACLU was involved, and ephemera, namely pamphlets, produced by it during the 1920s and 1930s. Also, New Deal historians will find several manuscripts written by Edgerton on the National Recovery Administration during his time as a special attorney with the Department of Justice. Edgerton was succeeded by Carl McGowan whose papers can also be found in the Manuscript Division.

3. Henry White Edgerton, "Mr. Justice Rutledge," Harvard Law Review, Vol 63 No. 2 (December 1949): 293-298. Back to text
4. Jeffrey Brandon Morris, Calmly to Poise the Scales of Justice: A History of the Courts of the District of Columbia Circuit (Durham, NC: Carolina Academic Press, 2001), 127, 102. Back to text
5. "Henry White Edgerton," Washington Post, Feb. 25, 1970. Back to text
6. Morris, Calmly to Poise the Scales of Justice, 89, 132-133. Back to text

The following collection title links to fuller bibliographic information in the Library of Congress Online Catalog. A link to the collection finding aid is included when available.

“When a person is appointed to the bench, he inevitably has a distinctive worldview - a conception of the nature of American society and of his own place within it, molded partly by his class background, partly by his individual history, partly by his reading and reflection. That worldview is not static,” Judge Harry T. Edwards wrote in the Cleveland Law Review in 1984.⁷

In that article, excerpted by the New York Times, Edwards wrestled with the problem of judicial isolation, the “[d]evotion to the ideals of aloofness and self-abnegation,” that though deepened one’s understanding of the cases before them, also removed judges from the lived realities of the world. “Unless he is diligent about reading broadly to compensate for this effect,” Edwards cautioned, “he is likely increasingly to conceive of his society as composed of persons of the sort who figure in the background portions of his briefs and opinions.”

Spanning the years 1940-2010, but concentrating on the period 1980-2010, the Harry T. Edwards Papers document the career of the nation’s first African American Chief Judge of the United States Court of Appeals for the District of Columbia Circuit. Appointed by President Jimmy Carter to the appellate court in 1980, Edwards served as judge (1980-1994, 2000-2005) then as chief judge (1994-2000) before assuming senior status in 2005. During his tenure Edwards presided over an array of cases that came before the court covering a large swath of administrative law often relating to the rule making of federal agencies including cases involving environmental law, civil rights, antitrust matters, labor rights, freedom of speech, separation of powers, and criminal cases. Arguably the most notable case in the collection, United States v. Microsoft Corp., represents one of the largest in the United States Court of Appeals File series (1976-2010), the most voluminous series in the Harry T. Edwards Papers. Much of the material dedicated to the Microsoft trial pertains to the drafting of a complex opinion that would overturn an earlier ruling by the federal district court ordering the company’s break up. Ultimately, Microsoft settled with the Department of Justice in 2001. Additional materials on the Microsoft case are located in the papers’ digital files; researchers should consult the finding aid for a more detailed description.

Edwards presided over a number of additional cases worth noting; New York Times Co. v. National Aeronautics and Space Administration regarding the controversial release of a video recording of the Challenger space shuttle disaster; Moldea v. New York Times focused on book review libel; and Sims v. Central Intelligence Agency about the change in the exemptions granted to intelligence sources and methods of the Freedom of Information Act. Edwards also served as a panel member on Busbee v. Smith, a Georgia voting rights trial.

As noted, Edwards thought deeply about judicial epistemology or how judges came to know things or shape their worldview. “Above all, a judge relies on the data churned up by the cases that come before him,” Edwards wrote in 1984. “Compared to the more diverse sorts of contacts he was likely to have maintained before coming to the bench, these modes of access to information are restricted and skewed.” Due to this dependence on “fewer and narrower” channels of information, Edwards, as chief judge, promoted diversity on the court. “A court composed of judges with a diversity of different professional experiences and perspectives makes for better-informed discussion,” he wrote in a 1998 Virginia Law Review article. “It provides for constant input from judges who have seen different kinds of problems in their pre-judicial careers, and indeed have sometimes seen the same problems from different angles. We all take advantage of this diversity, not by deferring to one another inappropriately, but by listening to and taking seriously the views of our colleagues.”⁸

Within and between this diverse set of voices, Edwards sought collegiality by which Edwards did not necessarily mean civility, though undoubtedly that was a factor. “We still disagree with one another, and on some issues we even disagree vociferously. This is entirely appropriate: collegiality does not mean universal consensus, nor should it." Collegiality means only "that we discuss each other's views seriously and respectfully, and that we listen with open mind.”⁹

Edwards believed that collegiality better explained court rulings rather than the perceived ideological leanings of jurists. To this end, the Chief Judge files spanning the years from 1994 to 2001, document this aspect of his tenure as chief judge. The files chronicle the various reforms enacted during this period including improved efficiency due to computer technology initiatives; the reorganization of the Clerk’s Office and Legal Division; and his supervision of the construction of an annex to the court of appeals courthouse. Finally, Edwards established and authored a monthly staff newsletter, “The Circuit Writer,” which included coverage of administrative changes, recent court decisions, and personal events such as staff birthdays.

Edward’s administrative and professional duties, particularly regarding the Automation Committee, judicial conferences, and occasional reunions with his law clerks, are represented in the Office Files. Some legal cases and motion cases can be found in these files as well, the latter a record of miscellaneous panel rulings of the judges regarding various motions. Cases in which Edwards took an interest but did not serve as a panel member also appear.

Further evidence of Edwards’s intellectual engagement with the law and wider world can be found in the aforementioned 1998 law review article: “It matters what the legal community and the public think about the way judges do their job. Judging is part of the public business, and judges hold a public trust.”¹⁰

Edwards’s efforts in engaging with and conveying to the public regarding law and judicial philosophy are chronicled in both the Speech and Engagement File and Writings File series. Comprised of speeches and drafts of speeches, background information, and scheduling itineraries for the various events at which Edwards attended and spoke, the former documents the judge’s various addresses, which often served as the basis for future articles. The latter consists of mostly draft articles and research material related to his writings on a number of topics including dispute resolution, labor arbitration, the legal profession, collegiality and judicial decision making, and legal education. Edwards’s 2004 publication, “The Journey from Brown v. Board of Education to Grutter v. Bollinger: From Racial Assimilation to Diversity,” comprises the largest number of files in this series. The Library did not receive any files relating to any of Edwards’s books.

Correspondence in the papers can be found in the series of the same name and consists of professional and personal interests. It is divided into two categories: general and personal. General correspondence makes up the bulk of the series and focuses largely on court administrative matters though it does also include teaching activities at law schools for which he taught and some student letters. The smaller personal correspondence relates to family matters while also reflecting Edwards’s interest in golf and travel. Researchers will discover more biographical information regarding Edwards and his family in the Miscellany series including a bound volume of biographical files, oral histories with Edwards as well as additional autobiographical material. Prior to his ascension to the court, Edwards was an established expert on labor law and worked as an arbitrator notably in several airline arbitration cases which are documented in the series.

Access restrictions apply to the Harry T. Edwards Papers. Consult the Ask-a-librarian form or the Manuscript Division webpage for more information.

7. Harry T. Edwards, "Required Reading: Judicial Isolation," New York Times, July 16, 1984. Back to text
8. Harry T. Edwards, "Collegiality and Decision Making on the D.C. Circuit," Virginia Law Review, Vol. 84 No. 7 (Oct. 1998): 1335-1370. Back to text
9. Ibid. Back to text
10. Ibid. Back to text

The following collection title links to fuller bibliographic information in the Library of Congress Online Catalog. A link to the collection finding aid is included when available.

Appointed to the United States Court of Appeals for the District of Columbia Circuit in 1949, Judge Charles Fahy served as a member of that court for almost 30 years. Though Fahy held several positions prior to his court appointment, including that of Solicitor General from 1941 to 1945, those papers are held by other repositories.

