The of at 200

This 1901 photograph of the ’s courtroom at , where the Court sat from 1853-1910, reveals the first known look at the Court’s portrait collection of justices, jurists and other distinguished members of bench and bar. When the Court moved to the 400 Royal Street location, the portraits followed, and are now displayed along the building’s hallways. Image courtesy of the Collections of the .

By Dr. Warren M. Billings

ounded in 1813, the Supreme Court of Louisiana has fashioned and ornamented state law ever since. Its 200th anniversary bids revisiting how Fit hammered out a regime quite distinct from those in other states and yet very much a part of the federal system that is the American legal order. This essay is such a recollection.

462 April / May 2013 In its original guise, the Court barely tions of Louisiana’s legal system. Initially, sion, the Louisiana equivalent of resembled the one familiar to us. Conceived the Court designed rules for bar admissions, Marbury v. Madison, strengthened as part of an American-style judiciary, it got which qualified newcomers as well as law- the Court with an Anglo-American written into the Constitution of 1812 as a yers who practiced before Louisiana was a tincture, and it guaranteed that the political necessity that assured Louisiana’s state.6 Its subsequent regulations established blending of American, British, French, admission to the Union. None of its architects standards of legal education that lasted until Roman and Spanish law would continue. quite grasped its purposes or its possibili- the 1920s.7 Early on, the judges also nar- That Mathews and Martin wielded such ties. Some perceived it as a threat to their rowed their jurisdiction by deciding they sway says as much about their longevity as legal ways, which sprang from the laws of lacked constitutional warrants to receive their outlook. Younger colleagues — most Spain and France, whereas others saw it as cases from the defunct territorial Superior notably , Henry Adams a likely device for melding those traditions Court or to hear Bullard, George with American law into a serviceable sys- criminal appeals.8 Strawbridge and tem for the new state. This lack of common Similar questions George Eustis — understanding resulted in the sparest of of jurisdiction held similar views, frameworks for the high court in the new touched the great- but their time on Constitution.1 Up to five judges composed er matter of mix- the high bench that court. As gubernatorial appointees, ing American and was far shorter they kept their seats for life but could be civilian legal pre- and therefore less impeached. Their jurisdiction extended to cepts into a steady, influential than it civil disputes that exceeded $300, and they reliable legal or- otherwise might rode circuit throughout two statewide ap- der. Mathews have been. pellate districts. and Martin, both Architectural Model of the Poor health The Judiciary Act of 1813 added flesh trained American Government House of the French dogged Mathews, to these bones, but only just. It set the size lawyers, likened Colony of Louisiana Martin went blind, of the bench at three judges, any two of civil and common Thompson & Foster, c. 1933 and both stubborn- whom made a quorum. It specified being law to comple- ly resisted efforts “learned in the law” as the sole criterion for mentary facets of The Government House of the French to improve the office and assigned the judges precedence the same legal Colony of Louisiana, home of the French Court’s efficiency. according to the dates of their commissions. gemstone instead Superior Council, was built in 1761 By the 1840s, a Finally, it invested the Court with rulemaking of rivals. For that at Toulouse and Decatur Streets in the combination of authority and power over the lower courts reason, they ac- , about 200 feet from the a mountainous and the bar. So long as the judges did not knowledged civil- Mississippi River. After statehood, the backlog of unre- stray beyond these limits, they were free to ian tenets as the Government House was occupied by the solved appeals, 2 conduct themselves as they saw fit. pith of private law Louisiana Legislature and then became the pressure to take With little fanfare, the Court sat for the in Louisiana but until it burned in criminal appeals, first time on March 1, 1813, at Government looked to other 1828. This model was built by Thompson and a scandal 3 House in . Two of its newly sources as well. and Foster in the Louisiana State Museum involving Judge minted judges, Dominick Augustin Hall Moreover, studio in 1933 and aids in preserving the con- and , showed up. After a both prided an history of the French Superior Council, the tributed mightily public reading of their commissions from independent ju- first governing body of Louisiana. The first to a statewide out- Gov. William C.C. Claiborne and swear- diciary, so they sitting of the Louisiana Supreme Court was cry that spawned ing the oath of office, they adjourned. The resisted being ex- at Government House on March 1, 1813. the Constitution third judge, Pierre Augustin Bourguignon clusively bound of 1845 and a re- 4 5 Image courtesy of the Collections of the Louisiana Derbigny, joined them a week later. Hall, by by the Civil Code State Museum. formed Supreme virtue of being commissioned first, became of 1825. They Court. Gone was presiding judge. He resigned before the went so far as to the old one, re- year was out, whereupon Mathews became ignore post-1825 repealing statutes that placed by a and three associ- president and stayed until he died in 1836. invalidated all foreign law in force at the ate justices who served eight-year terms. Derbigny left in 1820 for an unsuccessful time of the Purchase, the Digest of 1808, These justices still rode circuit and retained bid for governor, by which time François- and every territorial or state act that had been supervisory powers, but their jurisdiction Xavier Martin had joined the Court. Martin revised by the Civil Code, which clouded extended to both civil and criminal appeals. remained for 31 years and took the center an already muddled situation. Martin finally George Eustis returned to the Court as its first seat after Mathews’s death. clarified the muddle in 1839 when, in the case chief justice. He oversaw the clearing of the The Court went about adjudicating a of Reynolds v. Swain,9 he asserted the Court’s caseload and instituted a thorough reorga- swelling volume of business that grew after right to say what was law in Louisiana, nization of procedures. The Constitution of 1813, and, as it did, it formed the founda- and who ultimately declared it. His deci- 1852 included no substantive jurisdictional

