Over the past decade I’ve researched and written about the history of a fair number of U.S. Supreme Court cases, mostly in the IP field. Over this time I’ve learned a fair bit about what resources are available, and also recently
procrastinated a writing project and developed a research tool to make finding the case file number much quicker. All the places you can go (that I know of) to learn more about a case are below – and if there’s things I learn (or just forgot to mention) I’ll add to this as time goes on.
Note that all the steps below aren’t necessary in all cases, and there are often additional possible steps as well. This is meant as a general guide, not as an exhaustive one. Also, many of the steps outlined here can apply to State Supreme, State and Federal Appellate, and trial and administrative adjudications. There’s been so much digitized in the past two decades; the time required to take many of these steps is surprisingly minimal.
This might seem obvious, but the first step is to really read the decision, and go back to the text often while writing – there’s always things there that only make sense when you really dig into the context of the case. In addition, up to about 1870, it was common practice for the reporter to include the arguments of counsel, which could be quite lengthy. I don’t know how common this is, but in at least one case (Wheaton v. Peters) one of the dissents was omitted, and not included until later editions (and didn’t make it to the versions on major online research platforms.
Speaking of, you should always look at the decision in (a scan of) the printed reporter – sometimes cases are presented to make the connections between them clear as printed, which you’d completely miss without seeing them printed together – the Library of Congress has them all. I’ve also noticed that in some cases the Court will comment on a decision in another decision shortly thereafter – I think this is less common now but I’ve seen it.
Obviously read the lower court decisions from the case. It’s also often surprisingly helpful to read other decisions involving the parties to the case – often you’ll learn a lot about the context. Note that not all cases are in commercial databases – for instance older DC Court of Appeals decisions aren’t all on Westlaw, and the Decisions of the Commissioner of Patents aren’t either. For these sources you can generally read them for free at Hathitrust, and almost everything is also available on Heinonline.
The next step is generally to pull the transcript of record and briefs filed in the case. The transcript of record is effectively a typeset version of the major documents filed with the trial court, and has been required since 1832. Since 1854 the Supreme Court has required parties to file merits briefs; before that parties frequently filed a one or two sheet list of “points of argument,” although proto-briefs were created as well. With the creation of the certiorari process in 1891, the cert petition and any opposition should exist as well. Most of these records were microfilmed, and scans of the microfilm are available through a Gale database, which is searchable by U.S. Reports citation or case name. If these documents aren’t in Gale, it doesn’t mean they don’t exist, and they might be in one of the brief depository libraries around the country. For instance, Gale only has the transcript of record from Banks v. Manchester, but I was able to get the briefs from the Library of Congress. Transcripts of Record vary wildly in size, and frequently include deposition testimony that shines light on the case in a way that would otherwise be impossible.
The printed transcript of record to the Supreme Court generally includes the most pertinent material from the record below, but it doesn’t include material from the Supreme Court itself. The National Archives holds Records of the US Supreme Court which typically include a casefile, docket sheet, and occasionally other material. These records were actually the inspiration for this post, when I learned that the National Archives had begun scanning its microfilm holdings from these records. For cases before 1909, you need to look the case number up in a microfilm index before going further. I took the scans of this microfilm and organized them onto the Internet Archive instead, available here. You can flip through or do a text search once you open to the appropriate series (unfortunately, the whole series is too big at 61k cards for Internet Archive to handle as one document).
Once you have the National Archives file number, you can request that they pull the case file, which you need to do in person at their location in downtown Washington DC (the research entrance is on the other side of the building from the public entrance). The file is frankly variable in its interest level – there’s a lot of material on appearances and scheduling, and sometimes that’s all there is. But there’s sometimes more. The file number will also enable you to find the docket, which is also available on scanned microfilm – the scans are best accessed at the National Archives Catalog site here (you’re looking for the docket number, printed faintly on the page, and not the more prominent page number). I’ll note that for early cases, especially those before the 1850s, there’s typically not much except what’s at the National Archives, so there’s more upside in looking for those older cases.