Prior to his appointment to the federal courts, Fahy had been considered for an appointment to the Supreme Court on several occasions. During his time on the Court of Appeals, Fahy frequently aligned with Judges David L. Bazelon and Henry Edgerton "and in his own right was a strong and creative judge, who contributed pathbreaking opinions in the areas of mental health and the right to travel," notes legal historian Jeffrey Brandon Morris. Fahy was also sympathetic to the civil rights movement such as in John R. Thompson Co. v. District of Columbia which can be found in the collection. In Thompson, Fahy dissented from the majority opinion which invalidated Reconstruction Era laws that had guaranteed equal accommodations in public facilities. "It is enough to point out that custom has not moved away from equal treatment, leaving these regulations derelictions of the past," Fahy wrote. "Custom has moved toward equal treatment, as is shown by developments of recent years in the Government, in the armed services, in industry, in organized labor, in educational institutions, in sports, in the theater, and in restaurants in this community."¹¹

The bulk of Fahy’s papers in the Manuscript Division focuses on his time on the Court of Appeals and consist mostly of majority, dissenting, or concurring opinions written by Fahy. Notable cases include Shachtman v. Dulles (1955) in which the court ruled that the government may not arbitrarily bar Americans from travel internationally; Easter v. District of Columbia (1966) in which the court decided that the state cannot imprison chronic alcoholics; Hobson v. Hansen (1967) in which the court prohibited judges of the U.S. District Court from selecting school board members for the District of Columbia; and Hoffman v. United States (1971) in which the court reversed the conviction of Hoffman for his desecration of the American flag. For legal scholars in particular, the collection’s subject files also document Fahy’s endeavors with various judicial groups such as the American Bar Association and Bar Association of the District of Columbia.

Historians focusing on international affairs will find aspects of the Charles Fahy Papers of interest. Perhaps due to his World War I experience as an aviator, which is documented in his diaries, Fahy took great interest in international law and events as evidenced by his subject files. These files chronicle his work for the Ferguson Commission. Fahy served as counsel for the commission, which was established to create policies for the decartelization of German industry following World War II. Additionally, Fahy’s efforts in clearing the name of Ziang Sun Wan, a Chinese student sentenced to death for the 1919 murder of three members of a Chinese education mission in Washington, also appear in the collection. The case eventually reached the Supreme Court where Fahy obtained a reversal of Wan’s conviction. Legal historians focusing on international law, will also find that Fahy conducted a series of legal seminars for the Salzburg Seminar in American Studies from 1963 to 1966, which appear in this series.

Fahy’s World War II service as Solicitor General, though largely absent from the collection, does appear to some extent in relation to his work for President Franklin D. Roosevelt's commission to London in 1941. Members of that commission were to negotiate terms for the exchange of United States naval destroyers for the use of air and naval facilities in British transatlantic territories. Also included in the collection are a few documents related to Fahy’s work as Chairman of President Truman’s Committee on Equality of Treatment and Opportunity in the Armed Services. The bulk of this material, however, resides at the Harry S. Truman Library and Museum in Independence, Missouri.

Finally, for historians of religion, Fahy was actively engaged with religious organizations such as the Catholic Association for International Peace, the Loyola Retreat House, and the Washington League of Laymen Retreatants. In addition, several manuscripts located in his papers provide insight into his relationship with religiously affiliated universities: specifically, the University of Notre Dame and Georgetown University.

The correspondence files in the collection feature numerous leading political and legal figures connected to the presidencies of Franklin D. Roosevelt, Harry S. Truman, Dwight D. Eisenhower, John F. Kennedy, and Lyndon B. Johnson. Fahy’s correspondence with Felix Frankfurter, Theodore Martin Hesburgh, Philip Levy, Joseph O'Meara, Simon Ernest Sobeloff, and Harry S. Truman are more extensive and robust than most others contained in the Charles Fahy Papers.

11. Jeffrey Brandon Morris, Calmly to Poise the Scales of Justice: A History of the Courts of the District of Columbia Circuit (Durham, NC: Carolina Academic Press, 2001), 117, 125. Back to text

The following collection title links to fuller bibliographic information in the Library of Congress Online Catalog. A link to the collection finding aid is included when available.

Ruth Bader Ginsburg “is the Thurgood Marshall of gender equality law,” reproductive rights advocate Janet Benshoof told journalists in 1993. Herma Hill Kay, dean of the University of California Law School at Berkeley wrote to President Clinton endorsing Ginsburg and crediting her with creating the “intellectual foundations for the present law of sex discrimination.”¹²

From 1973 to 1976 as Director of the American Civil Liberties Union Women’s Rights Project, Ginsburg argued six gender equity cases in front of the Supreme Court and emerged victorious in five of her six appearances: Frontiero v. Richardson (1973), Weinberger v. Wiesenfeld (1975), Edwards v. Healy (1975) Califano v. Goldfarb (1977) and Duren v. Missouri (1979). Researchers interested in these cases will want to consult the American Civil Liberties Union series in Part I and Part II which consist primarily of correspondence and memoranda, primarily between Ginsburg and clients, lawyers, clerks, and ACLU colleagues, as well as an array of legal papers such as opinions, orders, briefs, and motions.¹³

Due in great part to these efforts and others on behalf of gender law, President Jimmy Carter appointed Ginsburg to the United States Court of Appeals for the District of Columbia Circuit in 1980. Ginsburg served on the court for 13 years until her selection by President Bill Clinton to the Supreme Court in 1993. Hailed as a trailblazer for her work on gender equity in the 1970s, her court tenure was defined by moderation. “In her thirteen years on the appeals court, she has gone out of her way to mediate between the court’s warring liberal and conservative factions,” New York Times journalist Neil A. Lewis wrote in 1993.¹⁴

This was reflected in her jurisprudence. "Her tenure on the D.C. Circuit was characterized by collegiality, moderation, and a keen appreciation for the metes and bounds of the law," observed historian Jeffrey Brandon Morris. " Although she voted more often with Republican than with Democratic appointees (especially in criminal matters), Ginsburg was sympathetic to standing claims and generally voted to uphold affirmative action programs."¹⁵

Documentation of her court tenure can be found in several places in the Ruth Bader Ginsburg Papers but mostly in materials located in Part II and Part III of the collection and particularly in the following series: Part II: United States Court of Appeals, 1979-1993 and Part III: United States Court of Appeals, 1945-1993. For researchers interested in the nomination process, the files in Part II also complement papers in Part I, notably the Miscellany series, regarding this aspect of Judge Ginsburg’s career.

The former consists largely of administrative matters concerning Ginsburg's service as a judge of the United States Court of Appeals for the District of Columbia Circuit. Items include court calendars, clerk instructions, financial disclosure reports, and material pertaining to Ginsburg's investiture ceremony. The latter, divided into two subseries case files and office files, contain case files, which include conference memoranda drafted by Ginsburg which provide insight into the decision making of jurists. Additionally, Ginsburg concisely recorded the views of her fellow judges for each case as well as any action intended to be taken by the court. During her time on the court of appeals, the majority of the cases that came before Ginsburg pertained to administrative law in which the United States or one of its agencies was one of the litigants. The files reflect the wide range of cases heard by the District of Columbia Circuit Court such as civil rights, separation of powers, freedom of speech, environmental law, worker safety and labor rights, and criminal cases. Note also, the Office File, 1945-1993, consists of material relating to Ginsburg's appointment to the court of appeals, reports relating to statistics and unpublished opinions of that court, and miscellaneous opinions.

Finally, researchers may also wish to explore the Personal File series from Part II. Though much of the material within the series pertains to family matters, it does include correspondence with law clerks, and colleagues from the United States Court of Appeals and the Supreme Court. Additionally, the Speeches and Writings series in both Part II and Part III also offer insight into her tenure on the court of appeals.

12. Neil Lewis, "Rejected as Clerk, Chosen as a Justice: Ruth Bader Ginsburg," New York Times, June 15, 1993. Back to text
13. Neil Lewis, "Rejected as Clerk, Chosen as a Justice: Ruth Bader Ginsburg," New York Times, June 15, 1993; Henry J. Reske and Stephanie B. Goldberg, "Two Paths for Ginsburg," American Bar Association Journal, Vol. 70 No. 8 (August 1993): 16, 18, 20-21. Back to text
14. Lewis, "Rejected as Clerk, Chosen as Justice: Ruth Bader Ginsburg". Back to text
15. Jeffrey Brandon Morris, Calmly to Poise the Scales of Justice: A History of the Court of the District of Columbia Circuit (Durham, NC: Carolina Academic Press, 2001), 320. Back to text

The following collection title links to fuller bibliographic information in the Library of Congress Online Catalog. A link to the collection finding aid is included when available.

