A "Freshman" Takes Charge: Judge John J.
Parker of the United States Court of Appeals,
1925-1930
BY PETER G. FISH*
I. Introduction
udge John Johnston Parker served on the United States
Court of Appeals for the Fourth Circuit for more than
thr e decades from his appointment in 1925 to his death in
1958.' The Monroe, North Carolina native achieved prominence during his tenure as a jurist, administrator, judicial
reformer, and public servant.2 Neither Senate defeat of his
nomination by President Herbert Hoover as Associate Justice of
the United States Supreme Court' nor personal tragedy4 thwarted a judicial career that caused the American Bar Association
Journalto feature his portrait on its cover in 1946.' That career,
however inauspicious its prejudicial beginnings, seemingly
blossomed on the bench in the apparent absence of a period of
adjustment or of missteps associated with the status of a new-
comer.
Parker initially confessed misgivings about prospects for the
life of a federal judge. "I am afraid that I am temperamentally
unfit for a judgeship,"6 he mused nine months before donning
the robe of judge of the United States Court of Appeals for the
Fourth Circuit. 7 For the forty-year-old North Carolina attorney,
the fundamental career change made in 1925 reflected the
condition of his then extant professional and political life. A
legal practice of seventeen years and extensive partisan political
activities suggested neither a smooth and swift transition to the
bench nor a position of leadership once on the court of appeals.
* Professor of Political Science and Law, Duke University. I am indebted to
Duke Law students, David A. Leff and Jonathan P. Nase for research assistance,
and especially to Doris Carr Cross for preparation of the manuscript.
JOURNAL OF SOUTHERN LEGAL HISTORY
Yet, Parker's professional and political experiences would
combine with purely fortuitous events to propel him almost
immediately to a position of leadership on the court. That
position, however, imposed unsuspected costs detrimental to
promotion to the nation's highest court.
During the initial period ofjudicial service, newcomers have
long been reputed by scholars of the subject to have a minimal
impact on the work of their courts. As one student of the subject
has put it, their influence is diluted "as they absorb the particular
expectations of the job and the folkways of group life." 8
Opinion and managerial leadership lie beyond their grasp; both
remain in the hands of the senior judge and in those of experienced and skilled colleagues.' Thus, the newly sworn judge's
typical experience includes: (1) deference to senior members;
(2) rare opportunities to speak for the court; (3) indecision; and
(4) protracted opinion writing efforts.'0 J. Woodford Howard,
Jr. well described this "freshman effect" in his fine biography of
Supreme Court Associate Justice Frank Murphy." Revisionists
have challenged this "ice water" pattern of judicial socialization,
at least for newly appointed justices of the United States Supreme
Court. 2 Intermediate appellate courts are not identical to the
Supreme Court. They are, as Howard noted in his seminal work
on the federal courts of appeals, tribunals distinguished by their
fragmented and permissive nature and by relatively low levels of
internal conflict.' 3
These courts were and remain characterized by geographical
separation of their members who assemble for scheduled periods
of collegiality at the regional courts' seats. Since 1866, the
Fourth Circuit has comprised the states of Maryland, West
Virginia, Virginia, North Carolina, and South Carolina. 4 Its
primary seat is at Richmond and, since 1916, during Parker's
judgeship, it also held a summer term at Asheville in the North
Carolina mountains. 5 The three judges of the court were
dispersed from 1925 to 1931, residing in Baltimore to 1927,
Richmond, Huntington after 1927, and Charlotte." Telephone,
telegraph, and, especially, fast overnight railway mail linked them.
Onto this appellate court came ex-politician and practicing
lawyer, John J. Parker. Would his adjustment to the robe in his
initial years accord with the conventional wisdom that views7
judicial novitiates as bewildered, uncertain, and disoriented?
A "FRESHMAN" TAKES CHARGE
Or, would he prove the exception to the rule and manifest
confidence, decisiveness, and professionalism from his first days
on the court? In short, did his "freshman" experience bestow
only benefits or did it impose costs, even high and unanticipated
costs? Or did it confer some of both?
II. Anticipatory Socialization
A. Legal Practice
Parker's professional career began at the University of North
Carolina in Chapel Hill where the penurious undergraduate had
arrived in 1903 to commence what turned out to be an educational experience marked by outstanding academic achievements
and campus leadership positions.' "He came," one contemporary recalled, "as a poor boy who didn't even have a trunk, but
he graduated with a trunkful of medals."' 9 With "no influential
connections"2 and armed only with a law degree earned at the
University in a year of post-graduate work, Parker made an
inauspicious entry into the profession, one accompanied by the
"usual years of starvation as a beginning lawyer."'" But oratorical abilities apparent in college won him recognition as a
courtroom advocate in the classic nineteenth century legal
tradition.2 2 Peers at the bar regarded him as a "zealous, able
and even brilliant lawyer" whose courtroom skills made him an
adversary at once "dangerous and formidable." 3 Natural gifts
were enhanced by "daily and nightly painstaking, accurate study
of the law, and of the facts of his cases."2 4
A varied civil 'and criminal practice grew and carried Parker
to trial and appellate federal and state courts as well as to the
Supreme Court of the United States.25 His move from a rural
county seat to the city of Charlotte a was accompanied by a
rising net worth as estimated by Martindale's American Law
Directory.2" Although a remunerative practice, it was one that
drew clients "from all classes of the people, including laboring
people and farmers, white people and colored people."28
Predictably, few notable cases came to the young practitioner.
One that did come his way gave him national visibility within the
legal profession. In the "Par Clearance" Case, he represented
300 state-chartered "country" banks in their battle against
hegemonic banking policies pursued by the Federal Reserve Bank
JOURNAL OF SOUTHERN LEGAL HISTORY
of Richmond, Virginia.29 Ultimate victory for his clients came
in the United States Supreme Court, where he prevailed against
the Bank's battery of prominent attorneys including Wall Street
lawyer and soon-to-be 1924 Democratic presidential nominee,
John W. Davis."
B. Politician
Notwithstanding success at the bar and general satisfaction
with lawyering,3 Parker found the peripatetic role of a litigator a
"wearing" one. Since the inception of his law practice, Parker
had been deeply involved in politics. He early associated with the
Republican Party and warmly embraced its national industrial
policy founded on a protective tariff seemingly beneficial to an
aspiring "New South."3 2 Political activism led to party recognition, and an alternate career path beckoned. In 1910, at age
twenty-five, he became a G.O.P. congressional candidate;33 in
34
1916, he received the state attorney generalship nomination; 35
and in 1920, he won the party's gubernatorial nomination.
But during the early twentieth century, North Carolina remained
firmly entrenched in the "Solid South," and Parker's energetic
partisan efforts bore no fruit on that state's political terrain so
barren for Republicans. 6 Politics could admittedly clothe him
with "great prestige" in the state and nation. 7 Nevertheless, the
three-time loser also recognized that "there
is nothing so
38
disappointing and heartbreaking as politics."
C. Political Lawyer
Parker's dual careers in law and politics paved the way for a
critical transformation into a political lawyer. Appointment as
Special Assistant to the Attorney General of the United States in
the War Transactions Section of the Department ofJustice thrust
the North Carolina attorney into the turbulent world of political
law and, more significantly, into association with public officials
capable of influencing the course of his life.3 9 Parker's assignment involved the prosecution of former high-ranking officials of
the Wilson Administration for alleged frauds associated with
World War I demobilization.4" Neither his efforts to secure
indictments of those who allegedly conspired to dispose of
surplus leather goods4 nor his courtroom prosecution of
defendants accused of defrauding the government in lumber
A "FRESHMAN" TAKES CHARGE
transactions succeeded.4 2 If favorable outcomes in the politically charged cases eluded him, favorable comments did not. "I
have never known a case to be more thoroughly prepared, more
studiously arranged for trial or more ably presented to the
[c]ourt on the law and to the Ijiury on the facts than was the
lumber fraud case by Mr. Parker," one opposing counsel
subsequently declared.4 3 Favorable too were impressions made
on colleagues in the department, including then Attorney
General and future Supreme Court Justice Harlan Fiske Stone.44
III. To the Bench
When the summer of 1925 carried off presiding Fourth
Circuit Judge Charles A. Woods of South Carolina,4 5 Parker's
self-doubts about a judicial career dissolved.46 North Carolina
Republican party politics spawned two key Washington-based
sponsors in the Coolidge administration. Both were important
officeholders in Andrew Mellon's Treasury Department.4 7 At
the same time, former Justice Department associates, most a full
generation older than Parker, rallied to his cause, one hailing
him as "an Adonis in robes, a Mansfield in exposition."4 8 Justice
Stone wrote Department officials that he had "formed a very
favorable opinion of Mr. Parker [because of] his 49attitude as
prosecutor in the Phillips [sic] Lumber Fraud case."
If Tar Heel Republicans and government lawyers knew all
about Parker, his future colleagues on the court of appeals were
hard pressed to identify one without much public visibility and
largely devoid of a "paper trail." Presiding (Senior Circuit) Judge
Edmund Waddill, Jr., when queried by Chief Justice William
Howard Taft, reported that "a lawyer by the name of JJ. Parker,
... I do not know."5 A Department of Justice probe evoked
a slightly more positive identification from the elderly presiding
judge. "I have seen his name mentioned," Waddill wrote
Coolidge's Attorney General, "and I have no doubt I know him,
but for the soul of me I cannot recall anything about him at this
time."'" Waddill's worldly colleague, John Carter Rose, contacted by the Department while sojourning in London, replied in
similar fashion. "At the moment I cannot place Mr. John J.
Parker," he wrote, adding that "it is highly probable that if
something was said which would identify him, I would find that
I did know him or at all events knew something about him."5 2
JOURNAL OF SOUTHERN LEGAL HISTORY
JudgeJohnJ. Parker (left) following his appointment in 1925 by President Calvin Coolidge
to the U.S. Court of Appeals for the Fourth Circuit holding a cane given to him by former
Monroe, North Carolina law partner, Amos M. Stack, met with his undergraduate mentor
at the University of North Carolina, Philosophy Professor Henry Horace Williams (right).
Source Francis I. Parker, copy in possession of the author.
A "FRESHMAN" TAKES CHARGE
On receipt of a recess appointment, Parker took the judicial
oath on the opening day of the circuit court's regular October
term.53 Present were colleagues Rose, age sixty-one, and Waddill,
age seventy.54 The latter had recently been elevated to presiding judge status by the death of predecessor Woods, thereby
creating the vacancy filled by Parker.55 Both veteran jurists must
have looked askance at their newest member. Had this general
practitioner from a decidedly rural state, a jury-oriented courtroom orator in the tradition of the previous century, and above
all, a partisan warrior fresh from political and legal wars acquired
the skills, interests, and values essential for performance of the
judicial role?5 6 Parker's previous experience in both politics
and the law only marginally reassured his more experienced
colleagues.
IV. Court of Appeals
A. Caseloads and Colleagues
The court that Parkerjoined in the autumn of 1925 suffered
serious internal problems. An excessive caseload, however, was
not among them. The tribunal basked in a near golden age; "the
strictly appellate work of the Circuit Court of Appeals for this
Circuit is [not] too heavy or too exhausting," one colleague
frankly admitted.5 7 Caseloads from 1926 through 1930 averaged
186 cases per fiscal year or, divided equally among three judges,
34.3 to 49.3 terminated cases per judge per fiscal year or an
average of 41.8 such cases [Table A]. As compared to other
regional circuits, the Fourth consistently occupied the case-filing
basement in company with the First and Seventh Circuits and,
after 1928, the sprawling Tenth Circuit in the West [Table B].
Once docketed, appeals in the Fourth Circuit flowed expeditiously; less than nine months elapsed between the filing of the record
and issuance of the court's final mandate in the average case
[Table C]. The bench typically acted whenever the attorneys
signaled their readiness for oral arguments as suggested by the
time span between filing of the last brief and oral argument, a
period which ranged from one to 192 days and averaged 19.5
days [Table C].
Not caseloads but rather physical disabilities, death, and
turnover confused court administration and sapped the court's
JOURNAL OF SOUTHERN LEGAL HISTORY
strength during Parker's freshman years.
Its experienced
intellectual leader, John Carter Rose of Baltimore, fell ill in 1926
and died early in 1927; 58 the elderly Waddill died in April 1931,
after suffering crippling periodic illnesses and enduring the
distress and distractions caused by his son's drug addiction.59
Rose's replacement, fifty-eight-year-old Elliott Northcott of West
Virginia,60 proved neither to be his predecessor's intellectual
equal nor to enjoy especially good health.6' Absenteeism meant
that the court's trio of appellate jurists sat together in less than
one-third of all cases heard.62 Thus, the court was in reality a
mixed tribunal composed of visiting trial and resident appellate
judges in nearly seventy percent of all cases heard." Among the
latter, the relatively youthful Parker enjoyed the best health and,
consequently, sat more than the others. His participation rate
exceeded that of all district judges combined and of RoseNorthcott and Waddill. 64 Available to him was the power to
influence judicial decision-making denied his nonsitting, though
senior, colleagues.65
B. "Freshman" Workhorse
Oral arguments and signed opinions were the order of the
day in the Fourth Circuit of the 1920s. Slightly less than onequarter of all appeals would be terminated by means of unsigned
per curiam opinions.6 6 The balance received full court opinions. The writing was assigned disproportionately to the three
circuit judges who, although sitting together in little more than
thirty percent of the cases, individually wrote opinions in 79.2
percent of those arguments they heard.67 Fellowship and "low
seniority in assignments" might mark the freshman experience
on the Supreme Court, as Howard noted in his celebrated article
"On the Fluidity of Judicial Choice,"68 but neither characterized
Parker's experience. The Fourth Circuit freshman proved to be
the court's "workhorse." He received more than his share of
opinions assigned to appellate judges, 44.3 percent. 69 RoseNorthcott followed with 35.7 percent, 7 while Senior Circuit
Judge Waddill received, presumably from himself, only 20.1
percent of all such assignments. 71 Of the assignments made to
both circuit judges and visiting trial judges, Parker similarly led
[Table D].
