Celebrating 200 Years

A Brief History of the Louisiana Supreme Court

On October 2, 2004, a new chapter in Louisiana’s legal history opened with the dedication of the restored courthouse in the New Orleans French Quarter, the new home of the Supreme Court and the Fourth Circuit Court of Appeal. Exactly two hundred years earlier on October 1, 1804, an act passed by Congress on March 26 became effective, creating the Superior Court of the Territory of Orleans, the Supreme Court’s predecessor. Louisiana’s system of justice, whose colonial origins were rooted in the laws of France and Spain, had become American.

John Bartow Prevost, the only one of President Jefferson’s choices for the new bench to accept his appointment and to survive the trip to Louisiana, sat alone for two years. With original and appellate jurisdiction in both civil and criminal cases, the new court nearly exhausted Judge Prevost with its heavy load. As additional appointments followed, it was fortunate indeed that one of the new judges, François-Xavier Martin, learned in both the common and civil law, took on the reporting and publication of decisions, a responsibility which he fulfilled until 1830. Throughout the territorial period the court wrestled with the challenge of introducing “the American system of jurisprudence” mandated by Governor William C.C. Claiborne while reconciling it with the ancient civil law traditions ingrained in the inhabitants during the century of French and Spanish colonial rule.

Placing their desire for stable, consistent justice above their parochial concerns, Louisiana’s early lawyers and judges blended civilian and American principles of law in a distinctively American court system. The Constitution of 1812 created a state judiciary that represented the reconciliation of civil and common law traditions. Judicial power was vested in a Supreme Court of from three to five judges and in inferior courts. Dominick A. Hall, George Mathews, and Pierre Derbigny were the first appointees. The Supreme Court was given appellate jurisdiction in civil matters exceeding $300 as well as control over admission to the bar. The state was divided into eastern and western judicial districts that required the judges to ride circuit, sitting in New Orleans between November and August, and in Opelousas the remaining months.

On March 1, 1813, the Supreme Court convened for the first time at a building called Government House, which was on the New Orleans riverfront. Hall and Mathews examined and admitted several candidates for the bar. Derbigny joined them on March 9. Within the week the court decided that the right of appeal created by the Constitution of 1812 applied only to the new judicial system; the late Superior Court’s decisions were irrevocable. As legal historian Henry Dart explained a century later, the court “cleared its slate of old business and left the judges free to make new jurisprudence.”   Hall’s departure resulted in the appointment of former Superior Court judge François-Xavier Martin, whose 31-years of service on the court from 1815 to 1846 surpassed all others in longevity for over a century.

During the period prior to the Civil War the Supreme Court grappled with many important issues that laid the foundations of Louisiana’s legal system. Codification efforts represented by the Digest of 1808 and the Civil Code and Code of Practice of 1825 required further interpretation to clarify to what extent colonial laws were still effective. The decision in the case of Cottin v. Cottin in 1817 established that the civil laws of Spain formed the basis for Louisiana’s common law. Article 3521 of the Civil Code of 1825 repealed all “Spanish, Roman and French laws . . . in force. . . when Louisiana was ceded to the United States” as well as all previous territorial and state legislation. Nevertheless the Legislature in 1828 felt the need to pass an act abrogating the Spanish laws. In 1839 Reynolds v. Swain defined the role of the judiciary, ruling that Louisiana judges could decide cases by consulting cases from the past and could employ remedies beyond those specified in the state’s codes. In a series of rules the Supreme Court developed criteria for bar admission, ensuring that Louisiana lawyers would be trained in American legal practices. Two particularly influential judges who each served for a dozen years, Alexander Porter and Henry Adams Bullard, were noted for their scholarly opinions.

Following a period when serious delays developed, framers of the new Constitution of 1845 instituted reforms. They provided that the Supreme Court would consist of a chief justice and three associate justices, each serving a term of eight years. Sessions were fixed in New Orleans from November through June and elsewhere in September and October. Statutes specified Opelousas in August, Alexandria in September, and Monroe in October. Appellate civil jurisdiction remained unchanged, and limited criminal jurisdiction was assigned to the court. This brought an end to a Court of Errors and Appeals in Criminal Matters, which had existed from July 1843 to February 1846.

