Historical Information About the Courts of the D.C. Circuit
The Dark Days of the Black Codes
Fourteen-year-old Nancy Jones was scared. She had been stopped by a policeman while walking
down a Washington, D.C. street, and he had asked to see her papers. Nancy had good cause to
be afraid. She was an African American, and it was 1835. And she did not have the papers. The
policeman immediately arrested her as a runaway slave. Yet, Nancy was not a slave and never
had been one.
Most of us know that there were slave and nonslave African Americans in the District of Columbia before the Civil War. In fact, slavery was not abolished in the District of Columbia until April 1862, a year after the Civil War began. In 1835, the year Nancy was arrested, the
population of Washington was only about 21,000 (not including Georgetown, then a separate
city, and the parts of Virginia then in the District). A little more than a quarter of those were
African American, roughly one-third slaves and two-thirds free.
But even nonslaves, like Nancy, were not entirely free -- if they were black. Read the entire article.
(The following is based on an account on page 28 of the Jeffrey Brandon Morris history of the courts of the District of Columbia Circuit, "Calmly to Poise the Scales of Justice." The book is available for purchase from the Historical Society.)
An Early Civil Rights Victory in a D.C. Court
In 1821 - long before the civil rights movement - a free black man living in Washington won an historic victory for racial justice in a court of the District of Columbia.
William Costin was a trusted messenger of the Bank of Washington. His mother, descended from blacks and a Cherokee Indian chief, had been a household slave at Mount Vernon and was believed to be the illegitimate half-sister of Martha Washington. It was "Billy" Costin who boldly challenged a new set of Black Codes intended to stem the migration of free blacks into the relatively hospitable District of Columbia.
As early as 1808, concern about unrest had led the city to enact a law prohibiting "Negroes," as well as "loose, idle, or disorderly persons," from being on the streets after 10 p.m. Whipping was the punishment for nonpayment of fines. Two years later, the growing presence of escaped slaves led to additional provisions compelling free blacks to register and to carry their certificates of freedom at all times.
The codes reached their zenith with the Act of April 1821. Among other things, it required free "persons of color" to appear before the mayor with documents signed by three "respectable" white inhabitants of their neighborhood vouching for their good character and means of subsistence. If the evidence was satisfactory to the mayor, the individuals were to post a yearly $20 bond with a "good and respectable" white person as assurance of their "good, sober and orderly conduct," and to ensure that they would not become public charges or beggars in the streets.
Costin refused to comply. A justice of the peace imposed a fine of five dollars. Costin appealed to the Circuit Court of the District of Columbia. The case came before the legendary chief judge, William Cranch.
It was well established that Washington's charter gave power to the municipal corporation “to prescribe the terms and conditions upon which free Negroes and mulattoes may reside in the city." Nonetheless, Costin argued that Congress could not delegate powers to the city that were unconstitutional, and that "the Constitution knows no distinction of color." He insisted he could not be deprived of the privileges and immunities that other long-time residents of the city enjoyed, and he questioned the very concept of racial distinctions, noting that his own ancestors were Cherokee, European and African. Clearly, Costin was a man ahead of his time.
Judge Cranch quickly disposed of the privileges-and-immunities argument. Treating the District as a state, he ruled that the language of Article IV was inapplicable to Costin's appeal. He said a citizen of one state, coming into another state, can claim only those privileges and immunities which belong to citizens of the latter state, in like circumstances. Costin was not seeking to come to Washington from somewhere else.
Reflecting the tenor of the times, Cranch went on to say, "I can see no reason why (a state) may not require security for good behavior from free persons of color, as well as vagrants and persons of ill-fame."
But the unfairness of the codes, and their potentially devastating consequences, did not escape Cranch's attention. He said, "Many (free residents of color) had been long residents of the city, some were born there, had been useful members of society, had acquired property and contributed to the growth and improvement of the city and had paid taxes for the support of the poor."
Noting that black residents of Washington could not compel any white person to become their surety, Cranch observed bleakly that, "banishment would be the consequence of their inability to give the surety required unless they should submit to repeated imprisonments in the workhouse, and the breakup of their families, the ruin of their business, and the binding out of their children by the guardians of the poor."