Although the presiding judge traditionally assigned opinions,
A "FRESHMAN" TAKES CHARGE
Waddill's low participation rate meant that factors other than
formal status played a role in appellate court opinion assignments.7" So too, in assigning opinions in three-judge district
court cases, custom gave way. In such cases, often involving
important public policy-laden issues testing the limits of national
and state regulation of economic life, prevailing custom prescribed assignment and authorship by the resident district judge
within whose jurisdiction the case had originated. 7'
The
putative tradition proved tenuous in practice because Parker
performed the task in one-third of such three-judge court cases
in which he sat. 74 "You are beyond controversy the presiding
elder," Judge Henry Clay McDowell of the Western District of
Virginia informed Parker, twenty-four years McDowell's junior
with six months judicial experience behind him. "It
is for you,"
75
case."
the
assign
"to
him,
told
judge
prius
nisi
the
Reputation and ascribed expertise routed cases to those
judges who could best enhance the authority of the court's
opinions. Professional considerations usually meant an assignment to Parker, the freshman judge who authored either the
majority or plurality opinions in complex cases. Opinions in
more than three-fifths of all appeals involving patent law and the
government's regulation of business fell to Parker. Diversitybased contract disputes comprised the largest single component
of the court's docket [Table E], and Parker wrote nearly twice as
many opinions in such cases than did any one of his colleagues
[Table F].
Parker similarly outdistanced his colleagues in
opinions involving tax questions. Only in cases raising typically
straightforward issues of criminal law and procedure, including
civil actions for violations of federal law (e.g., forfeitures) and of
torts, admiralty, and corporate law did he author less than onethird of the court's full opinions [Table F].
Parker's enthusiasm, energy, and intellectual prowess
contributed to the frequency of opinions that he authored in
cases heard by all three appellate judges. Sometimes, however,
the assignments merely reflected Waddill's managerial shortcomings; the indifferent performance of this function by the senior
judge occasionally left unclear whether or not an assignment had
actually been made. Parker provided clarity by volunteering. In
the midst of work on several cases raising jurisdictional issues, he
reported to the senior judge that "these have not been assigned
JOURNAL OF SOUTHERN LEGAL HISTORY
to me, but I assumed from what you said after the argument that
you wanted me to prepare the opinions."76 Skillful post-conference legal analysis also won Parker opinion-writing duties that
included authoring both of the court's two Sherman Act cases
decided in the last half of the 1920s. In the cool of the Carolina
mountains during the summer of 1926, he studied the 2,000-page
record of an antitrust suit between Union Carbide and one of its
hard-pressed competitors.7 7 His conclusions won favorable
comment from the Senior Circuit Judge.7 1 "I was considerably
impressed with the comprehensiveness of the views set forth,"
Waddill declared, and promptly suggested that his junior
79
colleague pen the opinion.
Parker, the eager volunteer, subsequently mailed out another
detailed memorandum." Ten typed pages long, it critiqued a
case that involved one more application of the antitrust act, this
time to the United Mine Workers of America then attempting to
unionize the bituminous coalfields of southern West Virginia.
Whether to affirm DistrictJudge George W. McClintic's sweeping
injunction decree against the union and in favor of operators of
316 coal companies confronted the court of appeals in International Organization, United Mine Workers of America v. Red jacket
Consolidated Coal & Coke Co.8" Who would write the court's
opinion? Parker recommended to Waddill that the task go to
Rose because the primary issues related to federal procedure and
jurisdiction, subjects on which the scholarly Marylander had
written a treatise, then published in its third edition.82 But
Waddill declined the advice.83 Impressed with Parker as a
"quick worker," with his apparent fidelity to stare decisis,
84
and
with his "comprehensive" ten-page Red Jacket memorandum in
hand, Waddill felt that the freshman judge "had gotten the strike
case where we will all agree. '85 No assignment from 1925 to
1930 proved so fateful for its recipient as did that of Red Jacket,
the full consequences of which did not become evident until
1930 when President Hoover named Parker to the United States
86
Supreme Court.
C. Short-lived Mentor
Parker's deference to Rose in the Red Jacket opinion
assignment suggested a traditional "freshman" syndrome
reflecting inexperience and feelings of inadequacy, as Howard
A "FRESHMAN" TAKES CHARGE
John Carter Rose (186,1-1927) of Baltimore, Maryland had been appointed in
1910 by President William Howard Taft to the U.S. Court for the District of
Maryland and in 1922 by President Warren Harding to the U.S. Court of
Appeals for the Fourth Circuit. Nearing death, the intellectual leader of the
court warned of pitfalls associated with the Red Jacket case. Source. Proceedings
of the Thirty-ninth Annual Meeting, the Virginia State Bar Association held at
Chamberlin-Vanderbilt Hotel, Old Point Comfort: August 1,2 and 3, 1928 (n.p., n.p.,
n.d.), opp. 177.
noted.8 7 And, in fact, the self-conscious newcomer did look for
assistance and support, especially from the veteran jurist and
former journalist whom he regarded as a master of "clarity" and
'88
a writer possessed of an exceptional "power of expression."
Rose's critiques of opinion drafts were warmly welcomed. The
judicial neophyte confessed that "the writing of opinions is new
business to me and I want to do the best I can."89 Consequently
he invited the senior judge's "criticism of the grammar and the
forms of expression as well as any mistakes in the law."9
Similar solicitation went out to Waddill. But the increasingly
infirm presiding judge found it difficult to keep up with his own
JOURNAL OF SOUTHERN LEGAL HISTORY
assignments, much less contribute to Parker's. In fact, with his
youngest colleague delving deeply into cases, Waddill begged off,
in one instance stating that "I have not given the thought to it I
ought to have done, and which your letter will, in large measure,
relieve me from the necessity of doing."'"
Rose's tutelage made a difference, notwithstanding its brief
duration. In a way that the inexperienced Parker did not, his
colleague from Maryland keenly perceived fluidity in judicial
choice. His suggestions "radically changed" one of Parker's
opinions, involving an unfamiliar area of admiralty law.92 Even
in a war profiteering case, about which ex-war frauds prosecutor
Parker entertained sympathies running strongly with the
government, Rose's arguments turned Parker's vote against the
government and in favor of wool dealers charged with making
"excess profits" from sales to the military.9" Advice proffered
less than three weeks before his death by an ailing Rose fundamentally affected the freshman's perception of a critical issue in
the labor injunction case.94 Parker's opinion in the Red Jacket
case would figure importantly in his 1930 confirmation defeat as
a Supreme Court nominee.95
D. Red Jacket
The American Federation of Labor, in its opposition to the
Parker Supreme Court nomination, perceived his opinion in Red
Jacket as clear evidence of anti-labor proclivities. Such unfavorable judicial attitudes toward labor would only serve in the eyes
of A.EL. President William Green and his compatriots to
reinforce those then prevailing on the High Court.9 6 Predictably, labor focused its attention on the injunction against the
United Mine Workers of America affirmed by Parker in RedJacket.
At issue was the scope of that injunction. It constituted, after the
paramount issue of federal jurisdiction, the pivotal substantive
question in a case against the union brought by coal companies
including the Red Jacket Consolidated Coal and Coke Company
working the West Virginia coalfields. 9v The Mingo County-based
enterprise became the named complainant, winning a favorable
decree from Judge George W. McClintic of the Southern District
of West Virginia. That decree had swept broadly, barring the
union "from counseling or advising that [the mine operators]
should in any way or manner be injured in the conduct and
A "FRESHMAN" TAKES CHARGE
management of their business and in the enjoyment of their
property and property rights."98
Parker would not adopt in full the lower court's decree, but,
busy as he was, neither would he abandon well-established
precedent-Hitchman Coal & Coke Co. v. Mitchell.99 That landmark opinion, penned by Associate Justice Mahlon Pitney, had
originated in West Virginia's Panhandle and within the Fourth
Circuit. The High Court's reversal of appeals court Judge Jeter
C. Pritchard's pro-labor opinion cast a shield of constitutional
protection around "yellow-dog" contracts safeguarded by the then
ascendant "liberty of contract" doctrine spawned by substantive
The constitutionality of such
due process jurisprudence.'
contracts barring or ousting from employment those employees
who joined a union had ever since been deemed so settled an
area of law that neither the UMWA briefs nor the arguments of
its counsel raised the question in Red Jacket.'0
The decade-old decision in Hitchman prevented unlawful
interference with labor relations founded on "yellow-dog"
contracts. Interfering unionization strategies might include
either or both unlawful purposes and unlawful means. The
former existed whenever a third party not composed of employees of the targeted business sought to organize that business's
employees in order to strike, and win collective bargaining rights,
and thereby impair the constitutionally protected liberty of2
contract enjoyed by the owner and his individual employees.1
Malicious organizing strategies such as deception, misrepresentation, and threats of pecuniary loss, apparent in the facts of
Hitchman, were deemed to be unlawful means. 0 3 The Fourth
Circuit court, in an opinion authored by Waddill and concurred
in by Rose and neophyte Judge Parker, had addressed both the
"yellow-dog" contract issue and the equity power of courts to
protect such contracts when applying the Hitchman doctrine to a
case with similar facts. Argued during Parker's first term on the
appellate court and published a year later, in 1926, the case was
styled as Bittner v. West Virginia-PittsburghCoal Co.'" 4
The fortuitous assignment to Parker of the opinion in Red
Jacket left the freshman to draft the court's opinion in a legal
conflict that challenged the judiciary's capacity to effect social
and economic change. The author had initially embraced
Hitchman's twin prongs, unlawful purpose and unlawful means,
JOURNAL OF SOUTHERN LEGAL HISTORY
RED JACKET CONSOLIDATED COAL & COKE Co.,INc.
RED JACKET,WEST VIRGINIA
The Mines of the Red Jacket Coal and Coke Company, denoted by dots, were located in the
Thacker Coalfield, Mingo County, in the southwestern corner of West Virginia bordering
Kenttcky along the Tug Fork River. Source. Map by Susan N. Havrilesky. U.S. Geological
Survey, Dept. of the Interior, W. Va.-Ky.-Va. Matewan Quadrangle (1928); logo-letterhead in
letter from Landon C. Bell to Clerk, U.S. Court of Appeals, Fourth Circuit, june 28, 1935,
Red jacket, Records of U.S. Cts. App., Record Group 276 (4th Cir.) 54-A-0177, Box 49, File
No. 7-10-025-5-1 (available at National Archives and Records Administration: Mid Atlantic
Region, Philadelphia, Pa).
A "FRESHMAN" TAKES CHARGE
although only the unlawful purpose test related to the facts of
Red Jacket.10 5 That test remained undisturbed by intervening,
but in his view, either supportive or distinguishable Supreme
Court cases.1" 6 In reaching this conclusion, "freshman" Parker
had "reached into pigeon holes," as Howard so aptly put it, 7
and predictably pulled out Hitchman. The precedent with its
Fourth Circuit progeny appeared to neatly fit the facts of Red
Jacket. Rose disagreed with his junior colleague's assessment. He
challenged the view that a third-party union interloper in pursuit
of an unlawful purpose enjoyed absolutely no right to persuade
employees under "yellow-dog" contracts even to "stop work" as
Parker had stated in his memorandum. 0 8 Admittedly Hitchman
controlled and, Rose wrote, "you are quite possibly right that it
requires an injunction against even . . . persuasion to join the
Union when the persuaders know that those they seek to
persuade have bargained not to do so.' ' 1° He added: "I frankly
do not like the Hitchman case and I think the subsequent
decisions of the Supreme Court show that it is conscious that it
went a little too far .... I would like to limit, as far as the
Hitchman case ... will let us, injunctions against peaceful
persuasion to join the union.""'
Senior Judge Waddill entertained no such doubts.
Hitchman, he recalled, had been
"perfectly clear" on the very point troubling Rose."' Perhaps
the High Court had emitted signals of impending modification
of the labor law precedent, but that was of no concern to an
intermediate court. "If the Supreme Court' 2wants to qualify it,
they should do it, not us," Waddill advised.
Caught between the clashing views advanced by his senior
colleagues, Parker equivocated. "Judicial flux"" 3 unexpectedly
confronted him. He tightly grasped onto his professed Blackstonian approach ("not delegated to pronounce a new law, but to
expound and maintain the old one") 1 4 and to a preferred
formal opinion style. The latter favored exposition that was
"clear and concise and, while not overburdened with quotations,
given a sufficient citation of authority to show that the conclusions are well-sustained and in line with the current of judicial
decisions.'' 5 To be avoided were dicta and explanatory statements that might illuminate underlying public policy, yet partake
of the legislative function. 1 6 Labor cases in particular called
for a parsimonious style. He had asserted six months earlier in
JOURNAL OF SOUTHERN LEGAL HISTORY
a case arising out of the 1922 railway shopmen's strike" 7 that
the court should eschew making "observations in fields so fraught
with controversy where anything said is likely to be misinterpreted."' l Wisdom dictated that the judges "say nothing except
what the decision of the case necessitates."'' 9 The opinion in
Red Jacket, consisting of eighteen typed pages, largely conformed
12
with its author's perception of the ideal opinion.
The draft opinion underwent a transformation in response
to the now deceased Rose's glimpse of a judicial choice. Parker
retreated from his initial reliance on the unadulterated Hitchman
doctrine. While at first he had viewed that doctrine as one which
barred a union's mere "interference with the contract," 121 he
came to approve union efforts "to extend its membership
throughout the industry"'2 2 by using what Rose had termed
"peaceful persuasion to join the union."'2 3 Rose apparently
remembered, even if Waddill had not, the presiding judge's
opinion in the case of West Virginia-Pittsburgh Coal Co. In it,
Waddill had heeded arguments advanced by UMWA counsel for
a proviso permitting peaceful "advocacy of union membership"
so long as they remained free "from attempts to persuade the
complainant's employees or any of them to violate their contracts
with it.'
24
Inclusion of the proviso had struck a decidedly
discordant note in an opinion that largely echoed Hitchman and
replicated the language of the injunctive decree affirmed by
Justice Pitney.125
Influenced by Rose and having reconsidered Waddill's
confusing 1926 opinion, Parker's final draft represented a
revision in his thinking initially advanced in the memorandum.
Red Jacket permitted pro-union speech directed to "employees of
complainants who are under contract not to join the union while
remaining in complainant's service."' 26
It also permitted
speech aimed at persuading such employees to leave their
employment and join the union in order to strike or to refrain
from entering the employer's work place for the same purpose.
What the union could not do was to approach employees
working under "yellow dog" contracts "and induce them, in
violation of their contracts, to join the union and go on a strike
for the purpose of forcing the company to recognize the union
or of impairing its power of production.' ' 127
The subtlety of
Parker's spartan language veiled its essence in 1927 and especially
A "FRESHMAN" TAKES CHARGE
in 1930.