When Judge Harold Leventhal of the United States Court of Appeal for the District of Columbia Circuit died unexpectedly in 1979, it triggered an outpouring of reflections from his colleagues and peers. “His impact on the law spans that rich and diverse jurisdiction of the D.C. Circuit,” wrote then Chief Justice of the Supreme Court Warren E. Burger. “His role in the field of administrative law was particularly important.”¹⁶ Fellow D.C. Circuit jurist, Judge J. Skelly Wright concurred, adding that Leventhal had made significant contributions in other areas such as “immigration law and trusts and estates … [he] sharpened the definitions of many constitutional protections … ordered curbs on police search and seizure powers, speedy trials, and free trial transcripts for indigent defendants,” while also ending tax exemptions for racially segregated private schools and curbing the abuses by authorities regarding anti-war demonstrators.¹⁷

Leventhal's differences with arguably, the most dominant personality on the court of appeals, Judge David Bazelon bore legal and intellectual fruit. During the 1960s, the two differed regarding the proper adjudication of insanity pleas in criminal law. The standard upheld by the D.C. Circuit, established in the 1962 case MacDonald v. the United States, defined mental illness as "any abnormal condition of the mind which substantially impairs mental or emotion processes and substantially impairs behavior controls." In his opinion in United States v. Brawner (1972), Leventhal cautioned, "justice in the broad may be undermined by an excess of compassion as well as passion." In other words, criminal law needed to weigh the needs of the mentally ill with the those of the public at large, and more specifically, victims of criminality.¹⁸

Similar intellectual clashes between Leventhal and Bazelon over administrative law also resulted in key opinions. Bazelon focused on process, emphasizing the means by which the agency made its decision, and argued for detailed and articulated standards and principles put forth by administrative agencies. "Even society's most technical decisions must be ventilated in a public forum with public input and participation." In contrast, Leventhal appealed for what became the "hard look" doctrine which focused less on process and more on "the substance of agency decision making." Leventhal first established the "hard look doctrine" in the 1970 case, Greater Boston Television Corp. v. FCC. In his opinion, Leventhal argued that the court's supervisory function required it to intervene not only when "procedural inadequacies" became apparent or when an agency bypassed a charter mandated by legislation but if more generally the court is made aware "that the agency has not really taken a 'hard look' at the salient problems and has not genuinely engaged in reasoned decision making." Ultimately, Leventhal's ruling won the day. Due to this sort of intellectual ferment, even decades later, observers continued to uphold his legacy. "He was among the most brilliant and eloquent American judges of his time, and his premature death in 1979 at the age of 64 was a grievous blow to the Court," noted one legal historian.¹⁹

As evidenced in his majority opinion United States v. Brawner among others, Leventhal differed from his colleagues on the left such as Judges J. Skelly Wright and Bazelon. Leventhal proved "far more traditional in his judicial craft, more tough minded and pragmatic," wrote Jeffrey Brandon Morris in his history of the D.C. Circuit. While he often joined Judges Bazelon, Wright, and Spottswood Robinson on numerous issues such as in his majority decision for Murphy v. Sullivan which held the mass arrests by the government of anti-war activists during the May Day protests of 1971 had violated nearly every aspect of Fourth Amendment, he would sometimes depart from them as well "such as the way the Court should oversee administrative agencies and the regulation of indecent speech."²⁰

Leventhal also participated in cases pertaining to the 1972 Watergate break-in, both in his capacity as a jurist on the D.C. Circuit but also as a visiting judge for the United States Court of Appeals for the Second Circuit. As a result, these files document extensively the court of appeals review of federal district judges’ rulings regarding the Watergate burglary.

Due to some complexities regarding the numbering and organization of cases, researchers are encouraged to consult the finding aid when navigating this portion of the collection. In addition, researchers will discover that many of the general case files are incomplete and might contain only a few items related to the issues at hand.

“It is now essential that every minute of the argument period be devoted to responding meaningfully to the matters that have engaged the attention of the judges. Judge Leventhal's mode of participation in oral argument was geared admirably to these new realities,” Judge and D.C. Circuit Court colleague Carl McGowan wrote of Leventhal in 1979.²¹

McGowan based this opinion on Leventhal’s well known habit of conducting research on the cases coming before him and the judge’s prodigious taking of notes during oral arguments; both of which are documented in the Notebooks and Notes series in Leventhal’s papers. Spanning the years from 1965 to 1979, the subseries also includes notes taken in conference for three judge panels and en bancs, when a case was decided by the entirety of the Court.

By all accounts, Leventhal’s intellect ranged widely. “Law and Literature do not touch each other fleetingly, like tangents to circles, but richly, like overlapping circles, with a huge sector in common … Literature [is] beauty; law, truth,” he wrote in a Rutgers Law Journal article published posthumously.²² In the Speeches and Writings File, documenting the years from 1946 to 1980, researchers will find correspondence, memoranda, drafts, and copious amounts of research material but also additional notebooks that contain notes by the judge exploring a variety of topics including jottings made while attending various meetings.

Prior to his 1965 appointment to the Court, Leventhal had enjoyed a distinguished career working for the Office of Price Administration during World War II and serving as a member of the prosecution during the Nuremberg Trials. Though not comprehensive in any way, offices files from this service appear in the Miscellany series of the collection.

In addition, the Private Legal Practice series covering the years from 1947 to 1966 provides insight into his legal practice while a member of the firm Ginsburg and Leventhal. Arguably the two major issues best represented in this series are those files related to his work as counsel on rate-making theory for the American Telephone and Telegraph Company as well as his role in seating the Mississippi Freedom Democratic Party delegation at the Democratic National Convention in Atlantic City during the summer of 1964. At the time, Leventhal served as general counsel for the Democratic National Committee. Though he served as counsel in Bebchick v. Public Utilities Commission regarding the illegality of a District of Columbia transit bus fare increase, only a few items from that case are present in the collection.

Leventhal’s correspondence files include a number of major political and legal figures such as Walter M. Bastian, David L. Bazelon, Warren E. Burger, John Anthony Danaher, Charles Fahy, David Ginsburg, Lyndon B. Johnson, John F. Kennedy, Louis Lusky, Carl McGowan, Harriet F. Pilpel, Joseph Pois, Stanley Forman Reed, John J. Sirica, Simon Ernest Sobeloff, Harlan Fiske Stone, Edward A. Tamm, and J. Skelly Wright. Fittingly, the judge even corresponded with the occasional celebrity, most notably Kirk Douglass who also appears in Leventhal’s correspondence.

Access restrictions apply to the Harold Leventhal Papers. Consult the Ask-a-librarian form or the Manuscript Division webpage for more information.

16. Warren E. Burger, "Harold Leventhal, (1915-1979)," Columbia Law Review, Vol. 80 No. 5 (June 1980): 879-881. Back to text
17. J. Skelly Wright, "Harold Leventhal," Columbia Law Review, Vol. 80 No. 5 (June 1980): 882-883. Back to text
18. Jeffrey Brandon Morris, Calmly to Poise the Scales of Justice: A History of the Court of the District of Columbia Circuit (Durham, NC: Carolina Academic Press, 2001) 210, 298-299. Back to text
19. Ibid., 298-299, 210 Back to text
20. Ibid., 247-248, 281. Back to text
21. Carl McGowan, "Harold Leventhal," Columbia Law Review, Vol. 80 No. 5 (June 1980): 884-891. Back to text
22. Harold Leventhal, "Law and Literature: A Preface," Rutgers Law Review, 32 (March/April 1979): 603-607. Back to text

The following collection title links to fuller bibliographic information in the Library of Congress Online Catalog. A link to the collection finding aid is included when available.

At the 1984 portrait ceremony for Judge Carl E. McGowan, former Secretary of Labor Willard Wirtz commented on the judge’s ability to hear through the noise for the signal and frequently with a touch of the comedic: “Counting original wit the better half of wisdom, we think of the authentic McGowan humor: the tailoring of a tired phrase to give it new life and larger meaning; the turning of a cliché upside down to topple with it some conventional wisdom; the dredging of an esoteric anecdote from history or literature to mock some current absurdity.”²³

Appointed to the United States Court of Appeals for the District of Columbia Circuit in 1963 by President John F. Kennedy, McGowan succeeded Henry White Edgerton (whose papers also reside in the Manuscript Division). McGowan served as an appellate judge until 1981, briefly occupying the position of chief judge for four months between 1981 and 1982, until assuming senior status in 1982. The Carl McGowan Papers span the years 1921-1998 but concentrate primarily on his tenure on the court from 1962 to 1988. In fact, three quarters of the collection consists of files on cases containing notes on and drafts of opinions produced for a case, copies of briefs, and notes on the views of other judges participating in the case. Numerous files on procedural rules and the administrative conduct of the federal judiciary, especially the appeals court are also present in the Carl McGowan Papers.

