Transcripts of Supreme Court Oral Arguments from Before OT1955 – They Exist!

Folks who follow the law have usually heard about the Oyez Project, which is the result of the titanic effort to digitally transfer and make available the audio recording of most oral arguments before the US Supreme Court since the October Term (“OT”) of 1955 (a Term being October to June of the following year).  Earlier than that it has generally been stated that only a few earlier transcripts of oral arguments existed for the civil rights cases of the early 1950s existed, and I assumed that was all there was.  Then I was told that a transcript existed for the case of Mazer v. Stein, argued in 1953, and I decided to look a bit deeper.  What I found surprised me.

When I refer to transcripts in this post I’m referring to a transcription of the oral argument before the Supreme Court, as opposed to the “Transcript of Record” filed with the Court which is a typeset version of all relevant documents from the Court(s) below.  The Transcript of Record (and the Briefs) for the vast majority of cases before the Court – including rejected Petitions for Certiorari – are available through the (paywalled) Gale database The Making of Modern Law: U.S. Supreme Court Records and Briefs, 1832–1978, as well as the microfilm it is based on.  The originals are held at the main National Archives building in Washington, DC.  However, these collections only include submissions to the Court in anticipation of the argument, they do not include any record of the oral argument before OT 1955.

Certain traces of older oral arguments were known to exist.  Folks who have read cases from the Supreme Court from before 1880 or so know that there is frequently a restatement of the argument of counsel included in the report.  This was not done by verbatim transcription, but was rather made (as I understand it) by a mix of the notes of the Reporter and the notes of counsel, which were supplied later to the Reporter.  Counsel would also sometimes pay to have their arguments before the Court printed out in pamphlet form, as Salmon P. Chase did for his argument in the Morse telegraph patent case, which led opposing counsel to also print his argument.  The lack of any questions from the bench strongly suggests that these were created from the prepared arguments of counsel, not a transcription of the proceedings.  John Quincy Adams’s 1841 argument in the Amistad case (later dramatized in film) is generally considered the first transcript of an argument before the Court, but it is most likely taken from Adams’s notes, coupled with the notes of another individual present.

At the dawn of the republic limited shorthand techniques made verbatim transcription difficult, something which plagues early transcriptions of Congressional Debates, particularly the Annals of Congress and Register of Debates.  Techniques of shorthand steadily developed in the nineteenth century, and in 1879 Miles Bartholomew received the first of several patents for a stenographic typewriter, which would revolutionize the practice of transcribing court proceedings.1  For this period until the dawn of recording in 1955 the Supreme Court allowed transcriptions to be created at the expense of one or both of the parties if they wanted it, but copies were generally not provided to the Supreme Court except by occasional courtesy (no set procedure seems to have existed).

The major public source of transcripts of Supreme Court Oral Arguments is a microform collection created by the Congressional Information Service, now maintained by Proquest.  It largely mirrors the Oyez Database, but does have a highly selective collection of argument transcripts from OT1952-1954.  I’ve included a list below the jump.  An additional resource, although unfortunately limited to Constitutional cases, is Landmark Briefs and Arguments of the Supreme Court of the United States: Constitutional Law, which is partially available online through Hathitrust.2  This set contains the oral argument for many major constitutional cases, and was created in part using the collection held by the U.S. Supreme Court Library.  I’ve included a list of the cases with complete or partial transcripts included in this collection (from before OT 1955) below the jump as well.

One surprise I had was how many transcripts are held at the Supreme Court Library, and the list I’ve included below the jump is as I understand it the first time this list has been made public.  On reflection it isn’t surprising that many of these transcripts exist – it generally stands to reason that given the expense of litigating a case all the way to the US Supreme Court (high even in those days, especially with the introduction of intermediate appellate review in 1891), it would have been worthwhile to pay for a transcript to be made.  However, the US Supreme Court Library only has about 150 of them from before OT1955.  I strongly suspect that there are dozens if not hundreds more buried in old law firm files, waiting to be found (especially from the 1940s and early 1950s).  A concerted effort among lawyers and scholars to find more of these transcripts might open a goldmine.

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  1. I didn’t see a scholarly source on this subject in a brief search, so I used this post and a few others
  2. This set was created in 1975, but Hathitrust makes the volumes covering cases until 1923 free to view – an interesting position re copyright.  Presumably they believe that briefs may be covered by copyright but the edited volumes have thin protection at best.  Or they didn’t notice that the set was published in 1975, regardless of the dates of cases.