In the best Blackstonian tradition, the freshman jurist
necessarily relied on the prevailing Hitchman doctrine as "conclusive of the point involved here." 2' 8 But he would contend that
his decree, as distinguished from the trial court's, was "certainly
not as broad as that of the decree approved by the Supreme
Court in Hitchman Coal & Coke Co. v. Mitchell."'129 Red Jacket
drew narrower bounds for restraints on pro-union speech
because Parker drew a fine distinction between peaceful persuasion to break and thus violate "yellow-dog" contracts and such
speech intended merely to interfere with them. Only the former
was prohibited in that it incorporated Hitchman's unlawful means
test. Shed was that landmark decision's ban on even undefined
hampering of the operations of businesses using constitutionally
protected indeterminate employment contracts. And so, in the
end, a wavering Parker adopted the advice advanced by Rose and
discounted that which emanated from the elderly presidingjudge
of his bench. The freshman's Blackstonian tendencies and his
opinion craftsmanship that allowed no room for overt criticism
of Hitchman would provide little protection when his opinion
came under fire three years later in the political cauldrons on the
brink of a sea change in national life. 3 '
Untoward political events lay in Parker's future as he labored
on during his freshman years. The author of Red Jacket had
previously assumed a de facto leadership role on a court
handicapped by physical disabilities and the death of one of its
members. The opinion then became for a fleeting moment a
faint memory for a recently appointed and busy judge.
E. Praise and Job Satisfaction
Prior to his work on Red Jacket and before the eclipse of
Rose, who died three weeks before the issuance of that opinion, 3 ' Parker's industry and apparent professional expertise
made a profound impact on both bench and bar. Senior Judge
Waddill could hardly restrain his enthusiasm for the "freshman"
colleague whom he praised as "our crack man" only two months
after the North Carolinian had ascended the bench.'3 2 When
the October 1925 term in Richmond ended and Parker's opinion
assignments were completed, the elderly presiding judge allayed
Chief Justice Taft's initial trepidation over the appointment.'
JOURNAL OF SOUTHERN LEGAL HISTORY
"He is a first class judge," Waddill effused,
[a] sure-enough find, and dispatches business with greater ease and
facility than any new judge with whom it has been my privilege to be
thrown ....
[H]e sat in forty out of forty-two cases, was fully prepared
and ready for conference every time, and we found him to be a really
helpful co-worker." 4
Parker similarly impressed members of the court's bar with "his
wide-awake, analytic, and comprehensive intellect."' 35 He was
"perfectly fair and courteous to all counsel," one attorney
reported, and "his questions went squarely and fearlessly to the
heart of each case and presented the issue in such simplicity as
perhaps the lawyers themselves had not previously grasped."3 6
If the newcomer enjoyed a favorable reputation among
colleagues on the bench and at the bar, he derived great
personal satisfaction from his new office. Parker relished the
tasks associated with it. The work itself was admittedly "quite a
change from the practice of law,"' 37 yet after less than a month
on the court, he boasted of having gotten "the hang of things"
while puzzling over cases "in the main of an important nature."' 38
Impressive, too, was the quality of argumentation;
cases presented to the court struck him as "well argued by lawyers
' 39
who stand ... at the forefront of the bar."'
V. Freshman Achievements
Parker's acknowledged leadership traits were mobilized to
promote the administration of justice in the Fourth Circuit.
Notwithstanding his youth and lack of seniority, the freshman
judge (1) nurtured harmonious intra-circuit law, thereby guiding
the Circuit's district judges; (2) promoted simple and efficient
legal procedures; and (3) labored to systematize court administration.
A. Substantive Law
The development of the law in the circuit concerned Parker,
as had been evident in his work on the opinion in Red Jacket. He
worked to shape and to harmonize this body of regional law.
One strategy involved avoiding dissenting opinions. Unanimity
in fact marked 95.8 percent of the opinions handed down by the
Fourth Circuit from 1.925 to mid-1930. 40
But the low 4.2
A "FRESHMAN" TAKES CHARGE
percent dissent rate masked the extent of intra-court conflict.
The spectrum of judicial choice was broad indeed, clearer in
other cases than had initially seemed true in the labor case.
Subordinating intra-court conflict and thereby avoiding overt
dissent rested on professional strategies of self-effacement and
public silence. Parker suggested the former in omitting from a
draft opinion "a number of matters which I advanced in conference." 41 Included now were "only such matters as I considered
necessary to the decision of the case, thinking that if Judge
McDowell should decide to concur in the opinion, he would
prefer that I omit the matters about which he was doubtful."' 42
A strategy of omission might ultimately result in laconic per
curiam opinions, thereby disposing of cases efficiently while also
muting intra-court conflicts. Thus, in a wrongful death case the
circuit court affirmed the trial judge's directed verdict for the
defendant railroad.'43 Silence enveloped the deeply divisive
and critical jurisdictional issue: Was the deceased "kitchen
flunky," a member of a masonry repair crew hired by the
railroad, actually involved in interstate commerce at the time of
death in the railroad yards? To avoid time-consuming reargument of that point, Parker formulated a "per curiam so as to
show the conclusion at which all of us arrived, namely, that there
was no actionable negligence on the part of the defendant, and
144
so as not to say anything about the question of jurisdiction."'
Even in cases on which he had not sat, Parker scrutinized
the work of associates to assure a harmonious law of the circuit
to guide its bench and bar. "I congratulate you particularly upon
the fine way in which you have handled case no. 2851," he wrote
District Judge Duncan Lawrence Groner of the Eastern District
of Virginia. 145 "I was very much worried about it because of its
'
Especially pleasing was
effect as a precedent in this circuit." 146
the Virginiajudge's skillful restriction of the court's equity power
to reform insurance contracts in light of a "greatly criticized
expansive Supreme Court decision subsequently extended by
some lower federal courts."'4 7 Less complimentary was his
evaluation of colleague Northcott's handiwork. Of the West
Virginian's draft opinion, Parker worried that "there are some
expressions in it which I am inclined to think might cause
trouble in the future, as they do not coincide with what I
understand to be the North Carolina law with respect to chattel
JOURNAL OF SOUTHERN LEGAL HISTORY
Elliott Northcott (1869-1946) of Huntington, West
Virginia succeeded Judge Rose in 1927 on the U.S. Court
of Appeals for the Fourth Circuit and retired from the
bench in 1939. Source. Proceedings of the Fifty-sixth Annual
Meeting of the Virginia State Bar Association held at Virginia
Beach, Virginia: 1946 (Richmond: Virginia Press, 1946),
opp. 128.
148
mortgages and their effect against trustees in bankruptcy."
A five-page argument followed. It construed state law as found
in a then-recent Fourth Circuit decision penned by resident
expert Parker and later cited with approval by the United States
149
Supreme Court.
Similarly, circuit law might be reinforced by circulation of an
unpublished memorandum authored by one district judge and
approved by another. To a wavering trial judge on intra-circuit
A "FRESHMAN" TAKES CHARGE
assignment, Parker invoked the authority of nisi prius brethren.
He noted:
[S]ome two years ago Judge [Ernest F] Cochran [E.D.S.C.] and Judge
[Morris A.] Soper [D. Md.], whom I know you agree with me in regarding
as among the ablest judges in the Circuit, sat with me in the hearing of
the Lottie Cochran case.
We decided in that case that the error
complained of was not harmless, but Judge Cochran prepared and
submitted a memorandum on the doctrine of harmless error, which all of
us agreed to as being the law.'
A copy of Judge Cochran's memorandum accompanied the
letter.'
When dissents occurred, Parker acknowledged to one
dissident that it was "entirely possible that we are wrong about
the matter and that you are right; but we have done the best that
we could." '
In the end, the Supreme Court would measure
his professional judgment and that of his colleagues. Should he
err, Parker confidently asserted that "the Supreme Court will
probably straighten me out.""'5
His confidence was misplaced
because even in the 1920s, the High Court's supervision was
intermittent; writs of certiorari under the court's expanded
discretionary power authorized by Congress in 1925151 were
granted in a mere 8.22 percent of all Fourth Circuit cases in
which an appellant petitioned for a writ. 51 Among those
denied certiorari was RedJacket.'5 6 Denial in such cases meant
to Parker that "the Court has evidently concluded that we were
right in our conclusion," or that "we ... decided the questions
in accordance with the ideas of the Supreme Court."'5 7 The
political process would subsequently adjudge that freshman
interpretation of the meaning ascribed to Supreme Court actions
to be an erroneous one.
The imperative of nurturing cohesive regional law that
accorded with prevailing case law, with or without specific
Supreme Court intervention, fused with another demand:
communicating that law to the districtjudges. Thus an admiralty
case involving seamen's wage claims impressed Parker as "a good
case in which to write an opinion and lay down the law as to
waiting time."' 58 A bankruptcy case involving a lien claim
presented an opportunity to educate the lower bench in "the
' while a
proper practice to be followed in cases of this kind,"159
JOURNAL OF SOUTHERN LEGAL HISTORY
personal injury case enabled the appellate court to differentiate
the doctrines of contributory negligence and assumption of
risk.16 ° The distinction between the two common law tort
doctrines was of little consequence in the case at hand; it loomed
large, however, in cases arising under the Federal Employer's
Liability Act. 161 Such upper court guidance received one
federal trial judge's effusive commendation. "Allow me to
congratulate you upon these opinions," Judge Cochran of South
Carolina's Eastern District wrote Parker. He had "been disturbed
a good deal about railroad crossing cases, and .. . your opinion
in the two crossing cases will be very helpful to the DistrictJudges
in the future.' ' 162 William Baker, Judge of the Northern District
of West Virginia, similarly welcomed Parker's ill-fated opinion in
Red Jacket as helping "a great deal to let both mine operators and
labor organizations know their respective rights."' 63
B. Procedure
Improvements in legal procedure quickly claimed Parker's
attention and energies. He favored an approach elevating
substance over form, facts over legal categories. A conviction
that "it is better to analyze the facts of the case, rather than to
indulge in reasoning on legal definitions" received articulation in
a government contract case.'6 4 "Intricate legal arguments have
been advanced with great ingenuity of reasoning and wealth of
'
learning in support of ... conflicting contentions." 165
But,
the freshman jurist argued:
[T]he answer to the questions involved is to be found, not in technical
reasoning from legal definitions applied to the forms in which the parties
have clothed their transactions, but in a careful study of the facts
conducted with a view of ascertaining the real relationship which existed
between the parties and the substance, not the form, of the agreements
into which they entered."b
Concern for facts as distinguished from form resulted in
short shrift accorded legal technicalities. Parker emphatically
favored the "liberal rules of practice"'6 7 which prevailed in
North Carolina, a code-pleading state since Reconstruction. 6 '
The native Tar Heel waxed euphoric in lauding its procedural
rules as an "almost ideal system of jurisprudence-one which is
simple, expeditious and conducive to decisions of questions on
A "FRESHMAN" TAKES CHARGE
their merits."' 69
Parker's treatment of an important issue of procedure raised
in RedJacket reflected his approach. The United Mine Workers
of America ("UMWA") had alleged a misjoinder of parties in the
appeal of a sweeping injunctive decree against the Union's
organizing campaign in southern West Virginia's bituminous
coalfields. 7 ' The UMWA asserted that as each operator sued
"to protect his individual business . . . there is no common right
whose protection is sought by the suits."''
Each must sue
separately. Parker disagreed in an extended analysis. "There is
but one conspiracy and that conspiracy is directed against the
business of complainants as a class, not because of any of the
individual characteristics of the various businesses, but because
they are operating on the nonunion basis within a certain
territory." ' 72 The court's refusal to consolidate the cases "in
order to promote the convenient administration ofjustice" would
not only be unjust but would also impose on the trial court the
loss of "months or years, to the exclusion of other business." '
Justice and efficiency made it, Parker declared and erudite
colleague Rose agreed, 74 "absurd for the courts to require that
there be presented in 316 different cases against the same parties
a question which could be determined in a single case. '
Parker's advocacy of simplified procedure included minimiz' 76
ing the "distinctions between actions at law and equity."'
Application to federal practice of what the North Carolina Law
Review termed a "liberal and progressive tendency"'1 77 manifested itself in Great American Insurance Co. v. Johnson. 78 When
counsel for the insurance company complacently introduced no
testimony and serenely awaited judgment on grounds that the
insured had erroneously sought a remedy at law rather than in
equity, Parker fairly bristled. "Shall we," he asked, "reverse ...
merely because the case was heard on the law side [and] ...
hark back to the outworn technicalities of a day that is
dead?"'79 Nothing required Parker to find prejudicial error
and to order a new trial "where all of the evidence in the lower
court is before us, where it appears that the case was fully
developed, and where the relief obtained at law is exactly what
...
should have been awarded in equity."' 8 ° When the Taft
Court denied certiorari, 8 ' this implicit affirmation of his theory
of procedural law pleased Parker because he regarded Great
JOURNAL OF SOUTHERN LEGAL HISTORY
American as marking "a distinctive
step forward in the liberaliza82
tion of federal procedure."'
The same treatment of legal forms surfaced in his consideration of criminal procedure issues. It was enough that criminal
indictments contained sufficient information "to fairly and
reasonably inform the defendants of the character of the offense
charged."8 3 The failure of indictment language "to allege that
the automobile was in fact stolen when it is alleged that the
defendants on receiving it knew it to have been stolen can be
nothing more than a defect of form which could not possibly
tend to their prejudice."'8 4 In the privacy of his memorandum,
however, he exclaimed: "[I]t would be a reproach to the
administration ofjustice to allow defendants to escape conviction
on such a technicality."' 85 Time and again, Parker would cut
through the crust of mossy forms with the sword of "harmless
The rationale for such sword wielding never
error."186
changed. "Courts," he declared in Great American, "exist to do
justice, not to furnish a forum for intellectual skill or prowess,"' 87 and "to leave the parties feeling that justice has been
done."'88
C. Court Management
Even as a freshman judge, Parker involved himself in court
administration. Advocacy of executive-centered government
organization had been a pronounced theme in his 1920 North
Carolina gubernatorial campaign;8 9 as judge, he put theory
into practice. No sooner had he joined the appellate bench than
pleas from thejudge of the Eastern District of North Carolina led
him to hold that court's August term at Wilmington. 9 ' At its
close, the congested trial docket had been cleared. A committee
of the local bar was appointed, Parker informed the resident
judge,
to go over the docket and report to you at the next term as to the state
of a lot of old cases which are pending, with recommendation as to what
disposition should be made of same, and direct that the clerk place these
cases on the calendar for the next term."'