Over the course of nearly two decades, McGowan contributed to administrative, labor, environmental, and constitutional law; “a monument to judicial prudence and legal common sense,” Richard A. Merrill, then Dean of the University of Virginia Law School, noted in 1984. Years later, legal experts continued to praise the judge's jurisprudence. "In the 1970s, Carl McGowan came into his own as a judge," noted historian Jeffrey Brandon Morris. "McGowan played no small role in the transformation of the Court of Appeals into the premier national administrative tribunal." According to Morris, during his tenure on the federal courts, McGowan never filed a single dissent or concurring opinion.²⁴ Though he only occupied the position briefly, his appointment to chief judge was greeted warmly in newspapers accounts, which described him as an “even handed, philosophically neutral judge.”²⁵

During the 1960s and 1970s, the United States Court of Appeals for the District of Columbia Circuit witnessed great internal debate between judges with opposing ideological views. In administrative cases, McGowan tended to side with the Court's liberal bloc, the same can be said in rulings regarding poverty law. However, in "major criminal cases heard en banc " the judge veered toward the middle with colleague Harold Leventhal. McGowan "refus[ed] to accept the 'advanced' approaches of [Judges David L.] Bazelon and [J. Skelly] Wright and preferr[ed] a remand to a clear-cut Court of Appeals decision." ²⁶ Language proved a sticking point for McGowan who once lamented that legal jargon had so subsumed the profession that his peers and colleagues often resorted to “bushels of words, inexpertly put together.”²⁷

The general role of the court system in American life served as a frequent subject for McGowan. In his writings, particularly during the late 1970s, the judge focused on the role of the judiciary in separation of powers and Congress’s increasing dependency on judicial review to settle disputes.²⁸ “The pattern taking shape appears to be that of a Congress intent on bringing federal power to bear in an ever widening range of human affairs but having no better answer for the monitoring, supervision, and enforcement of the exercise of that power than the employment of the federal courts,” he wrote in a December 1976 ABA article excerpted in the Washington Post.²⁹

McGowan viewed such developments with caution writing a year later in the Columbia Law Review, “It would burden federal courts beyond their already strained ability to responding thoughtfully to cases before them,” while also expanding the court beyond its “imposed boundaries” that had legitimized the judicial system, and judicial review for the public in the first place.³⁰

During his tenure on the court, McGowan ruled on a number of influential cases. In Luck v. United States (1965), McGowan’s majority opinion established rules for the introduction of a defendant’s prior convictions into evidence, that over time would be widely adopted. Professor Kenneth Davis praised his Weyerhaeuser v. Costle (1978) majority opinion as a landmark in administrative law concluding, “The meaning conveyed by the whole opinion far transcends [all] the various verbalisms about scope and review.”³¹

McGowan’s en banc ruling in a 1980 case heavily influenced “all subsequent attorneys' fees opinions in our and other courts of appeals,” noted Judge Patricia Wald. She added that McGowan’s 1981 article, “Congressman in the Court: The New Plaintiffs” in which he established the doctrine of "equitable discretion” set provisions for standing congressional plaintiffs bringing suits to the court.³² His ruling in Rothstein v. Wyman, “delineated the line drawn” by the Eleventh Amendment determining what federal courts can and cannot order states to do. “In my day, public interest lawyers slept with Rothstein under their pillow,” Wald told an audience in 1984.³³

In a 1977 Freedom of Information Act case involving the National Security Council’s Henry Kissinger, McGowan delivered what is believed to be the first judicial defense of a background briefing. Even as late as 1986 in Burke v. Barnes, McGowan continued to contribute influential decisions in which his majority opinion established that members of Congress can sue over legislation they enacted.

President Richard M. Nixon figured prominently in McGowan’s jurisprudence as well. McGowan voted as part of a 5–2 majority ordering that the president surrender the White House tapes made after the Watergate break-in. Three years later, McGowan upheld a law enacted by Congress which had nullified an agreement between Richard Nixon and the National Archives and Records Administration. The original agreement would have prohibited the release of many of the ex-president’s papers to the public. In 1982, McGowan authored an opinion that threw out Nixon’s attempt to keep a large portion of the six thousand hours of White House tape recordings from the public. He also participated in en banc rulings that denied an injunction against the Washington Post for its publication of the Pentagon Papers and upheld the convictions of several Watergate defendants.

By 1984, McGowan had written 455 opinions, which according to Wald, who would serve as chief judge of the same court upon which McGowan served from 1986 to 1991, illustrates “the immense respect and affection he has earned from his peers—of all persuasions.”³⁴

The majority of the collection is organized with case files arranged alphabetically by first letter of case with no specific reference to individual case titles or case numbers in the finding aid. Correspondents are not identified by name but rather organized alphabetically by letter of an individual’s last name and therein chronologically. Researchers should contact the specialist overseeing the division’s legal collections for further information about the collection.

In addition to the aspects of the Carl McGowan Papers already described, researchers will find numerous essays, lectures, and speeches, on legal matters as well as documents relating to his participation in legal and judicial conferences and his legal education and research endeavors. Also represented in the papers is material relating to McGowan’s endeavors prior to his appointment as a federal judge. McGowan served as Illinois Governor Adlai Stevenson’s assistant as well as a key organizer on Stevenson’s unsuccessful 1952 Democratic bid for the presidency against Dwight D. Eisenhower. The collection contains an oral history with McGowan about Stevenson, drafts of his Stevenson eulogy, and other lectures and essays by McGowan regarding the late United Nations Ambassador and presidential candidate.

23. Willard Wirtz, "Presentation of the Portrait: The Honorable Carl McGowan," transcript, United States Court of Appeals courtroom, United States Court House, Washington D.C. December 11, 1984. Back to text
24. Jeffrey Brandon Morris, Calmly to Poise the Scales of Justice: A History of the Court of the District of Columbia Circuit (Durham, NC: Carolina Academic Press, 2001), 281,198 Back to text
25. Richard Merrill, "Presentation of the Portrait: The Honorable Carl McGowan," transcript, United States Court of Appeals courtroom, United States Court House, Washington D.C. December 11, 1984; Laura A. Kiernan, "McGowan is Named Chief Appeals Judge", Washington Post, January 15, 1981. Back to text
26. Morris, Calmly to Poise the Scales of Justice, 281 Back to text
27. Bart Barnes, "Appeals Court Judge Carl McGowan, 76, Dies," Washington Post, December 22, 1987. Back to text
28. Ibid. Back to text
29. Carl McGowan, "For the Record," Washington Post, January 26, 1977. Back to text
30. Carl McGowan, "Congress, Court, and Control of Delegated Power," Columbia Law Review, Vol. 77 No. 8 (December 1977): 1119-1174. Back to text
31. Kenneth Davis cited and quoted by Patricia Wald in "Presentation of the Portrait: The Honorable Carl McGowan," transcript, United States Court of Appeals courtroom, United States Court House, Washington D.C. December 11, 1984. Back to text
32. Patricia Wald in "Presentation of the Portrait: The Honorable Carl McGowan," transcript, United States Court of Appeals courtroom, United States Court House, Washington D.C. December 11, 1984. Back to text
33. Ibid. Back to text
34. Ibid. Back to text

The following collection title links to fuller bibliographic information in the Library of Congress Online Catalog. A link to the collection finding aid is included when available.

“In an increasingly complex society, the judiciary and the bar should be ever alert to the possibilities of new techniques and devices, which may improve the accuracy of, and expedite decisions involving scientific, technical, or economic issues,” wrote Chief Judge E. Barrett Prettyman of the United States Court of Appeals for the District of Columbia Circuit in 1960.³⁵

The quotation points to Judge Prettyman’s passions in law, the impact of economics on its actors and the organization of its practices and culture through the Judicial Conference. Regarding the latter, Prettyman would be the first to organize a judicial conference on sentencing while also utilizing it to create Washington D.C.’s Legal Aid Society. To the former, Prettyman’s expertise in tax law was lauded widely as was his attention to the downtrodden and the role of economics in law.