With that, Judge Cranch held that the ordinance could not be applied to Costin and others whose residence in Washington predated the promulgation of the rule. He said, "It would seem to be unreasonable to suppose that Congress intended to give the corporation the power to banish those free persons of color who had been guilty of no crime."
Costin lived for another 21 years, known as a provocative and passionate advocate for the equality of blacks. He founded a school for black children, which was run by his daughter. Upon his death, former President John Quincy Adams remarked on the floor of the U.S. House of Representatives, "The late William Costin, though he was not white, was as much respected as any man in the District and the large concourse of citizens that attended his remains to the grave - as well white as black - was an evidence of the manner in which he was estimated by the citizens of Washington."
Francis Scott Key, Lawyer and Poet
By James H. Johnston
Francis Scott Key started his law practice in Frederick, Maryland and shared an office with his brother-in-law,
future Chief Justice Roger Taney. Later, Key moved to Washington D.C. and practiced before the Circuit Court for
the District of Columbia. He is, of course, most famous for writing the words of "The Star Spangled Banner."
The occasion for the poem was Key's witnessing British ships shelling Fort McHenry in Baltimore.
He watched from one of the ships on which he was detained while trying to get the British to release a
client of his. Key's poem was later put to the tune of an old drinking song and became "The National Anthem."
But this wasn't a one-time foray into poetry for Key. He wrote it regularly, sometimes for amusement.
For example, he filed this facetious habeas corpus petition with Judge James Morsell* of the Circuit Court:
May it please your honor to hear the petition
Of a poor old mare in a miserable condition,
Who has come this cold night to beg that your honor
Will consider her ease and take pity upon her.
Her master has turned her out in the street,
And the stones are too hard to lie down on, or eat;
Entertainment for horses she sees every where,
But, alas! there is none, as it seems, for a mare.
She has wandered about, cold, hungry, and weary,
And can’t even get in the Penitentiary.
For the watchmen all swear it is more than they dare,
Or Mr. Edes either, to put the mayor there.
So she went to a lawyer to know what to do,
And was told she must come and lay her case before you,
That you an injunction or ha. cor. would grant;
And if that means hay and corn, it is just what I want.
Your petitioner, therefore, prays that your honor will not fail;
To send her to a stable and her master to jail;
And such other relief to grant as your honor may think meet,
Such as chopped straw or oats, for an old mare to eat.
With a trough full of these and a rack full of hay,
Your petitioner will ever, as in duty bound, pray.
Key turned to poetry on more serious occasions as well. When Judge Morsell's wife died, Key dedicated this short poem to her.
He entitled it "Mrs. Mary Ann Morsell, Who Departed This Life, April 1831, in the 32d Year of Her Age" and sent it to the Judge.
"A little while," this narrow house prepared
By grief and love, shall hold the blessed dead;
"A little while," and she who sleeps below
Shall hear the call to rise and live forever.
"A little while," and ye who pour your tears
On this cold grave, shall waken in your own.
And ye shall see her, in robes of light,
And hear her song of triumph. Would ye then
Partake with her the bliss of that new life?
Tread now the path she brightly marked before ye!
Choose now her Lord! Live now her life! And yours
Shall be her hope and victory in death.
After Key died, his poems were published in book form as Poems of the Late Francis S. Key, Esq.,
Author of "The Star Spangled Banner" with an Introductory Letter by Chief Justice Taney.
(Robert Carter and Brothers, New York, 1857, available online at Google Books).
Mary Ann Morsell's family had the poem with minor changes chiseled into a tablet that
lies over her grave at Zion Episcopal Church in Charles Town, West Virginia.
Roger Perry is a retired lawyer in Charles Town today, a member of the congregation at Zion,
and a descendant of Judge James and Mary Ann Morsell. He says that the poem has become known
simply as "In a Little While." He inherited a chair, which he still has, that Key supposedly
used when he visited the Judge and they played music together.