The strategy elated its beneficiary who marveled:
[Y]our order appointing a commission to clean house with respect to the
A "FRESHMAN" TAKES CHARGE
docket comes like a straight flush in a weary hand. I never had thought
of that and perhaps never would have thought of it.I shall do the same
thing at Raleigh .. . [where] there is more dead wood in old junk ...
than there was at Wilmington."'
Imperatives of expeditious court administration moved
Parker to seek methods of cutting "down frivolous petitions for
re-hearing."' 93 Such petitions, he complained, "take up considerable time and involve considerable delay in the disposition of
cases."' 194 One method involved eschewing obiter dicta in
judicial opinions. "Suggesting theories upon which it might be
possible to sustain the contentions of plaintiff," he wrote Rose,
who sometimes favored an expansive literary style, only served to
"invite petitions for rehearing and strenuous contention in future
cases."' 95 Thus, the safest course from an administrative perspective, if not from a political perspective as became apparent
in Red Jacket, involved simply announcing "our conclusion on the
facts of this case, without suggesting what we might do if the facts
were not as they are."' 96
Another method for improving case management involved
amending the rules of court to conform with familiar procedure
followed by the North Carolina Supreme Court. That court
utilized a screening system for handling rehearing petitions.
'' However desirable
Parker considered the step "a good one."
any proposed reform in court rules, presiding Judge Waddill
could be expected to object to their adoption on the grounds
that they would complicate the judicial task.' 98 Hurdling that
obstacle might require the intervention of the Chief Justice of
the United States, a strategy Parker contemplated in 1928 when
preparing to attend the annual meeting of the American Law
Institute in Washington.' 99
The circuit court's foremost administrative problem from
1927 to early 1931 related to management of inter-court transfers
of district judges to it, a task statutorily assigned to the court and
construed by Waddill as empowering the Senior Circuit
Judge.0 9 Waddill's periodic disablements, however, caused the
duty to default to Parker, notwithstanding statutory ambiguity
enveloping the subject.
Transfers required assessing the
availability of district judges, scheduling their services on the
appeals court, and seeking Waddill's approval for the assignments, approval which might or might not be forthcoming
JOURNAL OF SOUTHERN LEGAL HISTORY
Former Virginia Readjuster and political lawyer Edmund Waddill, Jr. (1855-1931) had
been appointed in 1898 by President William McKinley to the U.S. Court for the Eastern
District of Virginia and in 1921 by President Warren Harding to the U.S. Court of Appeals
for the Fourth Circuit. The Senior (presiding) CircuitJudge was in the twilight of a long
and tumultuous career when this portrait was made in the late 1920s. Source: Photo No.
LC-USZ62: 91073, Prints and Photographs Division, Library of Congress, Washington, DC.
depending on the state of the senior judge's mental and physical
health.0 1
In his first years as judge, Parker became de facto court
administrator. It proved a delicate position in light of Waddill's
uncertain health and the statutory silence respecting administrative powers ascribed to a judge who lacked seniority. Especially
was this true when the subject at hand involved inter-court
transfers to the appellate court. The senior judge's hierarchical
A "FRESHMAN" TAKES CHARGE
sense of administration impelled him to disfavor gratuitous offers
of such assistance made by trial judges. These offers "should
originate in the upper house," he reportedly told one district
judge. °2
Parker boldly questioned this policy.20 3
He also
differed with Waddill over the presence on the circuit bench of
Eastern Virginia's Groner, a man whom Parker held in high
esteem and devoutly wished promoted to the appellate court
level.20 4 Waddill, however, had refused to invite Groner to
serve on the court-personal animosity apparently precluded an
invitation. 5 When the approach of the 1929 June term in
Asheville brought news of the seniorjudge's indisposition, Parker
mused that
Groner would really be of more help to us than any of the others except
Soper, but I am afraid thatJudge Waddill would feel that we were taking
advantage of his absence to do something that he would not do. On the
other hand, ... Judge Waddill's absence would enable us to bring
2 [Groner] to the Court without causing friction. 1'1
Getting wind of the plan to transfer Groner, Waddill unhelpfully
suggested that "we can get along with any unfinished cases just
as well at the October term."20 7 Parker rejected the backloginducing carry-over plan, and Groner, among four districtjudges,
arrived to expedite judicial business at the court's Asheville
term.
208
Having completed their assignments, travelling judges
routinely submitted expense vouchers. Parker approved them in
Waddill's absence and transmitted them to the Department of
Justice for payment.2 9 No provision in the Judicial Code
specifically sanctioned this or other administrative acts performed
by any judge other than the presiding judge. Parker acknowledged "that the statute does not expressly give me power, "211
but considered himself duty bound "not to let the work of the
21
Circuit suffer by reason of Judge Waddill's illness. '
The young judge reasoned that "Congress must have
intended that in case of serious illness of the Senior Circuit
Judge, resulting in his incapacity, the next Judge in order of
seniority should attend to the work of the Court. ' 212 That
logical thought had apparently never entered the collective mind
of Congress! At most, existing law empowered the judge next in
seniority to preside over the court in the senior circuit judge's
JOURNAL OF SOUTHERN LEGAL HISTORY
"absence."2" 3 No mention was made of permanent physical
disablement nor of the manifold administrative functions, other
than that of presiding in open court, which formally and
informally fell to the most senior appellate judge.2 14 Parker
met this statutory lacuna by giving "a liberal interpretation" to
the section which enumerated the powers of the senior circuit
judge.2" 5 Such a construction seemed justifiable because the
words "senior judge" did not refer exclusively to the specific
judge holding that title, but rather constituted a generic term
embracing any judge who de facto performed the requisite duties
of the court's presiding officer.2 16
The issue of the senior judge's disability would come to a
head at the 1931 Judicial Conference of Senior CircuitJudges, 2as
17
the Judicial Conference of the United States was then titled.
By the time the Conference convened that fall, the issue had
been mooted by Waddill's death.2" 8 Forty-five-year-old Parker
succeeded him, formally assuming Senior CircuitJudge status at
whatJudge Soper declared "an absurdly youthful age, in defiance
of all laws of nature."2" 9 At the conference, Parker's pragmatic
construction of the statute astounded ChiefJustice Charles Evans
Hughes, who chaired the assembly of ranking jurists.22 Hughes
lectured Parker on the statute's explicitness and successfully
urged its recasting to specify devolution of circuit administrative
221
power to an appellate judge other than the senior jurist.
Three years later, Congress resolved the Waddill-induced
administrative conundrum by providing that the appellate judges
in order of their commission assume the duties of a disabled
presiding judge.222 Thus, Parker's conception of effective court
management, implemented by him during his initial years on the
bench, became a permanent part of the Judicial Code.
VI. Conclusion
The opening years ofJohnJ. Parker's nearly thirty-three-year
career on the United States Court of Appeals for the Fourth
Circuit attest to the leadership opportunities available even to a
"freshman" jurist as well as to the pitfalls associated with it. His
youthful energy, professional expertise, and executive qualities
filled a void created by the physically infirm presiding judge, by
other periodically disabled colleagues, and by the rotation
throughout the appellate court of a platoon of district judges.
A "FRESHMAN" TAKES CHARGE
Members of the Conference of Senior Circuit Judges (Judicial Conference of the United
States) October 1-3, 1930 gathered on the Capitol steps for the first meeting chaired by
Chief Justice Charles Evans Hughes and the first, attended, in the absence of disabled
Senior Circuit Judge Edmund Waddill, Jr., by a dejected Judge John J. Parker (Cir. 4)
following the Senate rejection of his Supreme Court nomination the previous May. Left
to right on the front row: George H. Bingham (Cir. 1), Martin T. Manton (Cir. 2),Joseph
Buffington (Cir. 3), Charles E. Hughes (CJ.U.S.), Arthur C. Denison (Cir. 6), Robert E.
Lewis (Cir. 10), Frank H. Rudkin (Cir. 9, substituting for William B. Gilbert); on the rear
row: Samuel Alschuler (Cir. 7), Kimbrough Stone (Cir. 8), Walter P. Bryan (Cir. 5), John
J. Parker (Cir. 4). Except for the appearance of Curtis D. Wilbur (Cir. 9), the membership
of the 1931 Conference remained unchanged from that of 1930. Source. Photo No. LCUSZ62: 17314, Prints and Photographs Division, Library of Congress, Washington, DC.
JOURNAL OF SOUTHERN LEGAL HISTORY
To be sure, he deferred to colleague Rose, but that judge's
tutelage faltered within a year and irrevocably terminated within
sixteen months of Parker's appointment. Even before Rose's
untimely death, the freshman had made material and acknowledged contributions to the work of the court. More were to
come, for as an experienced federal appellate judge he would
author opinions in landmark cases of regional and national
importance.2 23
During the 1930s he achieved prominence as an advocate of
national law reform.2 . and of rules of civil procedure developed
and controlled by judges rather than by legislators or lawyers.22 5
Also, after the adoption of the Federal Rules of Civil Procedure
in 1938,226 he would seek their implementation by federal
judges through his chairmanship of the Judicial Conference
Committee on Pre-Trial Procedure2 2 7 as well as their emulation
by the judiciaries of the several states.228 In addition to promoting procedural codification and simplification, Parker became
a national advocate of judge-centered court management. His
early ventures into the administrative realm vastly multiplied after
1931 when he became Senior Circuit Judge,22 9 a permanent
member of the Judicial Conference from 1931 through 1957,230
and Chairman of the American Bar Association's Section of
Judicial Administration in 1937-38."l
In these different capaci-
ties, he helped to forge the Act of August 7, 1939, formally
creating the circuit judicial councils and conferences as well as
the Administrative Office of the United States Courts, 3 2 and to
develop the minimum standards of judicial administration
encapsulated in Arthur T. Vanderbilt's landmark book by the
same title.2 33
Parker's career as a "freshman" owed much to his own
natural abilities and ambition as well as to anticipatory socialization, including academic and extracurricular achievements as an
undergraduate, courtroom experience, and partisan politics.
Purely fortuitous events opened opportunities for judicial
leadership that otherwise might have remained closed during the
"freshman" years on the intermediate federal appellate court
bench. Yet, those same fortuitous events that thrust him at a
young age into a leadership position on the Fourth Circuit court
also imposed a high cost. His assignment to write the opinion in
Red Jacket derived from his productive capacity and the esteem in
A "FRESHMAN" TAKES CHARGE
which he was held by the presiding judge. Blackstonian proclivities combined with a cryptic opinion style would impale him
when his Supreme Court confirmation evoked politically potent
and ultimately fatal opposition."'
From 1930 until his death in 1958,235 Parker could contemplate his freshman years on the court of appeals and the wholly
unanticipated cost they imposed on his ambition for a seat on
the United States Supreme Court. Would greater maturity and
longer experience on the bench have made a difference? Had
not his phraseology in delineating the scope of the injunction
traced that approved by Waddill and Rose in previously decided
post-Hitchman cases arising out of the strife-torn West Virginia
coalfields?236 How, he plaintively wondered in 1930, could his
senior brethren have erred? After all, "they were both veteran
jurists ... with much experience upon the bench, both in the
District and the Circuit Courts." Parker had no such background. Writing in the third person, he lamented that "he was
not only the youngest judge of the three, but was junior in rank,
having been appointed only a little over a year when this case was
decided."23' 7 Upon further reflection and after the elapse of
more than a decade, the opinion's author admitted the political
damage to his Supreme Court quest imposed by the "freshman"
effect. Writing Harvard Law Professor Zechariah Chafee, Jr. late
in 1941, Parker mused: "Had I been longer upon the bench I
might have attempted some criticism of the Hitchman decision." 38 Hindsight sharpened by the then-recent entombment
of the tattered Hitchman doctrine undoubtedly emboldened
him.239 Rhetorical ventures in opinion writing had been out of
the question for Parker the "freshman" jurist at a moment when
his apparent omnicompetence on the bench deeply impressed
and gratified those who witnessed his performance.
JOURNAL OF SOUTHERN LEGAL HISTORY
TABLE A
Caseload of Fourth Circuit Court of Appeals: 1925-1930
Fiscal Year
Case Pending
Cases Docketed
Cases Terminated
Percent caseload
Terminated
Terminated per
Judge
Cases Pending
(for Decision)
(for Argument)
1925*
177
110
1926
196
142
1927
163
108
1928
169
126
1929
173
122
1930
232
162
124
141
120
118
103
145
70.1
71.9
73.6
69.8
59.5
62.5
41.3
47.0
40.0
39.3
34.3
48.3
(30)
(27)
(13)
(26)
(45)
(24)
(28)
(30)
(28)
(23)
(44)
(42)
*-Parker not seated.
Source "Statement of Cases Docketed, Disposed of, and Pending." Exhibit A-1, Circuit
and District Reports File 1925-1930, Records of the Judicial Conference of the United
States, Library, Administrative Office of the United States Courts, Washington, D.C.
TABLE B
Case Filings in Regional Courts of Appeals by Fiscal Year: 1926-1930
1926 (Cir)
47
(2)
48
(8)
49
(9)
50
(6)
51
(5)
52
(7)
53
(1)
54
(3)
55
(4)
1927
413
401
306
291
291
150
144
108
108
(Cir)
(2)
(8)
(9)
(5)
(6)
(3)
(7)
(1)
(4)
1928
405
377
329
251
242
229
126
123
122
(Cir)
(2)
(8)
(9)
(3)
(5)
(6)
(4)
(1)
(7)
1929
451
405
338
274
271
253
150
128
122
109
(Cir) 1930
(2)
463
(8) 318
(9)
314
(6)
307
(3) 263
(5)
233
(7)
201
(10)
187
(4)
162
(1)
101
(Cir)
(2)
(8)
(8)
(9)
(3)
(6)
(7)
(10)
(4)
(1)
Source. U.S. Annual Report of the Attorney General of the United States: 1926-1930
(1926-1930).
A "FRESHMAN" TAKES CHARGE
TABLE C
Caseflow in Fourth Circuit Court of Appeals, 1925-1930
#
Events Consummated
Days
Min. #
Max. #
Standard
Days
Days
Deviation
Filing of Record to Issuing
of Mandate (n=451)
253.7
37.0
2479.0
142.7
96.2
9.0
558.0
48.7
9.5
1.0
192.0
29.9
199.3
45.0
366.0
97.3
83.9
1.0
396.0
54.7
56.5
1.0
1247.0
72.3
Filing of Record to Filing
of Last Brief (n=50)
Filing of Last Brief to
Duel Argument (n=452)
Oral Argument to
Reargument (n=15)
Argument or Reargument to
Issuing of Opinion (n=488)
Issuing of Opinion to
Issuing of Mandate (n=434)
Source: 6-8 Clerk's Official Term Dockets (Office of the Clerk, U.S. Court of Appeals for
the Fourth Circuit, Richmond, Va.)
