The U.S. Court of Appeals, the first and ultimate tenant of the building,
had been created twenty years earlier by an 1891 act of Congress to relieve
the Supreme Court of much of its growing appellate duties and to remedy deficiencies in
the cumbersome Circuit Court System, which was finally abolished in 1911.
The nine courts of appeal were not to be trial courts or to exercise original jurisdiction.
They were to be the indispensable middle rung in the three-tiered federal court system that had
been envisioned since the First Judiciary Act of 1789 established federal courts, pursuant to Article
III, section I of the Constitution. Below the courts of appeal were the U.S. district courts,
which were trial courts for civil and criminal cases involving federal law. Above the courts of appeal
was the Supreme Court. Many elements of the former circuit courts were embodied in the courts of
Each court of appeals served a geographic region. For the former Fifth Circuit, that region
included Alabama, Florida, Georgia, Louisiana, Mississippi, Texas, and the Canal Zone, essentially
the same region served by the old Fifth Circuit Court since the reorganization of the circuits in
1866. Congress, in 1869, in an effort to strengthen the circuits, authorized the
appointment of a circuit judge for each circuit. The first judge of the reorganized Fifth Circuit,
appointed by President Grant in 1869, was William Burnham Woods. When Woods became the only jurist
from the Fifth Circuit ever to serve on the Supreme Court, his successor was Don Albert Pardee, appointed
Nearly all of the federal judges in the south followed their states in seceding from the Union in 1860-61 and had
become judges of the Confederate States of America. During the Reconstruction period after the war, a candidate
for federal judgeship had to be able to swear that he had given no aid to the Confederacy. Judge Woods was a former
Ohio legislator who had marched with General Sherman's army to the sea before settling in
Alabama after the war to be a cotton planter and attorney.
Judge Pardee was also a native of Ohio and former Union officer, having enlisted in a regiment raised by then
Colonel James A. Garfield. In 1865, he settled in New Orleans to practice law and subsequently won several
elections as a Republican. When Garfield was elected president in 1880, appointed his old friend Pardee to
be circuit judge. As circuit judge, Pardee was automatically a judge of the Court of Appeals, which was
supposed to hear cases in three-judge panels composed of the circuit judge, the Supreme Court justice
assigned to each circuit, and a district court judge.
Congress, in the 1891 Act which created the Court of Appeals, authorized a second judge for the Fifth Circuit,
and in 1892 that position was filled by Texan A.P. McCormick, a former Confederate soldier but Republican office
holder and, since 1879, a District Court judge for North Texas.
When congress authorized a third judge for the Fifth Circuit in 1899, the appointment went to David D. Shelby,
a Huntsville, Alabama, attorney and former Confederate cavalry officer.
The 1891 Court of Appeals Act designated one city in each circuit where court would be held. In the Fifth Circuit,
that was New Orleans, easily the principal city of the region. The court met in the Customs House on the
corner of Canal and Decatur Streets. In June 1902, Congress authorized the Fifth Circuit to hold a term
in a second city -- Atlanta, which was now the home of Senior Judge Pardee. Thus began a New Orleans-Atlanta
polarity which characterized the Fifth Circuit for much of its history. Fort Worth and Montgomery were added
later that year as additional places where the Court of Appeals would sit.
The Court of Appeals remained at three judges until 1930 when the number was increased to four. A fifth judge
was added in 1934, a sixth in 1942, a seventh in 1954, an eighth and ninth in 1961. Four more came at once
in 1966, two more in 1968, and in 1978, eleven new judges were authorized, bringing the total to 26. Rapid growth
characterized the federal courts generally, but the circuit that contained both Florida and Texas felt the strain
particularly. The Fifth was the busiest circuit in the nation by the late 1950s, hearing between 500 and 600 appeals
a year. That number increased radically during the next twenty years, topping 1,000 by 1964, then 2,000 by
1970 and 3,000 by 1974. by 1980, the total reached 4,236. One source of new cases came from the removal
from state to federal courts of racially-related criminal cases. The impact of the 1964 Civil Rights Act on
federal courts in the South was dramatic. The number of criminal cases nationwide removed to federal courts
was 14 in 1963, 43 in 1964 and 1,192 in 1965, and 1,075 of those 1965 cases were in the states that composed
the Fifth Circuit.
The cases heard by the Court of Appeals reflected the times. The Judiciary Act of 1925 sent habeas corpus
cases to the Courts of Appeals instead of to the Supreme Court. That Act and the presence in Atlanta of
a maximum security federal penitentiary brought some notorious criminals into the federal courthouse in Atlanta,
possibly even Al Capone himself. Capone was incarcerated in Atlanta and his attorneys field habeas corpus
appeals in Atlanta in 1933 and again in 1934.