* For more on Judge Morsell, see "A First Step for Racial Equality in the Circuit Court of Washington"
on the Society's website.
An Historic Judicial Smackdown
As the nation moved from World War II to a peacetime economy, industry sought the removal of wartime price and production controls. Labor, freed from a freeze on pay and a ban on strikes, sought wage increases averaging 30 percent. Strikes broke out like a contagion. Within a year, five million workers were involved in work stoppages.
In May 1946, 400,000 soft-coal miners went on strike. By mid-May the strike was crippling industrial production. The government responded by seizing control of the mines and negotiated an agreement for increased wages and other benefits. The workers returned to the mines. Nonetheless, six months later United Mine Workers leader John L. Lewis announced the agreement would end in five days after the Secretary of the Interior refused to reopen the contract.
Read the entire article.
History and Evolution of the D.C.Circuit Courts
Visitors to the Historical Society's website will now be able to learn more about the unique character and history of the courts of the D.C. Circuit
. Born of the need to address both federal and local concerns, the courts of the District of Columbia have a rich and colorful history described in a new posting on the Society's home page. A bibliography is included for those who wish to do their own research. We invite you to take a look.
D.C. Law: Almost as Old as the Magna Carta?
Is it possible that remnants of the old British law and the laws of Maryland and Virginia are still on the
books in the District of Columbia? Surprisingly, "random areas" of the law before the District had its
own laws may still exist, according to David Hyden in the Legal Counsel Division of the Office of D.C.
Attorney General Irvin Nathan. Read the entire article.
A Texas-sized Mystery
Thirty-one year old Robert Martin of Little Elm, Texas, doesn't remember what he paid for them. As a teenager, he bought two presidential documents at a thrift shop near Houston that no one else seemed to want - one bearing the signature of Franklin Roosevelt and the other, of Harry Truman.
Those documents were the 1933 commission appointing E. Barrett Prettyman to be General Counsel of the Department of Internal Revenue and Prettyman's 1945 appointment to the U.S. Court of Appeals for the District of Columbia Circuit. Martin, a senior associate with Crowdverb, a digital communications and grassroots mobilization company, has donated the documents to the Historical Society.
But how did the documents come to be in a box so far from Washington? Prettyman's son, E. Barrett Prettyman, Jr., of Hogan Lovells, says he doesn't know. Neither does Martin, the man who bought them.
Martin sent the following recollection, along with the documents:
"As a collector of historic memorabilia from a young age, I've long had a fascination with the documents that, though merely paper and ink, have shifted the course of our nation and the lives of its citizens. Thus at the age of 16 or 17, I found myself standing next to a folding table in a small, nearly empty charity thrift shop in the suburbs of Houston waiting for a silent auction to end. The auction had been advertised in a local paper as part of the shop's grand opening. Up for sale, sitting next to an antique teddy bear and a few unmemorable items, were two official commissions signed by Presidents Franklin Roosevelt and Harry Truman. One appointed E. Barrett Prettyman, a name unknown to me at the time, as General Counsel for the Bureau of Internal Revenue (today's IRS) while the other gave him a seat on the US Court of Appeals for the DC Circuit. The shop's staff said they had found the commissions at the bottom of a box. When the auction ended at five-o-clock, I was the only bidder. I gladly handed over a portion of my teenage savings and brought the documents home.
"Most significant to me at the time were the presidential signatures found at the bottom right-hand corner of each commission. FDR's was signed with the India ink he was known for using and both signatures came just months after each man had assumed th e Presidency. Once I moved to Washington, however, the significance of Judge Prettyman and the courthouse bearing his name quickly became evident as well. The court has of course produced Supreme Court Justices and its decisions have impacted various facets of our nation and its path moving forward. Judge Prettyman's influence on the court and many of those decisions is unquestioned. The Prettyman Courthouse itself became a familiar sight as, for several years, I often drove past it on my way to work at the White House, where I was privileged to edit documents for another President's signature. I also saw firsthand the confirmation process for judicial nominees, from their nomination to Senate approval. These documents from the past were with me to serve as a link to what I was witnessing in the present.