TABLE D
Authorship of Full Court Opinions, 1925-1930
judge
Parker
Rose-Northcott
Waddill
District Judges
TOTAL
No. Opinions
159
128
72
94
453
Source. 8-42 Federal Reporter, Second Series (1925-1930)
Percent of
Total Opinions
35.1
28.3
15.9
20.7
100.0
JOURNAL OF SOUTHERN LEGAL HISTORY
TABLE E
Business of the Fourth Circuit Oct. 1925 through April 1930
(n = 604)
Rank
1.
2.
3.
Subject
Contracts
Criminal Law & Proc.
(Crim Law)
(Crim Proc)
Bankruptcy
4.
5.
Admiralty
Taxation
67
Torts
Commercial Law
Property
Corporate Law
Patents
Business Regulation
Other
Unidentified per curiams
45
35
24
18
16
8
32
40
6.
7.
8.
9.
10.
11.
12.
13.
Number
104
85
(52)
(33)
Source 8-42 Federal Reporter, Second Series (1925-1930)
79
49
Percent of
Docket
17.3
14.2
(8.7)
(5.5)
13.1
11.1
8.2
7.5
5.8
4.0
3.0
2.6
1.3
5.3
6.6
A "FRESHMAN" TAKES CHARGE
TABLE F
Full Signed Opinion Authorship By Subject-Matter (n=449)
Parker
Authors
N
Rose-Northcott
%
Waddill
District ]udges
N
N*
*
64.3
(9)
21.3
(3)
62.5
(5)
25.0
(2)
12.5
(1)
44.7
(42)
24.5
(23)
13.8
(13)
17.0
(16)
9
42.4
(14)
27.3
(9)
3.0
(1)
27.3
(9)
4
41.2
(7)
47.0
(8)
1.8
(2)
37.9
(11)
20.7
(6)
13.8
(4)
34.5
(10)
6
Bankruptcy (61)34.4
(21)
29.5
(18)
19.7
(12)
16.4
(10)
6
33.3
(6)
11.1
(2)
22.2
(4)
33.3
(6)
6
33.3
(2)
33.3
(6)
16.7
16.7
Crim. Proc. (19)31.6
(6)
26.3
(5)
5.3
36.8
(1)
(7)
1
6
26.8
(11)
36.6
(15)
9.8
26.8
(11)
6
25.0
(1)
50.0
(2)
25.0
(1)
Crim. Law (37) 24.3
(9)
24.3
(9)
21.6
(8)
29.8
(11)
6
20.4
(11)
31.5
(17)
29.6
(16)
18.5
(10)
6
Corp. Law (15) 20.0
(3)
33.3
(5)
20.0
(3)
26.7
(4)
2
Patents (14)
Gov't Reg.
of Bus. (8)
Contracts (94)
Taxation (33)
War-related Gov't
Actions (17)
Commercial
Law (29)
Property (18)
Non-Gov't Reg.
of Labor (6)
Torts (41)
Civ. Actions for
Violations of
U.S. Law (4)
Admiralty (54)
*N-No. of Cases authored by District Judges
*J-No. of District Judges Participating
Source. 8-42 Federal Reporter, Second Series (1925-1930)
JOURNAL OF SOUTHERN LEGAL HISTORY
ENDNOTES
1. Peter G. Fish, "Parker, John Johnston," 5 Dictionary of North
CarolinaBiography: P-S (W.S. Powell, ed., Chapel Hill, N.C: University
of North Carolina Press, 1994), 16.
2. Id. at 17-19.
3. 72 Cong. Rec. 6, 5849 (1930) (nominated on Mar. 21, 1930; 72
Cong. Rec. 8, 8487 (1930) (not confirmed on May 7, 1930).
4. "Parker," supra note 1, at 17 (death of John, Jr. on July 4,
1941).
A.B.AJ. 32 (1946): cover page.
6. Letter from John J. Parker to R.E. Johnson (Jan. 10, 1925), in
John J. Parker Papers, box 2, Southern Historical Manuscripts Collection, University of North Carolina, Chapel Hill, N.C. [hereinafter
"Parker Papers"]; Letter from Parker to Herbert F. Seawell (Feb. 19,
1925), in id.
7. Recess appointment on Oct. 3, 1925, reported in U.S. Register of
the Department ofJustice and the Courts of the United States (31st ed. 1926),
20; 67 Cong. Rec., 1, 499 (1925) (nominated on Dec. 8, 1925); 67
Cong. Rec. 1, 769 (1925) (confirmed on Dec. 14, 1925).
5.
8. J. Woodford Howard, Jr., Courts of Appeals in the FederalJudicial
System: A Study of the Second, Fifth, and District of Columbia Circuits
(Princeton, NJ: Princeton University Press, 1981), 255. The origin of
this conventional view respecting the U.S. Supreme Court is Eloise C.
Snyder, "The Supreme Court as a Small Group," Social Forces 32 (1958):
232. See also Saul Brenner, "Freshman Justices on the United States
Supreme Court: A Bibliographic Overview of the Social Science
Studies," Law Libr. J 85 (1993): 829.
9. Howard, "Courts of Appeals," supra note 8, at 255.
10. Id.
11. See "The Freshman Member, 1940-42," inJ. Woodford Howard,
Jr., Mr.Justice Murphy: A PoliticalBiography (Princeton, NJ: Princeton
University Press, 1968), 231-64.
12. Robert H. Dorff and Saul Brenner, "Conformity Voting on the
United States Supreme Court," J Pol. 54 (1992): 762; Gregory J.
Rathjen, "Conventional Wisdoms Don't Die Easily: Judicial Career
Patterns and the Context of Majority Opinion Assignment," J Pol. 42
(1980): 1170.
13. Howard, "Courts of Appeals," supra note 8, at 232.
A "FRESHMAN" TAKES CHARGE
14. Act of July 23, 1866, ch. 210, § 2, 14 Stat. 209 (codified as
amended at 28 U.S.C. § 41 (1994)).
15. Act of Mar. 3, 1891, ch. 517, § 3, 26 Stat. 826, 827 (fixing seat
of the Fourth Circuit Court of Appeals at Richmond, Virginia for
regular terms, the dates to be designated by the court); Act of July 17,
1916, ch. 246, 39 Stat. 385 (authorizing the Fourth Circuit Court of
Appeals to hold a term at Asheville, North Carolina on dates designated
by the court). SeeAct of Feb. 28, 1929, ch. 363, § 3, 45 Stat. 1346, 1347.
Regular Richmond terms were: Jan. and Apr. (second Tue.), Oct.
(third Tue.); Special Richmond terms were in months other than Jan.,
Apr.,June and Oct. (second Tue.); Annual Asheville term:June (second
Tue.), reported in U.S. Register of the Department of Justice and the
Courts of the United States (33d ed. 1928), 18.
16. U.S. Register of the Department ofJustice, supra note 15, at 20.
17. Terry Bowen and John M. Scheb, II., "Reassessing the 'Freshman Effect': The Voting Bloc Alignment of NewJustices on the United
States Supreme Court, 1921-90," Pol. Behav. 15 (1993): 1, 2.
18. "In Memoriam: Honorable John Johnston Parker, Chief Judge
of the United States Court of Appeals, Fourth Circuit, died March 17,
1958," Proceedings in the United States Court of Appeals, Fourth
Circuit, April 22, 1958, 253 F.2d 10 (remarks of Simon Sobeloff). Id.
at 24-25 (remarks of Frank Porter Graham).
19. Observer (Charlotte, N.C.) (Mar. 18, 1958), at 1.
20. "Biographical Data ofJudgeJohnJ. Parker" (March-May, 1930),
at 2, in Parker Papers, supra note 6, box 6.
News (Charlotte, N.C.) (Mar. 30, 1930), at 7.
22. "In Memoriam," supra note 18, at 10. See also James Willard
Hurst, The Growth of American Law: The Law Makers (Boston, MA: Little,
Brown & Co., 1950), 302.
23. Letter from Alfred M. Scales to William E. Borah (Apr. 28,
1930), in William E. Borah Papers, box 300, Manuscript Division,
See also J.A. Yarbrough,
Library of Congress, Washington, D.C.
"Interesting Carolina People: JudgeJohn J. Parker," Observer (Charlotte,
N.C.) (Aug. 25, 1935), § 3, at 6 (remarks of Charles A. Douglas).
24. Letter from Frank Armfield to Calvin Coolidge [ca. July, 1925],
in John J. Parker Personnel File (Nov. 20, 1885), P-626: 2, Civilian
Personnel Records, National Personnel Records Center, St. Louis,
Missouri.
25. "Biographical Data," supra note 20; Letter from John J. Parker
to Lee S. Overman (Apr. 1, 1930), reprinted in U.S. Congress, Senate
Subcommittee of the Committee on the Judiciary, Hearing on the
21.
JOURNAL OF SOUTHERN LEGAL HISTORY
Confirmation of Hon. John J. Parker to be Associate Justice of the
Supreme Court of the United States, 71st Cong., 2d Sess. (1930), at 1
[hereinafter Hearing].
26.
Hearing, supra note 25, at 1.
27. Martindale'sAmerican Law Directory (New York, NY: Martindale's
American Law Directory, Inc., 1923), 534; Martindale's American Law
Directory (New York, NY: Martindale's American Law Directory, Inc.,
1924), 548 (estimating net worth at $30,000 to $50,000); Martindale's
American Law (New York, NY: Martindale's American Law Directory,
Inc., 1925), 577 (estimating net worth at $50,000 to $100,000).
28.
"Biographical Data," supra note 20, at 3.
29. Farmers & Merchs. Bank of Monroe, N.C. v. Fed. Reserve Bank
of Richmond, Va., 262 U.S. 649 (1923).
30.
Id. at 651.
See Hearing, supra note 25, at 2.
31. Letter from John J. Parker to Samuel Iredell Parker (Apr. 22,
1929), in Parker Papers, supra note 6, box 18.
32.
Observer (Charlotte, N.C.) (Apr. 18, 1920), at 1. See also
Greensboro Daily News (Oct. 4, 1924), at 1; Greensboro Daily News (Nov. 2,
1924), at 4.
33. Parker opposed Democrat Robert Newton Page in C.D. 7 and
polled 11,006 votes (43.38%) to Page's 14,367 (56.62%). A Pocket
Manual of North Carolinafor the Use of Members of the General Assembly,
Session 1911 (Raleigh, NC: E.M. Uzzell & Co., 1911), 178.
34. Parker opposed Democrat James S. Manning.
See UnionRepublican (Winston-Salem, N.C.) (Nov. 9, 1916), at 2. He polled
120,211 votes (39.07%) to Manning's 187,312 (60.93%).
Union
Republican (Dec. 7, 1916), at 1.
35. Parker opposed Cameron Morrison; he polled 230,175 votes
(42.76%) to Morrison's 308,151 (57.24%), North Carolina Manual, 1921
(Raleigh, NC: Edwards & Broughton Printing Co., 1921), 315-16.
36. V.0. Key, Jr., Southern Politics in State and Nation (New York, NY:
Alfred A. Knopf, Inc., 1949), 3-18, 664-68.
37. Letter from John J. Parker to Morris Ames Soper (May 20,
1930), in Parker Papers, supra note 6, box 19.
38.
Id.
39. Letter from Harry M. Daugherty to John J. Parker (May 2,
1923), in Parker Personnel File, supra note 24, at P-626:2.
40. U.S. Congress, House Select Committee on Expenditures in the
War Department, Hearings on War Expenditures, 66th Cong., 1st & 2d
Sess. (1919-1921); U.S. Annual Report of the Attorney General of the
A "FRESHMAN" TAKEs CHARGE
United States, 1922, at 4 (1922).
41. See Richard L. Merrick, "Memorandum for the Attorney
General, Subject: The Harness Case," (Feb. 2, 1924), in War Transactions Section Advisory Council Files, box 21, Records of the Department
of Justice, Record Group 60, National Archives, Washington, D.C.
42. United States v. John L. Philips, Supreme Court of the District
of Columbia, criminal docket 39652 (stenographic transcript of
proceedings), Files of William S. Ward, Claims Division Records,
National Archives, Washington, D.C.
43. Letter from Thomas C. Bradley to Herbert Hoover (Mar. 14,
1930), in Parker Papers, supra note 6, box 3.
44. Letter fromJohnJ. Parker to Charles A.Jonas (Mar. 12, 1930),
in Parker Papers, supra note 6, box 6; Letter from Parker to Rush L.
Holland (Aug. 23, 1924), in Parker Personnel File, supranote 24; Letter
from Holland to Parker (Aug. 19, 1924), in Parker Personnel File, supra
note 24, P-626:2.
45. Memorial Proceedings, Charles Albert Woods, died June 21,
1925 (Richmond, VA, United States Circuit Court of Appeals for the 4th
Cir. 1925).
46. Letter fromJohnJ. Parker to Iredell Meares (July 28, 1924), in
Parker Papers, supra note 6, box 2; Letter from Parker to William G.
Bramham (Aug. 6, 1925), in Parker Papers, supra note 6, box 2.
47. Commissioner of Internal Revenue David Hunt Blair had been
recommended by Andrew W. Mellon in a letter to Warren G. Harding
(Apr. 20,1921), David H. Blair File, Commissioner of Internal Revenue,
Presidential Appointment Files: 1833-1945, General Records of the
Department of Treasury, Record Group 56, National Archives,
Washington, D.C.; nominated on Apr. 20, 1921, 61 Cong. Rec., 1, 545;
(1921), confirmed on May 26, 1921, id., 2 at 1795; biographical data in
Union-Republican (Winston-Salem, N.C.), Oct. 13, 1910, at 1; Observer
(Charlotte, N.C.) (Sept. 14, 1944), at 12 (obituary). JamesJ. Britt had
served since June 21, 1922 as Chief Counsel of the Treasury Department's Prohibition Bureau. Greensboro Daily News (June 20, 1922), at 1;
Biographical data in Samuel M. Gainor, "Britt, James Jefferson,"
Dictionary of North CarolinaBiography 1 (A-C) (W.S. Powell, ed., Chapel
Hill, NC: University of North Carolina Press, 1979): 229-30.
48. Letter from Charles Kerr to John J. Parker (June 29, 1925), in
Parker Papers, supra note 6, box 2.
49. Letter from Plummer Stewart to Harlan Fiske Stone (june 27,
1925), in Parker Personnel File, supra note 24, P-624:2 (handwritten
comment by Stone).