Appointed to the court in 1945, Prettyman served for 26 years, from 1958 to 1960 as chief judge, assuming senior status in 1960 and concluding his service upon his death in 1971. The E. Barrett Prettyman Papers span the years 1901-1971 with the bulk of the collection concentrated in the period from 1945 to 1965.

Judge Prettyman’s career included military service; government appointments to the Office of Price Administration and the Internal Revenue Service as well as various commissions under several presidential administrations, including Harry S. Truman, John F. Kennedy, and Lyndon B. Johnson; Corporate Counsel for the District of Columbia; and his work on the appeals court. Though fundamentally a legal collection, a subject which will be addressed throughout, the E. Barrett Prettyman Papers engage a number of fields.

“Judge Prettyman made his name locally as much as for his leadership in proposing judicial reforms as by his decisions,” noted his 1971 Washington Post obituary.³⁶

Indeed, for urban historians and those focused the District of Columbia’s past, the collection offers several windows into this history. Prettyman chaired the Citizen’s Efficiency Committee created to report on the state of the D.C. government. In addition, his work on “indigents” serves as a map to the city’s economic inequalities and the legal challenges presented by them. Both can be found in the Subject File series. Due to the fact his judicial service preceded the creation of the Superior Court, many of his court rulings, found in the Case File series, deal with local issues such as one in 1957 when Prettyman, Warren E. Burger, and Walter M. Bastian ruled unanimously to uphold district-zoning regulations aimed at controlling density. An unpublished autobiography located in the Writings Series, written initially in 1931 and expanded upon in 1967, provides further insight into Washington, D.C., as do his diaries found in the series of the same name which document his time as general counsel of the Bureau of Revenue, corporation counsel for the District of Columbia, and his work in private practice around the capital.

During his tenure on the Court, Prettyman established himself as an "influential moderate." During the era of Cold War, loyalty tests and security concerns abounded and Prettyman upheld Congress' right to investigation such as in his majority opinion in Barsky v. United States (1948): "one of the first federal appellate opinions in the postwar period to carefully study the congressional power to investigate," observed one legal expert. Though perhaps not endorsing the House UnAmerican Activities Committee (HUAC) in tone, rhetoric, or practice, the Court acknowledged HUAC's legality. The remedy for its ills, Prettyman argued, ran through the federal legislature and not the courts. Though he supported innovations in criminal law such as Judge David L. Bazelon's ruling regarding insanity pleas in Durham v. United States, Prettyman often voted with conservatives on criminal law issues. For example, on the matter of policing and criminal justice, he generally upheld the "Crime Control Model" which "emphasized factual guilt over legal guilt and social control over individual justice, sought efficiency through rational administration, and allotted wide discretion to the police, prosecutors and trial judges." Judge Warren E.. Burger led the Court's conservatives in applying this approach, while liberal judges such as Henry White Edgerton, Bazelon and Charles Fahy subscribed to the "Due Process Model" which held the same cohort of law enforcement to "high standards of conduct and insisted that factual determination of guilt had to be made in a procedurally correct fashion," observed historian Jeffrey Brandon Morris. "While on the bench, Prettyman would make important contributions to administrative law, but not only by his opinions but also through other writings and as a moving force in the revision of the Administrative Procedure Act," adds Morris.³⁷

Military historians and researchers focused on “War and Society” will also find topics of interest in the collection. Prettyman’s World War I service is documented in the Diaries series, which covers his time as a rifle instructor at Fort Meade from 1918 to 1919. During World War II, he served as a hearing officer for the District’s Selective Service Board overseeing conscientious objector cases. Later, he chaired President Johnson’s Veteran’s Facilities Commission, an examination of Veteran’s Administration hospitals in 1965. These are also found in the Subject File.

For scholars focused on criminal justice and incarceration or as it is sometimes referred to, “the carceral state,” Prettyman offers a number of sources. The aforementioned indigents file in the Subject File contains documents related to the role of the Judicial Conference in passing the Criminal Justice Act of 1964 which for the first time “assured professional legal counsel in federal courts by paying an hourly fee for court appointed lawyers.” This law served as a critical step in the creation of the federal defender system that remains in operation today. Numerous files in the Case File series address challenges to the constitutionality of criminal convictions; Mallory v. United States (1957), is the most prominent among them. Additional materials in the Subject File series, pertaining to indigents, insanity, and juveniles, form the core of Prettyman’s Tucker Lectures series for the University of Virginia Law School titled, “Three Modern Problems in Criminal Law.” The Writings File contains additional materials related to the subject. Finally, files in the in forma paurperis appeals section of the Subject File include appeals by indigent convicted criminals on their own behalf and the court's efforts to administer these cases.

Prettyman, as chief judge, managed the court at the height of the Cold War, and the collection documents various aspects of national security. This subject is, perhaps, best represented by what some legal historians refer to as the Passport Cases (1951-1964) wherein State Department policy was to deny passports to individuals thought to be part of the communist movement. Prettyman participated in several of these trials. The best known, according to the Washington Post, being Worthy v. Herter in which Prettyman denied reporter William Worthy a passport to visit communist China.³⁸

Though this example had less to do with Worthy’s political beliefs, Prettyman ruled that under the aegis of the Cold War, the act of individual citizen traveling abroad to a communist power could threaten U.S. foreign policy. “While travel is a right … It can be restrained like any other right … In foreign affairs, especially in the intimate posture of today’s world of jets, radio, and atomic power … a blustering inquisitor avowing his own freedom to go and do as he pleases can throw the whole international neighborhood into turmoil,” Prettyman’s majority opinion read. The Supreme Court later upheld the ruling. Other cases involving similar issues present in the collection are Robeson v. Acheson, Shachtman v. Dulles, and Kent v. Dulles.³⁹

As previously noted, Prettyman also participated in several cases relating to domestic “subversive activities” and also ruled to uphold the McCarran Act of 1952, which required the Communist Party to register as a subversive organization. In this regard, the Case Files series documents various matters related to “communist subversion” such as the dismissal of government employees on loyalty grounds, contempt citations by congressional investigating committees (especially the House Un-American Activities Committee), and registration of Communists, Communist front organizations, and the Communist Party.

Though already discussed in part, the Case File series spans the gamut of legal issues including both civil and criminal litigation. A few of the topics featured are taxation law, administrative law, and labor law. Correspondence in the series focuses largely on intra-court communication usually as memoranda or short notes and includes Warren E. Burger, Charles Fahy, George T. Washington, Harold M. Stephens, David L. Bazelon, Henry White Edgerton, Wilber K. Miller, John A. Danaher, and Walter M. Bastian.

Notably, during his tenure on the court, Prettyman, along with Judge Bazelon reshaped insanity laws and the law of insanity defense in criminal law namely in Durham v. United States, Carter v. United States, and In re Marcos (see also Subject Files on Insanity cases). Other cases of note include Curley v. United States adjudicating the conviction appeal of Boston Mayor James Curley, Collazo v. United States, appealing of the conviction of one of the Puerto Rican assassins who attempted to assassinate President Truman in 1950, and the famous Steel Seizures case, Sawyer v. United States Steel.

Finally, the collection might be of interest to those interested in American religious history. Prettyman’s father, Forrest J. Prettyman, was an elder of the Methodist Episcopal Church, South. The senior Prettyman’s influence on his son is reflected in the Writings series where a number of sermons and talks on religious subjects utilized in church services and church educational courses appear. Perhaps of greater significance are documents from the Subject File series related to ecclesiastical trials of several ministers but most notably of that of Bishop James A. Cannon Junior who had been charged with immorality and propriety.

35. E. Barrett Prettyman in Richard W. McLaren, "Introduction of Judge Prettyman," Section of Antitrust Law, Vol. 20, April 12 and 13, 1962: 62-3. Back to text
36. Ellen Hoffman, "Judge E. Barrett Pretty Dies at 79," Washington Post, August 5, 1971. Back to text
37. Jeffrey Brandon Morris, Calmly to Poise the Scales of Justice: A History of the Court of the District of Columbia Circuit (Durham, NC: Carolina Academic Press, 2001), 115-116, 132-133, 170, 163, 115. Back to text
38. Ibid. Back to text
39. Allen Rogers, "Passports and Politics: The Courts and the Cold War," The Historian, Vol. 47 No. 4 (August, 1985): 497-511. Back to text

The following collection title links to fuller bibliographic information in the Library of Congress Online Catalog. A link to the collection finding aid is included when available.

