Circuit Allotments of Supreme Court Justices
From the establishment of the federal judiciary in 1789 to the present day (except for a brief period in 1801-1802), the justices of the Supreme Court have had responsibilities on the circuit courts and circuit courts of appeals. The Judiciary Act of 1789 (1 Stat. 74) provided for two justices to serve with the local district judge in the U.S. circuit courts, which were to be the principal trial courts of the federal judiciary. The Act created three geographical circuits – the Eastern, Middle, and Southern – to which the justices would be assigned for service on the circuit courts in the districts of the respective circuits.
In the Act of April 13, 1792 (1 Stat. 252), Congress for the first time provided a specific method by which justices were to be assigned to circuits, mandating that the Court issue a written order at each session, signed by each justice and indicating the circuits to which the justices would be assigned at the next sessions of the circuit courts. The assignments made pursuant to the 1792 Act were to be made on a rotating basis so that justices would not be required, without consent, to repeat service on any circuit until every other justice had been assigned to that circuit.
The justices were relieved of their circuit responsibilities by the short-lived Judiciary Act of 1801 (2 Stat. 89), which created sixteen new judgeships to serve six circuit courts. In 1802 the new majority of Jeffersonian Republicans in Congress repealed the Judiciary Act of 1801, thereby abolishing the sixteen circuit judgeships and restoring the justices’ responsibilities for serving on the circuit courts. The Judiciary Act of 1802 (2 Stat. 156), enacted April 29, 1802, allotted the justices then on the Court to the First through Sixth Circuits, the circuit courts of which were to begin operation after July 1, 1802.
Section 5 of the 1802 Act specified that upon the appointment of each subsequent chief justice or associate justice, the justices were to allot themselves to the circuits “as they shall think fit.” In addition, the president was given authority to allot the justices upon the appointment of a new justice but before the Court made its own allotment, or in the event that the Court failed to make an allotment during its next session following an appointment. In either case, the president’s allotment was to stand only until the Court next made its own allotment.
In the ensuing years, Congress enacted other statutes allotting Supreme Court justices to particular circuits. An act of 1803 (2 Stat. 244) reversed the allotments of Bushrod Washington and William Paterson, sending the former to the Third Circuit and the latter to the Second Circuit to relieve Washington, a resident of Virginia, of the burden of riding as far as Vermont. Because no new justice had been appointed since the Judiciary Act of 1802, the Court had not yet assumed the authority to revise the circuit allotments, making congressional action necessary for any change. In February 1807, Congress created the Seventh Circuit and provided for the appointment of a sixth associate justice who, until further allotment, would be assigned to sit on the circuit courts of that circuit (2 Stat. 420) – the only time Congress created a new seat on the Supreme Court while specifying that the justice appointed to fill that seat be from and sit on a particular circuit. (Thomas Todd was appointed as the sixth associate justice on March 3, 1807, and was thereby allotted to the Seventh Circuit.) In March 1808, Congress allotted Brockholst Livingston to the Second Circuit (2 Stat. 471); the Court evidently had failed to do so despite the vacancy on that circuit created by William Paterson’s death in September 1806.
The surviving documentation indicates that until they lost the power in 1867, presidents exercised frequently their authority to allot the justices to circuits upon the appointment of a new justice. Thomas Jefferson allotted William Johnson to the Sixth Circuit in 1804; James Monroe allotted Smith Thompson to the Second Circuit in 1823; Andrew Jackson allotted John McLean to the Seventh Circuit in 1829, Henry Baldwin to the Third Circuit in 1830, and Roger Taney and Philip Barbour to the Fourth and Fifth Circuits, respectively, in 1836; Martin Van Buren allotted John Catron and John McKinley to the Eighth and Ninth Circuits, respectively, in 1837; James Polk allotted Robert Grier to the Third Circuit in 1846; Millard Fillmore allotted Benjamin Curtis to the First Circuit in 1851; and Abraham Lincoln in 1862 allotted Samuel Miller to the Ninth Circuit and later allotted all of the justices to accommodate new justice David Davis and the reassignment of James Wayne and John Catron; and Lincoln allotted Stephen Field to the newly-created Tenth Circuit in 1863.
Often, presidential allotment orders were issued to enable justices to hold circuit court prior to taking a seat on the Supreme Court; in these cases, justices took the oath of office at the first circuit court over which they presided or at another location other than the Court. For example, William Johnson – the first justice allotted by presidential order – took the oath at and presided over the U.S. Circuit Court for the District of Georgia in Savannah on May 7, 1804, while not taking his seat on the Supreme Court until February 6, 1805.