The importance of Atlanta in the Fifth Circuit was enhanced by the strong role played by Samuel Hale Sibley,
a Court of Appeals judge from 1931 to 1947 and senior judge from 1942 to 1947. Judge Sibley lived in Marietta.
Among the noteworthy Fifth Circuit cases argued in Atlanta were Chapman v. King (1946) in which the court, in
an opinion by Judge Sibley, struck down Georgia's all-white Democratic primary, and Screws v. United States
(1944), in which the majority (Judges Edwin R. Holmes and Curtis L. Waller) found that a black beaten to death
by Georgia law enforcement officers was denied his civil rights because the officers acted under color of
state law. (Judge Sibley dissented and the Supreme Court reversed on the grounds that the law enforcement officers
acted beyond their legal authority.)
The handful of civil rights cases that surfaced in the 1940s was the prelude to the storm that gathered
after the landmark 1954 Brown v. Board of Education decision by the Supreme Court which struck down the principle
of separate-but-equal public education. That decision had far-reaching consequences, particularly in the states
that made up the Fifth Circuit, and it placed the U.S. District Courts and the Court of Appeals there in the
center of a firestorm. Under the leadership of a group of judges from the Fifth Circuit, the segregation
system which the South had nurtured for 100 years after the Civil War was dismantled in the name of the Constitution
of the United States.
That full story has been told (Cf. Frank T. Read and Lucy S. McGough, Let Them Be Judged, 1978; Jack Bass, Unlikely
Heroes, 1981, and Harvey C. Couch, A History of the Fifth Circuit 1891-1981), and it rightly belongs to
the whole Fifth Circuit, not the federal courthouse in Atlanta, but it brought moments of national attention
to events at 56 Forsyth Street and packed the Court of Appeals courtroom with civil rights litigants (pro and con),
newsmen and celebrated attorneys, caught up in the making of history.
In an Atlanta case, Holmes v. City of Atlanta (1955), blacks challenged the legality of all-white golf
courses operated by the city. The district court ruled that Brown v. Board of Education applied only to schools,
and that separate-but-equal golf courses were legal. It gave the city time to prepare separate golf courses for
blacks. The Court of Appeals affirmed the District Court, but the Supreme Court, which had just ruled Dawson v.
Mayor and City Council of Baltimore (1955) that segregated recreational facilities were illegal, overruled and directed
the district court to find in favor of the plaintiffs.
As the full force of the federal government was exerted to eradicate state-sanctioned segregation and the full
force of the state governments within the Fifth Circuit was exerted to preserve it, the federal courts in the
South provided the impetus for change. Federal District Court judges in the South had a mixed record in the desegregation
campaign of the 1960s. Some, like Alabama's Frank Johnson, Florida's Bryan Simpson and Louisiana's Skelly Wright,
applied the concept of Brown and its progeny and extended Supreme Court rulings in the face of local opposition.
Others cooperated with state political leaders to thwart or at least delay desegregation and had to be forced by
higher courts to apply proper Constitutional principles. But a working majority of the Fifth Circuit Court of
Appeals, led by a noted foursome (Elbert P. Tuttle, Richard T. Rives, John Minor Wisdom and John Robert Brown)
persevered to get the job done, in spite of divisions within the court.
The national spotlight swung to Judge Tuttle's Atlanta courtroom in January 1961 when the new chief
judge signed an order requiring the University of Georgia to immediately enroll two blacks, Hamilton E.
Holmes and Charlayne Hunter. That decision sent the University's lawyers scurrying to Washington in an unsuccessful
attempt to get the Supreme Court to overrule Judge Tuttle. It resulted in threats by the State to close
the University and in the brief suspension of the two students following tense confrontations on campus and a night
in which members of the Ku Klux Klan joined white students in stoning Ms. Hunters dorm. The Justice Department
threatened to use federal marshals to enforce the court order, and after four days of resistance, when it became
apparent that the full force of the federal government lay in Judge Tuttle's pen, the University was
Judge Tuttle, as a attorney, had maintained a law practice in Atlanta since 1923, but he was a Republican,
appointed to the bench by President Eisenhower, and he had grown up in interracial Hawaii and had few ties to
the Old South. Judge Tuttle served as chief judge and acknowledged leader of the court from 1960-1967, the period
of greatest intensity and significance in the litigious controversies over desegregation. Because he lived in
Atlanta and maintained permanent chambers in its federal courthouse, and because he pioneered the use of
such speedy, one-man court actions as the injunction pending appeal, Judge Tuttle brought to the Atlanta
courthouse greater prominence in civil rights litigation than might otherwise have befallen a
courthouse that was not the principal home of the Court of Appeals.
