Argument Aloud

Mappings of online data from the U.S. Supreme Court

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U.S. Supreme Court Arguments: Auditing and Oddities

Below are the results of an on-going audit that correlates three sources of U.S. Supreme Court data:

The goal of this initial audit was to identify issues and work out kinks in the auditing process, and ultimately generate comprehensive lists of relevant data, including:

Ultimately, all terms from 1889 (the earliest year for which Journals are available digitally) through the present need to be audited.

Oyez omissions discovered in the initial audit:

Examples of anomalies uncovered in Oyez during the initial audit:

With regard to docket numbers, it’s worth noting that not even the Supreme Court was perfectly consistent. For example, Reid v. Covert (No. 701) was assigned docket number 701 in the 1955 term, but when it was redocketed for reargument in the 1956 term, the same docket number was used. This required the Supreme Court to add a qualifier to the docket number every time the case was mentioned in the 1956 Journal (e.g., “No. 701, October Term, 1955”). Fortunately, that was a rare occurrence, at least among argued cases, and the Court had a method for dealing with it.

The way Oyez defines a “term” created other problems. In the modern era, a term is generally a 9 to 12-month period starting in October, but in the past, the Court sometimes had multiple “regular terms” in a single year, as well as the occasional “special term” (ie, a term sandwiched between regular terms, often in the summer). Both regular terms and special terms are always identified by month and year (e.g., “February Term 1809”, “October Term 1955”, “August Special Term 1958”, etc), so it would have been far better if Oyez (and others) had used unambiguous term identifiers (e.g., “YYYY-MM”) instead of merely “YYYY”.

Take the case of Aaron v. Cooper (No. 1 Misc) and its immediate successor, Cooper v. Aaron (No. 1), both of which Oyez filed in the 1957 term. Those two cases were actually argued and decided between regular terms, in “August Special Term 1958”, but given Oyez’s filing limitations, it had no choice but to file them under either 1957 or 1958. Unfortunately, each of those terms already had a case docketed as No. 1, which added to the confusion. Oyez circumvented that confusion by creating more confusion: it “consolidated” both arguments under name of the latter (Cooper v. Aaron) but with the docket number of the former (No. 1 Misc). In hindsight, the 1958 term would have a been better choice, if only because the Supreme Court listed those cases in the 1958 Journal (the Court doesn’t produce separate journals for special terms).

Another anomaly arises when the Court invites amicus parties to argue on behalf of a set of cases, rather than a specific case. For example, in the 1962 term, the following cases were argued over a period of three days:

On the third day, the Solicitor General and others then argued as amici, and while the Solicitor General argued with respect to all the cases, other attorneys (e.g., Joseph Kaufman) argued only with respect to specific cases (e.g., No. 26). Unfortunately, Oyez didn’t have an easy way to attach amicus arguments to multiple cases, so it simply tacked all the amicus arguments onto Shuttlesworth v. City of Birmingham (No. 67) [see November 7, 1962]. Since there are no notations to explain this, anyone looking for the complete set of arguments in another case (e.g., Griffin v. Maryland) will not know where to find the amicus arguments, or even that they exist.

These exceptions are what consume 90% of the time required to audit a single term. 90% of all argued cases match up perfectly between Journals, NARA records, and Oyez records – quickly and automatically. It’s figuring out what’s wrong with the remaining 10% that can take hours of sleuthing. As the process moves forward in time, the process should improve and the number of exceptions shrink.

Working backwards before 1955, we will lose the benefit of any Oyez or NARA audio records that we can cross-reference, so the auditing process needs to incorporate other sources of data as well, such as:

The Supreme Court Database Revisited

As luck would have it, the very first case in this initial audit, Texas v. New Mexico (No. 9 Orig.), was missing from SCDB, because even though it was argued on October 10, 1955, it was dismissed the following term, on February 25, 1957, “because of the absence of the United States as an indispensable party.” This was reported on p.166 of the 1956 Journal and in the decision at 352 U.S. 991.

This is another example of frustrating inconsistencies with SCDB. It does not consistently include cases that were 1) dismissed as improvidently granted (“DIG’ed”), 2) dismissed for want of a substantial federal question, 3) dismissed (“affirmed”) by an equally divided Court, 4) dismissed pursuant to Rule 60 due to some mistake or omission in the lower court, or 5) dismissed for any other reason, as in the case above.

Texas v. New Mexico is a particularly unfortunate omission, because as The National Archives noted:

NARA’s holdings of Supreme Court audio recordings date to the start of the 1955 court session. The earliest recording in the collection is from the October 10, 1955 argument in the case of Texas v. New Mexico, an interstate water dispute which persists to modern cases and arguments before the Court.

Once a case has been granted, and particularly once a case has been argued, it needs to be recorded, regardless of outcome, so that researchers can identify how often cases are dismissed after being granted, why they were dismissed, and whether (and when) they were argued before being dismissed.

Cases “affirmed by an equally divided Court” are perhaps the least interesting cases to record, even though SCDB makes some effort to record them, because the Court said absolutely nothing about them. In all other dismissals, the Court invariably provides a reason for its action, and yet SCDB does not always record them.

The 1952 term is illustrative. Looking through U.S. Reports Volume 344, you can easily spot three deadlocked cases from that term, all “affirmed by an equally divided Court”:

all of which SCDB dutifully records. And yet a number of other cases that were decided by a brief per curiam opinion were not recorded by SCDB:

Those are significant omissions, because all three cases (Nos. 197, 198 and 390) were fully briefed and argued and decided, the lack of a detailed opinion notwithstanding.

As an aside, I dislike the semantics of the phrase “affirmed by an equally divided Court.” Affirmance implies intention, but when the Court is deadlocked, there is no intention to affirm. Words like “affirm” or “reverse” only make sense when accompanied by some conclusion, which can take the form of a full opinion, a brief per curiam opinion, or an even briefer dismissal (as when improvidently granted). In all those instances, a majority of the Court reached some decision – even deciding not to decide is a decision – whereas a deadlock is the complete absence of a decision.

That said, I’m not arguing that deadlocked cases are somehow less important. Every case, once granted, should be treated with equal importance.

Hicks v. District of Columbia (No. 51) from the 1965 term is another example of an unfortunate omission in SCDB. The case was “dismissed as improvidently granted”, and while (as usual) the Court said nothing more about it, several Justices wrote separately, shedding more light on the Court’s reasoning.

First, there was a brief concurrence from Justice Harlan:

“Among the several reasons which support the action of the Court in dismissing the writ in this case as improvidently granted, I rest my decision to join in this disposition on the lack of a record, without which I do not believe the constitutional issues tendered can properly be decided.”

His concurrence referred to “several reasons”, only one of which he mentioned (lack of a record). But there was also a dissent from Justice Douglas that made those reasons clear: an incomplete record and a time bar that the Court refused to waive.

“DIG’ed” cases rarely provide that much detail, and they never provide a vote, so we can’t know if such decisions were unanimous or whether there were any Justices with reservations who nevertheless didn’t feel strongly enough to say so. And those decisions are typically buried in the back of U.S. Reports, along with all the other cases that were not even granted, much less briefed and argued.

However, Hicks v. District of Columbia (No. 51) was briefed and argued, and the decision – including the concurrence and dissent – is on full display in U.S. Reports, at 383 U.S. 252.

Audit Results for October Term 1952 through October Term 1971

[Raw Argument Data] [Raw Advocate Data]