“Yes, judges do read the record – and the briefs,” Judge Wiley B. Rutledge Jr. wrote in 1942. “But occasionally they do it muttering through their teeth things they could not say aloud in Sunday school.”⁴⁰ President Franklin D. Roosevelt had plucked Rutledge from his position as dean of the University of Iowa Law School in 1939 for a seat on the United States Court of Appeals for the District of Columbia Circuit. If his 1942 article for the American Bar Association Journal is any indication, Rutledge may not have fully enjoyed his time as an appellate judge. Four years later in 1943, Roosevelt tapped Rutledge for a vacancy on the Supreme Court making Rutledge the first judge from the D.C. Circuit to be elevated to the nation's highest tribunal.

Though Rutledge may not have basked in travails of the appellate courts and had expressed severe reservations regarding any possible service on the Supreme Court, Roosevelt wanted a New Deal supporter among the nine justices and believed Rutledge to be a possible answer to the Court’s opposition to his policies. Earlier, Rutledge had joined the United States Court of Appeals for the District of Columbia as one of seven appointments by Roosevelt, though as one legal historian noted, only Rutledge, Henry White Edgerton, and Thurman Arnold "were 'modern' judicial thinkers of the kind F.D.R. preferred: unbound by formulae and willing to modify the law to suit the conditions and meet the challenges of the time."⁴¹ Ultimately, Rutledge made the most of his time on the court of appeals and the nation’s highest court before his untimely death in 1949.

A liberal, prior to his appointment to the Supreme Court, Rutledge criticized child labor, offered full support for the New Deal describing the Court as a conservative “autocracy,” and even backed FDR’s court packing plan during his tenure as Dean of the University of Iowa's Law School, his public testimony on the final example perhaps that factor earned Rutledge his initial appointment to the court of appeals.⁴² Granted, the court of appeals might have bored Rutledge, but the cases over which he presided and participated in are well represented in the Wiley Rutledge Jr. Papers which, in total, span the years 1909-1951 with the bulk of the collection focused on the period from 1935 to 1951.

While on the Supreme Court, Rutledge remains best known for his dissents in cases such as In re Yamashita where his opposition to the majority decision tallied 32 pages: “In this stage of the war’s aftermath it is too early for Lincoln’s great spirit, best lighted in the Second Inaugural to have wide hold for the treatment of foes …. It is not too early for the nation steadfastly to follow its great constitutional traditions, none older or more universally protective against unbridled power than due process of law in the trial and punishment of men, that is, all men, whether citizens, aliens, alien enemies, or enemy belligerents.”

During his short tenure on the court of appeals, Rutledge, who had emerged by 1939 as an expert on corporate law, participated in several cases involving New Deal policies/agencies and anti-trust law. In administrative law, he favored the government but overall, observers such as historian Jeffrey Brandon Morris describe Rutledge as "a legal realist who distrusted labels and looked past form to function ... [he] was known as a civil libertarian as well as craftsman."⁴⁴

Arguably, his most notable case between 1939 and 1943 focused on Jordan v. Group Health Association (1939), in which he and two other judges concluded that the American Medical Association and Medical Society of the District of Columbia had conspired to violate the Sherman Anti-Trust Act by interfering in the organization of a cooperative enterprise known as the Group Health Association.

Researchers will find several folders dedicated to this case and many others in the Court of Appeals File series. Rutledge kept incoming notes and letters and retained copies of most of his outgoing communications and writings, including intra-court memoranda, working drafts of opinions, case memoranda or certiorari, summaries of lawyers' opinions, and conference proceedings. Although most of this material is in the court of appeals series (and the Supreme Court File series), important communications about his work as a jurist are also contained in the General Correspondence. Numerous prominent figures earned the justice’s confidence. For example, Rutledge confided in Ralph F. Fuchs, a friend from Washington University in St. Louis, where Rutledge taught before moving to Iowa. Other correspondents whose letters appear throughout the collection include Willard Wirtz, a future secretary of labor whom Rutledge had hired while dean at the University of Iowa; Huber O. Croft and Mason Ladd, also from Iowa; and Arthur J. Freund, Luther Ely Smith, and Tyrrell Williams, friends from Rutledge's St. Louis days. A third group of insiders was comprised of a few chosen law clerks: Victor Brudney, W. Howard Mann, John Paul Stevens, and Richard F. Wolfson.

40. Wiley B. Rutledge, "The Appellate Brief," American Bar Association Journal, Vol. 28 No. 4 (April 1942): 251-255. Back to text
41. Jeffrey Brandon Morris, Calmly to Poise the Scales of Justice: A History of the Court of the District of Columbia Circuit (Durham, NC: Carolina Academic Press, 2001), 89. Back to text
42. Ibid., 94.Back to text
43. Ibid., 94.Back to text
44. Ibid., 94.Back to text

The following collection title links to fuller bibliographic information in the Library of Congress Online Catalog. A link to the collection finding aid is included when available.

Writing in 1949, Chief Judge Harold M. Stephens reflected on the changes in the practice of law that he had witnessed over nearly five decades. “The nature of a lawyer’s practice has changed materially since the turn of the century,” he wrote.⁴⁵

Stephens pointed out that the number of lawyers, cases, and even subject matter had expanded notably particularly for the United States Court of Appeals for the District of Columbia Circuit which by 1949 heard nearly four times the number of cases as it had in 1900 which goes to explain Stephens's support for expanding the Court with the addition of three judgeships that same year. Though relatively conservative when compared with other New Deal appointees, Stephens struck an activist pose "in matters of judicial administration both within and outside the circuit." Stephens also demonstrated sharp political acumen. He frequently worked with members of the Judiciary Committee notably on issues such as omnibus judgeship bills and judicial salaries, sometimes even redrafting the reports of congressional committees. He also mentored fellow judges in the art of lobbying Congress arguing that if judges took no interest in such matters, they could not expect Senators and representatives to do otherwise.⁴⁶

Having practiced law since 1912 as a lawyer in private practice and as a government official holding various positions (assistant prosecuting attorney in Salt Lake City, judge on the Third District Court of Utah, and assistant attorney general for the Department of Justice ), Judge Harold M. Stephens not only witnessed the changes he discussed, but he wrote them into law when appointed to the federal judiciary in 1935. Materials related to his time at Harvard Law School and his work in Utah can also be found in the collection.

Judge Harold M. Stephens had almost twenty years of combined service as a federal judge with the United States Court of Appeals for the District of Columbia Circuit. Stephens was F.D.R.'s first appointment to the Court of Appeals for the D.C. Circuit and at that time, only the second Catholic on its bench; he later assumed the role of chief judge in 1948, occupying the position until his death in 1955. Judge Henry White Edgerton, whose papers are also located the Manuscript Division succeeded Stephens. While the totality of the Harold M. Stephens Papers spans the years 1855-1955, it is predominantly focused on the period from 1935 to 1955.

Considered a “legal conservative,” Stephens developed a reputation for “profound scholarship and exacting research.”⁴⁷ New Deal historians and others concentrating on the regulatory state will find research materials in the Assistant Attorney General File series. As an assistant attorney general in the Department of Justice (DOJ) and as head of its anti-trust division, Stephens played a major role in the administration of New Deal legislation. As both head of the DOJ's anti-trust division and as assistant attorney general, Stephens argued numerous cases in front of the Supreme Court on a range of issues, many of them related to the growing centralized bureaucratic state.⁴⁸

As both a judge and chief judge, Stephens ruled on a number of influential cases during this period and practiced a "more formalistic and less dynamic" jurisprudence in comparison to other Roosevelt appointees argues historian Jeffrey Brandon Morris.⁴⁹ In Saginaw, Stephens' majority opinion served "as a primer for the Federal Communications Commission on the findings of fact which had to accompany the Commission's decision on construction permits."⁵⁰

Finally, the Gypsum trial resulted in a 114-page opinion by Stephens which refuted the government’s anti-trust case against the United States Gypsum Company as well as other gypsum manufacturing firms by denying an injunction by the federal government against the company.⁵¹

Stephen’s correspondence is divided into three series: Special Correspondence, General Correspondence, and Personal Correspondence. Only in the Special Correspondence are correspondents identified by name. The other two correspondence series are organized either alphabetically or chronologically. David Bazelon, Benjamin Cardozo, Felix Frankfurter, Franklin D. Roosevelt, William O. Douglas, Florence Ellinwood Allen, Lloyd Wright, Joseph R. McCarthy, Zachariah Chafee, and Charles Fahy are just a few of those with whom Stephen’s corresponded and can be found in the Special Correspondence series.