As mentioned, the printed transcript of record to the Supreme Court generally includes the most pertinent material from the record below, but it also omits certain material. The most significant, for cases from 1891 on, is the briefs to the Circuit Courts of Appeals are not included (the Circuit Courts of Appeal were created in 1891). Circuit Court briefs are available in a variety of places – there are free online caches of briefs from the DC & 2nd, 7th, and 9th Circuits, for instance. For newer cases Westlaw and Lexis may have them as well. LLMC Digital also has a good selection, and many law libraries also have briefs at least from the Circuit they’re located in on microform. If all else fails, the regional divisions of the National Archives should have them – note that many regional divisions have been transferring Circuit Court of Appeals records to the National Archives location in Kansas City. Much the same is true for cases that came from State Supreme Courts, although those records are typically held by state archives instead. The National Archives also has trial Court records as well for federal courts – note that until the 20th century, the Circuit Courts were trial courts. Most of the trial court record is typically in the printed transcript of record, but mileage varies.
For the oral argument in the case, it’s really a tale of two epochs. For October Term 1955 and subsequently, full audio of the argument generally exists, and is now online through the efforts of the Oyez Project. If you can’t find it there, you should check with the National Archives. In addition, transcripts from most cases from the period should be available – try the microfilm first, and then check the National Archives (and if all else fails) Supreme Court Library. Prior to that mark there are no recordings, and transcripts are only available intermittently – the microfilm collection of arguments has isolated cases from 1952 on, mostly the major civil rights cases. The oral argument transcript is typically not at the National Archives before 1955. I’ve put together a resource on what exists of argument transcripts but the short version is (1) many transcripts exist but (2) only a small percentage are identified, and finding them can be a real struggle. Note that for many 19th century cases, publishing a pamphlet version of the argument of one side was not uncommon; these have generally been scanned somewhere, and Hathitrust and Gale’s Trials Database as both good places to look.
Note that if you’re interested in what happened in the case after the Supreme Court ruled, usually on remand, you’ll need to look at the trial court casefile (and above for any subsequent appeals). Sometimes it’s pretty minimal, but in many instances the case goes on for years more after the Supreme Court rules.
And then there’s secondary sources – material not directly from the case. Secondary sources covers a huge swath of material, and instead of trying to enumerate everything, I figured I’d try to give a few examples of places to look:
- Old newspapers – these often have tidbits of coverage which you wouldn’t get from Court pleadings, and sometimes more. For instance, when writing In Search of the Trade-Mark Cases, I was surprised to find that the local Ohio paper had a print interview with one of the litigants about the case and its backstory, which I never would have learned otherwise.
- Old legal newspapers – slightly different, and often a bit underwhelming, since they typically just reported cases without much commentary, but they sometimes will surprise you. They also sometimes include reports of cases which never made it to official reporters, as I discovered when writing about the Elgin watch case, finding a decision in the Chicago Legal News that gave the background of the case but which wasn’t on elsewhere or anywhere else I could find.
- Old trade publications – if you’re writing about copyright, you need to be checking back issues of Publisher’s Weekly, and the same applies in other fields as appropriate.
- Other reported cases involving the parties – this one is often surprisingly fruitful, and surprisingly easy with your favorite legal research tool.
- Old biographies / nonfiction works – you never know what you’ll find, but always look for biographies of the parties and attorneys. For instance, if you want to know the history of the 1869 fair use case Lawrence v. Dana, there’s a chapter of Charles F. Adams’s biography of Richard Dana devoted to the case.
- Archival collections of the parties to the case and/or the attorneys. Unfortunately, these tend to not include legal materials, but if they do you’ve likely struck gold. Especially helpful for transcripts of arguments, should they exist. You might also want to check ArchivesGrid for letters from litigants, even if they don’t have their own collections.
- Look at the files of interest groups and interested individuals – for instance I found a letter in the Robert Underwood Johnson Papers at the New York Public Library where a bill sponsor who otherwise left no trace of his motivation for his 1890s legislation explained everything. Johnson was influential in the space but not in any official capacity, and such individuals exist in every space.
There’s always more steps you can take, but hopefully this will help people interested in writing about litigation. With the scanning of older law books and archival material, the cost in time of doing this sort of research is a fraction of what it used to be, and I’d urge people to try it.