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Landmark Legislation: Division of the Fifth Circuit
94 Stat. 1994
October 14, 1980
In 1980, Congress created an Eleventh Judicial Circuit consisting of three states that had been part of the Fifth Circuit since 1862. By the early 1960s, the U.S. Court of Appeals for the Fifth Circuit had become the nation's busiest federal appeals court as well as the forum for dramatic civil rights cases. For nearly twenty years and against the background of some of the most controversial litigation in the history of the federal courts, the judges of the Fifth Circuit, members of the Judicial Conference, and the Congress debated how the circuit's court of appeals might best manage the increased caseload.
In response to overcrowded dockets in the Fifth Circuit and elsewhere, the Judicial Conference in 1963 appointed a committee to examine the geographical organization of the circuits. The committee concluded that no court of appeals should have more than nine judges and recommended that the Fifth Circuit, already authorized for nine judges, be divided. Texas and Louisiana would form an Eleventh Circuit, while Florida, Georgia, Alabama, and Mississippi would constitute a new Fifth Circuit. Senator James Eastland, chairman of the Judiciary Committee, insisted that in any circuit division his native Mississippi be separated from Texas and Louisiana and their allegedly more liberal judges.
Although a majority of judges on the Fifth Circuit court of appeals supported division as a means to more judgeships, Judges John Minor Wisdom of Louisiana and Richard Rives of Alabama feared that the proposed division would dissolve the coalitions of judges who provided a majority for many of the decisions for civil rights plaintiffs, and they successfully organized support for preserving the historical Fifth Circuit. Instead of dividing the circuit, Congress acceded to the Judicial Conference's request for more judgeships, and by 1968 increased the size of the court to 15 judges.
Following a recommendation from the congressionally-chartered Commission on Revision of the Federal Court Appellate System, Congress in 1977 considered a division of the Fifth Circuit as part of the Omnibus Judgeship bill. After the bill's easy approval in the Senate, the House Judiciary Committee hearings gave voice to the opposition of civil rights leaders who feared the effects of dividing a court of appeals that had provided institutional support for civil rights in the Deep South. The act approved in 1978 left the Fifth Circuit intact, but allowed courts of appeals with more than 15 judges to divide themselves into administrative units.
With 26 authorized judgeships, the Fifth Circuit court of appeals after 1978 faced nearly insurmountable administrative challenges, particularly when they first attempted to convene as a court. In 1980 the judges of the court unanimously recommended that Congress divide the circuit. In the meantime, the resignation of Senator Eastland allowed more flexibility in the division of states, and the appointment of new judges, including the court's first African American, eased the concerns of civil rights leaders. The act of October 1980 provided that as of October 1, 1981, Texas, Louisiana, and Mississippi would comprise a new Fifth Circuit and an Eleventh Judicial Circuit would encompass Florida, Georgia, and Alabama.
Barrow, Deborah J., and Thomas G. Walker. A Court Divided: The Fifth Circuit Court of Appeals and the Politics of Judicial Reform. New Haven: Yale University Press, 1988.