"While I'm glad to have been a caretaker for these important commissions, they are now returning to their true home where they can help tell the story that is being preserved by the Historical Society of the DC Circuit."
The D.C. Judge Who Bedeviled President Lincoln
In the midst of the Civil War, one D.C. judge so irritated Abraham Lincoln that the President ordered his salary withheld and armed soldiers were sent to his home. As if that wasn't enough, the court on which the judge sat, the principal court that had served the District since the inception of its judicial system, was abolished -- primarily to get rid of the judge.
The judge was Circuit Court judge William Matthew Merrick, the pivotal figure in the Court's handling of petitions for habeas corpus seeking the discharge of soldiers who had enlisted while minors without parental consent. Read the entire story.
A First Step for Racial Equality in the Circuit Court of Washington
In 1843, when Nancy Hillman, the only surviving heir of Georgetown's most prominent free black man, tried to
collect on money he was owed for 20 years, she faced two obstacles in the Circuit Court. First, was the
claim barred by laches? More importantly, could she use the D.C. courts, at all? At that time, not even
free blacks could testify in actions at law where any white person was concerned. Washington attorney James H.
Johnston tells what happened to Nancy Hillman in an engrossing story
Of Historical Interest
Information taken from Calmly to Poise the Scales of Justice: A History of the Courts of the District of Columbia Circuit by
Jeffrey Brandon Morris. Copies can be obtained from the Historical Society of the D.C. Circuit.
Life in the Trenches
Think a trial judge's job is mainly to ride herd on what happens in the courtroom? Think again. In the Iran-Contra case, lawyers for Oliver North filed over 100 motions before the trial even began, and the judge, U.S. District Judge Gerhard Gesell, was obliged to issue 193 separate written opinions before a verdict was reached.
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The Court of Appeals for the District of Columbia Circuit didn't always give unconditional obeisance to the
U.S. Supreme Court when it believed an injustice would result. In a 1910 case it rebuffed a sanctity of contract defense
by a railroad company which had been sued for negligence in the death of a locomotive fireman.
The company argued that a provision in the Employers Liability Act of 1906 prohibiting the use of employment contracts as a
defense against an employee's suit for negligence was unconstitutional because it infringed upon the right to contract
elevated to constitutional status by the Supreme Court in its noteworthy 1905 decision in Lochner v. New York
Rejecting that argument and writing for a unanimous panel, Justice Charles Robb stated, "After all, the right to contract is
hedged about with many restrictions, and must always yield to the common good."
(The ruling was not subsequently overturned. Justice Robb was the father of Roger Robb who joined the Circuit bench in 1969.)
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A Familiar Way to Cut the Civil Caseload
Because of population growth and the unanticipated litigiousness of the District's citizens, the Circuit Court of the
District of Columbia was able to handle only half of its cases by 1820. More than a thousand lawsuits were awaiting trial.
Congress dealt with this by increasing the jurisdictional amount from $20 to $50. As a result, in just two years the
business of the Circuit Court fell from 1300 civil actions to 150.
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The Repossessed Stereo That Struck the Conscience of the Court
In a case from Washington, D.C., the U.S. Court of Appeals for the District of Columbia Circuit drew national
attention 50 years ago for its strong voice for consumer protection. In 1962, when Ora Lee Williams, an
uneducated mother of seven, defaulted on an installment contract for a stereo she had purchased for $515
(leaving $ 164 not yet paid) from the Walker-Thomas furniture store at 7th & M Streets, N.W., the company came to the
Court of General Sessions to repossess not only the stereo but -- under a fine-print, lengthy contract --
all the items she had purchased from the store since 1957. As was usual at the time, the Court, affirmed on appeal,
found no basis for denying enforcement of the contract.
The "unconscionability" provisions of the
Uniform Commercial Code had not yet been widely adopted. Yet, the U.S. Court of Appeals for the District of Columbia,
in an opinion written by J. Skelly Wright, employed its common law and equity authority to hold that "when a party of
little bargaining power, and hence little real choice, signs a commercially unreasonable contract with little or no
knowledge of its terms, it is hardly likely that (her) consent .. was ever given to all its terms." The decision,
Williams v. Walker-Thomas Furniture Co.
