History of the Louisiana Supreme Court
Dr. Warren M. Billings
Distinguished Professor of History Emeritus, University of New Orleans
Louisiana Supreme Court Bicentennial Historian
Founded in 1813, the Supreme Court of Louisiana has fashioned law and practice as it made 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. In its original guise, it barely resembled the present Court. Conceived as part of an American-style judiciary, it got written into the Constitution of 1812 as a political necessity that assured Louisiana’s admission to the Union. None of its architects quite grasped its purposes or its possibilities. Some perceived it as a threat to their legal ways, which sprang from the laws of Spain and France, whereas others saw it as a likely device for melding those traditions with American law into a serviceable system for the new state. Their lack of common understanding resulted in the sparest of frameworks for the high court in the new Constitution. Up to five judges composed that court. As gubernatorial appointees, they kept their seats for life but could be impeached. Their jurisdiction extended to civil disputes that exceeded $300, and they rode circuit throughout two statewide appellate districts.
The Judiciary Act of 1813 put flesh on this skeleton, but only just. It set the size of the bench at three judges, any two of whom made a quorum. Being “learned in the law” was the sole criterion for office, and the judges were assigned precedence according to the dates of their commissions. Finally, the act invested the Court with rule making authority and power over the lower courts and the bar. So long as the judges did not stray beyond these limits, they were free to conduct themselves as they saw fit.
With little fanfare, the Court sat for the first time on March l, 1813, in New Orleans. Two of its newly-minted judges, Dominick Augustin Hall and George Mathews, showed up. After a public reading of their commissions from Gov. William C.C. Claiborne, and swearing the oath of office they, adjourned. The third judge, Pierre Augustin Bourguignon Derbigny, joined them a week later. Hall, by virtue of being commissioned first, became presiding judge. He resigned before the year was out, whereupon Mathews became president and stayed until he died in 1836. Derbigny left in 1820 for an unsuccessful bid for governor, by which time François-Xavier Martin had joined the Court. Martin remained for thirty-one years, and he became presiding judge after Mathews’s death.
The Court went about adjudicating a swelling volume of business that grew after l813, and, as it did, it formed the foundations of Louisiana’s legal system. Initially, the Court designed rules for bar admissions, which qualified newcomers as well as lawyers who practiced before Louisiana was a state. Its subsequent regulation established standards of legal education that lasted until the 1920s.
Early on, the judges also narrowed their jurisdiction by deciding they lacked constitutional warrants to receive cases from the defunct territorial Superior Court or to hear criminal appeals. Similar questions of jurisdiction touched the greater matter of mixing American and civilian legal precepts into a steady, reliable legal order. Mathews and Martin, both trained American lawyers, likened civil and common law to complementary facets of the same legal gemstone instead of rivals. For that reason, they acknowledged civilian tenets as the pith of private law in Louisiana but looked to other sources as well. Moreover, both prided an independent judiciary, so they resisted being exclusively bound by the Civil Code of 1825. They went so far as to ignore post-1825 repealing statutes that invalidated all foreign law in force at the time of the Purchase, the Digest of the Civil Laws Now in Force in the Territory of Orleans (New Orleans, 1808), and every territorial or state act that had been revised by the Civil Code, which clouded an already muddled situation. Martin finally clarified the muddle in l839 when, in the case of Reynolds v. Swain, he asserted the Court’s right to say what was law in Louisiana, and who ultimately declared it. His decision, the Louisiana equivalent of Marbury v. Madison, strengthened the Court with an Anglo-American tincture, and it guaranteed that the blending of American, British, French, Roman, and Spanish law would continue.
That Mathews and Martin wielded such sway says as much about their longevity as their outlook. Younger colleagues, most notably Alexander Porter, Henry Adams Bullard, George Strawbridge, and George Eustis, held similar views, but their time on the high bench was far shorter and therefore less influential than it otherwise might have been. Poor health dogged Mathews. Martin went blind, and both stubbornly resisted efforts to improve the Court’s efficiency. By the 1840s, a combination of a mountainous backlog of unresolved appeals, pressure to take criminal appeals, and a scandal involving Judge Rice Garland impelled a statewide outcry that spawned the Constitution of 1845 and a re-formed Supreme Court. Gone was the old one, replaced by a chief justice and three associate justices who served eight-year terms. These justices still rode circuit and retained supervisory powers, but their jurisdiction extended to both civil and criminal appeals. George Eustis returned to the Court as its first chief justice. He oversaw the clearing of the caseload and instituted a thorough reorganization of procedures. The Constitution of 1852 included no substantive jurisdictional changes; however, it reduced oral arguments to a total of four hours, it raised the number of justices from four to five, and it lengthened their terms from eight years to ten. Civil war and its aftermath wrought a Supreme Court of a different sort.
After New Orleans fell to Union troops in April 1862, Chief Justice Edwin T. Merrick decamped for Opelousas and then to Shreveport, but the Confederate court did little business. It lost its archives to federal soldiers who carted them off to Washington, D.C., where they remained in the custody of the War Department until the 1880s. The return of white home rule, the coming of Jim Crow, and more structural modifications characterized the Supreme Court of the post-Reconstruction years. Constitutional revisions in l864 and1868 abolished slavery and promised civil rights for Black Louisianans. The Court, led by its first native-born Chief Justice, John T. Ludeling, tailored its jurisprudence accordingly. Not everyone greeted its alterations kindly, most certainly not white attorneys who fiercely abominated Ludeling’s rulings on “racial and public questions,” even though the Court’s opinions encouraged rising racial animosities. After 1877, the Court sided with white supremacists in the General Assembly, most notably when it validated the doctrine of “separate but equal” treatment of Black Louisianans, a rule that became the law of the land after 1896 when it received the imprimatur of the Supreme Court of the United States in Plessy v. Ferguson.