The Constitution of 1852 added another associate justice, thus expanding the court to five, with staggered terms often years. In keeping with the democratic trends of the era, the justices for the first time were elected — the chief justice statewide and the associates from four geographical districts. To promote greater efficiency, total arguments in each case were limited to four hours.

The Legislature of 1855 created “a public library of the State of Louisiana, which shall be placed in the State House” and specified that “a competent person” be appointed librarian to care for what was apparently an existing collection of books. This institution was to be divided in 1946 into the Law Library of Louisiana in New Orleans, which is a department of the Supreme Court, and the State Library in Baton Rouge.

On February 24, 1862, the Supreme Court met in New Orleans and passed an order stating that its justices and the district judges of Orleans Parish should adjourn to facilitate the mobilization of the militia, which had been ordered by the Legislature. The court officially adjourned with no judges present on May 6.  Historian Henry Dart reported that “up to the closing hours in New Orleans the court seems from its minutes to have been undisturbed by the clamor and disturbance of the great war which was raging without its portals.”

The Federal Army took New Orleans in April, 1862, and Baton Rouge, the capital, fell shortly thereafter. The Supreme Court moved to the seat of state government in Shreveport. An 1863 legislative act required sessions there or elsewhere during the war. No records of activity by the court exist for this time period, but there is mention of several cases having been decided. The court also supposedly advised the Governor and Confederate Legislature. The Federal Government established a separate judicial system for the parishes under its control. United States military forces occupied the Supreme Court room in New Orleans.

In accordance with Federal Government policy, a constitutional convention was called in the spring of 1864. Provisions relating to the Supreme Court for the most part re-established the arrangements set forth in the 1852 Constitution, but appointment was vested in the governor. Chief Justice William B. Hyman and his associates were loyal to the Union and therefore were looked upon with disdain by lawyers and other citizens in sympathy with the Confederacy. Both the 1864 and 1868 constitutional revisions attempted to adjust Louisiana law to the realities of defeat and to realize civil rights for people of color.  Those who chose to glorify the pre-war period of slavery made the process of reform long and difficult. The 1868 Constitution brought about the appointment of a new court with John T. Ludeling as Chief Justice and former federal soldier William Wirt Howe among the associates. On the first Monday in November, 1868, the court sat for the first time at the Cabildo in New Orleans.

The story of the Supreme Court for the remainder of the nineteenth century reflects Louisiana’s unsettled political and social environment. The motives of a number of dedicated, admirable justices were misrepresented by disgruntled adherents of the old ways. Although the Constitutions of 1879 and 1898 failed to institute a more satisfactory social and legal climate, they did produce several innovations in the judicial system. The 1879 document left the appointment of the five justices — now apportioned to four districts — with the Governor but gave them power to supervise the state’s courts. Circuit courts of appeal with civil jurisdiction were created, as was the office of reporter of decisions. The Constitution of 1898 designated New Orleans as the sole location for Supreme Court sessions, supporting an 1894 act repealing “the itinerary system.”  The office of chief justice was thereafter to be held by the justice with longest service. Additionally original jurisdiction in matters of professional misconduct, including the power to disbar, was assigned the court.

The U. S. Supreme Court in 1896 upheld the Louisiana high court’s ruling in Plessy v. Ferguson that the 1890 state statute requiring “separate but equal” accommodations was constitutional. This was the famous case overturned in 1954 by the unanimous decision of the U.S. Supreme Court in Brown v. Board of Education of Topeka, Kansas, which outlawed racial segregation in the nation’s public schools. In 1900 the court by order closed the series of reports called the Louisiana Annual and directed that the title Louisiana Reports be used thereafter. The people of Louisiana regained the right to elect Supreme Court justices with the adoption of a constitutional amendment in 1904.