45. Harold Stephens, "Fifty Years of Legal Change: The Lawyer of 1949 and the Lawyer of 1900," American Bar Association Journal, Vol. 35 No. 11 (November 1949): 897-900. Back to text
46. Jeffrey Brandon Morris, Calmly to Poise the Scales of Justice: A History of the Court of the District of Columbia Circuit (Durham, NC: Carolina Academic Press, 2001), 113, 90-91. Back to text
47. "Chief Judge Stephens Is Dead: On Court of Appeals 20 Years," Washington Post, May 29, 1955. Back to text
48. Morris, Calmly to Poise the Scales of Justice, 90. Back to text
49. "Chief Judge Stephens Is Dead: On Court of Appeals 20 Years," Washington Post, May 29, 1955. Back to text
50. Morris, Calmly to Poise the Scales of Justice, 90. Back to text
51. "Chief Judge Stephens Is Dead: On Court of Appeals 20 Years," Washington Post, May 29, 1955. Back to text

The following collection title links to fuller bibliographic information in the Library of Congress Online Catalog. A link to the collection finding aid is included when available.

From 1977 to 1979, David S. Tatel served as Director of the Office for Civil Rights for the Department of Health, Education, and Welfare (HEW). When President Bill Clinton nominated Tatel to the United States Court of Appeals for the District of Columbia Circuit, the White House lauded him for spearheading “the Carter Administration’s efforts to revitalize the agency and its enforcement of civil rights law.” Clinton furthered this praise crediting Tatel for a “lifelong commitment to protecting and preserving the rights of all Americans."⁵²

Even after decamping from government for private practice in the 1980s, Tatel continued his focus on civil rights issues. At the time of his appointment in 1994, Tatel was just over a decade removed from a landmark settlement he had mediated between the NAACP and the city of St. Louis in 1983 that led to increased desegregation of that city’s schools. As Tatel told an audience in 1984, the agreement led to 6,000 children attending newly desegregated schools and promised to expand interactions between inner city students and their suburban counterparts while also improving educational opportunities.⁵³

Succeeding Justice Ruth Bader Ginsburg on the court of appeals, Tatel has served as an appellate judge for nearly three decades and has been considered as a potential candidate for the Supreme Court. According to an October 2000 New York Times Magazine profile by Jeffrey Rosen, observers considered Tatel a “judicial moderate” who favored “a strong role for the courts in protecting individual rights against infringements by congress as well as by state legislators and is particularly committed to individual privacy.”⁵⁴

His dissent in the 1998 case Hutchins v. District of Columbia confirms such observations as Tatel argued against a city curfew that made it illegal for unaccompanied individuals under the age of eighteen to be in public between the hours of 11 P.M. and 6 A.M on weeknights and midnight and 6 A.M. on weekends. He noted that while parents enjoy the authority to “direct the upbringing and education of children under the control,” so too do young people “have a fundamental right to free movement.”⁵⁵

The David S.Tatel Papers consisting of 525 document boxes, span the period from 1871 to 2014, with the bulk of the material dating from 1994 to 2014. While much of the collection documents Tatel’s time on the court, it also includes significant documentation of his work for the Carter Administration, his private practices in both Chicago and Washington D.C., and his activities with various legal and educational organizations. The papers are organized into five series: Office for Civil Rights, United States Court of Appeals: Case File, Speeches and Writings File, Miscellany, and Closed.

The largest series in the collection is the United States Court of Appeals: Case File which contains correspondence, memoranda, notes, orders, opinions, vote sheets, newspaper clippings, and some background material relating to cases in which Tatel participated as a judge on the United States Court of Appeals for the District of Columbia Circuit. During his time on the court, Tatel has presided over cases focused on issues such as civil rights, federalism, environmental law, civil liberties, national security, and regulatory and labor law. Verizon Communications v. Federal Communications Commission (2014) provides an example of the sort of regulatory issues that have appeared before the court during his tenure. Tatel authored the majority decision which granted the FCC jurisdiction over the internet but also enabled internet service providers to negotiate directly with streaming services and opened the door to the eventual elimination of “net neutrality.”⁵⁶

While Tatel has authored many majority decisions, he has also penned notable dissents. In American Trucking Associations, Inc. v. Environmental Protection Agency (1999), Tatel dissented from the majority opinion that limited the federal government’s regulatory reach, “'Not only did the panel depart from a half-century of Supreme Court separation-of-powers jurisprudence, but in doing so, it stripped the Environmental Protection Agency of much of its ability to implement the Clean Air Act, this nation's primary means of protecting the safety of the air breathed by hundreds of millions of people.''⁵⁷

For legal scholars and others focused on international law, terrorism, and the rights of the accused, Tatel’s papers are worth consulting. Due to the United States’ post-9/11 focus on international terrorism and the Supreme Court’s decision in Boumediene v. Bush (2008), which for the first time accorded Guantánamo detainees the right to submit habeas corpus petitions directly to federal judges, the D.C. Circuit Court of Appeals has served as the main forum for adjudicating American policies regarding the detention of non-citizens suspected of connections to terrorism.⁵⁸

In the 2011 case of Latif v. Obama, Tatel again dissented against the majority opinion, which had been based on a heavily redacted intelligence document, that circumscribed the rights of individuals, detained due to alleged terrorist affiliations from appealing their incarceration. “One need imply neither bad faith nor lack of incentive nor ineptitude on the part of government offices … to conclude that [BLACKED OUT] in a [BLACKED OUT] near an [BLACKED OUT] that contain levels of hearsay, depend on translators of unknown quality, and include cautionary disclaimers that [BLACKED OUT] are prone to significant errors.”⁵⁹

Education historians and others focused on civil rights issues will also want to consult the Miscellany series, which documents his career as a lawyer in private practice, his involvement with educational organizations, and his endeavors as a mediator (while a judge). As noted previously, Tatel’s 1983 settlement remains a landmark case regarding post-1970s school desegregation. In addition, Tatel played a key role in mediating a dispute (Vaughn G mediation) between the Baltimore, Maryland, public school system and its special education students in 2000. The Miscellany series includes files pertaining to Tatel’s legal career in Chicago, Illinois, with the firm Sidley & Austin, his activities as Director of the Chicago Lawyers’ Committee for Civil Rights Under Law, his efforts as Director of the National Lawyers’ Committee for Civil Rights Under Law, and his tenure at the law firm of Hogan & Hartson in Washington, D.C., where he established and led its educational division.

Finally, much like his colleague on the court of appeals Harry T. Edwards, whose papers are also held by the Manuscript Division, Tatel shares an interest in the philosophical aspects of the law such as how judges come to knowledge about issues in which they are not experts in order to adjudicate trials. “We typically lack expertise in any field other than law itself. In fact, we cultivate generalism,” he told an audience at the American Philosophical Society in 2010. “Put simply, we know what we know about the cases we hear solely from the cases themselves.” Tatel went on to acknowledge a certain amount of osmosis as well informs the worldview of judges. “We judges are people, and we are inevitably influenced by what we read in the papers, hear on the radio, see on the television, and encounter on the Internet. And that kind of crucial cultural influence comes as often from art and literature as it does from history and science.”⁶⁰

Edwards too discussed this issue at great length. Researchers interested in this aspect of jurisprudence and theories on law more generally, will want to consult the aforementioned Miscellany File and the Speeches and Writings File series as well as the Harry T. Edwards Papers.

Access restrictions apply to the David S. Tatel Papers. Consult the Ask-a-librarian form or the Manuscript Division webpage for more information. Finding aid not available at this time.