There are at least four instances in which justices presumably were allotted by presidential orders, documentation of which may not have survived. Gabriel Duvall (1811), Robert Trimble (1826), Levi Woodbury (1845), and John Campbell (1853) each presided over the circuit courts prior to taking their seat on the Supreme Court. Because there is no evidence that a newly-appointed justice was ever allotted by order of the Court prior to being seated, these justices’ authority to hold circuit court almost certainly came from the president. In all likelihood, therefore, at least 15 of the 20 justices appointed between 1823 and 1863, and 17 justices overall, were allotted to circuits by presidential order.
In July 1866 Congress redrew the circuit boundaries, eliminated the Tenth Circuit, and provided for a gradual reduction in the number of seats on the Supreme Court (14 Stat. 209). According to congressional debates, many legislators believed that the 1866 law had suspended the justices’ authority to hold circuit courts until Congress authorized the Court expressly to allot the justices to the newly-defined circuits. Correspondence between members of the Court shows that many of the justices shared this concern. In a law enacted on March 2, 1867 (14 Stat. 433), Congress eliminated the president’s authority to allot justices by providing that allotments were to be made by order of the Court, or of the chief justice if made during recess.
The Judiciary Act of 1869 (16 Stat. 44) required the justices to attend each circuit court once every two years, rather than the previous requirement of annual attendance. The Act also provided for the appointment of circuit judges, who would exercise the same power and jurisdiction as Supreme Court justices in the circuit courts.
In 1938, following an act of Congress that termed the District of Columbia a “judicial circuit” for the purposes of assigning retired justices to the circuit courts of appeals (52 Stat. 28), the Court began to allot justices to the District of Columbia Circuit.
The Court’s authority to allot justices to circuits was included as Section 119 of the Judicial Code of 1911 (36 Stat. 1131), and the statutory authority that has existed in various forms since then has allowed the Court a great deal of flexibility in making its circuit allotments. The 1911 statute provided that, “Whenever, by reason of death or resignation, no justice is allotted to a circuit, the Chief Justice may, until a justice is regularly allotted thereto, temporarily assign a justice of another circuit to such circuit.” In 1948, the statute was revised to become even more elastic, providing simply that, “The Chief Justice may make . . . allotments in vacation” (eliminating the language regarding the death or resignation of a justice) and that, “A justice may be assigned to more than one circuit, and two or more justices may be assigned to the same circuit” (62 Stat. 870). Due to the breadth of the statutory language, the Court needed no additional authority to allot justices to the newly-created Tenth, Eleventh, or Federal Circuits.
The Court on occasion issued orders allotting a justice to a particular circuit “temporarily” (a designation first used in 1941, then again between 1954 and 1975) or “pending further order” (a designation used from 1981 forward). Allotments made “pending further order” were, in all but three cases, made to fill vacancies on particular circuits and ended when the Court issued its next regular allotment order. On the few occasions on which the Court followed an allotment made “pending further order” with another allotment of the same designation, it vacated the prior allotment explicitly. Likewise, the Court issued orders providing end dates for the three allotments made “pending further order” that overlapped existing allotments.
The Court’s first allotment made “temporarily,” in 1941, ended upon the Court’s next regular allotment order pursuant to the clear language of the 1911 statute which then governed. Temporary allotments made between 1954 and 1975, however, were governed by the more flexible language of the 1948 statute, making their end dates less clear. The Court in this period made several short-term allotments to fill vacancies on particular circuits but also created overlapping allotments on multiple occasions, and only once ended a temporary allotment explicitly. The accompanying lists of dates deem all temporary allotments to have been ended implicitly by the next allotment of a justice to the circuit in question, whether regular or temporary, thereby treating them in a manner consistent with the allotments made “pending further order” from 1981 forward. Because overlapping allotments were permitted, regular allotments were not interrupted by the temporary allotment of a justice to the circuit in question.
The dates on the accompanying lists come from several sources: (1) published data for the Eastern, Middle, and Southern Circuits for 1790-1800 in The Documentary History of the Supreme Court of the United States; (2) original allotment orders issued by the Court and found in either (a) the Supreme Court, Office of the Curator; or (b) Record Group 267, Records of the Supreme Court of the United States, at the National Archives in Washington, D.C.; (3) allotment orders issued by the Court and reproduced in the Minutes of the Supreme Court, available on microfilm at the National Archives; (4) allotment orders issued by the Court and reproduced in The Journal of the Supreme Court of the United States; (5) presidential allotment orders, found in a variety of locations; and (6) federal statutes. (In the few instances in which an allotment date is uncertain or unknown, an explanatory note is included.)
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