JOURNAL OF SOUTHERN LEGAL HISTORY
50.
Letter from Edmund Waddill, Jr. to William Howard Taft (July
2, 1925), in William Howard Taft Papers, microfilm roll 275, Manuscripts Division, Library of Congress, Washington, D.C.
51. Letter from Edmund Waddill, Jr. to John G. Sargent (July 4,
1925), in Appointment Files forJudges of the Circuit Courts of Appeals:
1903-1929, Circuit 4, box 334, Department of Jtistice Records, Record
Group 60, National Archives, Washington, D.C.
52. Letter from John C. Rose to John Marshall (July 15, 1925), in
Appointment Files for Judges of the Circuit Courts of Appeals: 19031929, Circuit 4, box 332, Department ofJustice Records, Record Group
60, National Archives, Washington, D.C.
53. "Minutes No. 10, United States Court of Appeals, Fourth
Circuit, 1923 to 1925," at 455-56 (on file with Office of the Clerk, U.S.
Court of Appeals for the Fourth Circuit, Richmond, Va.).
54. Rose was born on April 27, 1861.
National Cyclopaedia of
American Biography 28 (1940): 302-03. Waddill was born on May 22,
1855. "Presentation of the Portrait of the Honorable Edmund Waddill,
Jr., to the United States Circuit Court of Appeals for the Fourth Circuit,
and Memorial Proceedings," 56 F.2d 1, 4 (4th Cir. 1932).
55.
Memorial Proceedings, supra note 45.
56.
Howard, Courts of Appeals, supra note 8, at 107.
57. Memorial Proceedings, supra note 45, at 64 (remarks of John
C. Rose).
58. Letter from Edmund Waddill, Jr. to John J. Parker (Mar. 20,
1926), in Parker Papers, supra note 6, box 16; "Conference Between the
ChiefJustice of the United States and the Senior Circuit Judges of the
Nine Circuit Courts of Appeals of the United States, Tuesday, September 28, 1926" (stenographic transcript of proceedings), at 77-78 (1926)
(Waddill,J., reporting that RoseJ. had missed the April 1926 term and
had continued very "sick" for two and a half months thereafter).
Records of the Judicial Conference of the United States, Library,
Administrative Office of the United States Courts, Washington, D.C.
Rose died on March 26, 1927. Times-Dispatch (Richmond, Va.) (Mar.
27, 1927), at 1.
59. See Peter G. Fish, "From Virginia Readjuster to United States
Senior CircuitJudge: The Ascent of Edmund Waddill, Jr. (1855-1931),"
Am. j Legal Hist. 30 (July 1986): 199, 236-38 (noting Waddill's health
and death on April 9, 1931). See also id. at 233-36 (noting criminal
behavior of Mitchell Waddill).
A "FRESHMAN" TAKES CHARGE
60. Recess appointment on Apr. 6, 1927, reported in U.S. Register of
the Department ofJustice and the Courts of the United States, 1928, at
8 (1928); nominated on Dec. 9, 1927, reported in 69 Cong. Rec., pt. 1,
70th Cong., 1st Sess., 359 (1927); confirmed on Dec. 15, 1927. Id. at
692.
61. SeeLetter fromjohnJ. Parker to George W. McClintic (Aug. 24,
1929), in Parker Papers, supra note 6, box 19; Letter from Elliott
Northcott to Parker, (Jan. 6, 1930), in Parker Papers, suna note 6, box
19. See also Letter from L.V. Guthrie to Northcott (Jan. 11, 1927), in
File of Elliott Northcott, U.S. Attorney, West Virginia-Southern,
Appointment Files for Officers in Federal Judicial Districts, 1901-1933,
box 943, Department of Justice, Record Group 60, National Archives,
Washington, D.C.; "Reminiscences of Chester T. Lane," Oral History
Research Project, part 1, Columbia University, New York, N.Y., at 350.
62. N=187/621; data derived from Volumes 8-42 of the Federal
Reporter, Second Series (1925-1930); 6-8 Clerk's Official Term Docket
(1925-1930) (on file with Clerk's Office, U.S. Court of Appeals,
Richmond, Va.).
63. Id. A bench composed of one circuit and two district judges
heard 12% of all appeals. Another 57.8% (359/621) were heard by two
circuit judges and one district judge. Id.
64. Id. Parker sat on 76.2% of all cases (473/621), followed by
Rose-Northcott (439/621) and trailed by Waddill who sat in little more
than half of all cases heard (335/621). Id.
65.
See Howard, Courts of Appeals, supra note 8, at 239.
66. N=136/589, data derived from Volumes 8-42 of the Federal
Reporter, Second Series (1925-1930); 6-8 Clerk's Official Term Docket
(1925-1930) (on file with Clerk's Office, U.S. Court of Appeals,
Richmond, Va.).
67.
68.
Id. (n=359/453).
J. Woodford Howard, Jr., "On the Fluidity ofJudicial Choice,"
Am. Pol. Sci. Rev. 62 (1968): 43, 44-45.
69.
70.
71.
Id. (n=159/359).
Id. (n=128/359).
Id. (n=72/359).
72. Letter fromJohnJ. Parker toJohnsonJ. Hayes (June 27, 1929),
in Parker Papers, supra note 6, box 19; John J. Parker to Edmund
Waddill, Jr., June 19, 1929, in Parker Papers, supra note 6, box 19;
Letter fromJohnJ. Parker to Elliott Northcott (Dec. 6, 1930), in Parker
Papers, supra note 6, box 20. See Act of Mar. 3, 1891, ch. 517, § 3, 26
JOURNAL OF SOUTHERN LEGAL HISTORY
Stat. 827 (codified in Act of Mar. 3, 1911, ch. 231, § 120, 36 Stat. 1132)
(stating that "the circuit judges in attendance upon the court shall
preside in the order of the seniority of their respective commissions").
73. Act of June 18, 1910, ch. 309, § 17, 36 Stat. 557 (amended by
Act of Oct. 22, 1913, ch. 32, 38 Stat. 220) (providing for the organizing
of three-judge district courts); Letter fromJohnJ. Parker to Henry Clay
McDowell (Apr. 5, 1926), in Parker Papers, supra note 6, box 16.
74. N=5/15, in volumes 8-42 of the Federal Reporter, Second Series
(1925-1930).
75. Letter from Henry Clay McDowell to John J. Parker (Mar. 30,
1926), in Parker Papers, supra note 6, box 16.
76. Letter from John J. Parker to Edmund Waddill, Jr. (Feb. 8,
1930), in Parker Papers, supra note 6, box 19.
77. Letter from John J. Parker to Edmund Waddill, Jr., and Ernest
F. Cochran (Sept. 6, 1926), in Parker Papers, supra note 6, box 16; see
Alexander Milburn Co. v. Union Carbide & Carbon Corp., 15 F.2d 678
(4th Cir. 1926).
78. Letter from Edmund Waddill, Jr. to John J. Parker and Ernest
F. Cochran (Sept. 24, 1926), in Parker Papers, supra note 6, box 16.
79. Id.
80. Memorandum by John J. Parker on nos. 2492-2503, in Parker
Papers, supra note 6, box 48 (regarding International Organ., United
Mine Workers of America v. Red Jacket Consol. Coal & Coke Co., 18
F.2d 839 (4th Cir. 1927)).
81. 18 F.2d 839 (4th Cir. 1927).
82. Letter from John J. Parker to Edmund Waddill, Jr. (Mar. 8,
1927), in Parker Papers, supra note 6, box 17. See John C. Rose,
Jurisdiction and Procedure of the Federal Courts (Albany, NY: M. Bender &
Co., 3d ed., 1926).
83. Letter from Edmund Waddill, Jr. to John J. Parker (Mar. 12,
1927), in Parker Papers, supra note 6, box 17.
84. Letter from Edmund Waddill, Jr. to John C. Rose (Mar. 19,
1927), in Parker Papers, supra note 6, box 17.
85. Waddill to Parker, in Parker Papers, supra note 6, box 17; Letter
from Waddill to Parker (Mar. 16, 1927), in id.
86. On the relationship between Red Jacket and the Senate defeat
on May 7, 1930 of Parker's confirmation as Associate Justice of the
United States Supreme Court, see Peter Graham Fish, "Red Jacket
Revisited: The Case that Unraveled John J. Parker's Supreme Court
Appointment," Law & Hist. Rev. 5 (1987): 51, 51-104.
A "FRESHMAN" TAKES CHARGE
87. See Howard, "On the Fluidity," supra note 68, at 45; Howard,
Mr. Justice Murphy, supra note 11, at 236.
88. Letter from John J. Parker to John C. Rose (Dec. 2, 1925), in
Parker Papers, supra note 6, box 16.
89. Letter fromJohnJ. Parker to John C. Rose (Dec. 15, 1925), in
Parker Papers, supra note 6, box 16.
90. Id.
91. Letter from Edmund Waddill, Jr. to John J. Parker (Feb. 19,
1926), in Parker Papers, supra note 6, box 18 (regarding case no. 2456,
United States v. Neptune Lines, 12 F.2d 568 (4th Cir. 1926)). See also
Letter from Edmund Waddill, Jr. to John J. Parker (Dec. 26, 1929), in
Parker Papers, supra note 6, box 19 (regarding case no. 2875, Massachusetts Bonding & Ins. Co. v. Concrete Steel Bridge Co., 37 F.2d 693 (4th
Cir. 1930)).
92. Letter fromJohnJ. Parker to Henry H. Watkins (Jan. 13, 1926),
in Parker Papers, supra note 6, box 16; Letter from Parker to John C.
Rose (Jan. 9, 1926), in Parker Papers, supra note 6, box 16 (regarding
case no. 2412, Berwind-White Coal Mining Co. v. Solleveld, Van
DerMeer & T.G. Van Huttum's Stoomvaart Maatschappij, 11 F.2d 80
(4th Cir. 1926)).
93. United States v. McFarland, 15 F.2d 823 (4th Cir. 1926); Letter
from John J. Parker to John C. Rose (Sept. 18, 1926), in Parker Papers,
supra note 6, box 16.
94. Letter from John C. Rose to John J. Parker (Mar. 8, 1927), in
Parker Papers, supra note 6, box 17; Letter from John J. Parker to
Edmund Waddill, Jr. (Dec. 14, 1926), in Parker Papers, supra note 6,
box 16 (regarding Sorenson v. Boston Ins. Co., 20 F.2d 640 (4th Cir.
1927) (consisting of a draft opinion by Rose, J. holding contrary to the
unanimous vote of the judges in conference)). Rose, J. died on Mar.
26, 1927, 18 F.2d iv, n. 9 (1927).
95. See generallyRichard L. Watson,Jr. "The Defeat ofJudge Parker:
A Study in Pressure Groups and Politics" Miss. Valley Hist. Rev. 50
(1963): 213. Regarding the protest of black Americans to the nomination which followed organized labor's protest, see Kenneth W. Goings,
The NAACP Comes of Age: The Defeat ofJudgeJohnJ Parker (Bloomington:
Indiana University Press, 1990).
96. See an excellent recent analysis of the fight on Judge Parker
and the role played in it by the labor and race issues by John Anthony
Maltese, The Selling of Supreme Court Nominees (Baltimore, MD: Johns
Hopkins University Press, 1995), 56-69.
JOURNAL OF SOUTHERN LEGAL HISTORY
97. Parker regarded the jurisdictional issue as "the most serious
question in the case," Memorandum by John J. Parker on nos. 24932503, in Parker Papers, supra note 6, box 48, as did counsel for United
Mine Workers of America who devoted 119 of 169 papers (70%) to the
subject in arguments contained in the appellant's brief, Brief for
Appellants, Int'l Union, United Mine Workers of Am. v. Red Jacket
Consol. Coal & Coke Co., 18 F.2d 83 (4th Cir. 1927), at 66-185. Federal
court jurisdiction depended on a finding that the union and its officers
engaged in a conspiracy under the Sherman Anti-Trust Act (26 Stat.
209) to restrain interstate commerce in coal produced in non-union
West Virginia mines, Red Jacket, 18 F.2d at 843. Should the complainants fail to link the union activities to interstate commerce, the
defendant union would effectively win under the prevailing doctrine of
"dual federalism," a legacy of United States v. E.C. Knight Co., 15 U.S. 1
Parker
(1895) and Hammer v. Dagenhart, 247 U.S. 251 (1918).
recognized "that coal mining is not commerce, and that ordinarily
interference, with coal mining could not be said to be interference with
interstate commerce," although in Red Jacket the union logically
"intended to interfere with the shipment of coal in interstate commerce." Memorandum by John J. Parker on nos. 2493-2503, in Parker
Papers, supra note 6, box 48. The intent derived from the huge
quantum of coal production interfered with at the mineheads thereby
blocked interstate traffic. Under recent Supreme Court precedents,
such intra-state blockage exerted a "direct effect" on interstate commerce within the Sherman Act. Red Jacket, 18 F.2d at 845 (citing
Coronado Coal Co. v. UMWA (Second Coronado Case), 268 U.S. 295,
309-10 (1925)); Id. at 846 (citing United States v. Brims, 272 U.S. 549,
552 (1926)); Id. (citing Bedford Cut Stone Co. v. Journeymen Stone
Cutters' Ass'n of N. Am., 274 U.S. 37, 46 (1927)).
98. Red Jacket, 18 F.2d at 842.
99. 245 U.S. 229 (1917), revg Mitchell v. Hitchman Coal & Coke
Co., 214 F. 685 (4th Cir. 1914).
100. See Lochner v. New York, 198 U.S. 45 (1905); Adair v. United
States, 208 U.S. 161, 174 (1908); Coppage v. Kansas, 236 U.S., 14
(1915). For a modern critique of the doctrine, see Hadley Arkes, The
Return of George Sutherland: Restoring A Jurisprudence of Natural Rights
(Princeton, NJ: Princeton University Press, 1994), 273-78.
101. Letter of John J. Parker to Lee S. Overman (Apr. 24, 1930),
reprinted in 72 Cong. Rec. 7, 7793 (1930) (also noting that " it] his form
of contract was directly upheld in 1914 [sic] in the case of Coppage v.
Kansas (236 U.S. 1)
....
It was again directly upheld in the
Hitchman case." On the failure of UMWA counsel to press the validity
A "FRESHMAN" TAKES CHARGE
of such contracts, see testimony of Thomas C. Townsend, Hearing, supra
note 25, at 61-69.