, 350 F. 2d 445 (1965), became a staple of first-year law school contract law courses.
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Acting on the complaint of members of the bar, Congress in 1837 established an
ad hoc committee to investigate charges that D.C. Circuit Court judge Buckner
Thruston was rude, inattentive and quarrelsome. The record showed he was often
two to three hours late for court sessions. Expressing open contempt for legal learning, he declined to
follow established law, saying "the law books" would "ruin the country by driving common sense out of court."
It was his common practice to become impatient with counsel and to interrupt with the admonition that he
wished he could disbar the lawyers and throw them in prison. Thruston himself attributed his irritability to
"partial intellectual derangement and particularly hypochondriasis." So, what did Congress do?
It neither exonerated nor condemned him, and Thruston remained on the bench until 1845, serving a total of 36 years.
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Getting Tough on Crime
Think current punishment for crimes is excessive? When the courts of the District of Columbia opened for business in 1801, penalties included whipping, the pillory, and branding with a great key heated to a white glow by a jailer. Thirty crimes were punishable by death on the Alexandria side of the Potomac, where Virginia law was applied, and 14 under state law on the Maryland side, where the death penalty was prescribed for such trivial crimes as the theft of five shillings. Nonetheless, judges usually declined to impose such penalties. Only three executions were carried out between 1801 and 1850.
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On the Docket: Flapjacks and Underwear
The post-World War One Court of Appeals of the District of Columbia was vastly different than the federal circuit court we know today. In its 1918-19 term, half of its cases involved local disputes and the remainder were almost entirely patent and trademark appeals. The patent cases concerned such things as paper drinking cups, drill bits for digging oil wells, an improvement relating to engine starters, and a device for launching torpedoes. Among the trademark cases were lawsuits to protect the trademarks of Aunt Jemima and BVDs!
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Seeing Red: The D.C. Circuit and the Hollywood Ten
The U.S. Court of Appeals for the District of Columbia played a major role in the post-World War
Two anti-Communist crusades. In perhaps its most notorious case, a panel upheld the contempt-of-Congress
conviction of screenwriters Dalton Trumbo and John Howard Lawson, members of the "Hollywood Ten" who refused to
answer questions in a 1947 hearing of the House Un-American Activities Committee. The opinion by Judge Bennett
Champ Clark stated that "in the current ideological struggle between communist-thinking and democratic-thinking
people of the world" the power of the motion picture industry to influence public opinion made it a
legitimate target of congressional investigators seeking to discover if the authors of screenplays harbored Communist sympathies.
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How a Pay Dispute Elevated the D.C. Circuit
It wasn't until 1933 that the U.S. District Court and U.S. Court of Appeals for the District of Columbia achieved equal stature with their counterparts in the rest of the country. It resulted from a lawsuit brought by Justices (sic) Daniel W. O'Donaghue of the D.C. Supreme Court and William Hitz of the Court of Appeals challenging the reduction of their salaries and those of other federal officials as part of the government's cost-cutting measures. The U.S. Supreme Court held that the D.C. Supreme Court and the Court of Appeals were "constitutional courts" protected by Article III of the Constitution which prohibits reducing the salaries of federal judges.
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DO YOU KNOW
that Washington was policed by constables supervised by the D.C. Circuit Court until 1842?
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A Fortuitous Blackball
One of the D.C. Circuit's most legendary judges wasn't supposed to serve on the court at all. In 1962, President John F. Kennedy intended to elevate a federal judge in Louisiana, J. Skelly Wright, to the U.S Circuit Court of Appeals for the Fifth Circuit. Wright had gained national attention for taking action to desegregate the New Orleans public schools despite resistance from local officials and threats to his and his family�s safety. When Louisiana�s U.S. Senators moved to block the nomination, the President named Wright to the D.C. Circuit instead.