52. "Lawyer is Nominee to Succeed Ginsburg," Associated Press, June 22, 1994. Back to text
53. "Lawyer Asks Wider College Desegregation," New York Times, April 8, 1984. Back to text
54. Jeffrey Rosen, "The Next Court," The New York Times Magazine, October 22, 2000. Back to text
55. Ibid. Back to text
56. Edward Wyatt, "Rebuffing F.C.C. in 'Net Neutrality' Case, Court Allows Streaming Deals," New York Times, January 14, 2014. Back to text
57. Rosen, "The Next Court." Back to text
58. Adam Liptak, "The 'Fill in the Blanks' Court Game of Indefinite Detention, New York Times, December 12, 2011. Back to text
59. Ibid. Back to text
60. David Tatel in David Souter, Ruth Bader Ginsburg, David S. Tatel and Linda Greenhouse, "The Supreme Court and Useful Knowledge: Panel Discussion," Proceedings of the American Philosophical Society, Vol. 154 No. 3 (September 2010): 294-306. Back to text

The following collection title links to fuller bibliographic information in the Library of Congress Online Catalog. A link to the collection finding aid is included when available.

As more than one legal observer noted, J. Skelly Wright might have been one of the most hated figures in twentieth century New Orleans history. Due in large part to several opinions issued by Wright dating from 1950 to 1962, in which he effectively desegregated much of public life in the Crescent City, his critics derided him as “Saint Skelly” or “Judas Scalawag.” Wright was hung in effigy on several occasions, once to the standing applause of the Louisiana House of Representatives: "[W]hen a coffin bearing a coffee-colored doll named 'Smelly Wright' was carried through the state capital, nearly all of the legislators stood up and cheered."⁶¹

In retrospect, however, others, such as his former law clerk and later Dean of the University of Chicago Law School Geoffrey Stone argued Wright’s jurisprudence was the expression of America’s most treasured ideals. “A central component of Judge Wright's understanding of legal doctrine was his insistence that justice should drive the scope and operation of legal technicalities-and not the reverse,” Stone writes. “Judge Wright thought of the law not as a body of infinitely manipulable logical abstractions, but as the living embodiment of our society's highest aspiration.”⁶²

Wright gained national attention when in a series of forty-one rulings spanning the years 1951 and 1962 under the auspices of Bush v. New Orleans Parish School Board, along with fellow district judge Herbert Christenberry, Wright declared forty-four Louisiana laws unconstitutional. He prevented the closure of New Orleans public schools and maintained federal supremacy as established in the Constitution. He also became the first district judge to "place a school board under an injunction and the first to draw up a plan of his own after a board dragged its feet," notes historian Jeffrey Brandon Morris. At the same time, Wright's efficiency as a case manager, even while presiding over such controversial trials, was unrivaled. During the 1959 court session, he handled more cases than any other district judge in the nation.⁶³

He issued several more rulings in the years that followed that desegregated that transit system, the parks, and sports. Local residents did not respond positively. Shortly after Wright ordered Louisiana's streetcars desegregated, a cross was set ablaze on his front lawn. Due to such circumstances and his general social and professional ostracization by New Orleans society, Wright "began to identify with others on the fringes of society - dissenters, minorities, and the poor - to challenge the status quo," Michael S. Bernick argued in a 1980 law review article.⁶⁴

According to Morris, by the time Wright reached the United States Court of Appeals for the District of Columbia in 1962, he was already a legend and every bit the believer in an engaged and active court as his colleague and Chief Judge David L. Bazelon. "Even if courts cannot solve the problems that beset the inner city ... they and the legal system as a whole should play a significant part in that endeavor," he told the New York Times Magazine in 1969. In regard to jurisprudence, Wright aligned with the Court's left leaning judges: Bazelon, Henry White Edgerton and Charles Fahy.⁶⁵

The collection consists largely of memoranda, correspondence, notes, reports, instructions to juries, and speeches documenting Wright’s career. Though a legal collection first, due to his position in both New Orleans and Washington D.C., the J. Skelly Wright Papers also provide perspective on the urban history of both cities during the duration of each judgeship particularly in the area of desegregation, rights of the accused, and Cold War America. Correspondence files in the Wright papers are voluminous and pertain to much of his career in both cities and include Hugo Lafayette Black, Abe Fortas, Wayne G. Borah, Fred W. Friendly, and Simon Ernest Sobeloff among others.

For researchers focusing on the history of civil rights, the judge’s segregation correspondence which consists of letters to Wright about his civil rights decisions from 1956 through 1962, reflect the deep emotional anguish felt by not only the people of Louisiana, but individuals throughout the United States regarding the issue. Wright’s decision in the aforementioned case Bush v. Orleans School Parish School Board led to the desegregation of the public schools in New Orleans, earning him the wrath and hatred of many in the local white community. Another major civil rights opinion, Hobson v. Hansen, by Wright as an appellate judge curbed discriminatory policies in the District of Columbia school system. In that case Wright sought to end de facto segregation in the public schools by ordering that education resources be equalized throughout Washington, D.C. Evidence of Wright's concern for the poor can be found in his opinion halting construction of the proposed Three Sisters Bridge in D.C. Federation of Civic Associations v. Volpe. Despite Congress' desire for the bridge's completion and due to the fact that residents of the city lacked congressional representation, continuing construction Wright wrote would "deprive 'an already voiceless minority of its important personal right to contest disruptive highway projects enjoyed by citizens generally."⁶⁶

Later, Wright struck down mandatory sentences for drug users in Watson v. United States and dissented in United States v. Moore arguing that drug addicts cannot be criminally responsible if due to drug use, the individual lacked substantial ability to conform his or her conduct to the law.⁶⁷ To the latter, in both 1969 (Women Strike for Peace v. Hickel) and 1972 (Women Strike for Peace v. Morton), Wright intervened declaring that the Department of Interior's denial of permits to protesters violated the First Amendment.⁶⁸

When the Court, reversed a district court ruling by Judge Gerhard Gesell allowing for the publication of the Pentagon Papers by the Washington Post in United States v. Washington Post, Wright dissented in the 2-1 ruling. "This is a sad day in America ... As if the long and sordid war in Southeast Asia had not already done enough harm to our people, it now issued to cut the heart of our free institutions and system of government," he argued.⁶⁹

During the 1970s, the Court of Appeals issued arguably a majority of the decisions in the growing field of environmental law with Wright weighing in through several consequential opinions. In Calvert Cliffs Coordinating Committee v. United States Atomic Energy Commission, Wright penned one of the the Court's "farthest reaching decisions in the field," as the judge provided the "first major appellate interpretation of the National Environmental Policy Act of 1969 (NEPA) and a milestone in environmental law." The law, Wright noted, "makes environmental protection a part of the mandate of every federal agency and department ... as much a part of their responsibility as is protection and promotion of the industries they regulate." In Wright's opinion, the Atomic Energy Commission's efforts to build a nuclear power plant 46 miles from the capital had failed to fully consider the law and the environmental consequences of its construction. The ruling ultimately established legal responsibility of government agencies to carry out NEPA's mission.⁷⁰ In Wilderness Society v. Morton, he found the Interior Department's approval of a planned Alaska pipeline "inconsistent with the Mineral Land Leasing Act of 1920."⁷¹

Other interesting cases in the Court of Appeal case files relate to the presidency of the United States, including the Watergate burglary and coverup during the Nixon administration and John Hinckley’s arrest for the attempted assassination of President Ronald Reagan in 1981.

61. Michael S. Bernick, "The Unusual Odyssey of J. Skelly Wright," Hastings Constitutional Law Quarterly Vol 7 No. 4 (Summer 1980): 972; Jeffrey Brandon Morris, Calmly to Poise the Scales of Justice: A History of the Court of the District of Columbia Circuit (Durham, NC: Carolina Academic Press, 2001),196. Back to text
62. Geoffrey Stone, "A Passion for Justice," Yale Law Journal, Vol. 98 No. 2 (December 1988): 213-219. Back to text
63. Morris, Calmly to Poise the Scales of Justice, 195. Back to text
64. Bernick, "The Unusual Odyssey of J. Skelly Wright," 989. Back to text
65. Morris, Calmly to Poise the Scales of Justice, 196. Back to text
66. Morris, Calmly to Poise the Scales of Justice, 224-225. Back to text
67. Ibid., 212. Back to text
68. Bernick, "The Unusual Odyssey of J. Skelly Wright," 995. Back to text
69. Morris, Calmly to Poise the Scales of Justice, 270. Back to text
70. Morris, Calmly to Poise the Scales of Justice, 301-302. Back to text
71. Bernick, "The Unusual Odyssey of J. Skelly Wright," 996. Back to text

The following collection title links to fuller bibliographic information in the Library of Congress Online Catalog. A link to the collection finding aid is included when available.