Louisiana Bar Journal Vol. 60, No. 6 463 changes; however, it reduced unlim- galvanized a lengthy campaign to build the efforts at modernization met with his studied ited oral arguments to a total of four Court a permanent home that culminated in resistance, especially after he presided at the hours, it erected an elective judiciary, 1910 with the opening of the massive Beaux impeachment trial of Gov. Huey P. Long in it raised the number of justices from four Arts-style courthouse at 400 Royal Street in 1929. O’Niell devoutly loathed everything to five, and it lengthened their terms from the heart of the French Quarter.14 about the Kingfish, so he regarded modern- eight years to 10.10 Three years later, the Court celebrated its ization as little more than a lightly veiled Civil war and its aftermath wrought a centennial. Speakers — some brief, some attack upon him. He was not wholly wrong Supreme Court of a different sort. After New not — treated an enthusiastic audience to given that modernization’s most persistent Orleans fell to Union troops in April 1862, addresses that touched upon aspects of the advocate was fellow Justice John B. Fournet, Chief Justice Edwin T. Merrick decamped Court’s first 100 a ferocious Long for Opelousas and then to Shreveport, but years. In response, partisan who went the Confederate court did little business that Chief Justice to the Court after we know of. It lost its archives to federal Joseph A. Breaux his highly contro- soldiers who carted them off to Washington, exclaimed that, in versial election in D.C., where they remained in the custody of Louisiana, “two 1934.16 the War Department until the 1880s.11 The systems of law, Fournet made return of white home rule, the coming of civil and common, little headway so Jim Crow, and more structural modifications were blended.” As long as O’Niell characterized the Supreme Court of the post- a result, he contin- stayed, but he Reconstruction years. Constitutional revi- ued, “the labors of did persuade sions in 1864 and 1868 abolished slavery and the bench and bar The Cabildo, where the Court sat from 1853- the Legislature promised civil rights for black Louisianans. of that period are 1910. Provided by Russell Desmond, Arcadian in 1938 to fund Books & Prints. The Court, led by its first native-born Chief still felt. Although the hiring of law Justice John T. Ludeling, re-bounded its a century has clerks as a means jurisprudence accordingly. Not everyone passed, during all of speeding up greeted its alterations kindly, most certainly these years, these the production of not white attorneys who fiercely abominated united systems opinions, and that Ludeling’s rulings on “racial and public of laws, civil and was a first for the questions,” even though the Court’s opinions common, have Court. Behind the encouraged rising racial animosities.12 After come down to us scenes, Fournet 1877, the Court usually sided with white with the impress actively worked supremacists in the Legislature, most notably placed upon them The Louisiana Supreme Court at 400 Royal St., with Gov. Earl where the Court sat from 1910-1958 and 2004 to when it validated the doctrine of “separate in the early years present day. Provided by Law Library of Louisiana. K. Long to pass a but equal” treatment of black Louisianans, of the century.”15 statute requiring a rule that became the law of the land after After 1913, judges to retire at 1896 when it received the imprimatur of Breaux’s successors faced the challenge of age 75, allowing him to succeed O’Niell the Supreme Court of the United States in fitting his “united system of laws” to suit in 1949.17 As chief, he relied upon the jus- Plessy v. Ferguson.13 the consequences of tumultuous changes in tices’ rulemaking power and deft political A new Constitution, promulgated in the economy, politics and the social fabric maneuvering to revolutionize the Court’s 1879, recreated an appointive court, with that epitomized 20th-century Louisiana. relationship to the judiciary as a whole. In the governor naming the chief and picking Three chief justices — Charles A. O’Niell, the 1950s, he invented the Judicial Council all five justices from four judicial districts. John B. Fournet and Pascal F. Calogero, and created a judicial administrator whose (Two seats went to Orleans and its surround- Jr. — stand out because their combined staff supplied him with detailed data on ing parishes.) Then, too, the Constitution tenure amounted to two-thirds of a century the courts that he used when he lobbied eased the Court’s caseload by adding two of service. Incumbent for 27 years, O’Niell the Legislature to streamline the appellate intermediate benches to hear civil appeals arguably presided over the most partisan system and to add more judgeships in the involving less than $2,000. Provisions in Court before or since. He earned plaudits for lower courts. Tidying up the Supreme Court the Constitution of 1898 retained the ap- the incisive beauty of his opinions but had docket, he also secured appropriations for a pointive judiciary but dictated that the office little taste for court reform, calls for which new courthouse that sat at 301 Loyola Ave. of chief justice would henceforth be based had grown louder by the 1920s. His hostility in New Orleans. Consequently, when he left on seniority of service. (A 1904 constitu- kept a top-to-bottom reorganization of the in 1970, “the Court” signified more than tional amendment also restored the right of entire judiciary out of the Constitution of justices who ruled on cases. By his hand, electing the Court to the voters.) Two other 1921, though he did agree to increasing the the bench turned into a potent entity and modifications relieved the justices from rid- size of the Court to seven in the expectation collection of related agencies that supervised ing circuit and designated New Orleans as that more justices equated with greater ef- every phase of the entire judicial branch and the Court’s sole seat. The latter stipulation ficiency, which proved a vain hope. Later made the chief justice the system’s premier