102. Hitchman, 245 U.S. at 253-59.
103. Id.at 259.
104. 15 F.2d 657-58 (4th Cir. 1926); 7 Clerk's Official Term Dockets
(Oct. term 1926), 6 (available at Office of the Clerk, U.S. Fourth Circuit
Court of Appeals, Richmond, VA) (noting that case no. 2409 was
argued Oct. 22, 1925, opinion filed Oct. 29, 1926, decree filed Nov. 1,
1926, and mandate issued Dec. 2, 1926).
105. See Memorandum by John J. Parker on nos. 2492-2503, in
Parker Papers, supra note 6, box 48.
106. See Duplex Printing Press Co. v. Deering, 254 U.S. 443 (1921);
Am. Steel Foundries v. Tri-City Cent. Trades Council, 257 U.S. 184
(1921); Truax v.Corrigan, 257 U.S. 312 (1921).
107. Howard, "On the Fluidity," supra note 68, at 50.
108. Memorandum by John J. Parker on nos. 2492-2503, in Parker
Papers, supra note 6,box 48.
109. Letter of John C. Rose to John J. Parker (Mar. 8, 1927), in
Parker Papers, supra note 6, box 17.
110. Id.
111. Letter of Edmund Waddill, Jr. to John J. Parker (Mar. 12,
1927), in Parker Papers, supra note 6, box 17.
112. Id.
113. Howard, "On the Fluidity," supra note 68, at 44.
114. William Blackstone, Commentaries on the Law's of England-Book
the First (London, GB: Dawson's of Pall Mall, 1966) (reprint of 1765
ed.) § 3,at 69.
115. Letter ofJohnJ. Parker to Elliott Northcott (May 27, 1927), in
Parker Papers, supra note 6, box 17 (regarding case no. 2610, Globe
Indemnity Co. v. Keeble, 20 F.2d 84 (4th Cir. 1927)).
116. Letter of John J.Parker to John C. Rose (Feb. 12, 1927), in
Parker Papers, supra note 6, box 17 (regarding case no. 2553, United
States v. Newport Shipbuilding Corp., 18 F.2d 556 (4th Cir. 1927)).
117. See Colin J. Davis, Power at Odds: The 1922 National Railroad
Shopmen's Strike (The Working Class in American History) (Urbana, IL:
University of Illinois Press, 1997).
118. Letter of John J. Parker to John C. Rose (Oct. 1, 1926), in
Parker Papers, supra note 6, box 16, (regarding case no. 2453, Feaster
v. Southern Ry. Co., 15 F.2d 540 (4th Cir. 1926)).
JOURNAL OF SOUTHERN LEGAL HISTORY
119. Id.
120. Letter ofJohnJ. Parker to Edmund Waddill,Jr. (Apr. 7, 1927),
in Parker Papers, supra note 6, box 17.
121. Memorandum by John J. Parker on cases nos. 2492-2503, in
Parker Papers, supra note 6, box 48.
122. Red Jacket, 18 F.2d at 844.
123. Letter of John C. Rose to John J. Parker (Mar. 8, 1927), in
Parker Papers, supra note 6, box 17.
124. Bittner v. West Virginia-Pittsburgh Coal Co., 15 F.2d 652, 659
(4th Cir. 1926). See Brief for Appellant at 18-19, 45, 49-52, Bittner v.
West Virginia-Pittsburgh Coal Co., 15 F.2d 652 (4th Cir. 1926).
125. Bittner, 15 F.2d at 654.
126. Red Jacket, 18 F.2d at 849.
127. Id.
128. Id.
129. Id.
130. See Maltese, The Selling, supra note 96, at 57-58.
131. Red Jacket, 18 F.2d at 839 (issued Apr. 18, 1927); id. at 850
(reporting that Rose, J. heard the case and concurred in the decision
affirming the district court, but died before reviewing the record on the
jurisdictional question or the opinion of the court). Rose died March
26, 1927, 18 F.2d iv, n.9 (1927)).
132. Letter from Edmund Waddill, Jr. to John J. Parker (Dec. 16,
1925), in Parker Papers, supra note 6, box 16; see also letter from
Waddill to Parker (June 11, 1927), in id. box 17.
133. Letter from William Howard Taft to Edmund Waddill,Jr. (Oct.
5, 1925), in Taft Papers, supra note 51, microfilm roll 276.
134. Letter from Edmund Waddill,Jr. to William Howard Taft (Jan.
30, 1926), in Taft Papers, supra note 51, microfilm roll 279.
135. Letter fromJohnJackson McSwain to Herbert Hoover (Mar. 17,
1930), in Parker Papers, supra note 6, box 3.
136. Id.
137. Letter from John J. Parker to Thomas Bragg Higdon (Oct. 31,
1926), in Parker Papers, supra note 6, box 16.
138. Id.
139. Id.
140. N=540/565 (missing data, N=14), in volumes 8-42 of the
Federal Reporter, Second Series (1925-1930).
A "FRESHMAN" TAKES CHARGE
141. Letter from John J. Parker to Elliott Northcott and Henry Clay
McDowell (Oct. 31, 1927), in Parker Papers, supra note 6, box 16
(regarding case no. 2807, Dunagan v. Appalachian Power Co., 33 F.2d
876 (4th Cir. 1929)).
142. Id. For a use of a similar strategy in In re Miner-Edgar Co., 32
F.2d 103 (4th Cir. 1929), see letter from John J. Parker to Henry Clay
McDowell and Morris A. Soper (Mar. 26, 1929), in Parker Papers, supra
note 6, box 18.
143. Brown v. Norfolk & W. Ry. Co., 20 F.2d 133 (4th Cir. 1927).
144. Letter from John J. Parker to George W. McClintic (May 28,
1927), in Parker Papers, supra note 6, box 17; Memorandum on no.
2537, in Parker Papers, supra note 6, box 48 (regarding Brown, 20 F.2d
133). See also Letter from Parker to McClintic (May 21, 1928), in Parker
Papers, supra note 6, box 17.
145. Letter from John J. Parker to Duncan Lawrence Groner (Sept.
16, 1929), in Parker Papers, supra note 6, box 19.
146. Id.
147. Id. See Hutchings v. Caledonian Ins. Co. of Scotland, 35 F.2d
309, 211 (4th Cir. 1930) (distinguishing Northern Assurance Co. v.
Grand View Bldg. Ass'n, 183 U.S. 308 (1902)).
148. Letter fromJohnJ. Parker to Elliott Northcott (Mar. 17, 1928),
in Parker Papers, supra note 6, box 19.
149. Id. (regarding case no. 2666, Holt v. Albert Pick Co., 25 F.2d
378 (4th Cir. 1928)). Parker noted that Firestone Tire & Rubber Co. v.
Cross, 17 F.2d 417 (4th Cir. 1927) had been cited with approval in
Finance & Guar. Co. v. Oppenhimer, 276 U.S. 10, 12 (1928).
150. Letter from John J. Parker to Henry Clay McDowell (Mar. 26,
1929), in Parker Papers, supra note 6, box 18 (regarding case no. 2636,
Chesapeake & Ohio Ry. Co. v. Cochran, 22 F.2d 22 (4th Cir. 1927)).
151. Id. (regarding case no. 2807, Dunagan v. Appalachian Power
Co., 33 F.2d 876, 878-79 (4th Cir. 1929)).
152. Letter from John J. Parker to Henry Clay McDowell (Oct. 24,
1927), in Parker Papers, supra note 6, box 17 (regarding Kelleher v.
French, 22 F.2d 341 (W.D. Va. 1927)).
153. Letter from John J. Parker to Henry Horace Williams (Feb. 6,
1930), in Parker Papers, supra note 6, box 3 (regarding case no. 2908,
United States v. Munson Steamship Line, 37 F.2d 681 (4th Cir. 1930),
affd, 283 U.S. 43 (1930)).
154. Act of Feb. 13, 1925, ch. 43 Stat. 936.
JOURNAL OF SOUTHERN LEGAL HISTORY
155. N=15/133 cases; data derived from volumes 269-281 of the
United States Reports (1925-1930). N=133 when all joined cases are
counted as a single case; n=148 if such cases are counted separately.
Twelve of the joined cases were appeals in Red Jacket, cert. denied, 275
U.S. 536 (1927).
156. Cert. Denied, International Organ., United Mine Workers of Am.
v. Red Jacket Consol. Coal & Coke Co., sub nom. Lewis v. Red Jacket
Consol. Coal & Coke Co., 275 U.S. 536 (1927).
157. Letter from John J. Parker to Charles T. McCormick (Dec. 14,
1928), in Parker Papers, supra note 6, box 18 (regarding case no. 2669,
Gillam v. United States, 27 F.2d 296 (4th Cir. 1928), cert. denied, 278
U.S. 635 (1928)).
158. Memorandum on no. 2761, in Parker Papers, supra note 6, box
48 (regarding Morgan v. E. Transp. Co., 31 F.2d 332 (4th Cir. 1929)).
159. Id. on no. 2437 (regarding Weekley v. Oil Well Supply Co., 12
F.2d 539, 541 (4th Cir. 1926)) (Parker, J., stating that "a lien claimant
will have no artificial presumption of the correctness of his claim
because he asserts it informally along with proof of secured claim
instead of following the better practice of filing an intervening petition").
160. Anderson v. S. Ry. Co., 20 F.2d 71 (4th Cir. 1927).
161. Act of June 11, 1906, ch. 3073, 34 Stat. 232 (amended by Act
of Apr. 22, 1908, ch. 149, 35 Stat. 65, § 4 and Apr. 5, 1910, ch. 143, 36
Stat. 291). This protective Act limited the common law doctrine of
assumption of risk as a defense in determining liability in common
carrier negligence cases and permitted contributory negligence only as
a mitigating factor, not as a complete defense. See Letter from John J.
Parker to Elliott Northcott (May 19, 1927), in Parker Papers, supra note
6, box 17 (regarding Anderson, 20 F.2d 71 (4th Cir. 1927)).
162. Letter from Ernest F. Cochran to John J. Parker (May 22,
1926), in id. box 16 (regarding case no. 2387, At. Coast Line R.R. Co.
v. McLeod, 11 F.2d 22 (4th Cir. 1926); case no. 2504, Waid v. Chesapeake & Ohio Ry. Co., 14 F.2d 90 (4th Cir. 1926)).
163. Letter from William E. Baker toJohnJ. Parker (Apr. 21, 1927),
in Parker Papers, supra note 6, at box 17.
164. Letter fromJohnJ. Parker to Elliott Northcott (Sept. 15, 1927),
in Parker Papers, supra note 6, box 17.
165. Va. Shipbuilding Corp. v. United States, 22 F.2d 38, 46 (4th Cir.
1927).
166. Id.
A "FRESHMAN" TAKES CHARGE
167. Letter from John J. Parker to Edmund Waddill, Jr. (Dec. 8,
1926), in Parker Papers, supra note 6, box 16.
168. See Robert Wyness Millar, Civil Procedure of the Trial Court in
HistoricalPerspective (New York, NY: Oceana Publications, Inc., 1952),
54, 57.
169. Notes by John J. Parker on "Trial Practice in North Carolina
Courts," n.d., in Parker Papers, supra note 6, box 15.
170. Red Jacket, 18 F.2d at 842.
171.
172.
173.
Papers,
Id. at 846.
Id.
Memorandum by John J. Parker on nos. 2493-2503, in Parker
supra note 6, box 48.
174. See Letter from John C. Rose to John J. Parker (Mar. 8, 1927),
in Parker Papers, supra note 6, box 17.
175. Red Jacket, 18 F.2d at 847.
176. Letter from John J. Parker to Edmund Waddill, Jr. and Elliott
Northcott (Dec. 12, 1929), in Parker Papers, supra note 6, box 19
(regarding case no. 2905, Clarksburg Trust Co. v. Commercial Casualty
Ins. Co., 40 F.2d 626 (4th Cir. 1930)).
177. T.A. Uzzell, Jr., Note, "Federal Procedure-Transfer of Cases
Between Law and Equity Sides of Court," N.C. L. Rev. 9 (1930): 82, 84.
178. 25 F.2d 847 (4th Cir. 1928).
179. Id. at 850.
180. Id., reh'g denied, 27 F.2d 71 (4th Cir. 1928); accord Nat'l Sur. Co.
v. County Bd. of Educ. of McDowell County, 15 F.2d 993, 994 (4th Cir.
1926); Clarksburg Trust Co., 40 F.2d at 626.
181. See Great Am. Ins. Co. v. Johnson, 278 U.S. 629 (1928).
182. Untitled summary of leading opinions authored by John J.
Parker, n.d. [ca. Mar.-May 1930] at 6, in Parker Papers, supra note 6,
box 6.
183. Belvin v. United States, 12 F.2d 548, 550 (4th Cir. 1926), cert.
denied, 273 U.S. 706 (1926).
184. Wendell v. United States, 34 F.2d 92, 94 (4th Cir. 1929). See
also Lisansky v. United States, 31 F.2d 846 (4th Cir. 1929).
185. Memorandum by John J. Parker, in Parker Papers, supra note
6, box 48 (regarding case no. 2881 Wendell v. United States, 34 F.2d 92
(4th Cir. 1929)).
JOURNAL, OF SOUTHERN LEGAL HISTORY
186. SeeAct of Feb. 26, 1919, ch. 48, 40 Stat. 1181 (providing that on
a hearing for a new trial, "the court shall give judgment ... without
regard to technical errors, defects, or exceptions which do not affect
the substantial rights of the parties").
187. 25 F.2d 847, 850 (4th Cir. 1928).
188. Letter from John J. Parker to Edmund Waddill, Jr. (Feb. 10,
1926), in Parker Papers, supra note 6, box 16 (regarding case no. 2384,
Jones v. Gould Steamships & Indus. Ltd., 10 F.2d 792 (4th Cir. 1926)).
189. See Peter G. Fish, "Guarding the Judicial Ramparts: John J.
Parker and the Administration of Federal Justice," Just. Sys. J. 3 (1977):
105, 114-15.
190. Letter from Isaac M. Meekins toJohnJ. Parker (June 30, 1926),
in Parker Papers, supra note 6, box 16.
191. Letter fromJohnJ. Parker to Isaac M. Meekins (Aug. 13, 1926),
in Parker Papers, supra note 6, box 16.
192. Letter from Isaac M. Meekins toJohnJ. Parker (Aug. 17, 1926),
in Parker Papers, supra note 6, box 16.
193. Letter from John J. Parker to Edmund Waddill, Jr. and Elliott
Northcott (May 30, 1929), in Parker Papers, supra note 6, box 18.