The spotlight came back to Atlanta and its Court of Appeals courtroom in July 1964. President John F. Kennedy
had been assassinated in Dallas in November 1963, and President Lyndon Johnson had mustered political forces
in Congress to pass the 1964 Civil Rights Act over bitter opposition from Southern legislators. It forbad discrimination
in public accommodations like restaurants and hotels. Two events in Atlanta followed the signing of that bill into
law on July 2, 1962. Attorney Moreton Rolleston, the owner of the Heart of Atlanta Motel, filed suit challenging
the constitutionality of the law, and an unsuccessful political office seeker named Lester Maddox became an
instant celebrity when he drove off five black ministers who attempted to enter his Pickrick Restaurant in downtown
The Maddox and Heart of Atlanta Motel cases were combined and, at the request of the Justice Department,
heard by a three-judge panel at the courthouse in Atlanta in the first test of the constitutionality of the
far-reaching 1964 Civil Rights Act. Judge Tuttle, District Court Judge Frank A. Hooper and then District Court
Judge Lewis R. Morgan, after a trial that packed the courtroom with a capacity crowd of celebrated government
and NAACP lawyers, newsmen and observers, ruled unanimously that the law was constitutional, and they were upheld
when the Heart of Atlanta case was appealed to the Supreme Court. Maddox was later elected governor of
Georgia. During the trial, according to the Atlanta Constitution, "large crowds had to be turned away by
federal marshals when the courtroom was filled with "big guns" of the Justice Department and the NAACP Legal
The judicial load in the Fifth Circuit continued to mount. Repeated efforts to divide the circuit for administrative
reasons ran into politics in Congress as court leaders sparred with Senate Judiciary Chairman (and civil rights foe)
James Eastland. By 1980, the politics gave way to the urgency of doing something about the crushing workload, and,
after receiving petitions signed by every district and circuit judge and every bar association within the circuit,
Congress conducted formal hearings and approved, on October 14, 1980, the division of the court into two circuits.
A new, smaller Fifth Circuit Court would stay in New Orleans and exercise appellate jurisdiction over cases
originating in Louisiana, Texas and Mississippi, and a brand new, Eleventh Circuit would be located in Atlanta and
hear cases coming from Georgia, Florida, and Alabama. The split became official on October 1, 1981, and the twelve
judges living in the Eleventh Circuit states all elected to join that circuit, while the 14 judges living within
the new Fifth chose to stay with that Circuit. Atlanta was now home to the Eleventh Circuit Court of Appeals,
and Judge John C. Godbold, who had been chief judge of the old Fifth, became chief of the new Eleventh.
In Bonner v. City of Prichard, Ala., the first case heard by the Eleventh Circuit, the court adopted the case
law of the old Fifth Council as binding precedent for itself, thus acknowledging its legal roots.
The choice of Atlanta as a Court of Appeals headquarters was determined by the process just described. The choice
of the Old Courthouse" as the home of the Court of Appeals was dictated by a series of circumstances that
included process of elimination. The building was being left by its other tenants. The post office, which was
feeling a real pinch by the late 1920s, had moved its operational headquarters to a new building on the ground
between Forsyth and Spring Streets, built between 1931 and 1933. The top administrators, including the Atlanta
Postmaster, continued to occupy the post office at 56 Forsyth Street until 1975, when the post office moved
its remaining operations. Meanwhile, construction had begun in 1975 on the huge Richard B. Russel Federal Building
and U.S. Courthouse on Spring Street at Martin Luther King Boulevard. Original plans called for both the District
Court and Court of Appeals to move to the Russell Building, but such plans envisioned a three-judge
District Court. That court had already expanded to six judges by the time construction began. When it reached
eleven judges in 1979, there was no possibility that the building could house both courts.
By this time there was a growing expectation that a new Court of Appeals would soon be formed in Atlanta. The
majestic old courthouse became the logical site for the new Eleventh Circuit. That building had
certainly suffered from heavy use and needed major renovation, but the judges of the Fifth Circuit had seen
that court of appeals move from its New Orleans courthouse in 1963 and operate in temporary quarters for nine
years while its grand old courthouse was renovated. So the Eleventh Circuit court, following the same course,
moved out of the building, leaving an empty shell for contractors to remodel., and moved into temporary quarters at the Federal
Annex, across Spring Street from the new Russell Building, on March 20, 1985. At that point, restoration of the
Court of Appeals Building began.