A new Constitution, promulgated in 1879, recreated an appointive court, with the governor naming the chief and picking all five justices from four judicial districts. (Two seats went to Orleans and its surrounding parishes.) Then, too, the Constitution eased the Court’s caseload by adding two intermediate benches to hear civil appeals involving less than $2,000. Provisions in the Constitution of 1898 retained the appointive judiciary but dictated that the office of chief justice would henceforth be based on seniority of service. (A 1904 constitutional amendment also restored the right of electing the Court to the voters.) Two other modifications relieved the justices from riding circuit and designated New Orleans as the Court’s sole seat. The latter stipulation galvanized a lengthy campaign to build the Court a permanent home that culminated in l910 with the opening of the massive Beaux Arts-style courthouse at 400 Royal Street in the heart of the French Quarter. Three years later, the Court celebrated its centennial.
Speakers, some brief, some not, treated an enthusiastic audience to talks that touched on the Court’s first 100 years. In response, Chief Justice Joseph A. Breaux exclaimed that, in Louisiana, “two systems of law, civil and common, were blended.” As a result, he continued, “the labors of the bench and bar of that period are still felt. Although a century has passed, during all these years, these united systems of laws, civil and common, have come down to us with the impress placed upon them in the early years of the century.” After 1913, Breaux’s successors faced the challenge of fitting this “united system of laws” to suit the economy, politics, and social fabric that epitomized 20th-century Louisiana.
Three Chief Justices, Charles A. O’Niell, John B. Fournet and Pascal F. Calogero, stand out because their combined tenure amounted to two-thirds of a century. Incumbent for twenty-seven years, O’Niell arguably presided over the most partisan Court before or since. He earned plaudits for his incisive, elegant opinions but had little taste for court reform, calls for which grew louder by the 1920s. His hostility kept a top-to-bottom reorganization of the entire judiciary out of the Constitution of 1921. He did agree to increasing the size of the Court to seven in the expectation that more justices equated with greater efficiency, but that was a vain hope. Later efforts at modernization met with his studied resistance, especially after he presided at the impeachment trial of Gov. Huey P. Long in 1929. O’Niell devoutly loathed everything about the Kingfish, so he regarded modernization as little more than a lightly veiled attack on him. He was not wholly wrong, given that modernization’s most persistent advocate was fellow Justice John B. Fournet, a ferocious Long partisan who went to the Court after his highly controversial election in 1934.
Fournet made little headway so long as O’Niell stayed, but he did persuade the General Assembly in 1938 to fund the hiring of law clerks as a means of speeding up the production of opinions, and that was a first for the Court. Behind the scenes Fournet actively worked with Gov. Earl K. Long to pass a statute requiring judges to retire at age seventy-five, allowing him to succeed O’Niell in 1949. As chief, he relied upon the justices’ rule making power and deft political maneuvering to revolutionize the Court’s relationship to the judiciary as a whole. In the 1950s he invented the Judicial Council and created a judicial administrator whose staff supplied him with detailed data on the courts that he used when he lobbied the General Assembly to add more judgeships in the lower court. Tidying up the Supreme Court docket, he also secured appropriations for a new courthouse that sat at 301 Loyola Avenue in New Orleans. Consequently, when he left in 1970, “the Court” signified more than justices who ruled on cases. By his hand, the Court turned into a potent entity and a collection of related agencies that supervised every phase of the entire judicial branch and made the chief justice the system’s premier administrative cop. Put another way, Fournet convinced lawyers, legislators and voters that better administration at every level resulted in the speedier, more honest and equitable dispensation of justice, while infusing the Court with a marked willingness to experiment with new ways of improving its expanded responsibilities.
That penchant for experimentation gained national recognition for the Court throughout the 1970s and 1980s, and innovation was commonplace. No one among the justices thought that it should be otherwise because, as one noted, “[Our] system of justice is never finished. It must be conditioned and improved.” Chief Justice Calogero clearly shared this view.
Calogero, who came to the Court in 1973, moved to the center chair in 1990, and gave it up seventeen years later. A committed reformer, as chief he oversaw the creation of the Louisiana Indigent Defender Board, regular strategic planning across the judiciary, reforms to the juvenile court system, and a community relations department, among other improvements. His most visible accomplishment was bringing off the renovation of the Royal Street courthouse that allowed the Court and its departments to return to their former home in 2004. (By an act of the General Assembly, the building was named for him in 2019.) There were dramatic changes in the composition of the Court as well.
In 1992, the Court got its first female member after voters elected Catherine D. Kimball to a seat. The next year, as a result of a federal consent decree, Revius O. Ortique, Jr. became the first African American justice, and upon his retirement Justice Bernette Joshua Johnson became the first African American woman to be elected. Jeannette Theriot Knoll joined the Court in 1997, so the bench then consisted of three women and four men. When Kimball replaced Calogero in 2009, she became the first female Chief Justice of Louisiana. She was chief for six years before ill health forced her to retire. When Justice Johnson was sworn as Kimball’s successor in 2013, she become the Court’s first African American chief justice. John L. Weimer, who joined the Court in 2001, took her place.
1n 1813, no one knew what the future of the Supreme Court held. For certain, no one could have imagined how, from that day to this, its jurists would stamp deep impressions upon the law and make the Court into the linchpin of the judicial branch. At most, they likely expected an institution they did not understand completely to forge a workable legal system. By twists and turns, hope translated into reality over the course of two centuries as the Court strove for an efficient and timely judiciary that fairly meets the needs of the people of Louisiana. The quest continues.