464 April / May 2013 administrative traffic cop. Put another way, joined the Court in 1997, so the bench then 3. Located at Toulouse and Levee Fournet convinced lawyers, legislators and consisted of three women and four men. Streets, Government House was the first state capitol building. It housed the Office voters that better administration at every When Justice Kimball succeeded Calogero of the Governor, the Legislature and the level resulted in the speedier, more honest in 2009, she became the first female chief Supreme Court but was abandoned in 1827 for more and equitable dispensation of justice, while justice of Louisiana; she retired in January commodious accommodations. infusing the Court with a marked willingness 2013. Justice was 4. Because the state Senate and Gov. Claiborne were at odds over Derbigny’s nomination, the to experiment with new ways of improving sworn in as the new chief justice on Feb. 1, senators held up his confirmation until March 8. its expanded responsibilities. 2013, becoming the Court’s first African- 5. Sybil A. Boudreaux, ed., The First Minute That penchant for experimentation American chief justice. Book of the Supreme Court of the State of Louisiana, gained national In 1813, no 1813 to May 1818: An Annotated Edition, 13-15 and 20-21. (1983) (unpublished M.A. thesis, University recognition for the one knew what of New Orleans) (on file with the Law Library of Court, and innova- the future of the Louisiana). tion was common- Supreme Court 6. The Historic Rules of the Supreme Court of place throughout held. For certain, Louisiana, 1813-1879, at 1-2 (Warren M. Billings, ed., 1985). the 1970s and no one could have 7. Warren M. Billings and Mark F. Fernandez, 1980s. No one imagined how, A Law Unto Itself?: Essays in the New Louisiana among the justices from that day to Legal History, 25-40 (2001); Warren M. Billings, thought it should this, its jurists Magistrates and Pioneers: Essays in the History of American Law, 301-303 (2011). be otherwise be- would stamp deep 8. Bermudez v. Ibanez, 3 Mart. (o.s.) 2 (1813); cause as one noted, impressions upon Laverty v. Duplessis, 3 Mart. (o.s.) 52 (1813). “[Our] system of the law and make 9. Reynolds v. Swain, 13 La. 193 (1839). justice is never the Court into the 10. Mark F. Fernandez, From Chaos to Continuity: The Evolutions of Louisiana’s Judicial finished. It must , where the Court sat from 1822- linchpin of the System, 1712-1862, at 89-109 (2001). be conditioned and 1853. Provided by Library of Congress. judicial branch. At 11. All the captured records bear a War improved.” Chief most, they likely Department identification mark stamped in blue ink. Justice Calogero expected an in- , who served on the Court from 1879-80, secured their return. clearly shared this stitution they did 12. Henry Plauché Dart, “The History of the view.18 not understand Supreme Court of Louisiana,” 133 La. liii (1913). Calogero, who completely to 13. Ex Parte Plessy, 45 La. Ann. 80 (1892); came to the Court forge a workable Plessy v. Ferguson, 163 U.S. 537 (1896). 