The court’s 1910 October term opened in the magnificent new courthouse on Royal Street in the New Orleans French Quarter, bringing to a happy conclusion the lengthy campaign by the judiciary and bar for more suitable, commodious headquarters. That story is detailed elsewhere in this booklet. The centennial of the Supreme Court was celebrated with a festive ceremony and speeches on March 1, 1913. Chief Justice Joseph A. Breaux spoke with pride of Louisiana’s legal history, proclaiming that “[t]he two systems of law, civil and common, were blended. The results of 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.” Lawyer-historian Henry R Dart delivered an address on the first century of the Supreme Court, which was published with the entire ceremony in volume 133 of the Louisiana Reports. This and Dart’s other writings have served as important resources for later scholars studying Louisiana’s legal history.

Responding to court delays produced by a dramatic increase in appeals, delegates to Louisiana’s Constitutional Convention of 1921 increased the size of the Supreme Court to seven justices. Many cases involving oil, natural gas, and mineral rights came before the court following discoveries in Louisiana during the twenties. The Prohibition period also called upon the justices to decide matters relating to the illegal manufacture, distribution, and transportation of liquor. At the end of 1922 Charles A. O’Niell attained the office of Chief Justice, a post which he held for a record term of 27 years. It fell to him to preside over the impeachment trial of Huey Long in 1929. Although a political reformer and noted opinion writer, Chief Justice O’Niell was disinclined to modernize the court system. That was left to another long-term chief, John B. Fournet, who presided from 1949 to 1970.

Chief Justice Fournet set in motion a revolution in the way the Supreme Court operated and related to the rest of the judiciary. He created the Judicial Council, gained legislative appropriations, and appointed a judicial administrator, who with his staff compiled data on all aspects of the judicial branch. The court system was restructured, and the Supreme Court docket was cleared. In 1958 the new, modern Supreme Court Building at 301 Loyola Avenue opened for business.

Throughout the second half of the twentieth century the Supreme Court has strengthened the administration of justice in Louisiana by instituting new programs and bodies to implement them with the assistance of staff. Passage of a constitutional amendment brought the Judiciary Commission, composed of judges, attorneys, and citizens, into existence in 1968 to review allegations of judicial misconduct and recommend action to the court. The Attorney Disciplinary Board and the Office of Disciplinary Counsel regulate the practice of law and professional conduct and offer education in legal ethics. Quality continuing education for the state’s judges is furnished by the Judicial College. The Committee on Bar Admissions administers the examinations that law school graduates must pass to be admitted to practice in Louisiana.

Most recently the Supreme Court has added to its duties within the Judicial Branch the supervision of two programs that provide important services and protections for citizens of the state. Under the auspices of the Court Management Information System, the Louisiana Protective Order Registry is a repository for civil and criminal orders of protection intended to prevent further threats and violence committed against spouses, partners, and family members. Through The Families in Need of Services Assistance Program the Supreme Court focuses on ways to improve the justice system for families and children, providing interagency social work services.

Dramatic changes in the composition of the Supreme Court began in 1992 with the election of Justice Catherine D. Kimball, the first female member of the bench. The following year a federal consent decree opened the way for the election of the first African American justice on the Court, Revius O. Ortique, Jr. Following his retirement, Justice Bernette J. Johnson became the first African American woman to be elected, and in 1997 Justice Jeannette Theriot Knoll joined the Court, giving the bench a combination of three women and four men.  In 2009 Justice Kimball was elevated to Chief Justice, making her the first female Chief Justice of the Louisiana Supreme Court. After Chief Justice Kimball retired from the judiciary, Justice Johnson was sworn in as the Court’s first African American Chief Justice on February 1, 2013.

In May 2004, following more than twenty years of planning, the Supreme Court moved back to the French Quarter courthouse at 400 Royal Street that it had vacated in 1958. The beautifully-renovated building now houses the Supreme Court and the Fourth Circuit Court of Appeal and their staffs, the Judicial Administrator’s Department, the Law Library of Louisiana, and the Museum of Louisiana Legal History. The dedication of the new Louisiana Supreme Court Building was celebrated on October 2, 2004 with a ceremony that featured an address by U.S. Supreme Court Justice Sandra Day O’Connor.