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DO YOU KNOW
that "levy courts" comprised of justices of the peace initially assessed taxes, granted liquor licenses, and provided for the maintenance of bridges and roads and a poor house in the parts of the District of Columbia that lay outside Alexandria, Georgetown and the small incorporated City of Washington?
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D.C. Ahead of its Time
Think efforts to limit the death penalty are a relatively recent development? Not true. Acting at the request of President Andrew Jackson, Congress in 1831 abolished capital punishment in the District of Columbia except for treason, murder, piracy, and rape committed by slaves.
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DO YOU KNOW
that the Circuit Court of the District of Columbia was the principal trial court in early Washington, applying Virginia law and procedures when it met in Alexandria and those of Maryland for its Washington sessions? The District Court was largely a maritime court. Cases from the Circuit Court could be appealed to the Supreme Court of the United States when as little as $100 was involved. This wasn't true for other jurisdictions, where the amount in controversy had to be much higher. This explains why the docket of the Supreme Court had so many D.C. cases in its early history.
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Were you aware of Judge David Cartter's extra-judicial skills?
In 1863, David K. Cartter became Chief Justice of the newly created federal court, the Supreme Court of the District of Columbia. Patent cases were an important part of the Court's docket. Cartter himself held several patents and invented a ventilating device for windows which were installed and used in the D.C. courthouse for more than a generation.
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: Washington, D.C. had a significant impact on baseball's major leagues long before the Nationals
winning season. In 1921, the Court of Appeals of the District of Columbia ruled in a suit brought by the Baltimore owner of a Federal League franchise that the American and National Leagues had not violated the Sherman Act by using their monopoly power to destroy the new league. It said baseball was merely an exhibition and not part of trade or commerce. On appeal, that became the basis for Justice Oliver Wendell Holmes' much noted U.S. Supreme Court opinion a year later that major league baseball was entertainment, not a business -- a decision which remains intact.
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150 years ago, when President Abraham Lincoln signed the 1862 Emancipation Act outlawing slavery in the District of Columbia, he created an immediate dilemma for the D.C. courts. Were they obliged to continue to send runaway slaves back to their owners in non-Confederate states under the Fugitive Slave Act?
Generally, the answer was "yes." The newly created D.C. Supreme Court appointed a commissioner to enforce the law, but the task was fraught with difficulty. Fistfights broke out in the courtroom and police had to separate the brawlers when the Supreme Court heard the case of Andrew Hall who had fled from slavery in Maryland. Typically, an escaped slave would be rescued by mobs or Union soldiers, as was Hall who won freedom by enlisting in the Union army. The Fugitive Slave Act was not repealed until two years later.
3,185 slaves who lived in the District were freed by the President's signature. The Emancipation Act provided owners with up to $300 a slave in compensation. Congress allocated $1 million for the payments and established a three-member panel of prominent DC citizens to process petitions. They recruited an infamous slave trader from Baltimore to help them. Once approved, the requests went to the Clerk of the Circuit Court who issued an appropriate certificate. One application, shown here, came from D.C. resident Clark Mills who sought compensation for 11 slaves
. Mills was a renowned craftsman who, with the aid of his slave, Phillip Reed, cast the Statue of Freedom which sits atop the dome of the U.S. Capitol.
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Think the exclusionary rule is entirely the product of modern-day, bleeding heart judges? In 1802 the D.C. Circuit Court held that "no confession, extorted from the prisoner by threats of punishment or obtained by the promise of reward or favor" could be used as evidence against him. Nevertheless, four years later the Court eased the rule by allowing juries to hear facts discovered in consequence of the barred confession. For more on the 1802 ruling, see Calmly to Poise the Scales of Justice: A History of the District of Columbia Circuit
, which is available for purchase at http://www.dcchs.org
"Sweltering with Treason"
The Civil War Trials of William Matthew Merrick
By Jonathan W. White
"You have the body"
Habeas Corpus Case Records of the U.S. Circuit Court for the District of Columbia, 1820 - 1863
By Chris Naylor
Articles by Biographers of D.C. Circuit Judges
The Short Unhappy Judgeship of Thurman Arnold by Spencer Weber Waller