14. Carol D. Billings and Janice K. Shull, The in 1973, moved The Louisiana Supreme Court at 301 Loyola Ave., legal system. By Louisiana Supreme Court: An Historical Guide, 10- to the center chair where the Court sat from 1958-2004. Provided by twists and turns, 12 (2004). 17 years later and State Library of Louisiana. hope translated 15. The text of Breaux’s remarks forms part of gave it up in 2008. into reality over the entire record of the ceremonies that appears in Volume 133 of the Louisiana Reports. A committed reformer, the course of two cen- 16. Billings supra note 7, at 371-99. As I learned as chief he oversaw creation of the Louisiana turies. In the words of Chief Justice Kimball, when I interviewed him in the 1970s, the advance Indigent Defender Board, regular strategic “[The] work of the Court to make our vision of years did absolutely nothing to change his mind. planning across the judiciary, reforms to of an efficient, fair, and timely judiciary a 17. John B. Fournet, “The Reorganization of the 19 Louisiana Judicial System,” 17 Sw. L.J. at 78-85 the juvenile court system, and a community reality” continues. (1963). relations department, among other improve- 18. Joe B. Sanders quoted in Billings and Shull, ments. His most visible accomplishment This article is excerpted from a longer version supra note 14, at 78. published in conjunction with the Court’s was bringing off the renovation of the 19. C.J. Catherine D. Kimball, “Message from celebration of its bicentennial in March 2013. the Chief Justice,” Ann. Rep. Jud. Council Sup. Ct. Royal Street courthouse that allowed the The author thanks Justice Greg G. Guidry for La. 1 (2011). Court and its departments to return to their encouraging him to write the article. For their assistance, thanks are due to the Court’s law former home in 2004. There were dramatic Dr. Warren M. Billings, librarians Georgia Chadwick, Miriam D. Childs, Bicentennial Court changes in the composition of the Court on Tara C. Lombardi, Marie Erickson and Katherine Historian of the Louisiana his watch as well. B. Nachod; to the library’s summer intern and Supreme Court, was Tulane law student Emily Wojna; and to Sybil A. In 1992, the Court got its first female also historian of the Boudreaux and Florence M. Jumonville, librarians member after voters elected Catherine D. Louisiana Supreme Court at the Department of Louisiana and Special from 1982-2005. He is Kimball to a seat. The next year, as a result Collections at the University of New Orleans. of a federal consent decree, the late Revius Distinguished Professor of History Emeritus at the O. Ortique, Jr. became the first African- FOOTNOTES University of New Orleans American justice, and, upon his retirement, and Visiting Professor Justice Bernette Joshua Johnson became 1. In Search of Fundamental Law: Louisiana’s of Law at the College of Constitutions, 1814-1974, at 6-21 and 155-58 the first African-American woman to be William and Mary Law School in Williamsburg, VA. (Warren M. Billings and Edward F. Hass, eds., 1993). (12 Swallow St., New Orleans, LA 70124) elected. Justice Jeannette Theriot Knoll 2. 1812 La. Acts 2nd session 18.

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