Supreme Court Review

Article Title

Advocacy History in the Supreme Court


The conventional wisdom within the legal academy concerning the meaning of a Supreme Court opinion seems both noncontroversial and unassailable. As evidenced by how law faculty routinely both write and teach, an opinion’s meaning naturally depends exclusively on the written words of the official “opinion of the Court” published by the Court on the day the opinion is announced. Although law professors, prompted by conflict within the Court itself on the question, have debated now for decades whether it is legitimate to consider legislative history in determining the meaning of otherwise ambiguous statutory text, there has been a sharply contrasting absence of any legal scholarship examining whether there is a comparable official history to be consulted in resolving ambiguities in the text of the Court’s opinions. It has been common ground that there is no “judicial history” analogous to legislative history.Hiding in plain sight from academic notice is the actual practice of Supreme Court advocates and, even more important, Supreme Court Justices. That practice has long made clear that such an official history does in fact exist and is regularly consulted by both advocates and Justices. It is not found in what many might assume to be the closest analogue: the personal papers of the Justices themselves. Those papers are not part of the official record of the case. Unlike presidential papers, the papers of each Justice—bench memoranda, interchambers memoranda, draft opinions, and voting records—are the exclusive property of the Justice and not generally publicly available. The comparable contemporaneous history is found instead in the advocacy underlying the Court’s ruling—the written briefs and oral argument—all of which is part of the official record of the case that is made publicly available for all to see. In this respect, advocacy history of a case is singularly distinct from any of a host of outside, largely unknowable contextual factors external to the public record in a case that one might speculate influenced the votes of individual Justices and, accordingly, the Court’s ruling itself.

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