194. Id. (regarding case no. 2831, Collie v. Ferguson, 31 F.2d 1010
(4th Cir. 1929)).
195. Letter from John J. Parker to John C. Rose (Feb. 12, 1927), in
Parker Papers, supra note 6, box 17 (regarding case no. 2553, United
States v. Newport Shipbuilding Corp., 18 F.2d 556 (4th Cir. 1927)).
196. Id. See also letter from John J. Parker to Elliott Northcott, in
Parker Papers, supra note 6, box 19.
197. Letter from John J. Parker to Edmund Waddill, Jr. and Elliott
Northcott (May 30, 1929), in Parker Papers, supra note 6, box 18. See
N.C. Supreme Court Rules, 44 (2), 254 N.C. 821 (1961) (originally
promulgated in N.C. Supreme Court Rules, 53, 140 N.C. 672 (1906),
providing that
a petition for rehearing shall be accompanied with the certificate
of at least two members of the bar of this court, who have not
interest in the subject-matter, and have never been of counsel for
either party to the suit .
.
. that they have carefully examined the
case and the law bearing thereon and the authorities cited in the
opinion; and they shall summarize succinctly in such certificate the
points in which they deem the opinion erroneous.
198. Letter from John J. Parker to Ernest F. Cochran (Mar. 17,
1928), in Parker Papers, supra note 6, box 18.
A "FRESHMAN" TAKES CHARGE
199. Id. The issue involved implementation of the Act of Jan. 31,
1928, ch. 14, 45 Stat. 54 (abolishing the writ of error, substituting
appeal for it, and establishing filing procedure); the Sixth Annual
Meeting of the A.L.I. was held at the Mayflower Hotel, Washington,
D.C. on Apr. 26-28, 1928, A.L.I. Proc. (1928), at 264 (Parker registered), 573, 587 (Parker quoted), 259 (Taft registered), 296-99 (address
of Taft).
200. Act of Mar. 3, 1911, ch. 231, § 17, 36 Stat. 1089 (authorizing
the Senior CircuitJudge to make intra-circuit transfers of districtjudges
"to anotherdistrict court" (emphasis added)); id. § 120, at 1132 (authorizing the transfer of district judges to the circuit court "according to such
order or provision among the district judges as either by general or
particular assignment shall be designated by the court," in the absence
of a sufficient number of judges that included the Supreme Court
Justice allotted to the Circuit (the Chief Justice in the case of the
Fourth Circuit) and the resident circuit judges to constitute the threejudge circuit court). See also Order of Allotment of justices, 271 U.S. iv
(1925) (allotting of William Howard Taft, C.J., to the Fourth Circuit);
Allotment ofJustices, 282 U.S. iv (1930) (allotting Charles Evans Hughes,
C.J. to the Fourth Circuit); Act of Mar. 3, 1911, ch. 231, § 119, 36 Stat.
1089, 1131 (authorizing allotment of Justices among the circuits); Act
of Mar. 3, 1891, ch. 517, § 2, 26 Stat. 826 (providing for circuit courts
of appeals of three judges in each).
201. Letter from John J. Parker to Edmund Waddill, Jr. (Jan. 31,
1930), in Parker Papers, supra note 6, box 19.
202. Letter from Morris A. Soper toJohnJ. Parker (Feb. 19, 1930),
in Parker Papers, supra note 6, box 19.
203. Letter from John J. Parker to Morris A. Soper (Feb. 20, 1930),
in Parker Papers, supra note 6, box 19.
204. Letter from John J. Parker to Duncan Lawrence Groner (Jan.
2, 1930), in Parker Papers, supra note 6, box 19. See Letter from John
J. Parker, Elliott Northcott, and Morris A. Soper to William D. Mitchell
(Jan. 13, 1943) (telegram), Duncan Lawrence Groner Papers, microfilm
roll M-1912 (available at Alderman Library, University of Virginia, Charlottesville, Va.).
205. Letter fromJohnJ. Parker to Elliott Northcott (June 22, 1929),
in Parker Papers, supra note 6, box 19.
206. Id.
207. Letter from Edmund Waddill, Jr. to John J. Parker (June 24,
1929), in Parker Papers, supra note 6, box 19.
JOURNAL OF SOUTHERN LEGAL HISTORY
208. See 8 Clerk's Docket, supra note 62 (June Term 1929) (reporting cases in which DistrictJudges Duncan Lawrence Groner (E.D. Va.),
JohnsonJ. Hayes (M.D.N.C.), Morris A. Soper (D. Md.), and Henry D.
Watkins (W.D.S.C.) sat).
209. Letter fromJohnJ. Parker to Elliott Northcott (Sept. 26, 1930),
in Parker Papers, supra note 6, box 20.
210. Letter fromJohnJ. Parker to Elliott Northcott (Nov. 29, 1927),
in Parker Papers, supra note 6, box 17.
211. Letter from John J. Parker to George W. McClintic (Jan. 3,
1931), in Parker Papers, supra note 6, box 20.
212. Letter fromJohnJ. Parker to Elliott Northcott (June 22, 1929),
in Parker Papers, supra note 6, box 19.
213. Act of Mar. 3, 1911, ch. 231, § 120, 36 Stat. 1132 (providing
that "[i]n the absence of the Chief Justice or associate justice, the
circuitjudges in attendance upon the court shall preside in the order of
the seniority of their respective commissions") (emphasis added).
214. See U.S. House, Committee on the Judiciary, H. Rep. 1020 to
accompany H.R. 7356, Authorizing Circuit Judge Next in Seniority to
Serve in Case of Disability of Senior CircuitJudge, 73d Cong., 2d Sess.
(1934).
215. "Conference of the Chief Justice of the United States with the
Senior CircuitJudges of the Ten Judicial Circuits of the United States,"
350 (1931) (stenographic transcript) (remarks of John J. Parker), in
Judicial Conference Records, supra note 58.
216. Id. at 354-55.
217. Act of Sept. 14, 1922, ch. 306, 2, 42 Stat. 838 (amended by Act
of June 25, 1948, ch. 646, 331, 62 Stat. 903). Section 136 of the 1948
Act at 897 substituted the term "chief' for "senior" judge; section 45 at
871 designated "the circuit judge senior in commission [as] the chief
judge of the circuit," and made harmonizing changes "in phraseology"
including in ch. 331 as noted in U.S. House Comm. on the Judiciary,
H.R. 308 to accompany H.R. 3214, Revision of Title 28, United States
Code, 80th Cong., 1st Sess., A. 45 (1947).
218. U.S. Staff of Senate Committee on theJudiciary, 85th Cong., 2d
Sess., Legislative History of the U.S. Circuit Courts of Appeals and the
Judges Who Served During the Period 1801 through March 1958, at 84
(1958) (noting Waddill's death on April 9, 1931 and Parker's elevation
to Senior Circuit Judge).
219. "Proceedings of a Special Session of the U.S. Court of Appeals,
Fourth Circuit, and of the United States District Court for Maryland, for
the Purpose of Administering the Oath to Judge Morris A. Soper and
A
"FRESHMAN" TAKES CHARGE
W. Calvin Chestnut, Esq., Saturday, May 9, 1931 at Baltimore, Maryland," at 5 (remarks of Morris A. Soper), in Parker Papers, supra note
6, box 20.
220. "Conference of the Chief Justice," at 355 (1931) (remarks of
Charles Evans Hughes), injudicial Conference Records, supra note 215.
221. Id. at 355, 359-62.
222. Act of May 23, 1934, 48 Stat. 796 (codified as 28 U.S.C. § 45(d)
(1993)).
223. See, e.g., Bradford v. Fahey, 78 F.2d 628 (4th Cir. 1935);
Greenwood County, S.C. v. Duke Power Co. (Buzzard's Roost Case), 81
F.2d 986 (4th Cir. 1936), rev'd, 299 U.S. 259 (1936); 91 F.2d 665 (4th
Cir. 1937), affd, 302 U.S. 485 (1938) (upholding Public Works
Administration loans for county construction of electric power plant
under the National Industrial Recovery Act); Va. Ry. Co. v. Sys. Fed'n
No. 40, 84 F.2d 641 (4th Cir. 1936), affd, 300 U.S. 515 (1937)
(upholding enforcement of collective bargaining under the Railway
Labor Act); Jeffrey-Dewitt Insulation Co. v. NLRB, 91 F.2d 134 (4th
Cir.), cert. denied, 302 U.S. 731 (1937) (upholding enforcement of
collective bargaining under the National Labor Relations Act); Barnwell
Bros. v. S.C. State Highway Dep't, 17 F. Supp. 803 (E.D.S.C. 1937)
(holding state regulation of size and weight of trucks to be an
unreasonable interference with interstate commerce, rev'd, 303 U.S. 177
(1938); Alston v. Sch. Bd. of Norfolk, 112 F.2d 992 (4th Cir. 1940), cert.
denied, 311 U.S. 693 (1940) (holding unconstitutional racially discriminatory public school teachers' salary schedules); Barnette v. West Va.
State Bd. of Educ., 47 F. Supp. 251 (S.D.W. Va. 1942), affd, 319 U.S.
624 (1943) (holding unconstitutional a state's compulsory flag salute
law); Hope Nat'l Gas Co. v. Fed. Power Comm'n, 134 F.2d 287 (4th Cir.
1943), rev'd, 320 U.S. 591 (1944) (holding rates fixed by the FPC to be
an unreasonable deprivation of property); Bhd. of Locomotive Firemen
& Enginemen v. Tunstall, 163 F.2d 289 (4th Cir. 1947), cert. denied, 332
U.S. 841 (1947) (holding that the class of black firemen were entitled
to damages and injunctive relief when excluded from union by racially
discriminatory collective bargaining and seniority strategies); Rice v.
Elmore, 165 F.2d 387 (4th Cir. 1947), cert. denied, 333 U.S. 875 (1948)
(holding unconstitutional state's "white primary" law); Briggs v. Elliott,
98 F. Supp. 529 (E.D.S.C. 1951), vacated, 342 U.S. 350 (1952), on
remand, 103 F. Supp. 920 (holding public school segregation not
unconstitutional per se, but that separate educational facilities must be
equal), rev'd, Brown v. Bd. of Educ., 347 U.S. 483(1954); United States
v. Guy W. Capp, Inc., 204 F.2d 655 (4th Cir. 1953), affd, 348 U.S. 296
(1955) (holding unconstitutional an executive agreement which
JOURNAL OF SOUTHERN LEGAL HISTORY
contravened an act of Congress applicable to the same subject matter
of international trade); United States v. Twin City Power Co., 215 F.2d
592 (4th Cir. 1957), cert. denied, 356 U.S. 918 (1958) (holding that a
property owner is entitled to just compensation based on most
profitable use of land taken); Scales v. United States, 227 F.2d 581 (4th
Cir. 1955), rev'd, 355 U.S. 1 (1957); 260 F.2d 21 (4th Cir. 1958), affd,
367 U.S. 203 (1961) (holding membership clause of the Smith Act
applicable to "active" members of the Communist party); Sch. Bd. of
Charlottesville v. Allen, 240 F.2d 59 (4th Cir. 1956), cert. denied, 353 U.S.
910 (1957) (affirming injunctive decree against enforcement of racial
discrimination by school boards).
224. "Remarks ofJohnJ. Parker, Senior CircuitJudge of the Fourth
Circuit at the Judicial Conference of the Fourth Circuit, June 6, 1932,"
at 2, in Parker Papers, supra note 6, box 15.
225. See Fish, "Guarding the Judicial Ramparts," supra note 189, at
105-13.
226. See Orders re Rules of Procedure, 302 U.S. 783 (1938).
227. See "Report of the Committee on Pre-Trial Procedure to the
Judicial Conference of Senior Circuit Judges," Agenda 28, Sept. 15,
1944 (mimeograph), Judicial Conference Records, supra note 58.
228. John J. Parker, "The Work of The Special Committee on
Improving the Administration of Justice," in Annual Handbook of the
National Conference of Judicial Councils 3 (1941): 33-38.
229. See "Judges in the Circuit Courts of Appeals and District Courts
of the United States, United States Court of Customs and Patent
Appeals, Court of Claims of the United States, and Court of Appeals of
the District of Columbia," 47 F.2d v, vi (noting the death of Judge
Waddill on April 9, 1931 and Parker's seniority overJudge Northcott);
see also Legislative History, supra note 218.
230, "Report of the Judicial Conference: October Session, 1930," in
U.S. Annual Report of the Attorney General of the United States, 1931,
at 4 (1931) (reporting Parker's attendance in the absence of Waddill,
J.). On Parker's attendance 1931-57, see Peter Graham Fish, The Politics
of FederalJudicial Administration (Princeton, NJ: Princeton University
Press, 1973) (App. B), 440-444.
231. "Reports of the Section ofJudicial Administration," A.B.A. Rep.
63 (1938): 517, 529.
232. Ch. 501, §§ 302, 304, 53 Stat. 1223 (Administrative Office)
(codified at 28 U.S.C. § 601 (2002)); § 306, 53 Stat. 122 (circuit
councils) (codified at 28 U.S.C. § 332 (2002); § 307, 53 Stat. 1224
(circuit conferences) (codified at 28 U.S.C. § 333 (2002)).
A "FRESHMAN" TAKES CHARGE
233. "Reports of the Section," supra note 234, at 523; See Minimum
Standards of Judicial Administration: A Survey of the Extent to which the
Standards of the American Bar Association for Improving the Administration
ofJustice Have Been Accepted Throughout the Country (Arthur T. Vanderbilt,
ed., New York, NY: Law Center of New York University for the National
Conference of Judicial Councils, 1949).
234. 72 Cong. Rec. 8, 8487 (1930) (recording roll call vote on
Parker's confirmation: 41 "nays" - 39 "yeas"; with pairs, 49 "nays" and
47 "yeas" in a Senate then composed of 96 members).
235. Parker died Mar. 17, 1958, "In Memoriam," supra note 18.
236. See United Mine Workers of Am. v. Carbon Fuel Co., 288 F.
1020 (1923); Bittner v. W. Va.-Pittsburgh Coal Co., 15 F.2d 652 (1926).
237. John J. Parker, untitled memorandum, n.d. pp. 4-5, in Parker
Papers, supra note 6, box 6.
238. Letter from John J. Parker to Zechariah Chafee Jr. (Nov. 25,
1941), in Parker Papers, supra note 6, box 10.
239. See Apex Hosiery Co. v. Leader, 310 U.S. 469 (1940); United
States v. Hutcheson, 312 U.S. 219 (1941).